IN THE SUPREME COURT OF IOWA

No. 11–1272

Filed March 21, 2014

STATE OF IOWA,

Appellee,

vs.

TOMMY GINES, JR.,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Douglas F. 

Staskal, Judge.

The defendant seeks further review of a court of appeals decision 

affirming his convictions and sentences. DECISION OF COURT OF 

APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED, 

SENTENCES VACATED, AND CASE REMANDED WITH DIRECTIONS.

Mark C. Smith, State Appellate Defender, and Dennis D. 

Hendrickson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Jean C. Pettinger, 

Assistant Attorney General, John P. Sarcone, County Attorney, and 

James P. Ward, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

The defendant in this case argues his trial counsel was ineffective 

in permitting him to enter a guilty plea to three counts of intimidation 

with a dangerous weapon with intent in violation of Iowa Code section 

708.6 (2011) and that the court erred in imposing three consecutive 

sentences. We transferred this case to the court of appeals. It affirmed 

the defendant’s convictions. On further review, we find trial counsel was 

ineffective for allowing the defendant to plead guilty to three separate 

charges of intimidation with a dangerous weapon with intent when no 

factual basis existed to establish his shooting of his gun in the air was

three separate and distinct acts. Thus, we do not need to reach the 

defendant’s claim that the court erred in imposing three consecutive 

sentences. Therefore, we vacate the decision of the court of appeals, 

reverse the judgment of the district court on the three separate charges 

of intimidation with a dangerous weapon with intent, vacate the 

sentences, and remand the case for further proceedings consistent with 

this opinion.

I. Background Facts and Proceedings.

On May 6, 2011, Tommy Gines, Jr. was in the parking lot of the 

Courtside Bar in Polk County. Gines fired multiple gunshots in the air in 

the presence of other people. 

The State originally charged Gines by information with one count 

of intimidation with a dangerous weapon with intent in violation of Iowa 

Code section 708.6 and one count of a felon in possession of a firearm in 

violation of section 724.26. The State later amended the information to 

include five counts of intimidation with a dangerous weapon with intent, 

and one count of a felon in possession of a firearm. The amended 
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information also contained a habitual-offender sentencing enhancement 

applying to each count under section 902.8.

On July 7, Gines pled guilty under a plea agreement to three 

counts of intimidation with a dangerous weapon with intent and one 

count of a felon in possession of a firearm. The guilty plea record 

regarding the factual basis for the three separate counts of intimidation 

with a dangerous weapon with intent was as follows:

THE COURT: Now, these are the facts that the State 

would have to prove if you had a trial in order for a jury to 

find you guilty of intimidation with a dangerous weapon:

That on or about May 26, 2011, here in Polk County 

you shot a dangerous weapon, which could be a firearm, into 

or within an assembly of people nearby, a group of people, 

and you placed those people in reasonable apprehension of 

serious injury by shooting a firearm near them and that your 

act at the time was done with the intent to injure or provoke 

fear or anger in the others that were nearby when you fired 

the firearm.

Those are the facts that the State would have to prove 

if you had a trial in order for a jury to find you guilty of 

intimidation with a dangerous weapon.

Do you understand what the State would have to prove 

if you had a trial?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about what 

the State would have to prove if you had a trial?

THE DEFENDANT: No.

THE COURT: Do you have any questions about 

anything that I’ve explained so far?

THE DEFENDANT: No.

. . . .

THE COURT: And just to repeat, you’ve understood 

everything I’ve explained so far?
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THE DEFENDANT: Yes, I have.

THE COURT: Understanding everything I’ve explained 

so far, as to Count I, intimidation with a dangerous weapon, 

a C felony, how do you plead? Guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: And as to Count II, intimidation with a 

dangerous weapon, how do you plead? Guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: In Count III, intimidation with a 

dangerous weapon, guilty or not guilty?

THE DEFENDANT: Guilty.

. . . .

THE COURT: Tell me what you did that makes you 

guilty of intimidation with a dangerous weapon.

THE DEFENDANT: I fired some shots at a bar, local 

bar, outside. People were around.

THE COURT: And were these shots from a firearm?

THE DEFENDANT: Yes.

THE COURT: A pistol, or what kind of a firearm?

THE DEFENDANT: Pistol.

THE COURT: And was this at or -- at the Courtside 

bar or in the parking lot of the Courtside bar?

THE DEFENDANT: Yes.

THE COURT: And that’s located in Polk County, isn’t 

it? 

THE DEFENDANT: Yes.

THE COURT: Was this on May -- on or about May 6, 

2011?

THE DEFENDANT: Yes.

THE COURT: And were there people nearby when you 

were firing these shots?
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THE DEFENDANT: Yes, there were.

THE COURT: And do you agree with the allegation that 

by your engaging in this behavior those people that were 

nearby were put in reasonable apprehension of serious 

injury?

THE DEFENDANT: Yes.

THE COURT: Pardon me?

THE DEFENDANT: Yes.

THE COURT: And was your intent by doing this to 

injure or provoke fear or anger in other people?

THE DEFENDANT: Yes.

THE COURT: And how many shots -- well, each of 

Counts I, II, and III are based on an individual shot of the 

weapon. Did you shoot the weapon three times at least?

THE DEFENDANT: Yes.

The court dismissed two counts charging Gines with intimidation 

with a dangerous weapon with intent and did not apply the sentence 

enhancements. The district court sentenced Gines to ten years each for 

the three counts of intimidation with a dangerous weapon with intent, 

and five years for the felon in possession of a firearm count.1 All the 

sentences ran consecutively. 

Gines appealed, claiming his counsel was ineffective for allowing 

him to plead guilty to three counts of intimidation with a dangerous 

weapon with intent when there was no factual basis to support three 

separate and distinct acts. He further claims the district court erred in 

imposing consecutive sentences for the three counts of intimidation with 

a dangerous weapon with intent. We transferred the case to our court of 

 1The judge incorporated two unrelated cases into the judgment. This resulted in 

revocation of suspended sentences and concurrent sentencing with the thirty-five-year 

sentence relevant to this case. 
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appeals. It affirmed the district court judgment. Gines asked for further 

review, which we granted.

II. Issues.

Although Gines raises two issues on appeal, the issue as to 

whether Gines’s trial counsel was ineffective for allowing him to plead 

guilty to three counts of intimidation with a dangerous weapon with 

intent is dispositive of this appeal. 

III. Standard of Review.

Ineffective-assistance-of-counsel claims are grounded in the Sixth 

Amendment. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We review 

ineffective-assistance-of-counsel claims de novo. Id.

IV. Gines’s Ineffective-Assistance-of-Counsel Claim.

We analyze ineffective-assistance-of-counsel claims under the twoprong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Clay, 824 N.W.2d at 

495. The first prong requires the defendant to show a deficiency in 

counsel’s performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 

80 L. Ed. 2d at 693. The presumption under this prong is the attorney 

competently performed his duties. Clay, 824 N.W.2d at 495. The 

defendant must rebut the presumption by “showing a preponderance of 

the evidence demonstrates counsel failed to perform an essential duty.” 

Id. When counsel makes such serious errors that counsel is not 

functioning as the advocate the Sixth Amendment guarantees, counsel 

breaches the essential duty. Id. “[W]e require more than a showing that 

trial strategy backfired or that another attorney would have prepared and 

tried the case somewhat differently.” Taylor v. State, 352 N.W.2d 683, 

685 (Iowa 1984). 
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The second prong requires the defendant show “the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. 

Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must show counsel’s 

errors were so serious as to deprive the defendant of a fair trial. Id. at 

687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must prove 

by a reasonable probability the result of the proceeding would have 

differed but for counsel’s errors. Id. at 694, 104 S. Ct. at 2068, 80 

L. Ed. 2d at 698.

“The district court may not accept a guilty plea without first 

determining that the plea has a factual basis.” State v. Schminkey, 597 

N.W.2d 785, 788 (Iowa 1999). “Where a factual basis for a charge does 

not exist, and trial counsel allows the defendant to plead guilty anyway, 

counsel has failed to perform an essential duty.” Id. Prejudice is 

inherent in such a case. Id. The only inquiry is whether the record 

shows a factual basis for the guilty plea. Id. “[W]e consider the entire 

record before the district court at the guilty plea hearing, including any 

statements made by the defendant, facts related by the prosecutor, the 

minutes of testimony, and the presentence report.” Id. 

In State v. Ross, 845 N.W.2d 692 (Iowa 2014), we decided the issue 

as to when multiple shots constitute separate and distinct acts of 

intimidation with a dangerous weapon with intent or one continuous act 

of intimidation with a dangerous weapon with intent. There, we said the 

finder of fact must consider certain factors to determine if consecutive 

shots are separate and distinct acts or one continuous act. The factors 

we enumerated in Ross 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, 
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(5) the similarity of defendant’s actions, and (6) defendant’s 

intent at the time of his actions.

Ross, 845 N.W.2d at 705.

There are no facts in the record to establish Gines committed three 

separate and distinct acts of intimidation with a dangerous weapon with 

intent. Although the defendant conceded he fired three shots in the

presence of others, he did not concede each shot was a separate or 

distinct act. Additionally, when asked about his intent at the time, he 

stated that in making these shots he had the intent to injure or provoke 

fear or anger in other people. Consequently, this factual basis is 

insufficient to show the three shots fired constituted separate and 

distinct acts supporting three counts of intimidation with a dangerous 

weapon with intent. Therefore, counsel was ineffective for allowing Gines

to plead guilty to three counts of intimidation with a dangerous weapon 

with intent when there was no factual basis for the three separate and 

distinct acts.

V. Disposition.

Because it may be possible to establish a factual basis for three 

separate and distinct acts of intimidation with a dangerous weapon with 

intent, we vacate the convictions on the three counts of intimidation with 

a dangerous weapon with intent and remand the case to the district 

court to give the State the opportunity to establish a factual basis. 

Schminkey, 597 N.W.2d at 792. If the State can establish a factual basis 

for three separate and distinct charges of intimidation with a dangerous 

weapon with intent, the district court shall resentence Gines on all 

counts, including Gines’s conviction for a felon in possession of a firearm 

count.
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If the State cannot establish a factual basis for three separate and 

distinct charges of intimidation with a dangerous weapon with intent, the 

State did not get the benefit of its plea bargain in exchange for 

dismissing two counts of intimidation with a dangerous weapon with 

intent and not seeking the habitual-offender sentencing enhancement. 

Thus, if the State cannot establish the required factual basis for three 

separate and distinct charges of intimidation with a dangerous weapon 

with intent, we must put the State back in the position it was in before 

making the plea agreement. State v. Allen, 708 N.W.2d 361, 369 (Iowa 

2006). Therefore, if the State cannot establish the required factual basis 

for three separate and distinct charges of intimidation with a dangerous 

weapon with intent, the district court should vacate Gines’s conviction 

for a felon in possession of a firearm count and return the State to the 

position it had before the plea agreement. Additionally if this occurs, the 

State may reinstate any charges or sentencing enhancements dismissed 

from the first amended information in contemplation of the plea 

agreement, file any additional charges supported by the available 

evidence, and proceed against Gines on all charges and sentencing 

enhancements contained in the first amended information and on any 

new charges it wishes to file. See id.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF 

DISTRICT COURT REVERSED, SENTENCES VACATED, AND CASE 

REMANDED WITH DIRECTIONS.