Alvin Lee Gaines, Applicant-Appellant v. State of Iowa

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1448 Filed July 6, 2017

ALVIN LEE GAINES, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Stephen B. Jackson

Jr. (motion to dismiss) and Ian K. Thornhill (trial), Judges.

Appeal from the denial of an application for postconviction relief.

AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee State.

Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2

MCDONALD, Judge.

Alvin Gaines was convicted of attempted murder, willful injury, and going

armed with intent. This court affirmed his convictions and sentences on direct

appeal. See State v. Gaines, No. 07-0987, 2008 WL 2520829, at *5 (Iowa Ct.

App. June 25, 2008). Gaines filed an application for postconviction relief, which

was denied. The denial of Gaines’s application for postconviction relief was

affirmed by this court. See Gaines v. State, No. 10-0129, 2010 WL 5394733, at

*1 (Iowa Ct. App. Dec. 22, 2010).

This case arises out of a subsequent application for postconviction relief.

In the application, Gaines claimed his sentences are illegal because the

convictions and sentences should merge and/or he cannot be subjected to

consecutive sentences when the convictions are grounded in a single act. The

postconviction-relief court granted summary dismissal of Gaines’s claims. On

review for errors at law, we conclude the claims are without merit. See State v.

Love, 858 N.W.2d 721, 723 (Iowa 2015); Castro v. State, 795 N.W.2d 789, 792

(Iowa 2011). These claims, or materially indistinguishable permutations of these

claims, were resolved in Gaines’s prior proceedings. It is well-settled multiple

convictions and sentences may arise from the same offense conduct, and this

court previously reached this conclusion on direct appeal. See Gaines, 2008 WL

2520829, at *5. Merger applies when multiple offenses are charged and at least

one offense is a lesser-included offense of another. Iowa Code § 701.9 (2005).

This court previously determined none of Gaines’s sentenced offenses was a

lesser-included offense of another. See Gaines, 2008 WL 2520829, at *5. The

merger rule is inapplicable here. 3

We affirm the denial of Gaines’s application for postconviction relief

without further opinion. See Iowa Ct. R. 21.26(1)(a) and (e).

AFFIRMED.