              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
                                   3

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?
                                          5
              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.
                                        6

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 two-

prong 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).
                                      7

      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,
                                    8
      (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.
                                     9

      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.
