                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0894
                             Filed January 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER CALVERT FITZPATRICK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Clay County, Carl J. Petersen,

Judge.



      Defendant appeals his convictions for voluntary manslaughter, first-degree

robbery, and conspiracy to deliver methamphetamine.                CONVICTIONS

AFFIRMED;      SENTENCES       VACATED         AND   CASE       REMANDED       FOR

RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Christopher Calvin Fitzpatrick, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, Alexandria Link, Assistant Attorney

General, and Michael Houchins, County Attorney, for appellee.



      Considered by Doyle, P.J., Tabor, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2



MILLER, S.J.

       Defendant Christopher Fitzpatrick appeals his convictions for voluntary

manslaughter, first-degree robbery, and conspiracy to deliver a controlled

substance (methamphetamine). There is a sufficient factual basis in the record

to support Fitzpatrick’s guilty pleas to these offenses.       Fitzpatrick received

ineffective assistance because defense counsel did not object to the court’s

failure to abide by the plea agreement or to the prosecutor’s failure to correct the

court’s mistake. We affirm Fitzpatrick’s convictions but vacate his sentences and

remand the case for resentencing.

       I.     Background Facts & Proceedings

       The minutes of evidence in this case provide the following facts.         On

August 28, 2012, Christopher Fitzpatrick was at a bar in Spencer, Iowa, when he

overheard Edward Kitto say he had $350.          Fitzpatrick and Kitto left the bar

together and walked to the home of Christopher Hegel,1 where they went onto

the porch and smoked marijuana. According to Fitzpatrick, Kitto called him a

“mooching n****r,” and raised his fist, so Fitzpatrick punched him three times and

Kitto fell down. Fitzpatrick left the porch and called his friend Cody Millard to ask

for a ride home. According to Fitzpatrick, Kitto then got up and approached

Fitzpatrick, again raising his fist. Fitzpatrick punched him several more times,

and continued to hit him after he was on the ground.

       When Millard arrived he assisted Fitzpatrick in dragging Kitto into Hegel’s

backyard. Millard hit Kitto once or twice and kicked him. Fitzpatrick took Kitto’s


1
   Fitzpatrick and Hegel went to the bar together, but Hegel remained at the bar when
Fitzpatrick left with Kitto.
                                           3



wallet from his pants and removed some cash. While Fitzpatrick and Millard

were in Hegel’s backyard they heard Hegel and Jessica Kurth walking down the

driveway of the home. Fitzpatrick and Millard drove away in Millard’s vehicle.

Hegel and Kurth found Kitto and called 911.          Fitzpatrick stated he used the

money he took from Kitto to purchase some food and liquor. There was also

evidence Fitzpatrick purchased drugs with the money. Kitto died as a result of

his injuries.

       Fitzpatrick was charged with murder in the first degree, robbery in the first

degree, and conspiracy to deliver a controlled substance (methamphetamine).

Fitzpatrick entered into a plea agreement in which he agreed to plead guilty to

voluntary manslaughter, in violation of Iowa Code section 707.4 (2011); first-

degree robbery, in violation of section 711.2; and conspiracy to deliver a

controlled substance, in violation of section 124.401(1)(c)(6). The State agreed

to recommend he be sentenced to ten years, twenty-five years, and ten years, to

be served consecutively.

       A plea hearing was held on April 1, 2013. The court asked counsel if the

plea agreement was binding on the court, and they stated it was not. In providing

a factual basis for the charge of voluntary manslaughter, Fitzpatrick stated, “[W]e

had got in a fight, and he called me a couple names. And we got in a fight.”

Fitzpatrick answered in the affirmative when asked by the court if he intentionally

struck Kitto, Kitto died as a result of Fitzpatrick striking him, and Fitzpatrick struck

Kitto by reason of sudden violent and irresistible passion, resulting from serious
                                         4



provocation. Fitzpatrick then stated, “He called me some names, and then he

came at me with his fist. That’s how that happened.”

       For the charge of first-degree robbery, Fitzpatrick stated, “[A]fter he was

knocked on the ground I took his wallet, took his money.” The court asked

Fitzpatrick if he assaulted Kitto in the process of taking his money, if he

purposely inflicted a serious injury on Kitto, and if he assaulted Kitto in carrying

out the theft, and Fitzpatrick answered, “Yeah.”

       In providing a factual basis for the charge of conspiracy to deliver

methamphetamine, Fitzpatrick stated, “I was involved with some other people in

the delivery of meth.” Fitzpatrick agreed “the substance that was involved in that

delivery of methamphetamine,” was methamphetamine and the amount involved

was five grams or less.

       The case proceeded to a sentencing hearing on May 10, 2013. The State

recommended the sentences set out in the plea agreement, and defense counsel

stated, “I have nothing to add to the plea agreement.” The court then stated the

plea agreement was binding upon the court and sentenced Fitzpatrick in

accordance with its understanding of the plea the agreement. The court stated

Fitzpatrick’s sentences were consecutive, “because of the bargained plea

entered by the State of Iowa and Defendant,” and “the severity of the offenses

combined to result in the death of Edward Kitto.” Fitzpatrick now appeals his

convictions and sentences, claiming he received ineffective assistance of

counsel.
                                         5



       II.    Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       III.   Factual Basis

       Fitzpatrick claims he received ineffective assistance because defense

counsel permitted him to plead guilty when there was not a sufficient factual

basis to support his pleas. “It is a responsibility of defense counsel to ensure that

a client does not plead guilty to a charge for which there is no objective factual

basis.” State v. Finney, 834 N.W.2d 46, 50 (Iowa 2013). “On a claim that a plea

bargain is invalid because of a lack of accuracy on the factual-basis issue, the

entire record before the district court,” including the minutes of evidence, “may be

examined.” Id. at 62. “Our cases do not require that the district court have

before it evidence that the crime was committed beyond a reasonable doubt, but

only that there be a factual basis to support the charge.” Id. It is not necessary

to show the defendant is guilty; the court must be satisfied only that the facts

support the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

       A.     Fitzpatrick asserts there is not a sufficient factual basis in the

record to support his guilty plea to voluntary manslaughter. He contends the
                                             6



facts would support the defense of justification, found in section 704.3. He also

claims the record does not show his actions caused the death of Kitto.2 He

points out that Millard struck and kicked Kitto, and asserts Millard could have

caused Kitto’s death.

       As the State notes, Fitzpatrick’s claims on appeal improperly conflate

possible defenses to the charge of voluntary manslaughter with the factual basis

for the plea.    “It is well established that a defendant’s guilty plea waives all

defenses and objections which are not intrinsic to the plea.” State v. Utter, 803

N.W.2d 647, 652 (Iowa 2011). “A guilty plea is normally understood as a lid on

the box, whatever is in it, not a platform from which to explore further

possibilities.” Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982).

       Section 707.4 provides:

               A person commits voluntary manslaughter when that person
       causes the death of another person, under circumstances which
       would otherwise be murder, if the person causing the death acts
       solely as the result of sudden, violent, and irresistible passion
       resulting from serious provocation sufficient to excite such passion
       in a person and there is not an interval between the provocation
       and the killing in which a person of ordinary reason and
       temperament would regain control and suppress the impulse to kill.

       During the plea colloquy Fitzpatrick stated he intentionally struck Kitto. He

agreed that Kitto died as a result of Fitzpatrick striking him. He also agreed that

he struck Kitto “solely by reason of sudden violent and irresistible passion as a—

resulting from serious provocation.” He stated Kitto called him names and they

got into a fight. According to the minutes of evidence, Fitzpatrick continued to hit



2
  Fitzpatrick additionally raised this issue in a pro se brief. Our discussion of this issue
addresses the issue as raised by appellate counsel and in the pro se brief.
                                        7



Kitto after he was already down on the ground. Millard stated Fitzpatrick “kept

hitting him over and over again,” like Fitzpatrick “was possessed or trying to take

something out on the old guy.” We conclude there is a sufficient factual basis in

the record to support Fitzpatrick’s plea of guilty to the charge of voluntary

manslaughter.

      B.     Fitzpatrick asserts there is not a sufficient factual basis in the

record to support his plea of guilty to the charge of robbery in the first degree.

He contends the record does not support a claim that he assaulted Kitto for the

purpose of taking his wallet. He asserts that he struck Kitto because Kitto called

him names and because of Kitto’s aggressive behavior. He claims he did not

formulate the intent to take money from Kitto’s wallet until after the altercation

was over.

      Fitzpatrick was charged with robbery in the first degree, in violation of

section 711.2, which provides, “A person commits robbery in the first degree

when, while perpetrating a robbery, the person purposely inflicts or attempts to

inflict serious injury, or is armed with a dangerous weapon.” The offense of

robbery is defined as follows:

              A person commits a robbery when, having the intent to
      commit a theft, the person does any of the following acts to assist
      or further the commission of the intended theft or the person’s
      escape from the scene thereof with or without the stolen property:
              1.    Commits an assault upon another.
              2.    Threatens another with or purposely puts another in
      fear of immediate serious injury.
              3.    Threatens to commit immediately any forcible felony.

Iowa Code § 711.1.
                                          8



       According to the minutes of evidence, Fitzpatrick overheard Kitto stating

he had $350. Fitzpatrick had previously told his drug dealer “that he knows some

people he could get the money from or some people he could rob” in order to

purchase drugs. During the plea colloquy Fitzpatrick agreed that in the process

of taking Kitto’s money, he assaulted him. Fitzpatrick agreed he had purposely

inflicted a serious injury on Kitto. He also agreed he assaulted Kitto in carrying

out the theft. Fitzpatrick stated that after Kitto had been knocked on the ground

he took his money. We conclude there is a sufficient factual basis in the record

to support Fitzpatrick’s guilty plea to first-degree robbery.

       C.     Fitzpatrick asserts there is not a sufficient factual basis in the

record to support his plea of guilty to the charge of conspiracy to deliver a

controlled substance (methamphetamine). He points out there is nothing in the

minutes of evidence to support his guilty plea to this offense, and the State

agrees.

       The factual basis for this offense is found in the plea colloquy:

               Defendant: I was involved with some other people in the
       delivery of meth.
               The Court: Okay. Did that occur on August 28, 2012?
               Defendant: Yeah.
               The Court: And        was    the controlled    substance
       methamphetamine?
               Defendant: Yes.
               The Court: Did you know the substance that was involved
       in that delivery of methamphetamine?
               Defendant: Yeah.
               The Court: Was the amount of methamphetamine involved
       in that delivery five grams or less?
               Defendant: Yes.
                                          9



       Section 124.401(1)(c)(6) is violated when a person “conspire[s] with one

or more persons to manufacture, deliver, or possess with the intent to

manufacture or deliver,” five grams or less of methamphetamine.           Fitzpatrick

stated he was involved with other people in the delivery of methamphetamine.

He agreed he knew the substance was methamphetamine and the amount

involved was five grams or less. We conclude there is a sufficient factual basis

for Fitzpatrick’s plea of guilty to the offense of conspiracy to deliver

methamphetamine.

       IV.    Sentencing

       Fitzpatrick contends he received ineffective assistance because defense

counsel did not object to the district court’s mistaken belief it was bound by the

sentencing recommendation in the plea agreement.             Furthermore, defense

counsel did not object to the prosecutor’s failure to point out the court’s mistake.

       Near the beginning of the sentencing hearing the court stated, “The Court

cannot find any reason not to concur with the plea agreement as it is binding

upon the Court and includes mandatory sentences.” Later, the court gave as one

of the reasons for imposing consecutive sentences, “the bargained plea entered

by the State of Iowa and the Defendant.” At the plea hearing, however, the court

had asked both the prosecutor and defense counsel if the plea agreement was

binding on the court. The prosecutor stated, “I don’t believe that we made it

binding on the Court.” Defense counsel stated, “That’s correct, Your Honor.”

Neither defense counsel nor the prosecutor corrected the court’s mistaken belief
                                       10



during the sentencing hearing that it was bound by the sentencing

recommendations in the plea agreement.

      Defense counsel has an obligation to object if the prosecutor is not

following the terms of the plea agreement. State v. Fannon, 799 N.W.2d 515,

522 (Iowa 2011). The supreme court has determined:

      If the State breaches a plea agreement during the sentencing
      hearing, a reasonably competent attorney would make an objection
      on the record to “‘ensure that the defendant receive[s] the benefit of
      the agreement.’” “[N]o possible advantage could flow to the
      defendant from counsel’s failure to point out the State’s
      noncompliance. Defense counsel’s failure in this regard simply
      cannot be attributed to improvident trial strategy or misguided
      tactics.”

Id. (citations omitted). “When trial counsel fails to object to the prosecutor’s

breach of the plea agreement and thereby prevents the defendant from receiving

the benefit of the plea agreement, the defendant is prejudiced.”          State v.

Bergmann, 600 N.W.2d 311, 314 (Iowa 1999).

      We believe there may also be a breach of an essential duty if defense

counsel fails to object to the court’s failure to abide by the terms of the plea

agreement. In State v. Malone, 511 N.W.2d 423, 424 (Iowa Ct. App. 1993), in a

written order the court stated its concurrence with a plea was a part or condition

of the plea agreement.     Thereafter at sentencing, which was held before a

different judge, the court stated it was not bound by the plea agreement. Malone,

511 N.W.2d at 424. The court denied the defendant’s request to withdraw the

guilty plea. Id. We concluded the district court abused its discretion by not

permitting the defendant to withdraw her guilty plea when the sentencing judge

refused to accept the plea agreement. Id. at 425; see also State v. Thompson,
                                         11



___ N.W.2d ___, ___, 2014 WL 7003808, at *7 (Iowa 2014) (“[N]either the district

court nor the State violated the plea agreement requiring the court to allow

Thompson the opportunity to withdraw his plea before sentencing.”); State v.

Barker, 476 N.W.2d 624, 628 (Iowa Ct. App. 1991) (“We determine the

sentencing court abused its discretion by not honoring the plea agreement and

not allowing the defendant to then withdraw his guilty plea.”).

       We conclude Fitzpatrick received ineffective assistance because defense

counsel did not object when the court expressed the mistaken belief at the

sentencing hearing that it was bound by the terms of the plea agreement or

object to the prosecutor’s failure to correct the court’s mistake. See State v.

Horness, 600 N.W.2d 294, 300 (Iowa 1999) (finding defense counsel failed to

perform an essential duty by not objecting to the State’s noncompliance with a

plea agreement); State v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009)

(finding defense counsel failed to perform an essential duty by not correcting the

court’s failure to inform defendant of a special sentencing provision); see also

ABA Standards for Criminal Justice: Prosecution Function 3-6.1(a) (3d ed. 1993)

(stating a prosecutor has a duty “to assure that a fair and informed judgment is

made on the sentence”).

       When there has been a breach of the plea agreement, “we will ‘determine

the appropriate remedy necessary to ensure the interests of justice are served—

either withdrawal of the guilty plea or resentencing before another judge.’” State

v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008) (citations omitted).        When the

interests of justice are adequately served by remanding for resentencing, it is
                                        12



unnecessary to expend judicial resources in starting the process anew. Id. We

determine Fitzpatrick’s sentences should be vacated and the case remanded for

resentencing, giving him the benefit of the bargain by demanding specific

performance of the plea agreement. See Fannon, 799 N.W.2d at 524.

       We affirm Fitzpatrick’s convictions, based upon his guilty pleas, to

voluntary manslaughter, first-degree robbery, and conspiracy to deliver a

controlled substance (methamphetamine).           Fitzpatrick received ineffective

assistance because defense counsel did not object to the court’s failure to abide

by the plea agreement or to the prosecutor’s failure to correct the court’s mistake.

Therefore, Fitzpatrick’s sentences are vacated, and the case is remanded for

resentencing.

       CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE

REMANDED FOR RESENTENCING.
