IN THE COURT OF APPEALS OF IOWA

No. 19-0839

Filed June 3, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SULLIVAN PIERRE SMITH-BERRY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller, 

Judge.

The defendant appeals his convictions and sentences. CONVICTIONS 

REVERSED IN PART, SENTENCES VACATED, AND REMANDED WITH 

INSTRUCTIONS.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., Schumacher, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
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BOWER, Chief Judge.

Sullivan Pierre Smith-Berry appeals his convictions for sexual assault and 

three counts of robbery in the first degree, asserting his conduct constituted only 

one act of robbery—not three—and his trial counsel was ineffective by failing to 

challenge the sufficiency of the evidence on two additional counts of robbery. 

Smith-Berry also argues the district court lacked statutory authority to require him 

to complete a sex-offender assessment and treatment after imposing a sentence 

of incarceration for his sexual-assault conviction, and he asks to be resentenced 

on his robbery convictions pursuant to the recently enacted Iowa Code section 

902.12(3) and 901.11(3) (2019). We reverse two robbery convictions, vacate the 

sentences, and remand for resentencing.

I. Background Facts and Proceedings. 

Viewing the evidence in the light most favorable to the State, a jury could 

find the following. On the evening of November 3, 2017, Smith-Berry and Earl

Riley kicked in the door of an apartment where Reed and Jacob lived.1 Jacob’s 

sister, Alexandrea, was visiting at the time of the break in. Smith-Berry was 

carrying an assault-style rifle when he entered Reed’s bedroom, where Reed and 

Jacob were standing; they had pushed Alexandrea into the closet. Smith-Berry 

found Alexandrea and pulled her from the closet and ordered all three to the floor. 

 

1 We will use only the first names of the victims. A third person lived in the 

apartment with Reed and Jacob but was not home at the time of the break in. The 

third person resided in the second bedroom and Jacob slept in the living room. 

Someone had broken into the apartment two days earlier and taken 

computers, video games and an Xbox. 
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Alexandrea implored Smith-Berry not to hurt her little brother and his friend, stating 

she would do anything. 

The intruders asked where “Tre”2 was and demanded money, drugs, and 

all personal items. While Smith-Berry trained the rifle on the three, Riley ransacked 

the apartment looking “to find stuff.” Riley searched Reed’s closet and demanded 

Reed open the safe that was there. He checked underneath the bed, the desk 

drawer, and the television stand. Riley also searched the other rooms in the 

apartment—the second bedroom, the bathroom, the living room, and the kitchen. 

Jacob and Reed were repeatedly hit with the butt of the rifle. Jacob was ordered 

out of the bedroom and onto the living room floor. Smith-Berry then dragged 

Alexandrea into the second bedroom and forced her to perform oral sex and then 

submit to vaginal sex while Riley paced between the rooms holding the rifle. After 

ejaculating on her back, Smith-Berry took Alexandrea’s T-shirt she was wearing 

and used it to wipe her back and himself. The intruders then left. 

At the trial, Jacob said Smith-Berry entered the room with the gun at his 

shoulder, pointing at them.3 Jacob also testified Smith-Berry pulled out the clip, 

showed them the clip with the bullets, and stated, “We’re not fucking around.” 

Reed and Alexandrea also testified about the long gun being pointed at them and 

feeling threatened. Alexandrea testified she thought she was going to die. 

 

2 Tre had lived in the apartment in the past.

3 Jacob described the weapon that was used by the intruders, testifying he hunted 

as he was growing up, he was around guns, and had seen assault-style weapons

before. His cousin had an AR-15. Jacob described the sight and the clip, the 

color, the plastic grip on the barrel, and stated the weapon used by Smith-Berry 

looked like his cousin’s AR-15.
4

Reed testified the intruders took his PlayStation and games, as well as 

about $800 that he had in his safe. Jacob observed the intruders search through 

his property, though he did not have much there, and noted “there was a couple of 

dollars out with my stuff that got taken.” He also testified he believed the intruders

took Alexandrea’s cell phone as well as her shirt.

Smith-Berry was convicted of one count of burglary in the first degree (count 

1), three counts of first-degree robbery (counts 2, 3, 4), and one count of sexual 

abuse in the second degree (count 5). The court sentenced him to a twenty-five 

year term of imprisonment with a mandatory minimum of seventy percent on each 

count. The sentences for the three robbery counts were to be served concurrently, 

but consecutive to count 5, and count 1 was to “run consecutive to all other counts.” 

The court required Smith-Berry to register as a sex offender and imposed a 

special sentence of lifetime parole pursuant to Iowa Code section 903B.1. The 

court also ordered Smith-Berry to “complete a sex offender assessment and shall 

follow through with any sex offender treatment recommended by the Department 

of Corrections as a result of said assessment.”

On appeal, Smith-Berry challenges trial counsel’s performance as deficient

and the court’s order to undergo sex-offender assessment and treatment. He also 

seeks resentencing to determine the mandatory-minimum sentence pursuant to 

recently enacted Iowa Code section 902.12(3) and 901.11(3).

II. Standard of Review.

We review ineffective-assistance of counsel claims de novo. State v. Ross, 

845 N.W.2d 692, 697 (Iowa 2014). Generally, a claim of an illegal sentence is 
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reviewed for correction of errors at law. State v. Petty, 925 N.W.2d 190, 195 (Iowa 

2019). 

III. Discussion.

A. Ineffective-assistance-of-counsel claim. On appeal, Smith-Berry first 

contends trial counsel’s performance was constitutionally deficient in failing to 

request merger of his robbery convictions,4 claiming there was not sufficient 

evidence to support three separate robbery convictions.5 

We analyze ineffective-assistance-of-counsel claims under the twoprong test set forth in Strickland v. Washington, 466 U.S. 668, 687 

(1984). The first prong requires the defendant to show a deficiency 

in counsel’s performance. Under this prong, the presumption is the 

attorney competently performed his or her duties. The defendant 

“rebuts this presumption by showing a preponderance of the 

evidence demonstrates counsel failed to perform an essential duty.” 

 

4 This “merger” argument is misplaced. See State v. Copenhaver, 844 N.W.2d 

442, 447 (Iowa 2014) (noting a limit of the “merger doctrine to double jeopardy 

claims involving lesser-included offenses”). 

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“To preserve error on a claim of insufficient evidence for appellate review in a 

criminal case, the defendant must make a motion for judgment of acquittal at trial 

that identifies the specific grounds raised on appeal.” State v. Truesdell, 679 

N.W.2d 611, 615 (Iowa 2004). 

Here, defense counsel did make a motion for judgment of acquittal as to 

two counts of first-degree robbery, stating:

Count two, being the robbery in the first degree, and count three, 

both robbery counts involving [Alexandrea] and [Jacob], specifically 

on those two counts, Your Honor, not enough evidence to allow the 

two additional counts of robbery first to go to the jury.

When you listen to the evidence that’s been provided in this 

case those—as far as the robbery first charge, the witnesses did not

indicate sufficient evidence to allow the jury to consider counts two 

and three.

Defense counsel’s general motion for judgment of acquittal failed to identify 

any specific elements of the charges not supported by the evidence. Thus, SmithBerry raises the challenge as a claim of ineffective assistance of counsel. See id. 

at 615–16 (stating failure to preserve error at trial can support an ineffective 

assistance of counsel claim). Because this appeal was pending prior to July 1, 

2019, we may consider the ineffective-assistance-of-counsel claim on direct 

appeal if the record is adequate. See State v. Macke, 933 N.W.2d 226, 231 (Iowa 

2019). 
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Counsel breaches an essential duty when counsel makes such 

serious errors that counsel is not functioning as the advocate the 

Sixth Amendment guarantees. “[W]e require more than a showing 

that trial strategy backfired or that another attorney would have 

prepared and tried the case somewhat differently.” Trial counsel has 

no duty to raise an issue that lacks merit. 

The second prong requires the defendant to show “the 

deficient performance prejudiced the defense. This requires 

showing that counsel’s errors were so serious as to deprive the 

defendant of a fair trial . . . .” The defendant must prove by a 

reasonable probability the result of the proceeding would have 

differed but for counsel’s errors.

Ross, 845 N.W.2d at 697–98 (citations omitted).

“We review a sufficiency-of-evidence claim for correction of errors at law.” 

Copenhaver, 844 N.W.2d at 449. We consider all the evidence presented at trial 

and view the evidence in the light most favorable to the State. Id. “The verdict is 

supported by substantial evidence when the evidence could convince a rational 

trier of fact the defendant is guilty beyond a reasonable doubt.” Id. If there is 

substantial evidence to support three robbery convictions, trial counsel was not 

required to challenge the sufficiency of the evidence. See Ross, 845 N.W.2d at 

698 (“Trial counsel has no duty to raise an issue that lacks merit.”). 

Our supreme court discussed the unit of prosecution for robbery in 

Copenhaver, 844 N.W.2d at 449, stating, 

[T]he unit of prosecution for robbery requires the defendant to have 

the intent to commit a theft, coupled with any of the following—

commits an assault upon another, threatens another with or 

purposely puts another in fear of immediate serious injury, or 

threatens to commit immediately any forcible felony. 

Smith-Berry acknowledges the evidence presented established three separate 

assaults or threats. He argues, however, the evidence supports only a finding that 

he intended to commit a single theft, claiming the intruders “ended up taking . . . 
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items solely belonging to Reed.” The focus is not particularly helpful, as the 

question is whether Smith-Berry had an intent to commit more than one theft. See 

id. (“If the defendant intends to commit only one theft, there can be only one 

robbery no matter how many assaults occur while the defendant intends to commit 

the theft.”). 

The court set out “the factors we consider to determine if substantial 

evidence supports defendant’s conduct as separate and distinct acts or one 

continuous act”:

These factors are (1) the time interval occurring between the 

successive actions of the defendant, (2) the place of the actions, 

(3) the identity of the victims, (4) the existence of an intervening act, 

(5) the similarity of defendant’s actions, and (6) defendant’s intent at 

the time of his actions.

Id. at 449–50 (citation omitted). In Copenhaver, the court applied the factors to the 

facts of the case: 

Copenhaver approached each teller individually, leaving an interval 

of time between each act. He did not stay in one place, but 

approached each teller at her window. Finally, we note the 

intervening act of the second teller, Ries, coming to her window after 

the first teller, Kasmiskie, gave Copenhaver money from her cash 

drawer.

Id. at 450. The court found substantial evidence to conclude “Copenhaver had the 

intent to commit two separate and distinct thefts.” Id. 

Neither party here explores these factors. But, we believe the State’s 

recitation of the facts weighs against a finding of an intent to commit three separate 

and distinct thefts. The State’s brief describes the robbery:

Smith-Berry and Earl Riley demanded “stuff.” The jury heard that as 

one of the robbers pointed an assault rifle at the three victims, the 

other “was basically searching through everything and trying to find 

stuff.” They rummaged indiscriminately; not only did they limit their 
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search to [Reed’s] bedroom, but they also searched the living room—

where Jacob had his property—as well as the other rooms, including 

the bathroom, and the kitchen. And when they found something of 

value, such as the $15 or $20 that was sitting on the kitchen table, 

they took it. 

While we agree with the State that there was clear evidence the intruders 

“were going to steal anything of value from anyone in the apartment,” the above

description does not show a time interval occurring between successive actions, a 

distinction of place, or the existence of an intervening act of the defendant. There 

were three persons in the apartment, but the demand for money, drugs, and “all 

personal property” does not appear to have been made to each individual. There 

is substantial evidence to support a conviction on one count of robbery. However, 

we conclude there is insufficient evidence from which the jury could find an intent 

to commit three separate and distinct thefts. Consequently, trial counsel’s failure 

to preserve error prejudiced Smith-Berry. We reverse and remand for entry of a 

judgment of guilty on one count of robbery and resentencing.

B. Imposing sex-offender assessment as condition of sentence. SmithBerry argues that the district court lacked authority to require him to undergo a

sex-offender assessment and treatment as part of his prison sentence. The State 

concedes the district court lacked statutory authority to order him to complete a 

sex-offender assessment and treatment while incarcerated. That authority is

vested in the director of the department of corrections. See Iowa Code § 903A.2. 

We vacate that portion of the sentencing order. 

C. Resentencing. Smith-Berry and the State observe that resentencing is 

required due to the recently enacted Iowa Code sections 901.11(3) and 902.12(3). 

Effective July 1, 2019, the legislature amended the sentencing statute for robbery 
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in the first degree and directed that a defendant convicted “on or after July 1, 2018, 

shall be denied parole or work release until the person has served between onehalf and seven-tenths of the maximum term of the person’s sentence.” See Iowa 

Code § 902.12(3). The newly-enacted statute also provided that at the time of 

sentencing, the district court shall make the determination of how long the 

defendant must serve based on certain criteria. See id. § 901.11(3). Because the 

newly enacted section 902.12(3) relates back to convictions that occurred on or 

after July 1, 2018, Smith-Berry qualifies for resentencing on his robbery conviction

to allow the district court to consider the mandatory-minimum term to be imposed. 

We reverse two convictions of robbery in the first degree and remand for 

resentencing with instructions for the district court to delete the sentence 

requirement that Smith-Berry to complete a sex-offender assessment and 

treatment and to consider the appropriate length of Smith-Berry’s mandatory 

minimum sentence under Iowa Code section 902.12(3).

CONVICTIONS REVERSED IN PART, SENTENCE VACATED, AND 

REMANDED WITH INSTRUCTIONS.