Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Gibson

Court of Appeals of Iowa

July 3, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JOHN WILFRED GIBSON, JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Monona County, Jeffrey L. Poulson, Judge.

         Defendant appeals his convictions for being a felon in possession of a firearm, assault on a peace officer, two counts of child endangerment, and two counts of assault while participating in a felony.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Mullins, P.J., Bower, J., and Blane, S.J. [*]

          Blane, Senior Judge.

         John Gibson appeals his convictions for being a felon in possession of a firearm, assault on a peace officer, two counts of child endangerment, and two counts of assault while participating in a felony. We determine Gibson's sentence for being a felon in possession of a firearm should not be merged with his sentences for assault while participating in a felony. We find the district court did not abuse its discretion in deciding the sentence for being a felon in possession of a firearm should run consecutively to Gibson's other sentences, which run concurrently. On the matter of mandatory minimum sentences for assault on a peace officer and assault while participating in a felony, we remand for a partial resentencing hearing to allow the court to exercise its discretion to determine whether the five-year minimum sentence should be imposed.

         I. Background Facts & Proceedings

         In 2000, Gibson was convicted of third-degree burglary, a class "D" felony. Despite his status as a felon, Gibson obtained a rifle in 2016. On June 20, 2016, Gibson loaded his gun and told his girlfriend he was going to kill her and his three children, C.J., W.G., and M.G., plus another child, C.S., who was staying at the home. He punched or slapped C.J. and C.S. Officers responded to 911 calls, announcing their presence as peace officers. Gibson answered the door, pointing the rifle at an officer. Gibson then backed into the house and put the gun under his chin, threatening to kill himself. Officers talked Gibson into putting the gun down, and he was arrested.

         Gibson was charged with (I) being a felon in possession of a firearm, in violation of Iowa Code section 724.26 (2016); (II) assault on a peace officer, in violation of section 708.3A(2); (III) child endangerment (W.G.), in violation of section 726.6(1)(a); (IV) child endangerment (M.G.), in violation of section 726.6(1)(a); (V) assault while participating in a felony (C.J.), in violation of section 708.3; (VI) assault while participating in a felony (C.S.), in violation of section 708.3; and (VII) possession of marijuana, in violation of section 124.401(5).

         Gibson waived his right to a jury trial, and the case was tried to the court. The court found Gibson guilty of all of the offenses charged in the trial information, except possession of marijuana. The court denied Gibson's motion for new trial. Gibson was sentenced to a term of imprisonment not to exceed five years on each of his six convictions. The court found the offense of being a felon in possession of a firearm was separate and distinct from the other offenses because Gibson had a "firearm in his possession for an extended period of time." The court concluded it was "reasonable to read [the other offenses] as being part of the same incident" and determined they should run concurrently, but consecutive to the sentence for being a felon in possession of a firearm. The court later entered an order imposing the mandatory minimum sentence on counts II, V, and VI pursuant to Iowa Code section 902.7. Gibson now appeals.

         II. Merger of Sentences

         Gibson claims his sentence for being a felon in possession of a firearm should merge with his sentences on the two counts of assault while participating in a felony because being a felon in possession of a firearm was the underlying felony for the offenses. He states that since being a felon in possession of a firearm is an element of assault while participating in a felony in his offenses, it is a lesser-included offense, which would mean the sentences merge.

         A claim "the district court erred in failing to merge convictions can be raised at any time because any unlawful failure to merge results in an illegal sentence." State v. West, 924 N.W.2d 502');">924 N.W.2d 502, 504 (Iowa 2019). "Review of an illegal sentence ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.