                    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.
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       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 two-
         prong 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”).
5 “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, Smith-
Berry 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. Smith-

Berry 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 one-

half 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.
