                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1103
                            Filed September 13, 2017


AKI MALIK ROSS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      The applicant appeals from the denial of application for postconviction

relief. AFFIRMED.




      Eric D. Tindal of Tindal Law Office, P.L.C., Washington, for appellant.

      Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                        2


BLANE, Senior Judge.

      Aki Ross appeals from the district court’s denial of his application for

postconviction relief (PCR).

      Ross was originally charged with one count of murder in the first degree

and seven counts of intimidation with a dangerous weapon. At his jury trial, the

jury heard evidence of the following:

      On March 30, 2011, Joevante Howard was walking in a
      neighborhood in Davenport with relatives and friends, including
      Joevante’s uncle, Milton Howard. The group was traveling to the
      birthday party of Joevante’s sister. The group stopped at a local
      gas station to pick up beer and other items before continuing to
      walk east on 12th Street toward the birthday party. The group
      passed a house at the corner of 12th Street and Pershing Avenue.
      The defendant Aki Ross was sitting on the porch of this house with
      four or five other individuals.
             When Ross saw the group pass the house, he went upstairs
      to avoid an altercation with the group. Ross recognized Milton in
      the group, yelled out the window to the group and to Milton, and
      told Milton he did not want any problems. Ross and Milton
      continued to talk to one another. Ross eventually went downstairs
      to the porch because he knew Milton and the group would not be
      leaving soon.
             Milton and Ross argued. At one point, several people on the
      porch physically restrained Ross, and one witness saw Ross with a
      gun in his waistband. The argument lasted no more than fifteen
      minutes. Milton told Ross to put down the gun and come into the
      street and fight. When Ross refused to fight, Milton ran to catch up
      with his group, who had continued walking down Pershing Avenue.
      Ross returned to the house.
             A short time later Ross ran into the street with the gun and
      began firing. The members of the group scattered. When Ross
      began shooting, Milton ran behind a red van on the east side of
      Pershing Avenue. Joevante was on the opposite side of the street.
      One witness testified Ross fired three or four shots and then
      stopped shooting. The witness testified Joevante crossed the
      street as Ross began firing his gun again. Milton saw a bullet hit
      Joevante in this second round of shots. Joevante fell. Another
      person, Milton’s cousin Brett Roelandt, had a gun that day and fired
      one shot at Ross.
             Joevante received two gunshot wounds, one in the back of
      his head and the other in his right thigh. His cause of death was
                                        3


      the gunshot wound to the head. The bullet recovered from
      Joevante’s head wound was a .45 caliber. The police recovered
      eight .45 caliber auto-cartridge cases from the scene. All eight
      cartridge cases came from the same firearm. The criminalist at trial
      could not say whether the bullets came from the same firearm.
      Ross stated at trial that on the day of the shooting he possessed a
      .45 caliber semi-automatic gun. Roelandt’s gun shot .40 caliber
      ammunition. The police found one .40 caliber cartridge at the
      scene.

State v. Ross, 845 N.W.2d 692, 695–96 (Iowa 2014). The jury convicted Ross of

the lesser-included offense of voluntary manslaughter and five of the counts of

intimidation with a dangerous weapon.

      Ross filed a direct appeal, and a panel of our court affirmed his

convictions. He then filed an application for further review, and our supreme

court granted it. On further review, the supreme court considered whether there

was substantial evidence to uphold Ross’s five separate convictions for

intimidation with a dangerous weapon. Id. at 700–06. The court questioned

“how many acts of assault took place on the assembly of people when Ross

discharged his gun,” before ultimately concluding Ross had committed only two

separate, distinct acts and thus could only be convicted of two of the five

charges.   Id. at 702, 706.   Based on the supreme court’s decision, three of

Ross’s convictions for intimidation with a dangerous weapon were vacated.

      Ross was resentenced, receiving a ten-year sentence for each of the

three convictions. The district court ordered the three sentences to be served

consecutively.

      Ross then filed an application for PCR. In it, Ross argued his remaining

two convictions for intimidation with a dangerous weapon should merge with his

conviction for voluntary manslaughter. He cited State v. Love, 858 N.W.2d 721,
                                           4


724–25 (Iowa 2015), in which our supreme court determined the defendant’s

convictions for assault with intent to inflict serious injury and willful injury causing

bodily injury should merge because—although there was substantial evidence to

support the two convictions—one was a lesser-included offense of the other and

the jury had never been asked “to determine if there were two or more separate

and distinct criminal acts.” The PCR court denied Ross’s application, concluding

the counts of intimidation with a dangerous weapon did not merge into the

conviction for voluntary manslaughter.

       Ross appealed the district court’s denial of his application.

       Before us on appeal, Ross makes an argument he did not raise before the

PCR court. He now claims his two convictions for intimidation with a dangerous

weapon should “merge” into one.           As our supreme court noted in Ross,

“merge”—when properly used—denotes a lesser-included offense being

subsumed by the greater offense. See 845 N.W.2d at 701 (“Our merger doctrine

is limited to double jeopardy claims involving lesser-included offenses. Ross’s

argument does not involve lesser-included offenses, but rather the same statute

charged multiple times.” (citation omitted)).      One count of intimidation with a

dangerous weapon is not a lesser-included offense of a second count of

intimidation with dangerous weapon.

       In actuality, Ross is challenging whether there are two or more separate

and distinct criminal acts to support the two separate units of prosecution and

convictions for intimidation with a dangerous weapon. Even more specifically, he

questions whether our supreme court is allowed to make that decision rather

than a jury of his peers. But, here, the supreme court did make that decision in
                                        5

his direct appeal. Id. at 706 (finding substantial evidence to support to counts of

intimidation with a dangerous weapon because “[t]he first set of shots constituted

one continuous crime of intimidation with a dangerous weapon with intent” and

“[t]he second set of shots constituted another continuous crime of intimidation

with a dangerous weapon.”). The law-of-the-case doctrine applies and prevents

us from now deciding otherwise. See Lee v. State, 874 N.W.2d 631, 646 (Iowa

2016) (stating the law-of-the-case doctrine means “an appellate decision

becomes the law of the case and is controlling on both the trial court and on any

further appeals in the same case” and “extends to ‘matters necessarily involved

in the determination of a question’ settled in a prior appeal for purposes of

subsequent appeals” (citations omitted)). Moreover, as noted above, this is not

an argument Ross raised before the PCR court, and he has not now raised it

under a claim his PCR counsel was ineffective. Thus, it is not preserved for our

review. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

      For all the foregoing reasons, we affirm.

      AFFIRMED.
