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Dewberry v. State

Supreme Court of Iowa

December 6, 2019

DAVID PALMER DEWBERRY, Appellant,
v.
STATE OF IOWA, Appellee.

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Decatur County, John D. Lloyd, Judge.

         The appellant appeals from the summary dismissal of his application for postconviction relief.

          Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          McDONALD, Justice.

         Eight 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., concurring).

         I.

         Dewberry's 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 garbage bags.

         Dewberry 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.

         The 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 home.
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 ...

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