review from the Iowa Court of Appeals.
from the Iowa District Court for Decatur County, John D.
appellant appeals from the summary dismissal of his
application for postconviction relief.
Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
years ago David Dewberry stood in open court with his counsel
and pleaded guilty to robbery in the first degree, in
violation of Iowa Code section 711.2 (2011). In this
postconviction-relief case, Dewberry now claims he is
actually innocent of robbery in the first degree and seeks to
vacate his conviction. "Dispositive to this case"
is a "fundamental fact: [Dewberry] is not innocent, in
any sense of the word." Herrera v. Collins, 506
U.S. 390, 419, 113 S.Ct. 853, 870 (1993) (O'Connor, J.,
conviction arises out of a home invasion he perpetrated in
July 2011. The facts and circumstances of the home invasion
were set forth in a prior decision affirming the denial of
Dewberry's first application for postconviction relief,
and we need not repeat them at any great length herein.
See Dewberry v. State, No. 14-1198, 2015 WL 7567514,
at *1-2 (Iowa Ct. App. Nov. 25, 2015). In short, Dewberry
burst through the front door of a single-family residence in
the middle of the night. He wore a black ski mask and carried
what looked like a black handgun. After Dewberry burst in, he
grabbed one of the family members by the neck, threatened to
shoot her, and demanded money. Rather than give in to
Dewberry's demand, the family physically resisted
Dewberry. During the ensuing physical altercation, Dewberry
and two of the family members tumbled down a staircase.
Dewberry then ran back up the staircase, put his gun in
another's face, and screamed, "Give me your
money." By that point, one of the family members had
retrieved a 12-gauge shotgun. He pointed the shotgun at
Dewberry's head, and Dewberry fled out the front door.
When officers arrived at the scene, they found three duffel
bags in a field near the home filled with tape, twine, and
was caught shortly thereafter. The evidence against him was
overwhelming. Dewberry was charged with one count of burglary
in the first degree, three counts of robbery in the first
degree, one count of assault while participating in a felony,
and one count of going armed with intent. In total, Dewberry
faced up to 110 years' incarceration. Pursuant to a plea
agreement, Dewberry pleaded guilty to one count of robbery in
the first degree and was sentenced to an indeterminate term
of incarceration not to exceed twenty-five years. In exchange
for Dewberry's guilty plea, the State agreed to dismiss
the remaining charges.
plea colloquy was thorough. The court asked Dewberry to
explain what he did:
THE DEFENDANT: Well, Your Honor, on the day of July 16, 2011,
I was going to commit a theft, and in doing so, I entered a
residence that was not mine nor had any permission to enter
and used the BB gun to put fear or threaten the residents of
THE COURT: Can you describe for me further what this gun was
that you used?
THE DEFENDANT: It was just a BB gun.
THE COURT: Was it a spring-loaded BB gun, or was it C02?
THE DEFENDANT: It was just a spring-loaded, I think. It might
have been C02. I don't know. I never shot it.
THE COURT: Well, can you describe what it looked like?
THE DEFENDANT: It was black.
THE COURT: Can you describe it further as to the shape of it?
THE DEFENDANT: It looked like a gun.
THE COURT: Have you ever seen a real gun ...