Amended January 12, 2016 State of Iowa v. Joseph D. Ceretti ( 2015 )

  •                IN THE SUPREME COURT OF IOWA
                                  No. 13–1573
                             Filed October 23, 2015
                           Amended January 12, 2016
          On review from the Iowa Court of Appeals.
          Appeal from the Iowa District Court for Polk County, Glenn E. Pille,
          A criminal defendant appeals the sentences imposed after he pled
    guilty to multiple offenses, contending the convictions should merge
    because voluntary manslaughter requires that the defendant have
    specific intent to kill.   DECISION OF COURT OF APPEALS AND
          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 plea 1 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
           1See  North Carolina v. Alford, 
    400 U.S. 25
    , 37, 
    91 S. Ct. 160
    , 167, 
    27 L. Ed. 2d 162
    , 171 (1970) (permitting criminal defendants to enter a plea and “consent to the
    imposition of a prison sentence even if [they are] unwilling or unable to admit . . .
    participation in the acts constituting the crime”).
           2The State posits that the crime the Code labels “attempted murder” is actually
    “attempted homicide” because it does not require malice aforethought. See Iowa Code
    §§ 707.1 (defining murder to require malice aforethought), .11 (criminalizing “attempt to
    commit murder” but requiring only the specific “intent to cause the death of another”);
    see also State v. Chenoweth, 
    226 Iowa 217
    , 220, 
    284 N.W. 110
    , 111–12 (1939) (noting
    statutes’ titles should not be dispositive).
            The legislature first enacted section 707.11 in 1976 as “attempt to commit
    homicide.” 1976 Iowa Acts ch. 1245, § 711. But just one year later, it specifically
    replaced “homicide” with “murder” in both the statute’s title and the text of the
    provision. 1977 Iowa Acts ch. 147, § 711. Thus, it does not appear that the inclusion
    of the word “murder” was a mere oversight by the code editor. See State v. Kehoe, 
    804 N.W.2d 302
    , 312 (Iowa Ct. App. 2011) (mentioning only the 1976 enactment, not the
    1977 amendment, and concluding the word “murder” in section 707.11 was a code
    editor error rather than a deliberate legislative choice). We need not decide the
    significance, if any, of the change in nomenclature effected by the 1977 amendment
    because it is ultimately immaterial to our decision in this case.
    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
          3The   2011 Code did not number every subsection of section 707.2, section
    707.4, or section 707.11. The legislature added subsection numbers in 2013. 2013
    Iowa Acts ch. 30, § 199; id. ch. 90, §§ 224, 226.
    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.
    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
          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.
    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 committing the lesser offense.”
    Halliburton, 539 N.W.2d at 344.
             Ceretti asserts both attempted murder and willful injury merge
    with voluntary manslaughter.            Attempted murder consists of two
    elements: (1) an act, (2) done with intent to cause another person’s
    death.     See Iowa Code § 707.11(1).         Ceretti also pled guilty to willful
    injury causing serious injury, which consists of three elements: (1) an
    act, (2) done with intent to cause serious injury, from which (3) serious
    injury results. See id. § 708.4(1).
             Voluntary manslaughter also consists of three elements: (1) an act,
    (2) done with “sudden, violent, and irresistible passion resulting from
    serious provocation,” from which (3) death results.              Id. § 707.4(1).
    Comparing the elements of voluntary manslaughter with the elements of
    attempted murder and willful injury, the elements plainly do not align.
    Each offense “requires proof of a fact which the other does not.”
    Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309.
    Attempted murder requires specific intent to kill, but voluntary
    manslaughter does not.        Similarly, voluntary manslaughter requires a
    death, whereas attempted murder does not. Along the same lines, willful
    injury     requires   a   specific   intent   to   injure,   whereas   voluntary
    manslaughter does not require any specific intent.
             Nonetheless, Ceretti asserts although intent to kill is not a
    statutory element of voluntary manslaughter, it is an implicit element.
    See Hellwege, 294 N.W.2d at 690; State v. Conner, 
    292 N.W.2d 682
    , 685
    (Iowa 1980) (“[T]his court has, on a number of occasions, construed a
    statute to include a criminal intent element absent from its face.”). If
    Ceretti is correct, then attempted murder and voluntary manslaughter
    merge notwithstanding their statutory differences.             We now turn to
    examine Ceretti’s assertion.
          B.     Specific Intent to Kill.     Iowa Code section 707.4 defines
    voluntary manslaughter:
          A person commits voluntary manslaughter when that person
          causes the death of another person, under circumstances
          which would otherwise be murder, if the person causing the
          death acts solely as the result of sudden, violent, and
          irresistible passion resulting from serious provocation
          sufficient to excite such passion in a person and there is not
          an interval between the provocation and the killing in which
          a person of ordinary reason and temperament would regain
          control and suppress the impulse to kill.
    Iowa Code § 707.4.      Yet, despite this detailed definition of the crime,
    “[t]he authorities do not agree on whether an intent to kill is necessary to
    constitute voluntary manslaughter.”       State v. Boston, 
    233 Iowa 1249
    11 N.W.2d 407
    , 410–11 (1943).
          “It is true we have referred to voluntary manslaughter as an
    intentional killing . . . .” Id. at 1256, 11 N.W.2d at 411; see Conner, 292
    N.W.2d at 684; State v. Millspaugh, 
    257 N.W.2d 513
    , 516 (Iowa 1977);
    State v. Gillick, 
    7 Iowa 287
    , 298 (1858) (“Intentional killing is not
    necessarily deliberate or premeditated, nor even malicious, for the crime
    may be only manslaughter . . . .”).       “But the expression, intentional
    killing, is not used in the sense that a specific intent to kill must be
    admitted or established.”     State v. Gordon, 
    85 S.E.2d 322
    , 323 (N.C.
    1955).     Instead, the expression refers “to the fact that the [a]ct which
    resulted in death is intentionally committed.” State v. Ray, 
    261 S.E.2d 789
    , 794 (N.C. 1980); see also Gillick, 7 Iowa at 298 (stating a homicide
    could be manslaughter “though the act be intentional”); cf. State v.
    197 Iowa 1028
    , 1031–32, 
    198 N.W. 329
    , 331 (1924) (“The
    defendant testifies, and it is probably true, that he did not intend to kill
    . . . . But he nowhere denies that he did not intend to do just what he
    did do, that is, to strike [the] deceased several times with his fists with
    great force.”).
          For the purposes of this case, the crucial phrase in section 707.4 is
    “under circumstances which would otherwise be murder.”            Ceretti’s
    contention that voluntary manslaughter contains an intent-to-kill
    element derives from the notion that someone who acts with intent to
    kill, and who would therefore fall within our first-degree murder statute,
    see Iowa Code § 707.2(1), is guilty only of voluntary manslaughter if
    acting under serious provocation as provided in section 707.4.
          We acknowledge that voluntary manslaughter can be committed
    under circumstances which would otherwise be first-degree murder. But
    if, as Ceretti contends, intent to kill is an element of voluntary
    manslaughter, it would follow that such intent must be proved in
    support of every voluntary manslaughter conviction. Herein lies the flaw
    in Ceretti’s merger analysis because one may commit voluntary
    manslaughter without intending to kill.
          Voluntary manslaughter occurs “under circumstances which
    would otherwise be murder.” Id. § 707.4. Murder is a killing with malice
    aforethought, and is presumptively second-degree murder unless the
    circumstances elevate it to first-degree murder. Compare id. §§ 707.1, .3,
    with id. § 707.2(1). Malice aforethought is a general intent, a state of
    mind that need not be accompanied by a specific intent to kill. See State
    v. Lyman, 
    776 N.W.2d 865
    , 877 (Iowa 2010) (“It is well-settled law that
    murder in the second degree is a general intent crime . . . .”); State v.
    243 Iowa 1199
    , 1204, 
    53 N.W.2d 887
    , 889 (1952) (noting the
    State must prove intent to kill in addition to malice to obtain a first-
    degree murder conviction); see also State v. Smith, 
    242 N.W.2d 320
    , 326
    (Iowa 1976) (“[M]alice aforethought is not to be equated with specific
    intent to kill.”); State v. Gibbons, 
    142 Iowa 96
    , 98, 
    120 N.W. 474
    , 475
    (1909) (“The crime of murder in the second degree necessarily involves an
    act done with malice aforethought. But that term used in defining the
    crime is technical rather than descriptive. It does not necessarily require
    an intent to murder.” (Citation omitted.)). 4 Thus, section 707.4 leaves
    room for the possibility that a person could commit voluntary
    manslaughter under circumstances which would otherwise be only
    second-degree murder. See 4 John L. Yeager & Ronald L. Carlson, Iowa
    Practice: Criminal Law & Procedure § 145, at 41 (1979) [hereinafter
    Yeager & Carlson] (“[Section 707.4] applies to reduce both first degree
    and second degree murder to manslaughter if the prescribed conditions
           Because a person could commit voluntary manslaughter under
    circumstances which would otherwise be second-degree murder, specific
    intent to kill is not an essential element of voluntary manslaughter. We
    have recognized for over seventy years that some—but not all—
    manslaughter crimes are committed with a specific intent to kill. See
    Boston, 233 Iowa at 1256, 11 N.W.2d at 411 (noting “manslaughter may
    be committed where there is an intent to take life, if” the defendant forms
    that intent impulsively (emphasis added)).                We reaffirm here that a
    voluntary manslaughter conviction can be sustained without proof of
           4But  see State v. Zeibart, 
    40 Iowa 169
    , 174 (1874) (“[A]n intent to kill is malice
    aforethought.”); 4 John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law &
    Procedure § 135, at 36–37 (1979) (“Malice aforethought may be found in the intent to
    kill, where no justification or mitigating circumstances can be shown.”). We conclude
    these authorities do not conflict with the proposition that malice aforethought is not
    necessarily accompanied by an intent to kill. A person who acts with intent to kill also
    acts with malice aforethought, but the converse is not necessarily true. Cf. Des Moines
    Area Reg’l Transit Auth. v. Young, 
    867 N.W.2d 839
    , 848 (Iowa 2015) (Hecht, J.,
    dissenting) (“Every square is a rectangle, but not every rectangle is a square.”).
    specific intent to kill.   “[W]e will not accept . . . the most commonly
    negated mens rea for voluntary manslaughter as dictating the only
    possible one for the offense.” State v. Shabazz, 
    739 A.2d 666
    , 669 (Vt.
          Additionally, we have previously noted—albeit impliedly—that
    voluntary manslaughter contains no specific intent element.       State v.
    567 N.W.2d 657
    , 661 (Iowa 1997). In Couser, we concluded a
    defendant’s suicidal state of mind did not “measure up to the
    requirements of a diminished-capacity defense as to any element of
    voluntary manslaughter” because diminished-capacity defenses are
    available only against crimes for which the state must prove the
    defendant’s specific intent as an element of the offense. Id.; see State v.
    256 Iowa 134
    , 138–39, 
    126 N.W.2d 285
    , 288 (1964).
          Furthermore, if voluntary manslaughter contains a specific intent
    element, a person could commit second-degree murder without also
    having the requisite intent for voluntary manslaughter.       See State v.
    39 So. 3d 252
    , 256 (Fla. 2010) (concluding specific intent to
    kill is not an element of voluntary manslaughter because “to impose
    such a requirement . . . would impose a more stringent finding of intent
    upon manslaughter than upon second-degree murder”).               Yet the
    legislature has declared that voluntary manslaughter “is an included
    offense under an indictment for murder in the first or second degree.”
    Iowa Code § 707.4.         We interpret section 707.4 to preserve the
    legislature’s express directive.
          Our conclusion is consistent with decisions from courts in several
    other jurisdictions holding intent to kill is not an element of voluntary
    manslaughter. See, e.g., United States v. Paul, 
    37 F.3d 496
    , 499 n.1 (9th
    Cir. 1994) (“While most voluntary manslaughter cases involve intent to
    kill, it is possible that a defendant who killed unintentionally but . . .
    with extreme disregard for human life may have acted in the heat of
    passion with adequate provocation.”); People v. Bryant, 
    301 P.3d 1136
    1141 (Cal. 2013) (“A defendant commits voluntary manslaughter when a
    homicide that is committed either with intent to kill or with conscious
    disregard for life—and therefore would normally constitute murder—is
    nevertheless reduced or mitigated to manslaughter.” (Emphasis added.));
    Montgomery, 39 So. 3d at 256 (“[I]n some cases of manslaughter . . . it
    may be inferred from the facts that the defendant intended to kill the
    victim . . . .” (Emphasis added.)); State v. Porter, 
    128 P.3d 908
    , 912
    (Idaho 2005) (“To the extent that prior cases state that the intent to kill is
    a necessary element of voluntary manslaughter, those cases are
    disavowed.”); State v. Keffer, 
    860 P.2d 1118
    , 1138 (Wyo. 1993)
    (“Manslaughter . . . is a general intent crime that does not require a
    deliberate intent to kill.”). We decline Ceretti’s invitation to supplement
    section 707.4 with an implicit specific intent element.         See State v.
    452 N.W.2d 605
    ,   606    (Iowa   1990)   (concluding    malice
    aforethought is not an element of voluntary manslaughter either).
          C.    Conviction for Attempt and a Completed Crime.                Our
    conclusion that voluntary manslaughter does not require specific intent
    to kill does not end our analysis, however. Ceretti contends attempted
    murder should still merge with voluntary manslaughter because
    attempted crimes merge once completed. See Iowa R. Crim. P. 2.22(3)
    (“Upon trial of an offense consisting of different degrees, the jury may
    find the defendant not guilty of the degree charged . . . , and guilty of any
    degree inferior thereto, or of an attempt to commit the offense when such
    attempt is prohibited by law.” (Emphasis added.)). His contention sets
    forth a syllogism.   First, voluntary manslaughter is a lesser included
    offense of murder. Iowa Code § 707.4. Second, attempted murder is a
    selectively criminalized attempt, so it denotes an instance “when . . .
    attempt is prohibited by law.” Iowa R. Crim. P. 2.22(3); see Iowa Code
    § 707.11. Therefore, Ceretti asserts that because both crimes fall along
    the spectrum of offenses between attempted murder and first-degree
    murder, the attempted homicide merges into the completed one.
          Although we have concluded the Blockburger test does not require
    merger under the circumstances presented here, we agree rule 2.22(3)
    prevents the State from punishing Ceretti for both attempting and
    completing the same homicide. In cases decided in the late 19th century
    and the early 20th century, we indicated that although voluntary
    manslaughter is a lesser included offense of murder, we did not consider
    it a degree of murder. See State v. Brown, 
    152 Iowa 427
    , 437, 
    132 N.W. 862
    , 866 (1911); State v. White, 
    45 Iowa 325
    , 327 (1876). That is still
    true in a textual sense—we do not call voluntary manslaughter “third-
    degree murder”—but for purposes of determining whether sentences
    constitute double punishment, we conclude the legislature did not intend
    to punish a defendant for both an attempted homicide and a completed
    homicide when the convictions are based on the same act or acts
    directed against the same victim. See 4 Yeager & Carlson § 131, at 35
    (noting after the criminal code revision in the 1970s, “[t]here are now five
    degrees of homicide”); see also 4 Robert R. Rigg & B. John Burns, Iowa
    Practice: Criminal Law & Procedure § 144, at 62 (Supp. 2001)
    (“[V]oluntary manslaughter is more realistically viewed as a diminished
    form of murder, rather than a completely separate offense. . . . There is
    no realistic view of voluntary manslaughter that does not consider it a
    lesser degree of murder . . . .”).
          “Iowa does not have a general attempt statute. . . . As a result, our
    attempt law is relatively undeveloped.” State v. Walker, 
    856 N.W.2d 179
    187 (Iowa 2014). Of course, “[i]t is also clear . . . that a defendant may
    not be convicted of both the attempt and the completed crime, because
    all the elements of the attempt are included in the completed offense and
    a dual conviction would amount to double jeopardy.” United States v.
    650 F.2d 927
    , 928 (8th Cir. 1981) (per curiam); cf. State v.
    307 N.W.2d 45
    , 51–52 (Iowa 1981) (merging a conviction for
    conspiracy to commit murder into a conviction for completing the same
    murder). However, this case features a unique wrinkle: Ceretti was not
    convicted of both attempted murder and murder; he was convicted of
    attempted murder and voluntary manslaughter—something less than
          We conclude that wrinkle does not legitimize punishment for both
    an attempted murder of one victim and the homicide of that same victim
    from the same acts.    We analogize here to the judicially-created one-
    homicide rule. See State v. Fix, 
    830 N.W.2d 744
    , 747–48 (Iowa Ct. App.
    2013) (tracing the history of the one-homicide rule). The rule prohibits “a
    trial court from entering judgments and imposing sentences for multiple
    homicide offenses if the defendant was convicted for killing only one
    person.” Id. at 745; see also State v. Wissing, 
    528 N.W.2d 561
    , 567 (Iowa
          The court of appeals has observed that “attempt to commit murder
    is not a homicide offense,” so convictions for both attempted murder and
    voluntary manslaughter do not violate the one-homicide rule. Termaat v.
    867 N.W.2d 853
    , 856 (Iowa Ct. App. 2015); accord People v.
    631 N.E.2d 83
    , 85 (N.Y. 1994) (“Attempted murder—which fails
    to cause the death of a person—is . . . by definition a ‘nonhomicide’
    offense.”). That is true, of course; attempted murder is not a homicide
    offense.   But we conclude 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.      Therefore, rule 2.22(3) applies in this case.     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. Cf. People v. Sullivan, 
    6 N.E.3d 888
    902 (Ill. App. Ct. 2014) (vacating an aggravated battery conviction after
    the defendant was convicted of both aggravated battery and first-degree
    murder for harming one victim because the “defendant attacked his
    [victim] in a single, generalized instance”).
          D.   Disposition.     We now turn to the appropriate disposition.
    Sometimes, when we conclude a conviction or sentence is improper on a
    particular record, we reverse the conviction and remand for resentencing
    to eliminate part of the sentence, while letting the balance of the
    sentence stand. State v. Mapp, 
    585 N.W.2d 746
    , 749 (Iowa 1998); State
    v. Axline, 
    450 N.W.2d 857
    , 860 (Iowa 1990); accord Fix, 830 N.W.2d at
    751. 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 contract 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
    Chae v. People, 
    780 P.2d 481
    , 486 (Colo. 1989) (en banc); see also
    Sweetwine v. State, 
    398 A.2d 1262
    , 1265 (Md. Ct. Spec. App. 1979)
    (“[T]he whole package of reciprocal arrangements and obligations is
    conditional. The condition is the continuing health of the guilty plea. If
    it is voided, both the defendant and the state return to ‘square one.’ ”
    (Footnote omitted.)), aff’d, 
    421 A.2d 60
    , 69 (Md. 1980); State v. Briggs,
    579 N.W.2d 783
    , 789 (Wis. Ct. App. 1998) (“We . . . vacate the amended
    information and reinstate the original information in order to restore the
    parties to the positions they had before they made an agreement based
    on an inaccurate view of the law . . . .”).
          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.” Walker, 610 N.W.2d at 526; see
    also People v. Evans, 
    673 N.E.2d 244
    , 248 (Ill. 1996) (refusing to let a
    defendant “negotiate with the State to obtain the best possible deal in
    modifying or dismissing the most serious charges and obtain a lighter
    sentence . . . and then attempt to get that sentence reduced even
    further”).   Ceretti “willingly embraced the . . . sentence in the plea
    agreement in return for not risking life imprisonment following a guilty
    verdict at trial.”   Fix, 830 N.W.2d at 750.   If we were simply to sever
    Ceretti’s sentence for attempted murder, defendants might be motivated
    to enter plea agreements quietly—even if they have double punishment
    concerns—and then appeal them to obtain a more lenient sentence. Cf.
    State v. Bittinger, 
    549 A.2d 10
    , 11–12 (Md. 1988) (refusing to
    countenance a defendant’s attempt to surprise the State by agreeing to a
    plea deal and then contending, immediately after the State dismissed the
    original charges, that he could not be guilty of the amended charge as a
    matter of law).
          To avoid that problem, we do in this case what we have done in
    others involving an invalid plea agreement: We vacate all three
    convictions and the entire plea bargain and remand the case to the
    district court. See State v. Allen, 
    708 N.W.2d 361
    , 369 (Iowa 2006); State
    v. Hack, 
    545 N.W.2d 262
    , 263 (Iowa 1996). “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.”   Allen, 708 N.W.2d at 369; see also State v. Sanders, 
    309 N.W.2d 144
    , 147 (Iowa Ct. App. 1981). We conclude this disposition is
    appropriate because simply allowing the other sentences to stand would
    give “the defendant the benefit of reducing his maximum sentence
    [substantially], contrary to the plea agreement.” State v. Robinson, 
    638 N.W.2d 564
    , 572 (Wis. 2002), abrogated on other grounds by State v.
    716 N.W.2d 886
    , 901 (Wis. 2006); cf. State v. Krawczyk, 
    657 N.W.2d 77
    , 88 (Wis. Ct. App. 2002) (declining to vacate an entire plea
    agreement when the “total sentence on the remaining charges d[id] not
    substantially deprive [the State] of the benefit of the plea agreement it
    made”). Of course, the parties may negotiate a new plea agreement on
    remand or try the case.
          V. Conclusion.
          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. Because Ceretti’s plea agreement
    contravenes this principle, we vacate the agreement and the resulting
    convictions.   We remand the case to the district court for further
    proceedings consistent with this opinion. Costs are taxed to the State.