               IN THE SUPREME COURT OF IOWA
                              No. 13–1573

                         Filed October 23, 2015
                       Amended January 12, 2016


STATE OF IOWA,

      Appellee,

vs.

JOSEPH D. CERETTI,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Glenn E. Pille,

Judge.



      A criminal defendant appeals the sentences imposed after he pled

guilty to multiple offenses, contending the convictions should merge

because voluntary manslaughter requires that the defendant have

specific intent to kill.   DECISION OF COURT OF APPEALS AND
JUDGMENT OF DISTRICT COURT VACATED; CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jaki M.

Livingston, Assistant County Attorney, for appellee.
                                    2

HECHT, Justice.

      The State of Iowa charged Joseph Ceretti with first-degree murder.

In exchange for lesser charges, Ceretti pled guilty to voluntary

manslaughter, attempted murder, and willful injury causing serious

injury, and offered factual bases for them at a plea hearing.     In this

appeal, Ceretti contends the attempted murder and willful injury

convictions entered under the plea agreement must merge with the

voluntary manslaughter conviction because the crimes share a common

mens rea element: specific intent to kill.     We conclude under the

circumstances presented here that the voluntary manslaughter and

attempted murder convictions are mutually exclusive because one

cannot be convicted of a completed homicide and an attempt to commit

the same homicide without sufficient unit-of-prosecution evidence

supporting separate charges.    Because the parties’ expectations under

the plea agreement cannot be achieved as a consequence of these

mutually exclusive offenses, we conclude all of Ceretti’s convictions must

be vacated and remand the case for further proceedings consistent with

this opinion.

      I. Background Facts and Proceedings.

      In the early morning hours of November 26, 2012, residents of a

Des Moines neighborhood called 911 and reported an injured person

lying in the street near the intersection of East 17th Street and Walnut

Street. Police responded to the call and encountered Eric Naylor, who

was covered in blood and had multiple stab wounds.        Naylor received

some emergency medical assistance, but his injuries were fatal and he

passed away that evening. An autopsy revealed the stab wounds caused

Naylor’s death.
                                           3

       Police conducted an investigation, eventually arrested Ceretti, and

charged him with first-degree murder.              Before trial was to begin, the

parties reached a plea agreement.              No written memorialization of it

appears in the record, but the parties announced the terms of the

agreement during the plea colloquy before the district court.                   Ceretti

agreed to plead guilty if the State filed an amended trial information, and

the district court granted the State’s subsequent motion to amend.

Instead of first-degree murder, the amended trial information charged

Ceretti with voluntary manslaughter, attempted murder, and willful

injury causing serious injury. See Iowa Code §§ 707.4, .11 (2011); id.

§ 708.4(1).

       Ceretti entered an Alford plea 1 to the attempted murder charge,

but pled guilty to the other two charges. 2 He agreed to join the State’s

sentencing recommendation: a twenty-five-year prison sentence for

attempted murder and two ten-year sentences (one for voluntary


       1See  North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167, 27 L. Ed. 2d
162, 171 (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”).
       2The State posits that the crime the Code labels “attempted murder” is actually

“attempted homicide” because it does not require malice aforethought. See Iowa Code
§§ 707.1 (defining murder to require malice aforethought), .11 (criminalizing “attempt to
commit murder” but requiring only the specific “intent to cause the death of another”);
see also State v. Chenoweth, 226 Iowa 217, 220, 284 N.W. 110, 111–12 (1939) (noting
statutes’ titles should not be dispositive).
        The legislature first enacted section 707.11 in 1976 as “attempt to commit
homicide.” 1976 Iowa Acts ch. 1245, § 711. But just one year later, it specifically
replaced “homicide” with “murder” in both the statute’s title and the text of the
provision. 1977 Iowa Acts ch. 147, § 711. Thus, it does not appear that the inclusion
of the word “murder” was a mere oversight by the code editor. See State v. Kehoe, 804
N.W.2d 302, 312 (Iowa Ct. App. 2011) (mentioning only the 1976 enactment, not the
1977 amendment, and concluding the word “murder” in section 707.11 was a code
editor error rather than a deliberate legislative choice). We need not decide the
significance, if any, of the change in nomenclature effected by the 1977 amendment
because it is ultimately immaterial to our decision in this case.
                                       4

manslaughter and one for willful injury), to be served consecutively with

no eligibility for parole or work release for seventeen-and-one-half years

consistent with Iowa Code section 902.12(2).

      The district court questioned Ceretti extensively during the plea

proceeding in determining whether he entered his pleas knowingly and

voluntarily. The court enumerated the elements of each crime included

in the plea agreement and asked questions of Ceretti for the purpose of

providing a factual basis for his guilty pleas. Ceretti admitted he was in

an altercation with Naylor on November 26, and during that altercation,

he became so incensed that he used a knife to stab Naylor, intending to

cause serious injury. Ceretti also admitted the multiple stab wounds he

inflicted caused Naylor’s death.       The State did not contest Ceretti’s

conclusory agreement with his counsel that his anger during the

altercation constituted “serious provocation” within the meaning of the

voluntary manslaughter statute.        See id. § 707.4. 3     Further, Ceretti

stated he was entering an Alford plea to the attempted murder charge to

take advantage of plea negotiations and sentencing benefits—specifically,

to avoid the lifetime prison sentence he would receive if a jury were to

convict him of first-degree murder. See id. § 707.2 (providing first-degree
murder is a class “A” felony); id. § 902.1(1) (mandating life sentences for

offenders convicted of class “A” felonies).

      The district court accepted each of the pleas.        In furtherance of

immediate sentencing, Ceretti waived the time to file a motion in arrest of

judgment and waived his right to have the court consider a presentence


      3The   2011 Code did not number every subsection of section 707.2, section
707.4, or section 707.11. The legislature added subsection numbers in 2013. 2013
Iowa Acts ch. 30, § 199; id. ch. 90, §§ 224, 226.
                                     5

investigation report. The district court adopted the parties’ sentencing

recommendation and sentenced Ceretti to consecutive prison sentences

totaling forty-five years—twenty-five years with a seventy percent

mandatory minimum for attempted murder, ten years for voluntary

manslaughter, and ten years for willful injury.

      Ceretti appealed, contending attempted murder and willful injury

are both included offenses of voluntary manslaughter, and therefore, the

three convictions should merge and his total sentence should not exceed

ten years.   We transferred the case to the court of appeals, which

rejected Ceretti’s contentions, concluded attempted murder and willful

injury resulting in serious injury are not included offenses of voluntary

manslaughter because the latter offense can be committed without a

specific intent to kill, and affirmed the district court. Ceretti then sought

further review, and we granted his application.

      II. The Parties’ Positions.

      A. Ceretti. Ceretti asserts it is impossible to commit voluntary

manslaughter without also committing attempted homicide and willful

injury. Accordingly, Ceretti contends Iowa Code section 701.9 and Iowa

Rule of Criminal Procedure 2.22(3) mandate that all three offenses

merge.   See id. § 701.9; Iowa R. Crim. P. 2.22(3).         The linchpin of

Ceretti’s contention is the premise that one element of voluntary

manslaughter is the defendant’s specific intent to kill.       See State v.

Hellwege, 294 N.W.2d 689, 690 (Iowa 1980) (“Although no intent element

is specified, a requirement of intent to kill may be inferred from the

language of [Iowa Code] section 707.4.”).

      Ceretti contends in the alternative that even if we conclude the

convictions for attempted murder and voluntary manslaughter do not

merge because those offenses do not share a common specific intent
                                       6

element, we should hold the convictions merge because a defendant

cannot be convicted of both a homicide and an attempt to commit the

same homicide.

      B. The State. The State asserts Ceretti’s decision to appeal after

he initially assented to the plea deal constitutes an improper attempt “to

transform what was a favorable plea bargain in the district court to an

even better deal on appeal.” State v. Walker, 610 N.W.2d 524, 526 (Iowa

2000).   Accordingly, the State urges that Ceretti waived the right to

appeal the sentences imposed by pleading guilty and agreeing to the

State’s sentencing recommendations.         See State v. Rasmus, 249 Iowa

1084, 1086, 90 N.W.2d 429, 430 (1958) (“Certainly defendant could not

complain of a ruling he asked the court to make.”); State v. Jensen, 245

Iowa 1363, 1371, 66 N.W.2d 480, 484 (1954) (“[A] party may not sit by

and permit the court to commit inadvertent error without protest, and

then complain for the first time . . . in the appellate court.”).

      However, the State also asserts we need not decide the waiver

question because voluntary manslaughter does not contain a specific

intent-to-kill     element.    Indeed,     the   State   contends   voluntary

manslaughter contains no specific intent element whatsoever, making it

possible to commit voluntary manslaughter without committing either

attempted homicide or willful injury—both of which require specific

mental states.      See Iowa Code § 707.11 (“with the intent to cause the

death of another person”); id. § 708.4 (“intended to cause serious injury

to another”). Accordingly, the State asks us to uphold Ceretti’s sentence

in its entirety.     If we conclude Ceretti’s convictions merge, the State

requests we vacate the entire plea agreement and allow it to reinstate the

first-degree murder charge, thereby declining to reward any attempt to

manipulate the court system. Cf. State v. Potts, 240 N.W.2d 654, 657
                                    7

(Iowa 1976) (noting a defendant’s success “should not turn on defense

gamesmanship”).

      III. Scope of Review.

      Ceretti asserts the district court’s sentence violated the merger

statute. See Iowa Code § 701.9 (“No person shall be convicted of a public

offense which is necessarily included in another public offense of which

the person is convicted.”). “Section 701.9 codifies the double jeopardy

protection against cumulative punishment.” State v. Gallup, 500 N.W.2d

437, 445 (Iowa 1993); see also State v. Bullock, 638 N.W.2d 728, 731

(Iowa 2002). We review challenges under the merger statute to correct

errors at law. State v. Stewart, 858 N.W.2d 17, 19 (Iowa 2015); State v.

Finnel, 515 N.W.2d 41, 43 (Iowa 1994).

      IV. Analysis.

      A.   The Elements Test.      To determine whether section 701.9

requires that convictions merge, we examine legislative intent. Bullock,

638 N.W.2d at 731; State v. Halliburton, 539 N.W.2d 339, 344 (Iowa

1995). “Legislative intent is indicated, in part, by whether the crimes at

issue meet the legal elements test for lesser-included offenses.” Bullock,

638 N.W.2d at 731; accord Halliburton, 539 N.W.2d at 344; Finnel, 515

N.W.2d at 43. If one offense is not an included offense within the other,

“there is a presumption that multiple punishments can be assessed.”

Finnel, 515 N.W.2d at 43.

      The legal elements test is often called the Blockburger test.   See

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76

L. Ed. 306, 309 (1932). To apply the Blockburger test, “we compare the

elements of the two offenses to determine whether it is possible to

commit the greater offense without also committing the lesser offense.”

Halliburton, 539 N.W.2d at 344.
                                         8

         Ceretti asserts both attempted murder and willful injury merge

with voluntary manslaughter.            Attempted murder consists of two

elements: (1) an act, (2) done with intent to cause another person’s

death.     See Iowa Code § 707.11(1).         Ceretti also pled guilty to willful

injury causing serious injury, which consists of three elements: (1) an

act, (2) done with intent to cause serious injury, from which (3) serious

injury results. See id. § 708.4(1).

         Voluntary manslaughter also consists of three elements: (1) an act,

(2) done with “sudden, violent, and irresistible passion resulting from

serious provocation,” from which (3) death results.              Id. § 707.4(1).

Comparing the elements of voluntary manslaughter with the elements of

attempted murder and willful injury, the elements plainly do not align.

Each offense “requires proof of a fact which the other does not.”

Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309.

Attempted murder requires specific intent to kill, but voluntary

manslaughter does not.        Similarly, voluntary manslaughter requires a

death, whereas attempted murder does not. Along the same lines, willful

injury     requires   a   specific   intent   to   injure,   whereas   voluntary

manslaughter does not require any specific intent.

         Nonetheless, Ceretti asserts although intent to kill is not a

statutory element of voluntary manslaughter, it is an implicit element.

See Hellwege, 294 N.W.2d at 690; State v. Conner, 292 N.W.2d 682, 685

(Iowa 1980) (“[T]his court has, on a number of occasions, construed a

statute to include a criminal intent element absent from its face.”). If

Ceretti is correct, then attempted murder and voluntary manslaughter

merge notwithstanding their statutory differences.             We now turn to

examine Ceretti’s assertion.
                                      9

      B.     Specific Intent to Kill.     Iowa Code section 707.4 defines

voluntary manslaughter:

      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.

Iowa Code § 707.4.      Yet, despite this detailed definition of the crime,

“[t]he authorities do not agree on whether an intent to kill is necessary to

constitute voluntary manslaughter.”       State v. Boston, 233 Iowa 1249,

1255, 11 N.W.2d 407, 410–11 (1943).

      “It is true we have referred to voluntary manslaughter as an

intentional killing . . . .” Id. at 1256, 11 N.W.2d at 411; see Conner, 292

N.W.2d at 684; State v. Millspaugh, 257 N.W.2d 513, 516 (Iowa 1977);

State v. Gillick, 7 Iowa 287, 298 (1858) (“Intentional killing is not

necessarily deliberate or premeditated, nor even malicious, for the crime

may be only manslaughter . . . .”).       “But the expression, intentional

killing, is not used in the sense that a specific intent to kill must be

admitted or established.”     State v. Gordon, 85 S.E.2d 322, 323 (N.C.

1955).     Instead, the expression refers “to the fact that the [a]ct which

resulted in death is intentionally committed.” State v. Ray, 261 S.E.2d

789, 794 (N.C. 1980); see also Gillick, 7 Iowa at 298 (stating a homicide

could be manslaughter “though the act be intentional”); cf. State v.

Shaver, 197 Iowa 1028, 1031–32, 198 N.W. 329, 331 (1924) (“The

defendant testifies, and it is probably true, that he did not intend to kill

. . . . But he nowhere denies that he did not intend to do just what he
                                    10

did do, that is, to strike [the] deceased several times with his fists with

great force.”).

      For the purposes of this case, the crucial phrase in section 707.4 is

“under circumstances which would otherwise be murder.”            Ceretti’s

contention that voluntary manslaughter contains an intent-to-kill

element derives from the notion that someone who acts with intent to

kill, and who would therefore fall within our first-degree murder statute,

see Iowa Code § 707.2(1), is guilty only of voluntary manslaughter if

acting under serious provocation as provided in section 707.4.

      We acknowledge that voluntary manslaughter can be committed

under circumstances which would otherwise be first-degree murder. But

if, as Ceretti contends, intent to kill is an element of voluntary

manslaughter, it would follow that such intent must be proved in

support of every voluntary manslaughter conviction. Herein lies the flaw

in Ceretti’s merger analysis because one may commit voluntary

manslaughter without intending to kill.

      Voluntary manslaughter occurs “under circumstances which

would otherwise be murder.” Id. § 707.4. Murder is a killing with malice

aforethought, and is presumptively second-degree murder unless the

circumstances elevate it to first-degree murder. Compare id. §§ 707.1, .3,

with id. § 707.2(1). Malice aforethought is a general intent, a state of

mind that need not be accompanied by a specific intent to kill. See State

v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010) (“It is well-settled law that

murder in the second degree is a general intent crime . . . .”); State v.

Christie, 243 Iowa 1199, 1204, 53 N.W.2d 887, 889 (1952) (noting the

State must prove intent to kill in addition to malice to obtain a first-

degree murder conviction); see also State v. Smith, 242 N.W.2d 320, 326

(Iowa 1976) (“[M]alice aforethought is not to be equated with specific
                                           11

intent to kill.”); State v. Gibbons, 142 Iowa 96, 98, 120 N.W. 474, 475

(1909) (“The crime of murder in the second degree necessarily involves an

act done with malice aforethought. But that term used in defining the

crime is technical rather than descriptive. It does not necessarily require

an intent to murder.” (Citation omitted.)). 4 Thus, section 707.4 leaves

room for the possibility that a person could commit voluntary

manslaughter under circumstances which would otherwise be only

second-degree murder. See 4 John L. Yeager & Ronald L. Carlson, Iowa

Practice: Criminal Law & Procedure § 145, at 41 (1979) [hereinafter

Yeager & Carlson] (“[Section 707.4] applies to reduce both first degree

and second degree murder to manslaughter if the prescribed conditions

exist.”).

       Because a person could commit voluntary manslaughter under

circumstances which would otherwise be second-degree murder, specific

intent to kill is not an essential element of voluntary manslaughter. We

have recognized for over seventy years that some—but not all—

manslaughter crimes are committed with a specific intent to kill. See

Boston, 233 Iowa at 1256, 11 N.W.2d at 411 (noting “manslaughter may

be committed where there is an intent to take life, if” the defendant forms

that intent impulsively (emphasis added)).                We reaffirm here that a

voluntary manslaughter conviction can be sustained without proof of



       4But  see State v. Zeibart, 40 Iowa 169, 174 (1874) (“[A]n intent to kill is malice
aforethought.”); 4 John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law &
Procedure § 135, at 36–37 (1979) (“Malice aforethought may be found in the intent to
kill, where no justification or mitigating circumstances can be shown.”). We conclude
these authorities do not conflict with the proposition that malice aforethought is not
necessarily accompanied by an intent to kill. A person who acts with intent to kill also
acts with malice aforethought, but the converse is not necessarily true. Cf. Des Moines
Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 848 (Iowa 2015) (Hecht, J.,
dissenting) (“Every square is a rectangle, but not every rectangle is a square.”).
                                    12

specific intent to kill.   “[W]e will not accept . . . the most commonly

negated mens rea for voluntary manslaughter as dictating the only

possible one for the offense.” State v. Shabazz, 739 A.2d 666, 669 (Vt.

1999).

      Additionally, we have previously noted—albeit impliedly—that

voluntary manslaughter contains no specific intent element.       State v.

Couser, 567 N.W.2d 657, 661 (Iowa 1997). In Couser, we concluded a

defendant’s suicidal state of mind did not “measure up to the

requirements of a diminished-capacity defense as to any element of

voluntary manslaughter” because diminished-capacity defenses are

available only against crimes for which the state must prove the

defendant’s specific intent as an element of the offense. Id.; see State v.

Gramenz, 256 Iowa 134, 138–39, 126 N.W.2d 285, 288 (1964).

      Furthermore, if voluntary manslaughter contains a specific intent

element, a person could commit second-degree murder without also

having the requisite intent for voluntary manslaughter.       See State v.

Montgomery, 39 So. 3d 252, 256 (Fla. 2010) (concluding specific intent to

kill is not an element of voluntary manslaughter because “to impose

such a requirement . . . would impose a more stringent finding of intent

upon manslaughter than upon second-degree murder”).               Yet the

legislature has declared that voluntary manslaughter “is an included

offense under an indictment for murder in the first or second degree.”

Iowa Code § 707.4.         We interpret section 707.4 to preserve the

legislature’s express directive.

      Our conclusion is consistent with decisions from courts in several

other jurisdictions holding intent to kill is not an element of voluntary

manslaughter. See, e.g., United States v. Paul, 37 F.3d 496, 499 n.1 (9th

Cir. 1994) (“While most voluntary manslaughter cases involve intent to
                                       13

kill, it is possible that a defendant who killed unintentionally but . . .

with extreme disregard for human life may have acted in the heat of

passion with adequate provocation.”); People v. Bryant, 301 P.3d 1136,

1141 (Cal. 2013) (“A defendant commits voluntary manslaughter when a

homicide that is committed either with intent to kill or with conscious

disregard for life—and therefore would normally constitute murder—is

nevertheless reduced or mitigated to manslaughter.” (Emphasis added.));

Montgomery, 39 So. 3d at 256 (“[I]n some cases of manslaughter . . . it

may be inferred from the facts that the defendant intended to kill the

victim . . . .” (Emphasis added.)); State v. Porter, 128 P.3d 908, 912

(Idaho 2005) (“To the extent that prior cases state that the intent to kill is

a necessary element of voluntary manslaughter, those cases are

disavowed.”); State v. Keffer, 860 P.2d 1118, 1138 (Wyo. 1993)

(“Manslaughter . . . is a general intent crime that does not require a

deliberate intent to kill.”). We decline Ceretti’s invitation to supplement

section 707.4 with an implicit specific intent element.         See State v.

Taylor,    452   N.W.2d   605,   606    (Iowa   1990)   (concluding    malice

aforethought is not an element of voluntary manslaughter either).

      C.    Conviction for Attempt and a Completed Crime.                Our

conclusion that voluntary manslaughter does not require specific intent

to kill does not end our analysis, however. Ceretti contends attempted

murder should still merge with voluntary manslaughter because

attempted crimes merge once completed. See Iowa R. Crim. P. 2.22(3)

(“Upon trial of an offense consisting of different degrees, the jury may

find the defendant not guilty of the degree charged . . . , and guilty of any

degree inferior thereto, or of an attempt to commit the offense when such

attempt is prohibited by law.” (Emphasis added.)). His contention sets

forth a syllogism.   First, voluntary manslaughter is a lesser included
                                     14

offense of murder. Iowa Code § 707.4. Second, attempted murder is a

selectively criminalized attempt, so it denotes an instance “when . . .

attempt is prohibited by law.” Iowa R. Crim. P. 2.22(3); see Iowa Code

§ 707.11. Therefore, Ceretti asserts that because both crimes fall along

the spectrum of offenses between attempted murder and first-degree

murder, the attempted homicide merges into the completed one.

      Although we have concluded the Blockburger test does not require

merger under the circumstances presented here, we agree rule 2.22(3)

prevents the State from punishing Ceretti for both attempting and

completing the same homicide. In cases decided in the late 19th century

and the early 20th century, we indicated that although voluntary

manslaughter is a lesser included offense of murder, we did not consider

it a degree of murder. See State v. Brown, 152 Iowa 427, 437, 132 N.W.

862, 866 (1911); State v. White, 45 Iowa 325, 327 (1876). That is still

true in a textual sense—we do not call voluntary manslaughter “third-

degree murder”—but for purposes of determining whether sentences

constitute double punishment, we conclude the legislature did not intend

to punish a defendant for both an attempted homicide and a completed

homicide when the convictions are based on the same act or acts

directed against the same victim. See 4 Yeager & Carlson § 131, at 35

(noting after the criminal code revision in the 1970s, “[t]here are now five

degrees of homicide”); see also 4 Robert R. Rigg & B. John Burns, Iowa

Practice: Criminal Law & Procedure § 144, at 62 (Supp. 2001)

(“[V]oluntary manslaughter is more realistically viewed as a diminished

form of murder, rather than a completely separate offense. . . . There is

no realistic view of voluntary manslaughter that does not consider it a

lesser degree of murder . . . .”).
                                    15

      “Iowa does not have a general attempt statute. . . . As a result, our

attempt law is relatively undeveloped.” State v. Walker, 856 N.W.2d 179,

187 (Iowa 2014). Of course, “[i]t is also clear . . . that a defendant may

not be convicted of both the attempt and the completed crime, because

all the elements of the attempt are included in the completed offense and

a dual conviction would amount to double jeopardy.” United States v.

Rust, 650 F.2d 927, 928 (8th Cir. 1981) (per curiam); cf. State v.

Waterbury, 307 N.W.2d 45, 51–52 (Iowa 1981) (merging a conviction for

conspiracy to commit murder into a conviction for completing the same

murder). However, this case features a unique wrinkle: Ceretti was not

convicted of both attempted murder and murder; he was convicted of

attempted murder and voluntary manslaughter—something less than

murder.

      We conclude that wrinkle does not legitimize punishment for both

an attempted murder of one victim and the homicide of that same victim

from the same acts.    We analogize here to the judicially-created one-

homicide rule. See State v. Fix, 830 N.W.2d 744, 747–48 (Iowa Ct. App.

2013) (tracing the history of the one-homicide rule). The rule prohibits “a

trial court from entering judgments and imposing sentences for multiple

homicide offenses if the defendant was convicted for killing only one

person.” Id. at 745; see also State v. Wissing, 528 N.W.2d 561, 567 (Iowa

1995).

      The court of appeals has observed that “attempt to commit murder

is not a homicide offense,” so convictions for both attempted murder and

voluntary manslaughter do not violate the one-homicide rule. Termaat v.

State, 867 N.W.2d 853, 856 (Iowa Ct. App. 2015); accord People v.

Latham, 631 N.E.2d 83, 85 (N.Y. 1994) (“Attempted murder—which fails

to cause the death of a person—is . . . by definition a ‘nonhomicide’
                                      16

offense.”). That is true, of course; attempted murder is not a homicide

offense.   But we conclude 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.      Therefore, rule 2.22(3) applies in this case.     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. Cf. People v. Sullivan, 6 N.E.3d 888,

902 (Ill. App. Ct. 2014) (vacating an aggravated battery conviction after

the defendant was convicted of both aggravated battery and first-degree

murder for harming one victim because the “defendant attacked his

[victim] in a single, generalized instance”).

      D.   Disposition.     We now turn to the appropriate disposition.

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. State v. Mapp, 585 N.W.2d 746, 749 (Iowa 1998); State

v. Axline, 450 N.W.2d 857, 860 (Iowa 1990); accord Fix, 830 N.W.2d at

751. 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.

      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
                                      17
      because the basis on which the defendant entered the plea
      included the impermissible inducement of an illegal
      sentence.

Chae v. People, 780 P.2d 481, 486 (Colo. 1989) (en banc); see also

Sweetwine v. State, 398 A.2d 1262, 1265 (Md. Ct. Spec. App. 1979)

(“[T]he whole package of reciprocal arrangements and obligations is

conditional. The condition is the continuing health of the guilty plea. If

it is voided, both the defendant and the state return to ‘square one.’ ”

(Footnote omitted.)), aff’d, 421 A.2d 60, 69 (Md. 1980); State v. Briggs,

579 N.W.2d 783, 789 (Wis. Ct. App. 1998) (“We . . . vacate the amended

information and reinstate the original information in order to restore the

parties to the positions they had before they made an agreement based

on an inaccurate view of the law . . . .”).

      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.” Walker, 610 N.W.2d at 526; see

also People v. Evans, 673 N.E.2d 244, 248 (Ill. 1996) (refusing to let a

defendant “negotiate with the State to obtain the best possible deal in

modifying or dismissing the most serious charges and obtain a lighter

sentence . . . and then attempt to get that sentence reduced even

further”).   Ceretti “willingly embraced the . . . sentence in the plea

agreement in return for not risking life imprisonment following a guilty
verdict at trial.”   Fix, 830 N.W.2d at 750.   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. Cf.

State v. Bittinger, 549 A.2d 10, 11–12 (Md. 1988) (refusing to

countenance a defendant’s attempt to surprise the State by agreeing to a
                                    18

plea deal and then contending, immediately after the State dismissed the

original charges, that he could not be guilty of the amended charge as a

matter of law).

      To avoid that problem, we do in this case what we have done in

others involving an invalid plea agreement: We vacate all three

convictions and the entire plea bargain and remand the case to the

district court. See State v. Allen, 708 N.W.2d 361, 369 (Iowa 2006); State

v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). “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.”   Allen, 708 N.W.2d at 369; see also State v. Sanders, 309

N.W.2d 144, 147 (Iowa Ct. App. 1981). We conclude this disposition is

appropriate because simply allowing the other sentences to stand would

give “the defendant the benefit of reducing his maximum sentence

[substantially], contrary to the plea agreement.” State v. Robinson, 638

N.W.2d 564, 572 (Wis. 2002), abrogated on other grounds by State v.

Kelty, 716 N.W.2d 886, 901 (Wis. 2006); cf. State v. Krawczyk, 657

N.W.2d 77, 88 (Wis. Ct. App. 2002) (declining to vacate an entire plea

agreement when the “total sentence on the remaining charges d[id] not

substantially deprive [the State] of the benefit of the plea agreement it

made”). Of course, the parties may negotiate a new plea agreement on

remand or try the case.

      V. Conclusion.

      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. Because Ceretti’s plea agreement

contravenes this principle, we vacate the agreement and the resulting
                                   19

convictions.   We remand the case to the district court for further

proceedings consistent with this opinion. Costs are taxed to the State.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT VACATED; CASE REMANDED.
