State v. Ceretti

871 N.W.2d 88

STATE of Iowa, Appellee,

v.Joseph D. CERETTI, Appellant.

No. 13–1573.

Supreme Court of Iowa.

Oct. 23, 2015.

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.

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.

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 plea¹ 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 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 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 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 (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...