                     IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0072
                              Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRETT EUGENE NOBLE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Muscatine County, Tom Reidel,

Judge.



       Brett Noble appeals the district court’s ruling on remand. AFFIRMED.




       Jeffrey Powell, Coralville, and Thomas J. O’Flaherty of O’Flaherty Law Firm,

Bettendorf, (until withdrawal), for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



       Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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VAITHESWARAN, Presiding Judge.

       Brett Noble pled guilty to attempt to commit murder, first-degree theft,

voluntary manslaughter, and assault while participating in a felony. The district

court imposed sentence and ordered the sentences to run consecutively. Noble

filed a motion to correct an illegal sentence, which the district court denied.1 On

review of the court’s decision, the court of appeals held “the defendant’s

convictions for attempted murder and voluntary manslaughter are predicated on

the same act directed against the same victim and violate the rule announced in

[State v.] Ceretti, [871 N.W.2d 88 (Iowa 2015)].” Noble v. Iowa Dist. Ct., 919

N.W.2d 625, 634 (Iowa Ct. App. 2018) (“Noble I”). The court remanded the case

for further proceedings, with the following instruction:

       At the State’s election, the district court shall either: (1) vacate the
       defendant’s conviction and sentence for voluntary manslaughter and
       resentence the defendant on the remaining convictions; or (2) vacate
       the plea bargain and the resulting convictions. In the event the State
       elects the latter remedy, “the State may reinstate any charges
       dismissed in contemplation of a valid plea bargain, if it so desires,
       and file any additional charges supported by the available evidence.”

Id. (quoting Ceretti, 871 N.W.2d at 97).

       On remand, the district court filed an amended sentencing order, explaining

that the State “elected to have the conviction and sentence on Count 3, Voluntary

Manslaughter, vacated and for resentencing to take place on the remaining

counts.” The court sentenced Noble to consecutive prison terms for the three

remaining offenses—attempted murder, first-degree theft, and assault while

participating in a felony—for a total term not to exceed forty years.


1Noble filed two motions to correct an illegal sentence. Only the second motion is
at issue.
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      On appeal from the remand order, Noble contends (1) “the district court

improperly applied existing law when it vacated [his] voluntary manslaughter

conviction and resentenced [him] on attempted murder in a ‘one homicide’ case,

resulting in an illegal sentence” and (2) his “appellate and resentencing counsel

were ineffective for not adequately contesting the court of appeals decision that

incorrectly instructed vacating voluntary manslaughter instead of attempted

murder at resentencing.” The State responds that the law-of-the-case doctrine

precludes this court from revisiting the amended sentence.

      “The law of the case doctrine ‘represents the practice of courts to refuse to

reconsider what has once been decided.’” State v. Ragland, 812 N.W.2d 654, 658

(Iowa 2012) (quoting State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987)). “The

doctrine, however, is not absolute or inflexible.” United Fire & Cas. Co. v. Iowa

Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). For example, it is well established

that an illegal sentence may be challenged at any time. See Iowa R. App. P.

2.24(5)(a); State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) (“Where, as here,

the claim is that the sentence itself is inherently illegal, whether based on

constitution or statute, we believe the claim may be brought at any time.”). The

doctrine also has not been applied to ineffective-assistance-of-counsel claims.

See State v. Ondayog, 722 N.W.2d 778, 783–84 (Iowa 2006) (“Such claims are an

exception to normal error-preservation rules and the ‘law of the case’ doctrine”).

      In Termaat v. State, 867 N.W.2d 853, 855 n.2 (Iowa Ct. App. 2015), this

court declined to apply the law-of-the-case doctrine in an appeal raising the same

sentencing issue Noble has raised. We stated, “Relying on our tolerant stance

toward illegal sentence claims, we find the State’s arguments of issue preclusion
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and law of the case fail.” Termaat, 867 N.W.2d at 855 n.2. In light of that tolerant

stance, we decline to apply the law-of-the-case doctrine to preclude review of

Noble’s amended sentence. We turn to the merits of Noble’s assertion that the

sentence was illegal.

       As noted, the court of appeals afforded the State the option to elect one of

two remedies on remand: “either: (1) vacate the defendant’s conviction and

sentence for voluntary manslaughter and resentence the defendant on the

remaining convictions; or (2) vacate the plea bargain and the resulting convictions.”

Noble I, 919 N.W.2d at 634. On remand, the district court approved the first option

chosen by the State. Noble argues that option contravened the court’s holding in

Ceretti.

       In Ceretti, the defendant entered an Alford plea2 to attempted murder and

he also pled guilty to voluntary manslaughter and willful injury causing serious

injury. 871 N.W.2d at 90. The court held, “A defendant may not be convicted of

both an attempted homicide and a completed homicide when the convictions are

based on the same acts directed against the same victim.” Id. at 96. The court

next pondered the “appropriate disposition.” Id. The court stated:

       Sometimes, when we conclude a conviction or sentence is improper
       on a particular record, we reverse the conviction and remand for
       resentencing to eliminate part of the sentence, while letting the
       balance of the sentence stand. If we were to follow that dispositional
       course in this case, we would vacate Ceretti’s conviction for
       attempted murder and remand for resentencing on the voluntary
       manslaughter and willful injury causing serious injury convictions.


2 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting criminal
defendants to enter a plea and “consent to the imposition of a prison sentence
even if [they are] unwilling or unable to admit . . . participation in the acts
constituting the crime”).
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                  However, some courts faced with analogous circumstances
          apply principles of contract law and vacate the entire plea
          agreement. For example, the Colorado Supreme Court has stated:
                  “[W]hen a defendant enters into a plea agreement that
                  includes as a material element a recommendation for
                  an illegal sentence and the illegal sentence is in fact
                  imposed on the defendant, the guilty plea is invalid and
                  must be vacated because the basis on which the
                  defendant entered the plea included the impermissible
                  inducement of an illegal sentence.”
                  We conclude the circumstances of this case require us to
          follow the latter course because, as the State contends, Ceretti’s
          appeal effectively “seeks to transform what was a favorable plea
          bargain in the district court to an even better deal on appeal.” Ceretti
          “willingly embraced the . . . sentence in the plea agreement in return
          for not risking life imprisonment following a guilty verdict at trial.” If
          we were simply to sever Ceretti’s sentence for attempted murder,
          defendants might be motivated to enter plea agreements quietly—
          even if they have double punishment concerns—and then appeal
          them to obtain a more lenient sentence.

Id. at 96–97 (citations omitted).         Accordingly, the court “vacate[d] all three

convictions and the entire plea bargain and remand[ed] the case to the district

court” with the following instructions: “‘On remand, the State may reinstate any

charges dismissed in contemplation of a valid plea bargain, if it so desires, and file

any additional charges supported by the available evidence.’ . . . Of course, the

parties may negotiate a new plea agreement on remand or try the case.” Id. at

97–98 (citation omitted).

          The State characterizes the quoted paragraphs of Ceretti as a “speck of

dicta.”     In our view, the language has more than a speck of significance.

Nonetheless, we agree with the State that the disposition in Ceretti was not “the

only possible way to remedy problems with multiplicity.”

          In Noble I, this court was cognizant of Ceretti and discussed it extensively.

With Ceretti in the forefront, the court provided two options on remand. The district
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court approved the State’s selection of the first option. Because the court in Ceretti

did not categorically foreclose that option, choosing to base its disposition “under

the circumstances of t[he] case,” we conclude Noble’s amended sentence was

legal. In light of our conclusion that a different sentence was not mandated by

Ceretti, we conclude counsel did not breach an essential duty in failing to seek

further review of this court’s disposition in Noble I or in failing to raise the issue on

remand.

       We affirm Noble’s amended sentence.

       AFFIRMED.
