from the Iowa District Court for Des Moines County, Mark E.
Lukinich appeals the denial of his application for
postconviction relief. AFFIRMED.
Campbell of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
POTTERFIELD, PRESIDING JUDGE.
Lukinich appeals the denial of his postconviction-relief
(PCR) application. Lukinich and his girlfriend, Desirae
Pearson, were convicted after a joint jury trial of two
counts of first-degree robbery and two counts of first-degree
burglary for their actions at two homes on Thanksgiving 2010
when Lukinich was eighteen years old and Pearson was
seventeen years old. Lukinich first raised his
ineffective-assistance-of-counsel claims on direct appeal
from his judgment and sentence, where a panel of this court
preserved his claims for PCR. State v. Lukinich, No.
11-1306, 2012 WL 3860742, at *4 (Iowa Ct. App. Sept. 6,
2012). Lukinich filed his PCR application and alleged his
trial counsel provided ineffective assistance through ten
different errors or omissions. The district court denied
Lukinich's PCR application, and he appealed.
Background Facts and Proceedings
Iowa Supreme Court summarized the relevant background facts
of this appeal in its decision vacating Desirae Pearson's
On November 25, 2010 Pearson and her boyfriend, Devon
Lukinich, armed themselves with BB guns that looked like
handguns and went on a robbery spree in Burlington and West
Burlington. . . . Pearson and Lukinich wore bandanas to
conceal their faces and gloves to guard against leaving
fingerprints. Pearson also wore a parka with a fur-lined hood
pulled over her head.
Around 9:15 p.m., Pearson and Lukinich were allegedly
involved in an altercation with a Burlington resident that
led to a 911 call. Though Pearson and Lukinich had fled the
scene by the time police arrived, the resident relayed
information about Pearson's vehicle to police, who then
put out the description of the vehicle to officers in the
Around 9:45 p.m., Pearson and Lukinich knocked on the door of
Zachary Moore. When Moore opened the door, Pearson pointed
her BB gun at Moore and told him that he was being robbed.
Lukinich then informed Moore that Pearson was not joking and
that he would shoot him if Pearson would not. Lukinich told
Moore he was looking for the "weed money" as well
as two individuals. Moore testified he laid on the floor
while the pair took his laptop, television, iPod, a handheld
videogame game system, a small global positioning device
(GPS), and some cash.
Later that night, Pearson and Lukinich entered the home of
Joan Wright, an eighty-one-year-old woman, and her son,
Ronald Wright. At the time, Joan was in bed and Ronald was in
the basement. Lukinich climbed through a kitchen window and
opened a door for Pearson. Pearson took cash out of a purse
that was sitting on the kitchen table. The pair also took
three pill bottles containing prescription medication.
Lukinich then went into an unoccupied bedroom, while Pearson
stood in the hallway just outside the doorway. After hearing
noises and seeing the shadows of people she did not
recognize, Joan got out of bed to investigate. She saw
Lukinich in her son's bedroom, holding Ronald's two
shotguns in their cases. Lukinich told Joan to go back to her
bedroom, and Pearson told Joan to do as she was told.
Lukinich and Pearson then opened their jackets, revealing the
BB guns. When Joan yelled to her son that they were being
robbed, Lukinich pushed her backward into a doorframe. The
force of the blow fractured her shoulder. Lukinich decided to
take one of Ronald's shotguns, and the pair left the
home. Police responded to the Wrights' home around 11:44
Just moments after they left the Wrights' home, police
apprehended Pearson and Lukinich in their car. . . . When the
officers first viewed the BB guns in the trunk of the
vehicle, the officers thought the weapons were real handguns.
One of the BB guns bore a strong resemblance to a Glock model
30 handgun and the other to a Taurus PT 1911 handgun.
State v. Pearson, 836 N.W.2d 88');">836 N.W.2d 88, 90-91 (Iowa 2013).
was charged with two counts of first-degree burglary and two
counts of first-degree robbery as well as criminal mischief
arising from a third incident that evening. Significant to
this appeal, an element of both first-degree burglary and
first-degree robbery charges is that the defendant had a
"dangerous weapon" while committing the crime.
See Iowa Code §§ 711.2 (2009) ("A
person commits robbery in the first degree when, while
perpetrating a robbery, the person . . . is armed with a
dangerous weapon."); 713.3(1)(b) ("A person commits
burglary in the first degree if, while perpetrating a
burglary . . . [t]he person has possession of a dangerous
convicted Lukinich of the first-degree burglary and
first-degree robbery charges but deadlocked on the
criminal-mischief charge. The district court entered judgment
and sentence and imposed the seventy percent mandatory
minimum sentence a for first-degree robbery conviction under
section 902.12(5). Lukinich appealed. He made three
arguments: the district court erred by failing to give the
jury a special interrogatory on the question of whether he
committed the crimes while in possession of a dangerous
weapon; insufficient evidence showed the BB guns used in the
crimes were "dangerous weapons" within the meaning
of the first-degree robbery and first-degree burglary
statutes; and trial counsel was ineffective for failing to
hire a ballistics expert to assist in challenging the
testimony of the State's ballistics expert.
substantial evidence issue, a panel of our court concluded
the evidence on the record supported the jury's finding
that the BB guns were "dangerous
weapons." Lukinich, 2012 WL 3860742, at *3.
The State's ballistics expert's testimony
demonstrated the BB guns were "designed primarily for
use in inflicting death or injury"; the witness had
tested the BB guns and found they shot pellets fast enough to
break a person's skin or penetrate their eye and cause
serious injury or kill. Id. Other evidence showed
the BB gun was a "device of any sort whatsoever which is
actually used in such a way as to indicate that the user
intended to inflict death or serious injury":
The record further reveals that Lukinich and his co-defendant
came to Moore's house. When Moore opened the door,
Lukinich's co-defendant pointed a gun "right
at" him and said this was a robbery. Lukinich then
stated, "If she won't shoot you, I will." Moore
assumed Lukinich also had a gun, as he placed a metal object
on the coffee table ...