Opinion
No. 04-1621
Filed August 31, 2005
Appeal from the Iowa District Court for Washington County, James Q. Blomgren, Judge.
Joshua Gilpin appeals from the summary disposition of his application for postconviction relief. AFFIRMED.
Linda Del Gallo, Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Barbara Edmondson, County Attorney, and Eric Goers, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Vaitheswaran, JJ.
Joshua Gilpin appeals from the summary disposition of his application for postconviction relief. He contends new, material evidence is now available that requires the vacation of his conviction of first-degree robbery. We affirm.
On June 13, 1999, Gilpin and several friends carried beer and cigarettes out of a convenience store in Washington, Iowa, while Gilpin's friend and roommate, Armando Lemos, held the store clerk at pistol point. The State charged Gilpin with first-degree robbery. At trial, Gilpin contended he had only intended to commit a theft. He claimed he was surprised when Lemos pulled a gun during the incident. The jury found Gilpin guilty of first-degree robbery and he appealed. Our court affirmed Gilpin's conviction on February 28, 2001. State v. Gilpin, No. 00-0212 (Iowa Ct.App. Feb. 28, 2001).
Lemos was convicted of first-degree robbery in a separate proceeding.
On February 4, 2004, Gilpin filed an application for postconviction relief. The State responded with an answer and a motion for summary disposition. On August 23, 2004, Gilpin filed an amended application requesting a new trial based on allegedly newly discovered evidence. The new evidence proposed by Gilpin consists of an unsworn written statement provided by Lemos. The statement indicates Lemos is willing to testify that Gilpin only intended to steal beer and cigarettes from the convenience store and did not know that Lemos would pull a gun on the clerk. Gilpin contends that Lemos was unavailable to testify at his trial because he was a co-defendant and would have asserted his Fifth Amendment right against self-incrimination if called to testify. Following hearing, the postconviction court granted the State's motion for summary disposition after concluding that Lemos's proposed testimony was cumulative of other evidence presented at the original trial and would not result in a different verdict if a new trial were granted. Gilpin appealed.
Gilpin's original application raised no claims which are relevant to this appeal.
Lemos circled answers to questions regarding the robbery in a pleading format and then signed the document.
We review Gilpin's claim for correction of errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). Summary disposition is only proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002).
Iowa Code section 822.2(4) (2003) allows a defendant to seek postconviction relief based on "evidence of material facts, not previously presented and heard, that requires a vacation of the conviction or sentence in the interest of justice." In order to prevail on a claim of newly discovered evidence, a postconviction applicant must show: (1) the evidence was discovered after judgment; (2) the evidence could not have been discovered earlier in the exercise of due diligence; (3) the evidence is material to the issue and not merely cumulative or impeaching; and (4) admission of the evidence would probably change the result if a new trial were granted. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998).
The State contends the substance of Lemos's proposed testimony was known before trial and argues the controlling case law does not support Gilpin's argument that because Lemos is now willing to testify his testimony would constitute newly discovered evidence. The State also contends the newly discovered evidence proffered by Gilpin is merely cumulative Gilpin's own testimony at trial. Although these arguments may have merit, we find it unnecessary to address them. This is because we agree with the postconviction court's conclusion that Lemos's testimony would not change the result of this case at a new trial.
The jury heard evidence Gilpin provided Lemos with the gun used in the robbery. Gilpin's own testimony establishes that he saw Lemos standing near the cash register with a gun in his hand before he left the convenience store the first time. Gilpin admitted that he returned to the store after taking stolen beer to a car and then stole several cartons of cigarettes. Even if Lemos's proposed testimony is accepted as true, it does not exculpate Gilpin. Instead, it shows Gilpin took part in an ongoing robbery after he knew that a robbery was taking place. Because it is not probable that a new trial would change the result of this case, we conclude the summary disposition of Gilpin's application for postconviction relief was proper. Accordingly, we affirm.
During the early evening hours of June 12, 1999, Gilpin retrieved his 9mm Baretta from its hiding place in a roadside ditch, and gave it to Lemos.