STATE OF IOWA, Plaintiff-Appellee, vs. BRETT EUGENE NOBLE, Defendant-Appellant.
No. 19-0072
IN THE COURT OF APPEALS OF IOWA
Filed February 19, 2020
VAITHESWARAN, Presiding Judge.
Brett Noble appeals the district court‘s ruling on remand. AFFIRMED.
Jeffrey Powell, Coralville, and Thomas J. O‘Flaherty оf O‘Flaherty Law Firm, Bettendorf, (until withdrawal), for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Considered by Vaithеswaran, P.J., Mullins, J., and Potterfield, S.J.*
Brett Noble pled guilty to attempt to commit murder, first-degree theft, voluntary manslaughter, and assault while participating in a felony. The district cоurt imposed sentence and ordered the sentences to run consecutively. Noble filed a motion to correct an illegal sentence, which the district сourt denied.1 On review of the court‘s decision, the court of appeals held “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 [State v.] Ceretti, [871 N.W.2d 88 (Iowa 2015)].” Noble v. Iowa Dist. Ct., 919 N.W.2d 625, 634 (Iowa Ct. App. 2018) (“Noble I“). The court remanded the case for furthеr proceedings, with the following instruction:
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 Stаte 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.”
Id. (quoting Ceretti, 871 N.W.2d at 97).
On remand, the district court filed an amended sentencing order, explaining that the State “elected to have the conviction and sentence on Count 3, Voluntary Manslaughter, vacated and for resentencing to take place on the remaining counts.” The сourt sentenced Noble to consecutive prison terms for the three remaining offenses—attempted murder, first-degree theft, and assault while participating in а felony—for a total term not to exceed forty years.
“The law of the case doctrine ‘represents the practice of courts to refuse to reconsider what has once been decided.‘” State v. Ragland, 812 N.W.2d 654, 658 (Iowa 2012) (quoting State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987)). “The doctrine, however, is not absolute or inflexible.” United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). For example, it is well established that an illegal sentence may be challenged at any time. See
In Termaat v. State, 867 N.W.2d 853, 855 n.2 (Iowa Ct. App. 2015), this court declined to apply the law-of-the-case doctrine in an appeal raising the sаme sentencing issue Noble has raised. We stated, “Relying on our tolerant stance toward illegal sentence claims, we find the State‘s arguments of issue preclusiоn
As noted, the court of appeals afforded the State the option to elect оne of two remedies on remand: “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.” Noble I, 919 N.W.2d at 634. On remand, the district court approved the first option chosen by the State. Noble argues that option contravened the court‘s holding in Ceretti.
In Ceretti, the defendant entered an Alford plea2 to attempted murder and he also pled guilty to voluntary manslaughter and willful injury causing serious injury. 871 N.W.2d at 90. The court 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. The court next pondered the “appropriate disposition.” Id. The court stated:
Sometimes, when we conclude a conviction or sentence is improper on a particular rеcord, we reverse the conviction and remand for resentencing to eliminate part of the sentence, while letting the balance of the sentence stand. 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 сontract 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 because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence.”
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.” Ceretti “willingly embraced the . . . sentence in the plea agreement in return for not risking life imprisonment following a guilty verdict at trial.” If we were simply tо sever Ceretti‘s sentence for attempted murder, defendants might be motivated to enter plea agreements quietly—even if they have double punishment conсerns—and then appeal them to obtain a more lenient sentence.
Id. at 96–97 (citations omitted). Accordingly, the court “vacate[d] all three convictions аnd the entire plea bargain and remand[ed] the case to the district court” with the following instructions: “‘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.’ . . . Of course, the parties may nеgotiate a new plea agreement on remand or try the case.” Id. at 97–98 (citation omitted).
The State characterizes the quoted paragraphs of Ceretti as a “speck of dicta.” In our view, the language has more than a speck of signifiсance. Nonetheless, we agree with the State that the disposition in Ceretti was not “the only possible way to remedy problems with multiplicity.”
In Noble I, this court was cognizant of Ceretti and discussed it extensively. With Ceretti in the forefront, the court provided two options on remand. The district
We affirm Noble‘s amended sentence.
AFFIRMED.