                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0422
                             Filed March 21, 2018


BRETT NOBLE,
    Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR MUSCATINE COUNTY,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Mark J. Smith

(plea) and Mark D. Cleve (sentencing/motion), Judges.



      Defendant challenges his convictions and sentences for attempted murder

and voluntary manslaughter. WRIT SUSTAINED AND REMANDED.




      Jack E. Dusthimer, Davenport, for appellant.

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

General, for appellee.



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


MCDONALD, Judge.

       Defendant Brett Noble filed this direct appeal from the denial of his second

motion to correct an illegal sentence. There is no appeal as a matter of right from

the denial of a motion to correct illegal sentence. See State v. Propps, 897 N.W.2d

91, 96 (Iowa 2017). The supreme court ordered Noble’s notice of appeal be

treated as a petition for writ of certiorari and, at its discretion, granted the petition.

The supreme court transferred the case to this court for disposition on the merits.

The question presented is whether it was legal for this defendant to be convicted

of both attempted murder and voluntary manslaughter.

                                            I.

       In 2010, Noble was charged by trial information with murder in the first

degree and theft in the first degree. The defendant entered into a plea agreement

in which he pleaded guilty to four counts in an amended trial information: attempt

to commit murder, theft in the first degree, voluntary manslaughter, and assault

while participating in a felony. As part of the plea agreement, as set forth in a

signed plea memorandum, the defendant stipulated “that the offense conduct

supporting each count is separate.” The defendant also “specifically waive[d] any

claim he might have that the convictions or sentences under these counts would

merge or that he could claim estoppel or any other claim premised on an alleged

inconsistency between the elements of the counts.”              During the guilty plea

colloquy, the defendant and defendant’s counsel affirmed the “[d]efendant

specifically waive[d] any claim he might have that the convictions or sentences

under count—these counts would merge under the rules of sentencing or that he

could claim estoppel or any other claim premised on alleged inconsistencies
                                           3


between the elements of the counts.” The district court accepted the defendant’s

plea to the amended trial information and imposed agreed-upon consecutive

sentences for a total term of incarceration not to exceed fifty years.

       In 2011, Noble filed a motion to correct illegal sentence. In his motion, he

contended his sentence for attempted murder should be vacated on the ground

the convictions for attempted murder and voluntary manslaughter arose out of the

same act against the same person. Noble contended his convictions violated the

constitutional protection against double jeopardy. The district court denied Noble’s

motion. The supreme court dismissed Noble’s appeal as frivolous.

       The motion at issue in this appeal is Noble’s second motion to correct illegal

sentence filed in February 2017. In his second motion, Noble contended his

conviction for attempted murder was void and his sentence illegal because a

“person cannot be convicted of both killing someone and attempt[ing] to” kill

someone. In support of his motion, Noble relied on State v. Ceretti, 871 N.W.2d

88 (Iowa 2015), which was decided after Noble was convicted and sentenced and

after the denial of Noble’s first motion to correct illegal sentence.

       In Ceretti, the defendant pleaded guilty to, among other things, attempted

murder and voluntary manslaughter. See Ceretti, 871 N.W.2d at 89. Ceretti

challenged his convictions and sentences on direct appeal, contending he could

not be convicted of both offenses where the offense conduct supporting each

conviction was the same. The supreme court agreed and 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. In reaching this conclusion, the court recognized the one-homicide rule
                                          4


would not preclude both convictions because “attempted murder is not a homicide

offense.” Id. at 96. The court reasoned, however, “the principle underlying the

one-homicide rule—that multiple punishments for homicide are not allowed when

the defendant kills one person—applies equally when one of the offenses is

attempted murder.” Id. The court further reasoned that Iowa Rule of Criminal

Procedure 2.22(3) thus precluded the convictions. The supreme court held the

appropriate remedy was to vacate all “convictions and the entire plea bargain and

remand the case to the district court.” Id. at 97.

       In this case, the district court was not persuaded by Noble’s second motion.

The district court denied Noble’s motion on the grounds the issue had been

previously litigated and Noble’s claim was a challenge to the factual basis of his

guilty plea rather than a challenge to his sentence.

                                         II.

       The State defends the district court’s denial of Noble’s motion to correct

illegal sentence on several grounds.           First, the State contends Ceretti is

inapplicable here because the defendant stipulated “that the offense conduct

supporting each count is separate.” Second, the defendant expressly waived any

challenges regarding merger, estoppel, or inconsistency between the counts.

Third, the State argues, the district court correctly held Noble’s claims are barred

res judicata.

                                         A.

       We first address whether Ceretti is even applicable under the circumstances

presented. Ceretti held a “defendant may not be convicted of both an attempted

homicide and a completed homicide when the convictions are based on the same
                                           5

acts directed against the same victim.” Ceretti, 871 N.W.2d at 96. Here, Noble

stipulated the offense conduct supporting his conviction for attempted murder and

voluntary manslaughter was separate. When taken at face value, the stipulation

makes Ceretti inapplicable here.

       The difficulty presented is the stipulation is contrary to the remainder of the

record. During the plea colloquy, the district court explained to Noble the State

would have to prove the following with respect to attempted murder: the defendant

kicked the victim in the head; in so doing, the defendant set in motion a force or

chain of events that would cause or result in the death of the victim; and when the

defendant kicked the victim the defendant specifically intended to cause the death

of the victim. When Noble was asked whether it was his specific intent to cause

the death of the victim, he stated, “Yes it was. I kicked her.” With respect to

manslaughter, the district court advised Noble the State would have to prove he

“intentionally kicked the victim in this case; No. 2, that the victim died as a result of

being kicked; and No. 3, that the kicking was done solely by reason of a sudden

and violent and irresistible passion resulting from serious provocation.” Noble

stated he understood these elements. The minutes of testimony do not provide

any support for finding separate offense conduct. The minutes contain a summary

of a police interview with Noble. In the interview, Noble stated he and another

woman went to the victim’s house with the intent the woman would beat up the

victim and then they would leave. According to the minutes, the victim pointed an

unloaded shotgun at Noble, Noble took the shotgun and struck the victim in the

face with it, the victim fell to the ground, and Noble kicked the victim in the face

with steel-toed boots. Based on the plea colloquy and the minutes of testimony, it
                                         6


is clear the offense conduct supporting the convictions for attempted murder and

voluntary manslaughter is one and the same—the kick to the victim’s face with

steel-toed boots.

       The defendant’s stipulation that the offense conduct supporting each

conviction is separate is of no legal consequence when the stipulation is contrary

to the record. “The public interest that a result be reached which promotes a well-

ordered society is foremost in every criminal proceeding. That interest is entrusted

to our consideration and protection . . . .      Furthermore, our judgments are

precedents, and the proper administration of the criminal law cannot be left merely

to the stipulation of parties.” Young v. United States, 315 U.S. 257, 259 (1942). It

is thus well established courts are not bound by concessions or agreements

relating to the administration of the criminal laws where the agreements are legally

erroneous or factually untrue and would result in the maladministration of the

criminal law. See In re Clark’s Estate, 181 N.W.2d 138, 142 (Iowa 1970) (“Courts

are bound to enforce stipulations which parties may validly make where they are

not unreasonable or against good morals or sound public policy.”); State v.

Howard, No. 14-1549, 2016 WL 4051322, at *11 (Iowa Ct. App. July 27, 2016)

(McDonald, J., dissenting) (collecting cases); see also Rathborne Land Co., L.L.C.

v. Ascent Energy, Inc., 610 F.3d 249, 262–63 (5th Cir. 2010) (stating the court “has

not only the right but the duty to relieve a party from a pretrial stipulation where

necessary to avoid manifest injustice . . . or where there is substantial evidence

contrary to the stipulation”); Darwish v. Tempglass Group, Inc., 26 Fed. Appx. 477,

480 (6th Cir. 2002) (stating the parties cannot stipulate to untrue facts); Mech-Con

Corp. v. West, 61 F.3d 883, 887 (Fed. Cir. 1995) (“We may disregard a stipulation
                                           7


when it is inadvertent, contrary to law, contrary to fact, or made without proper

authority.”); PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir.

1984) (“Of course, the parties may not create a case by stipulating to facts which

do not really exist. A district court is entitled to disregard a stipulation if to accept

it would be manifestly unjust or if the evidence contrary to the stipulation [is]

substantial.”); United States v. Kulp, 365 F.Supp. 747, 763 (E.D. Pa. 1973)

(“Where a court has felt it necessary to prevent an injustice, particularly where

facts contrary to the stipulation are established by evidence, then the court may

relieve a party from a stipulation.”); In re Harrington, 578 B.R. 147, 153 (Bankr.

N.D.N.Y. 2017) (“However, there are three exceptions to the general rule:

(i) parties cannot stipulate to facts that do not exist, (ii) a court is not bound by a

stipulation that is manifestly unjust, or there is substantial evidence contrary to the

stipulation and (iii) a court is not required to accept a stipulation regarding a

question of law.”); In re Commitment of Walker, 19 N.E.3d 205, 223 (Ill. App. Ct.

2014) (“From the foregoing, we discern that a party may be relieved from a

stipulation where it is clearly shown that the stipulation is untrue, violative of public

policy, unreasonable, or procured by fraud.”).

         We thus conclude the defendant pleaded guilty to committing the crimes of

attempted murder and voluntary manslaughter based on the same act against the

same victim; specifically, kicking the victim in the head with steel-toed boots. The

defendant’s convictions and sentences are in violation Ceretti, and the defendant

is entitled to relief unless he has waived the issue or is precluded from raising the

issue.

                                           B.
                                         8


       The State contends the defendant “specifically waive[d] any claim he might

have that the convictions or sentences under these counts would merge or that he

could claim estoppel or any other claim premised on an alleged inconsistency

between the elements of the counts.” We disagree Noble waived the challenge

presented here. There are three points relevant to our conclusion.

       First, the mere fact the defendant pleaded guilty to these offenses and

agreed to the sentences is insufficient to establish waiver. This issue was raised

in Ceretti. In that case, “the State urge[d] that Ceretti waived the right to appeal

the sentences imposed by pleading guilty and agreeing to the State's sentencing

recommendations.” Ceretti, 871 N.W.2d at 91.         Although the supreme court

identified the waiver argument, it did not expressly address or resolve it. However,

the supreme court implicitly rejected the argument because the court reached the

substantive issue presented, vacated Ceretti’s convictions and plea bargain, and

remanded the matter for further proceedings. See id. at 97.

       Second, it is not clear the express terms of the waiver encompass the

specific legal challenge presented in this case.      In the plea agreement, the

defendant expressly waived any claim regarding merger. In Ceretti, the defendant

contended his convictions “violated the merger statute.” Id. at 92. The court

explained the merger statute codified “the double jeopardy protection against

cumulative punishment.” Id.     The court applied the Blockburger legal-elements

test to determine whether merger was appropriate, see id. at 92 (citing Blockburger

v. United States, 284 U.S. 299, 304 (1932)), and concluded merger was not

required here. See id. at 95 (stating “the Blockburger test does not require merger

under the circumstances presented”). Noble’s claim is thus not a merger claim.
                                         9

See, e.g., State v. Fix, 830 N.W.2d 744, 748 (Iowa Ct. App. 2013) (stating the one-

homicide rule “is not technically rooted in either the constitutional double jeopardy

clauses or the merger statute”). Similarly, Noble waived any claim related to

estoppel or inconsistency between the elements, but Ceretti does not appear to

encompass either of these claims. Instead, as a matter of doctrine, Ceretti appears

to be a stand-alone substantive rule of law, analogous to but distinct from the one-

homicide rule, that prohibits convictions for “an attempted homicide and a

completed homicide when the convictions are based on the same acts directed

against the same victim.” Ceretti, 871 N.W.2d at 96. See Fix, 830 N.W.2d at 748

(concluding “Iowa’s one-homicide rule is a creature of common law”).

       Third, even if the Ceretti claim fell squarely within the terms of the express

waiver, the express waiver would be of no legal effect. It is well established the

parties cannot agree upon an illegal sentence. See State v. Copenhaver, 844

N.W.2d 442, 447 (Iowa 2014) (“An illegal sentence is a sentence that is not

permitted by statute.”); State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000) (“Neither

party may rely on a plea agreement to uphold an illegal sentence.”). “A claim that

a sentence is illegal goes to the underlying power of the court to impose a

sentence.” Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010). See State v. Barber,

248 P.3d 494, 502 (Wash. 2011) (“Moreover, the inability of the parties' agreement

to alter the court's sentencing authority comports with the general notion that the

court is not bound by a party's erroneous concession on a matter of law.”). Ceretti

concludes the district court is without authority to impose multiple convictions or

punishments for an attempted homicide and a completed homicide where the

convictions are based on the same acts directed against the same victim. See
                                         10

Ceretti, 871 N.W.2d at 89 (stating “voluntary manslaughter and attempted murder

convictions are mutually exclusive”); id. at 95 (stating “rule 2.22(3) prevents the

State from punishing Ceretti for both attempting and complete the same

homicide”); id. at 96 (referring to the prohibition against “multiple punishments”).

The doctrinal foundation of the rule was an extension of the one-homicide rule to

an attempted homicide. See id. at 96 (stating “the principle underlying the one-

homicide rule . . . applies equally when one of the offenses is attempted murder”).

In State v. Fix, this court concluded a violation of the one homicide rule constituted

an illegal sentence that cannot be waived:

       Our courts commonly reiterate that a guilty plea waives all defenses
       and objections not intrinsic to the plea. See State v. Utter, 803
       N.W.2d 647, 651 (Iowa 2011). But “a guilty plea does not waive
       challenges that do not affect the validity of the conviction.” State v.
       Mann, 602 N.W.2d 785, 789 (Iowa 1999) (holding “waiver of
       constitutional challenges to a sentencing statute is not implicit in a
       defendant's guilty plea”); see also Woody, 613 N.W.2d at 218
       (holding “[n]either party may rely on a plea agreement to uphold an
       illegal sentence” and vacating habitual offender sentence that was
       not supported by the record and not permitted by statute); [State v.]
       Mapp, 585 N.W.2d 746, 749 (Iowa 1998) (vacating bargained-for
       sentence). Neither party contends the problem lies with Fix's
       convictions.     The one-homicide rule guards against multiple
       punishments for a single slaying.

       As part of the negotiated plea bargain, the State and Fix agreed to
       consecutive sentences that violated the common law one-homicide
       rule. It is likely neither the prosecutor nor defense counsel realized
       the violation. But the inadvertence does not change the calculus. Our
       supreme court has not allowed double punishment for a single
       homicide to stand, even when the issue has not been raised by the
       parties. We hold a violation of the one-homicide rule is an illegal
       sentence that under Mann, Woody, and Mapp cannot be waived
       even by a counseled, negotiated guilty plea.

830 N.W.2d at 751.
                                          11

       For the same reasons set forth in Fix, we conclude the violation of the

Ceretti rule constitutes an illegal sentence that cannot be waived.

                                          C.

       The State contends Noble’s claim was resolved in his first motion to correct

illegal sentence and his current claim is barred res judicata. “The doctrine of res

judicata embraces the concepts of claim preclusion and issue preclusion.” Spiker

v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006). Res judicata prevents a party from

relitigating a claim or issue that has already been determined by a final judgment.

See George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009). “The doctrine

serves a dual purpose: to protect litigants from the vexation of relitigating identical

issues with identical parties or those persons with a significant connected interest

to the prior litigation, and to further the interest of judicial economy and efficiency

by preventing unnecessary litigation.” Emp’rs Mut. Cas. Co v. Van Haaften, 815

N.W.2d 17, 22 (Iowa 2012) (internal quotations omitted).

       Whether the State’s argument is considered one of claim preclusion or issue

preclusion, we conclude Noble’s claim is not barred. First, the claims and issues

are not identical. Noble’s first motion raised a double jeopardy challenge to his

convictions based on principles of merger. As noted above, Ceretti is a substantive

rule of criminal law analogous to the common law one-homicide rule. The Ceretti

rule is not a double jeopardy claim based on principles of merger. The issues in

the first and second motion are thus not identical. See Winger v. CM Holdings,

L.L.C., 881 N.W.2d 433, 451 (Iowa 2016) (stating issues must be identical for issue

preclusion to apply). Second, and related, Ceretti is a new rule of substantive law

that could not have been litigated in the prior proceeding. See Soults Farms, Inc.
                                        12

v. Schafer, 797 N.W.2d 92, 107 (Iowa 2011) (explaining “the Restatement

(Second) of Judgments § 28 provides the following exceptions to the application

of issue preclusion: . . . (2) intervening change in the applicable law”). Because

Ceretti announced a new common law rule made after Noble’s first motion to

correct illegal sentence, the prior motion did not raise the claim, and the district

court did not rule on the claim.

       We thus conclude Noble’s claim is not barred res judicata.

                                        D.

       In sum, we conclude the offense conduct supporting Noble’s conviction for

attempted murder and voluntary manslaughter is not separate. The plea record

establishes each conviction is predicated on the same act against the same victim.

Noble did not and could not waive his challenge to these convictions and

sentences. The mere fact that he pleaded guilty is insufficient to constitute waiver

of his Ceretti challenge. The express terms of the waiver do not encompass the

substantive challenge presented in this appeal.         And the convictions and

sentences here constitute an illegal sentence beyond the district court’s authority

to impose even when bargained for. Finally, the claims presented in Noble’s

second motion to correct illegal sentence are not barred res judicata. The district

court erred in denying Noble’s motion to correct illegal sentence.

                                        III.

       Having concluded Noble’s convictions and sentences are in violation of

Ceretti and were not waived or otherwise barred, we must address the question of

remedy.
                                         13

       It seems to us there are two potential remedies. See Woody, 613 N.W.2d

at 218 (“If neither party may rely on the plea agreement, what remedy is

appropriate here? Do we allow the State to reinstate the original charge or do we

remand for sentencing on the reduced charge?”). One remedy is to vacate the

defendant’s conviction and sentence for voluntary manslaughter, enforce the

remainder of the plea bargain, and remand for resentencing on the remaining

convictions. This is the remedy adopted in Fix. See Fix, 830 N.W.2d at 751 (“We

annul the judgment and sentence on Fix's conviction for involuntary manslaughter

and remand for resentencing to eliminate the sentence for that offense.”). By

simply severing the sentence, however, we may create a perverse incentive for

defendants “to enter plea agreements quietly—even if they have double

punishment concerns—and then appeal them to obtain a more lenient sentence.”

Ceretti, 871 N.W.2d at 97. This would allow the defendant “to transform what was

a favorable plea bargain in the district court to an even better deal on appeal.” Id.

A second remedy is to vacate all of the “convictions and the entire plea bargain

and remand the case to the district court.” Id. In Ceretti, the supreme court

concluded the second remedy was consistent with principles of bargaining and

more fair to the State.

       We conclude the best disposition of the claim is to allow the prosecutor to

elect one of these two remedies. While annulling the judgment and sentence for

voluntary manslaughter and enforcing the remainder of the plea bargain might

allow the defendant to turn a favorable plea into a better deal, in some

circumstances the State may consider that a preferable remedy to vacating the

plea bargain and all of the convictions and beginning anew. The passage of time
                                            14


inevitably works to the detriment of the prosecution—evidence is lost or degrades;

witnesses move or pass away; of those witnesses who remain, memories fade.

See Estate of Kuhns v. Marco, 620 N.W.2d 488, 491 (Iowa 2000) (discussing these

concerns in the context of stale claims). The prosecution must also consider

whether the potential incremental increase in punishment available by beginning

anew is worth the emotional toll imposed on the victim (obviously inapplicable

here), the victim’s family, witnesses, and the community at large upon being forced

to reopen a matter thought to be concluded. These are legitimate concerns left

best left to the prosecutor’s discretion.

                                            IV.

       We hold 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 Ceretti.            We remand this matter for further

proceedings. 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.”

Ceretti, 871 N.W.2d at 97.

       WRIT SUSTAINED AND REMANDED.
