IN THE COURT OF APPEALS OF IOWA
No. 19-1570
Filed October 7, 2020
MARCUS DESHAWN GAMBLIN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Marcus Gamblin appeals the dismissal of his application for postconviction
relief. AFFIRMED.
Britt Gagne of Gagne Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and May and Ahlers, JJ.
2
MAY, Judge.
Marcus Gamblin appeals the dismissal of his application for postconviction
relief (PCR). We affirm.
I. Background
A gunman with a ski mask demanded money from the manager of a
Waterloo store. The manager declined. The gunman left. The manager followed.
He saw the gunman meet another man. And he saw them flee in a car.
Soon, emergency dispatch notified police officers of the robbery attempt.
Soon after, an officer spotted a black Monte Carlo near the store. Another officer
detained the car. Its owner, Medeese Jenkins, was driving. Willie Phillips was in
the front passenger seat. Gamblin was in the back seat.
Gamblin made furtive movements. Officers removed him from the car.
There was one handgun in Gamblin’s pants. There were two black ski masks in
the car. And there was a bag of cocaine on the left rear passenger floorboard.
Gamblin told police it was his and he intended to sell it.
Police obtained shoeprints at the scene. Some matched the shoes worn by
Gamblin.
The State brought four charges against Gamblin: first-degree robbery,
possession of a firearm as a felon, possession of cocaine with intent to deliver,
and possession of a controlled substance. Gamblin pled guilty to the possession-
of-a-controlled-substance charge. He went to trial on the other three charges. The
firearm charge was tried to the bench. The two other charges—first-degree
robbery and possession-with-intent-to-deliver—were tried to a jury.
3
Phillips—who is Gamblin’s cousin—testified (1) he drove Gamblin to the
store; (2) he watched Gamblin go in with a ski mask; (3) he saw Gamblin leave the
store; (4) Gamblin told Phillips he didn’t get anything; and (5) they left in a Monte
Carlo. Phillips also testified he had reached a deal with the State: “I disclose what
I know and I receive ten years.” He went on to explain that (1) he was originally
charged with first-degree robbery; (2) the sentence for first-degree robbery is
twenty-five years with a seventeen-and-a-half-year mandatory minimum—
meaning he would have to serve seventeen and one-half years before being
eligible for parole; (3) by cooperating, he got to plead to a lesser charge that carries
only a ten-year sentence and no mandatory minimum; and (4) as a practical
matter, he will only serve eighteen months.
The jury found Gamblin guilty of first-degree robbery and possession of
cocaine with intent to deliver. The trial court found him guilty of possession of a
firearm as a felon. On direct appeal, this court affirmed. State v. Gamblin, No. 13-
0603, 2014 WL 3747723, at *4 (Iowa Ct. App. July 30, 2014).
Gamblin then brought this PCR action. In a detailed ruling, the PCR court
rejected all of his claims. Gamblin appeals.
II. Scope and Standard of Review
“We review claims of ineffective assistance of counsel de novo.” King v.
State, 797 N.W.2d 565, 570 (Iowa 2011). “In conducting our de novo review, ‘we
give weight to the lower court’s findings concerning witness credibility.’” Id. at 571
(citation omitted).
“To establish [a] claim of ineffective assistance of counsel,” the claimant
must show their “trial counsel failed to perform an essential duty and counsel’s
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failure resulted in constitutional prejudice.” State v. Walker, 935 N.W.2d 874, 881
(Iowa 2019). “The claimant must prove both elements by a preponderance of the
evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012).
To establish breach of an essential duty, the claimant must prove counsel
“perform[ed] below the standard demanded of a reasonably competent attorney.”
State v. Haas, 930 N.W.2d 699, 703 (Iowa 2019) (citation omitted). “In analyzing
the [claimant]’s claims, we ‘must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance . . . .’”
Id. (citation omitted). So the claimant “must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. (citation omitted).
“To establish constitutional prejudice, the defendant is required to show ‘that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.’” Walker, 935 N.W.2d at 881 (citation omitted). “It is not
enough for the defendant to show that the errors had [only] some . . . effect on the
outcome of the proceeding.” Id. (alteration and omission in original) (citation
omitted). “Rather, ‘[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Id. (alteration in original) (citation omitted).
When the applicant fails to show constitutional prejudice, it is not necessary
for the court to decide whether counsel breached a duty. See id.; King, 797 N.W.2d
at 574 (“In this case, however, it is not necessary to decide the issue of whether
King’s counsel provided inadequate assistance because, upon our review of the
5
entire record, we conclude that King has failed to show prejudice as required under
the Strickland[1] test.”).
III. Analysis
On appeal, Gamblin claims his trial counsel was ineffective in (1) permitting
the jury to learn of the potential prison sentence for first-degree robbery and (2)
failing to object to a jury instruction that included a typographical error. We address
each claim in turn.
A. Potential punishment.
As explained, Phillips testified he was also charged with first-degree
robbery. And Phillips told the jury the sentence for first-degree robbery is twenty-
five years with a seventeen-and-a-half-year mandatory minimum. But, because
he cooperated, he only faces an indeterminate term not to exceed ten years with
no mandatory minimum. As a practical matter, Phillips explained, he will be out in
eighteen months.
Gamblin claims his counsel was ineffective in (1) failing to object when the
State asked Phillips about the terms of his deal and (2) actually questioning Phillips
about the specific punishment for first-degree robbery. This last point, Gamblin
claims, caused substantial prejudice because “the jury heard [that] if they convicted
Gamblin of the offense he was charged with[,] he would be serving a mandatory
[seventeen and one-half] years in prison.”
We disagree. Like the PCR court, we think trial counsel’s “decision to place
into evidence the mandatory punishment for first-degree robbery was a reasonable
1 Strickland v. Washington, 466 U.S. 668 (1984).
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trial strategy decision in an attempt to impeach the testimony of Phillips.” So we
do not think counsel breached an essential duty.
Nor do we think counsel’s tactic prejudiced Gamblin. Indeed, as the State
suggests, many defendants would prefer for the jury to know the serious
consequences of a first-degree robbery conviction.
The PCR court was right to reject Gamblin’s claim regarding punishment
evidence.
B. Jury instruction two.
Gamblin also claims his counsel erred in failing to object to instruction two,
which stated:
Gamblin focuses on instruction two’s mistaken—and corrected—reference
to “four counts” against him. Gamblin claims that—especially in light of the
testimony about Phillip’s “deal” with the State—instruction two makes it seem like
Gamblin had originally been charged with two additional crimes2 that had not been
explained to the jury. And, Gamblin argues,
[b]elieving that the defendant is actually accused of additional crimes
beyond what he is facing at trial could significantly alter a [jury’s] view
of the case at hand and lead them to inappropriately believe that the
defendant is more likely to be guilty because of the sheer number of
allegations made regarding criminal activity.
2 Gamblin was also charged with possession of a firearm as a felon. It was tried
to the bench. Also, he pled guilty to a possession-of-a-controlled-substance
charge.
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Although we see Gamblin’s point, we still do not think he has shown
Strickland prejudice. The evidence against Gamblin was overwhelming. As for
the cocaine, Gamblin admitted it was his and he intended to distribute it. As for
the robbery, Gamblin was apprehended soon after it occurred. There were ski
masks in the car with Gamblin. Gamblin had a gun in his pants. Gamblin’s gun
had markings similar to those used in the robbery.3 Gamblin’s shoe markings
matched some found at the scene of the robbery. And Gamblin’s own cousin
detailed Gamblin’s role in the robbery. Given the strength of the State’s case
against Gamblin, we see no “reasonable probability that, but for” the scrivener’s
error in instruction two, “the result of the proceeding would have been different.”
Walker, 935 N.W.2d at 881 (citation omitted). And so the district court was right to
reject Gamblin’s claim concerning instruction two.
IV. Conclusion
The district court was right to dismiss Gamblin’s PCR application.
AFFIRMED.
3 The store manager testified the gun was “short, black” and appeared to have
some “paint removed.” Pictures of the gun found in Gamblin’s pants show it was
short and black. Officer testimony confirmed the gun was “[s]crapped and
scratched, looks like some of the paint or coating is peeling.”