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Noble v. Iowa District Court for Muscatine County

Court of Appeals of Iowa

March 21, 2018

BRETT NOBLE, Plaintiff-Appellant,
v.
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.

          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 ...


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