Noble v. Iowa Dist. Court for Muscatine Cnty., 17-0422

• Citation: 919 N.W.2d 625
• Decision Date: 21 March 2018
• Docket Number: No. 17-0422,17-0422
• Parties: Brett NOBLE, Plaintiff-Appellant, v. IOWA DISTRICT COURT FOR MUSCATINE COUNTY, Defendant-Appellee.
• Court: Court of Appeals of Iowa

919 N.W.2d 625

Brett NOBLE, Plaintiff-Appellant,

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

No. 17-0422

Court of Appeals of Iowa.

Filed March 21, 2018

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.

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 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 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 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 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, 62 S.Ct. 510, 86 L.Ed. 832 (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 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...