from the Iowa District Court for Muscatine County, Mark J.
Smith (plea) and Mark D. Cleve (sentencing/motion), Judges.
challenges his convictions and sentences for attempted murder
and voluntary manslaughter.
E. Dusthimer, Davenport, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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.
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.
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.
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.
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.
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 ...