State of Iowa v. Valentin Velez , 829 N.W.2d 572 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 11–0472
Filed April 12, 2013
STATE OF IOWA,
Appellee,
vs.
VALENTIN VELEZ,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Pottawattamie County,
Richard H. Davidson, Judge.
The State seeks further review from a court of appeals decision
which vacated the defendant’s sentence on one of two counts of willful
injury causing serious injury and remanded to the district court for
further proceedings. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J.
Japuntich, Assistant State Appellate Defender, and Matthew
Shimanovsky, Student Intern, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, Matthew D. Wilber, County Attorney, and Jon J.
2
Jacobmeier and Amy L. Zacharias, Assistant County Attorneys, for
appellee.
3
ZAGER, Justice.
Valentin Velez was charged by trial information with one count of
robbery in the first degree, in violation of Iowa Code sections 711.1,
711.2, and 714.1 (2009), and one count of willful injury causing serious
injury, in violation of Iowa Code section 708.4(1). These charges both
stemmed from a single incident involving a single victim. Pursuant to a
plea agreement with the prosecutor, Velez entered pleas of guilty to two
counts of willful injury causing serious injury. The district court
accepted the pleas after a reported proceeding. On appeal, a divided
court of appeals found that there was not a sufficient factual basis in the
record to support a second independent charge of willful injury causing
serious injury. The court of appeals thus vacated one of the willful injury
convictions. The State requested further review, which we granted.
Upon our de novo review, we conclude the record established an
independent factual basis for the second charge. Thus, we vacate the
decision of the court of appeals and affirm the judgment of the district
court.
I. Factual Background and Procedural History.
On February 17, 2011, Valentin Velez entered pleas of guilty to two
counts of willful injury causing serious injury. At that time, he waived
his right to file a motion in arrest of judgment and waived his right to
have a presentence investigative report prepared and considered by the
court. Both the State and Velez requested immediate sentencing, and
Velez was sentenced in that same hearing. Velez filed a timely appeal on
March 18, 2011, challenging one of the two convictions. Velez alleged
that no factual basis existed for the district court to find him guilty on
both counts of willful injury, as the two convictions arose from a single
incident involving a single victim. The court of appeals found that the
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record in its current state was not sufficient to show a factual basis for
two separate assaults. It thus vacated one of the sentences imposed and
remanded the case to the district court. It directed the district court to
allow the State an opportunity to supplement the record in order to
provide a sufficient factual basis for the vacated sentence. We agreed to
hear the case on further review.
In the early morning hours of July 5, 2010, Valentin Velez and
Jared Welsh forcibly entered the home of Tracee Crawford. Shawn
Kennedy was sleeping on the couch. Velez was armed with a twelve-inch
metal pole. He removed a baseball bat from a bracket in Crawford’s
home and handed it to Welsh. Velez claimed Kennedy owed him $500,
presumably from a drug transaction. Velez repeatedly demanded the
money from Kennedy while striking Kennedy approximately twenty to
forty times with the metal pole. The attack lasted approximately five to
ten minutes. Ultimately, Welsh sprayed mace in the room, as he thought
the attack was “getting out of hand” and wanted to stop it. To escape the
mace, both Velez and Welsh left Crawford’s home. Kennedy sustained
multiple injuries from the attack, including a broken left forearm, broken
right forearm, and broken bones in his hand. He also sustained an
injury to his leg. Additional facts will be discussed later, as necessary.
II. Standard of Review.
Generally, we review challenges to guilty pleas for the correction of
errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). However,
Velez claims his trial counsel was ineffective for allowing him to enter a
guilty plea without a factual basis. Velez also claims his counsel was
ineffective in assisting him based on double jeopardy grounds. Due to
their constitutional dimensions under both the State and Federal
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Constitutions, we review claims of ineffective assistance of counsel de
novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
III. Ineffective Assistance of Counsel.
Generally, ineffective-assistance-of-counsel claims are decided in
postconviction relief proceedings. State v. Bearse, 748 N.W.2d 211, 214
(Iowa 2008). However, claims may be decided on direct appeal if the
record is adequate to decide the claim. Id.
An appellant who makes a claim of ineffective assistance of counsel
must satisfy a two-pronged test. Ennenga, 812 N.W.2d at 701. The
appellant must demonstrate by a preponderance of the evidence that
“(1) counsel failed to perform an essential duty, and (2) prejudice
resulted.” Id. (citation and internal quotation marks omitted).
Defense counsel violates an essential duty when counsel
permits defendant to plead guilty and waive his right to file a
motion in arrest of judgment when there is no factual basis
to support defendant’s guilty plea. Prejudice is presumed
under these circumstances.
Ortiz, 789 N.W.2d at 764–65 (citations omitted). Thus, in order to
determine if Velez’s counsel violated an essential duty resulting in
prejudice to Velez, we must determine if there is a factual basis to
support his guilty plea.
IV. Factual Basis.
A. Factual Basis Required for Guilty Plea. A factual basis is
required for a guilty plea. State v. Schminkey, 597 N.W.2d 785, 788
(Iowa 1999). In evaluating whether a factual basis exists to support a
guilty plea, we may examine “the minutes of testimony, statements made
by the defendant and the prosecutor at the guilty plea proceeding, and
the presentence investigation report.” State v. Keene, 630 N.W.2d 579,
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581 (Iowa 2001). Velez waived the presentence investigation.1 Thus, we
look primarily to the minutes of testimony and the statements made by
the defendant and the prosecutor at the guilty plea proceeding to
determine whether the State established a factual basis for the second
willful injury charge. See id. We note that the “record does not need to
show the totality of evidence necessary to support a guilty conviction, but
it need only demonstrate the facts that support the offense.” Ortiz, 789
N.W.2d at 768.
B. Disputed Factual Basis. Velez contends the State did not
present sufficient evidence to provide a factual basis for conviction on
two discrete counts of willful injury under Iowa Code section 708.4. This
section provides,
Any person who does an act which is not justified and
which is intended to cause serious injury to another
commits the following:
1. A class “C” felony, if the person causes serious
injury to another.
2. A class “D” felony, if the person causes bodily
injury to another.
Iowa Code § 708.4. The legislature also defined “serious injury” as
follows:
1. “Serious injury” means any of the following:
a. Disabling mental illness.
1Velez does not argue that his waiver of the presentence investigation report
violated his rights. Indeed, we note our Iowa Rules of Criminal Procedure “authorize[]
the waiver of the use of a [presentence investigation] report where a plea agreement is
conditioned upon the court’s concurrence.” Campbell v. State, 576 N.W.2d 362, 364
(Iowa 1998). However, a “defendant’s waiver of the use of a [presentence investigation]
report [must be] knowing and voluntary,” and the district court must “ensure that the
defendant is aware the report could contain favorable information which could result in
a lesser sentence.” Id. Since Velez makes no argument suggesting his attorney’s waiver
of the presentence investigation report constituted ineffective assistance of counsel, we
need not analyze the issue further.
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b. Bodily injury which does any of the following:
(1) Creates a substantial risk of death.
(2) Causes serious permanent disfigurement.
(3) Causes protracted loss or impairment of the
function of any bodily member or organ.
c. Any injury to a child that requires surgical repair
and necessitates the administration of general anesthesia.
2. “Serious injury” includes but is not limited to skull
fractures, rib fractures, and metaphyseal fractures of the
long bones of children under the age of four years.
Id. § 702.18.
Velez concedes that Kennedy suffered multiple injuries that,
separately, would constitute “serious injury” as prohibited by the willful
injury statute and defined by Iowa Code section 702.18. The minutes of
testimony of the doctor who examined Kennedy establish the extent of
his injuries.
This witness will testify that on July 5, 2010, he treated
Shawn Kennedy for injuries he suffered as a result of this
incident. He will testify as to the extent of Kennedy’s
injuries. Kennedy suffered the following, but not limited to,
scalp laceration, right distal ulnar fracture, right fourth and
fifth metacarpal fracture, and left proximal ulnar fracture.
Thus, the fighting issue is a narrow one—whether Velez committed
two “acts” causing serious injury. Unfortunately, the record is largely
silent on details of the attack. According to the minutes of testimony, no
direct eyewitnesses existed beyond the victim and the accomplice. Two
third-party witnesses, Tracee Crawford and Jamie Bell, were present
when Velez and Welsh entered Crawford’s home. Crawford’s minutes of
testimony suggest that Bell may have witnessed the attack. Her minutes
state that Bell “was laying on the back couch watching [the attack] and it
lasted five to ten minutes.” However, Bell’s minutes of testimony indicate
he did not actually witness the event. Rather, the minutes indicate he
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witnessed Velez and Welsh enter the home, but nothing else. Bell stated
he opened the door for Velez and Welsh when he was still “half asleep.”
Velez and Welsh “shoved their way in” past him. Rather than follow
Velez and Welsh into the room where Kennedy was sleeping on the
couch, Bell stated he “had a feeling to stay out of there so he got his
computer and ran out the door.” His minutes of testimony provide no
information regarding the scope of the attack.
The other third-party witness, Crawford, had fallen asleep on the
couch beside Kennedy prior to the appearance of Velez and Welsh.
Crawford woke up and saw Velez and Welsh standing over Kennedy. Her
minutes say “[s]he looked at Velez and said, ‘No’ and he gave her a look
like ‘get out of the way,’ so she grabbed her phone and went and hid near
the water heater” in a closet in an adjoining room. She claims she could
not see the attack from that vantage point. She only heard Kennedy
screaming and saying, “Stop,” and “Leave me alone.”
The victim was a reluctant witness. His minutes of testimony
consist of only a short paragraph and do not even mention the metal pole
reportedly used by Velez in the attack. With the exception of identifying
information, these minutes are reproduced in their entirety:
[Kennedy] will testify that on July 5, 2010, he was at the
above-mentioned residence, along with Tracee Crawford. He
will testify as to his observations regarding this matter. He
will testify that he was assaulted by two males later
identified as Valentin Velez AKA Vincent Velez and Jarred
Welsh. He will testify that he was struck by a baseball bat
about his body. He will testify that he suffered injuries,
including, but not limited to two broken arms. He will testify
as to the extent of his injuries. He will identify Velez.
Further, this witness will testify as to other matters relevant
hereto.
Velez’s own prehearing statements reveal little more. After the
attack, Velez made some statements to his girlfriend. He also sent her a
9
letter. According to her minutes of testimony, Velez “told her that he
beat up [Kennedy] really bad and that he used a baseball bat and almost
broke his knee caps. When she asked [Velez] if [Kennedy] was okay,
[Velez] said he almost killed [Kennedy].” Velez provided no other
statements or testimony relevant to our analysis prior to the guilty plea
proceedings. Rather, Velez’s statements are relevant only to demonstrate
that Velez had been the perpetrator and to aid the court in determining
the extent of Kennedy’s injuries.
We may also examine the “statements made by the defendant and
the prosecutor at the guilty plea proceeding” to determine whether the
record, “as a whole, . . . disclose[s] facts to satisfy the elements of the
crime.” Keene, 630 N.W.2d at 581. The district court directed Velez to:
Tell me in your own words what you did to commit
willful injury in Count I—causing injury that you’re pleading
to. The two counts are identical, so what I need to know is
what you did to commit the first one, and I’m going to ask
you the same questions on the second one and may be a
similar instance, but I need to know in your own words what
happened so I can determine whether there’s a factual basis
for this plea or not. So tell me in your own words what you
did to commit the willful injury causing serious injury.
Before Velez could answer, Velez’s attorney prefaced Velez’s answer
with an acknowledgment of the medical testimony that would establish
that Kennedy had suffered multiple serious injuries as a result of the
attack. The prosecutor supplemented the record with additional
discussion of Kennedy’s injuries. The district court then proceeded to
question Velez. Velez acknowledged that he had “an altercation” with
Kennedy, that Kennedy sustained multiple injuries, and that Velez had
reviewed the minutes of testimony and believed that a jury could find
that Velez had “committed those injuries.” Nonetheless, Velez offered no
statement at the guilty plea proceeding that detailed the attack.
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Based on our de novo review of the entire record as outlined
herein, we find a sufficient factual basis to conclude that Kennedy
sustained multiple serious injuries as defined by Iowa Code section
702.18. The remaining issue, then, is whether Velez committed multiple
acts as defined by Iowa Code section 708.4. To make that determination,
the State must provide the court with sufficient detail to allow the court
to determine that Velez committed multiple, discrete acts in the course of
that attack.
The only detail regarding what occurred during the attack came
from Welsh, Velez’s accomplice. Thus, our analysis will center on
whether Welsh’s minutes of testimony provide the requisite factual basis
to determine if Velez committed multiple acts within the meaning of Iowa
Code section 708.4. The relevant portions of Welsh’s minutes of
testimony are reproduced below.
There were several bats there and Velez displayed a 12-inch
metal pole that he had with him. He handed Welsh a bat.
Velez then struck Kennedy in the leg with the metal pole.
Velez continued to strike Kennedy several times while saying
“Give me my money” continuously. . . . Velez continued to
strike Kennedy about his legs and upper body with the metal
pole. . . . [After Kennedy dropped a lighter which appeared to
be a handgun]. . . Velez continued to hit Kennedy and he
was screaming. Welsh will testify that Velez struck Kennedy
20 to 40 times. . . . Velez was patting Kennedy down for
money and found a knife. Velez took the [lighter] and the
knife, but found no money. Welsh will testify that he had
brought mace with him from his mom’s car. He thought that
it was getting out of hand so he sprayed the area with mace
to get out of there.
V. Legislative Intent.
A. Legislative Intent Key to Factual Basis Analysis. The key
question we must decide with respect to whether the district court had a
sufficient factual basis to find Velez guilty on both counts of willful injury
is legislative intent.
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B. Unit of Prosecution. We routinely look to statutory language
to determine what the legislature intended as a “unit of prosecution” for
a particular crime. E.g., State v. Muhlenbruch, 728 N.W.2d 212, 216
(Iowa 2007) (analyzing the words of the statute to determine whether the
unit of prosecution for purposes of possession of a computer containing
pornographic materials involved the number of computers or the number
of pornographic images); State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997)
(analyzing the definition of the word “an” as a means of determining
legislative intent in defining the unit of prosecution). The wording of the
legislature strictly controls our analysis as to the appropriate unit of
prosecution, and we have consistently resisted policy arguments in favor
of interpreting a statute in a way the legislature did not explicitly intend.
E.g., Muhlenbruch, 728 N.W.2d at 216 (“Any recasting of the scope of
criminal liability . . . is the province of the legislature, not this court.”).
In Muhlenbruch, we reiterated a century-old principal. “ ‘Criminal
statutes are . . . inelastic, and cannot by construction be made to
embrace cases plainly without the letter though within the reason and
policy of the law.’ ” Id. at 214 (quoting State v. Lovell, 23 Iowa 304, 305
(1867)).
However, we recognize the challenges involved with ascertaining
legislative intent. Chief Justice Warren articulated this difficulty when
trying to evaluate the legislature’s intent in situations involving multiple
punishments, such as the one we face here.
The problem of multiple punishment[s] is a vexing and
recurring one. . . . [M]urdering two people simultaneously
might well warrant two punishments but stealing two one-
dollar bills might not. . . .
In every instance the problem is to ascertain what the
legislature intended. Often the inquiry produces few if any
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enlightening results. Normally these are not problems that
receive explicit legislative consideration.
Gore v. United States, 357 U.S. 386, 393–94, 78 S. Ct. 1280, 1285, 2 L.
Ed. 2d 1405, 1411 (1958) (Warren, C.J., dissenting).
An analysis of the legislative history of Iowa Code section 708.4
does not produce much useful guidance on the question of unit of
prosecution and suggests the legislature did not explicitly consider “unit
of prosecution” questions when enacting and amending the statute. The
legislature enacted Iowa Code section 708.4 in 1978, as part of a
“complete revision of the substantive criminal law.” 1976 Iowa Acts ch.
1245(1), § 804. Subsequently, the legislature amended this Code section
in 1999. This revision, however, simply expanded the scope of willful
injury to include an act which causes “bodily injury,” whereas the
previous version of the code only punished acts which caused “serious
injury.” 1999 Iowa Acts ch. 65, § 5 (codified at Iowa Code § 708.4).
Our analysis, then, must hinge solely on the legislature’s words
relating to “an act,” as it is undisputed that the State established a
factual basis to support that Velez caused more than one injury
qualifying as a serious injury. Thus, we must determine what is “an act”
within the context of the willful injury statute.
C. Determining Legislative Intent for Unit of Prosecution. As
a result, our task consists of determining legislative intent for a question
the legislature does not seem to have explicitly considered. Could the
unit of prosecution be comprised of a single completed blow resulting in
serious injury, or do all blows occurring in an attack on a single victim
necessarily constitute a course of conduct, precluding multiple charges
for the attack? If the former, the State has proven a factual basis for
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both guilty pleas. If the latter, the State has not proven a factual basis,
and double jeopardy protection is triggered.
1. Plain words of the statute. In construing legislative intent, we
look first to see if the legislature has defined the words it uses. Jack v. P
& A Farms, Ltd., 822 N.W.2d 511, 515 (Iowa 2012). “If the legislature
has not defined words of a statute, we may refer to prior decisions of this
court and others, similar statutes, dictionary definitions, and common
usage.” Id. (citation and internal quotation marks omitted). Our
analysis centers on what constitutes an act under Iowa Code section
708.4.
In Kidd, we laboriously analyzed the meaning of the word “an.”
The statutory language defining the unit of
prosecution under section 724.3 is “an offensive weapon.”
Kidd contends the word “an” is ambiguous. . . . The State
asserts the common meaning of the word “an” denotes a
singular unit of prosecution for each weapon possessed. We
think the State is correct.
“An” is a euphonic mutation of the article “a.” The
letter “n” allows an audible distinction to be made between
the article “a” and the word it precedes. Consequently, the
resolution of this appeal turns on an interpretation of the
article “a.” “A” is defined as an article which is “used as a
function word before most singular nouns other than proper
and mass nouns when the individual in question is
undetermined, unidentified, or unspecified. . . .”
Kidd, 562 N.W.2d at 765 (citation omitted) (quoting Webster’s Third New
International Dictionary 1 (1993) (emphasis added)).
Unquestionably, then, the legislature delineated each count as a
single act. It is noteworthy that the Model Penal Code defines “act” or
“action” as “a bodily movement whether voluntary or involuntary.” Model
Penal Code § 1.13(2), 10A U.L.A. 90 (2001). Further, we are only
required to find minimal support in the record in order to support a
factual basis for . . . two separate crimes. See State v. Walker, 610
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N.W.2d 524, 527 (Iowa 2000) (affirming the defendant’s guilty pleas
because “the record minimally supports a factual basis for two separate
crimes”).
2. Tests for multiple violations. Courts have used a number of
tests in determining what constitutes multiple acts and thus could be
considered multiple counts.
a. Separate-acts test. The Fifth Circuit has articulated the
challenge courts face in determining whether the prosecution may charge
multiple violations of the same statute, noting that “identifying the actus
reus with particularity [is] not always . . . easy.” United States v.
Prestenbach, 230 F.3d 780, 783 (5th Cir. 2000). Nevertheless, the key
for the separate-acts test is determining “whether separate and distinct
acts made punishable by law have been committed.” Id. at 784.
Iowa courts have consistently begun their analysis by attempting
to determine if the legislature intended for the phrase “an act” to prohibit
discrete, individual acts or a continuous course of conduct. Though we
do not apply the traditional Blockburger elements test in a case where the
two crimes charged originate from the same statute, another portion of
Blockburger does aid our analysis, as it deals with the question of
whether multiple charged offenses involving the same statute constitute
a single, continuing offense or constitute multiple offenses. State v.
Schmitz, 610 N.W.2d 514, 516 (2000) (analyzing Blockburger v. United
States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). We found
that this answer is contained within the words of the statute. Id. at 516
(“Thus, Blockburger requires that the statute at issue be construed to
determine the nature of the offense[.]”) The Blockburger test we identified
in Schmitz as applying to situations in which the defendant is charged
with multiple violations of the same statute “ ‘is whether the individual
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acts are prohibited, or the course of action which they constitute. If the
former, then each act is punishable separately . . . . If the latter, there
can be but one penalty.’ ” Schmitz, 610 N.W.2d at 516 (emphasis
omitted) (quoting Blockburger, 284 U.S. at 302, 52 S. Ct. at 181, 76
L. Ed. at 308).
In Schmitz, the defendant was charged with three separate counts
of theft in the second degree for possessing three different stolen items.
610 N.W.2d at 515. We determined that the fundamental issue of
statutory interpretation was whether “the legislature define[d] theft as a
continuing offense or as a crime that [was] complete with a single act.”
Id. at 517. Because we found that “[t]he crime of exercising control over
stolen property is not a continuing offense for double jeopardy purposes,”
we further found that the Code “does not proscribe a course of conduct
encompassing a series of acts, but rather prohibits a single act of
possession of stolen property.” Id.
The language of this statute contrasts with other statutes in which
the legislature has specifically delineated a “course of conduct” as the
unit of prosecution. See, e.g., Iowa Code § 708.11(b) (defining a “course
of conduct” for the offense of stalking). We have also interpreted statutes
as delineating “continuing offenses,” and the legislature has
acknowledged that some crimes are seen as continuing offenses. See id.
§ 802.7 (“When an offense is based on a series of acts committed at
different times, the period of limitation prescribed by this division shall
commence upon the commission of the last of such acts.”)
In accordance with the guidance of the United States Supreme
Court, however, we are careful about designating a statute as
establishing a continuing offense. State v. Harrison, 561 N.W.2d 28, 29
(Iowa 1997) (per curiam) (“The United States Supreme Court has stated
16
that a particular offense should not be construed as a continuing one
‘unless the explicit language of the substantive criminal statute compels
such a conclusion, or the nature of the crime involved is such that
Congress must assuredly have intended that it be treated as a
continuing one.’ ” (Quoting Toussie v. United States, 397 U.S. 112, 115,
90 S. Ct. 858, 860, 25 L. Ed. 2d 156, 161 (1970)).). The Supreme Court
reasoned that construing crimes to be continuing crimes endangers the
defendant’s rights. Id. Specifically, the passage of time puts the
defendant in danger of being unable to obtain evidence for a proper
defense. Id.
b. Break-in-the-action test. We have previously used a break-in-
the-action test to determine if separate acts have been committed. In
Walker, we considered a merger claim where the defendant pled guilty to
both willful injury and voluntary manslaughter. Walker, 610 N.W.2d at
525–26. Walker argued Iowa Code section 701.9 requiring merger of the
two offenses would apply, as the factual basis for each of these crimes
hinged on a single offense. Id. at 526. We affirmed the findings of the
district court.
[T]he [district] court identified Walker’s initial assault on [the
victim], the willful injury, during which he threw several
swift punches, knocking [the victim] to the ground. The
court then found that, instead of stopping the fight right
there, Walker’s rage so consumed him that he proceeded to
kick [the victim] in the head while he was down. This
separate act of uncontrolled aggression, resulting in [the
victim]’s death, furnished the factual basis for Walker’s plea
of guilty to voluntary manslaughter.
Id. at 526–27.
We found that, even though there was not a distinct temporal
break in the action, the separate acts involved—hitting the victim and
knocking him to the ground, and kicking him when he was on the
17
ground—provided separate factual bases for the two guilty pleas. Id. We
did not find that a break in the action was required in order to find
multiple acts—merely that a break was a way to define if a separate act
had occurred. See id.
In a series of unpublished decisions, our court of appeals has
consistently used the break-in-the-action test as well to determine if
multiple convictions are appropriate. E.g., Calhoun v. State, No. 07–
1688, 2009 WL 1211975, at *4 (Iowa Ct. App. May 6, 2009) (finding that,
“[a]lthough not crystal clear, the minutes do support the State’s alleged
facts that there was . . . a break”); State v. Rowley, No. 07–0168, 2008
WL 4725291, at *3 (Iowa Ct. App. Oct. 29, 2008) (“There was evidence
that noises from the Rowleys’ apartment would end at times and then
start up again.”); cf. State v. Goins, No. 05–0557, 2006 WL 1229990, at
*2 (Iowa Ct. App. Apr. 26, 2006) (concluding the “record [did] not support
a factual basis for two separate crimes” because the attack was
continuous and the defendant “just kept coming, kept coming”).
Other courts have used a similar test to determine if the defendant
committed singular or separate acts. In Spencer v. State, the Supreme
Court of Delaware noted that “a defendant may be convicted of more
than one count of a crime without violating the multiplicity doctrine if
the defendant’s actions are sufficiently separate in time and location to
constitute distinct acts.” 868 A.2d 821, 823 (Del. 2005). In Spencer, the
victim was pumping gas when the defendant emerged from a car and
began arguing with him. Id. at 822. The defendant shot the victim in
the right knee, then, four to six seconds later, shot him again in the right
buttock after the victim turned and began to move away. Id. The court
found that even this small temporal and spatial separation—this break in
the action—was sufficient for a trier of fact to find that the defendant had
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formed two separate intents, and thus, committed two separate acts. Id.
at 824.
c. Completed-acts test. We have previously evaluated whether a
series of individual sexual contacts constituted discrete “sex acts” that
would give rise to individual counts of sexual abuse in the second degree
for a series of acts with two victims. State v. Constable, 505 N.W.2d 473,
477 (Iowa 1993). The legislature specifically defined the actions that
would be classified as a sex act, and we determined that “any single
physical contact so described is sufficient to meet the definition of ‘sex
act.’ ” Id. at 477. We further found that the legislature’s language
“express[ed] legislative intent that the commission of any single physical
contact described in [the statute] is a sex act sufficient to complete a
sexual abuse crime when other proscribed circumstances exist.” Id. at
477–78 (emphasis added).
In California, the determining factor in whether the defendant
committed a separate act or a single course of conduct in the
commission of an assault is based on whether a violation was “complete.”
People v. Johnson, 59 Cal. Rptr. 3d 405, 412 (Ct. App 2007). The court’s
reasoning is instructive.
Defendant indisputably committed successive acts of
violence against [the victim]. Although [the victim]’s
testimony does not precisely describe the sequence of the
beating, we do know that defendant beat her about the face
and head; held her by her throat up against the wall; beat
her on her back, hips, and legs; and stabbed her in the
upper arm. [The victim] suffered two black eyes, a split lip,
bruises to her neck, back, and hips and a puncture wound
to her upper arm. From this evidence the jury could have
concluded that defendant completed one violation of [the law
prohibiting willful infliction of corporal injury] when he beat
[the victim] about the head and face, blackening her eyes
and splitting her lip; another when he held her by the throat
and continued to strike her and restrain her such that she
suffered bruises about her back and neck; and another when
he injured her upper arm, drawing blood and leaving a
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visible scar. Accordingly, the evidence is sufficient to
support the three convictions . . . .
Id.
Similarly, other states have adopted the completed-acts test. State
v. Haney, 842 A.2d 1083, 1085 (R.I. 2004) (finding that two assaults
were not a single continuous offense, as one had “long since been
completed before the second assault occurred”); cf. State v. Pelayo, 881
S.W.2d 7, 12–13 (Tenn. Crim. App. 1994) (finding a single continuous act
despite separation in time and space because the defendant had only
formed one intent to harm his victim).
3. Velez committed at least two separate acts of willful injury. In
establishing a factual basis regarding what actually happened during the
attack, we rely on Welsh’s minutes of testimony and Velez’s concession
that Kennedy sustained multiple serious injuries to find that Velez
committed at least two completed acts constituting willful injury causing
serious injury in violation of Iowa Code section 708.4. Welsh described
both a break in the action and a series of acts that would each constitute
a completed act if serious injury resulted. Specifically, Welsh’s minutes
of testimony describe Velez striking Kennedy “20 to 40 times” with a
metal pole. Since either a single blow or a single series of blows caused
each serious injury, we find that there were more than two completed
acts, as Kennedy suffered at least two serious injuries. Similarly, we find
a break in the action occurred. Velez stopped hitting Kennedy long
enough to pat him down, and Welsh’s testimony infers Velez was looking
for money. When he found no money, only a knife, Velez resumed hitting
Kennedy. There was also a break in the action when Kennedy produced
a lighter, which resulted in a break in the prior assault, followed by
20
another discrete assault. These breaks in the action are sufficient to
constitute two acts of willful injury when serious injury results.
We find that under either the completed-acts test or the break-in-
the-action test, Velez committed two acts meeting the statutory definition
of willful injury. See Iowa Code § 708.4. Either of these tests is
sufficient to find a factual basis for two convictions of willful injury. As a
result, we find that Velez’s counsel was not ineffective for failing to object
to the plea on the ground that there was no separate factual basis for a
second count of willful injury.
VI. Double Jeopardy.
Velez further challenges one of his two convictions on the basis of
the Double Jeopardy Clause of the Fifth Amendment, which provides
that no person shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The Fourteenth
Amendment makes the Federal Constitution’s Double Jeopardy Clause
applicable to state criminal trials. State v. Franzen, 495 N.W.2d 714,
715 (Iowa 1993). Velez does not argue that his conviction is a violation of
the Iowa Constitution. Unlike some other constitutional provisions,
Iowa’s double jeopardy clause is distinct from the Federal Double
Jeopardy Clause, merely requiring that “no person shall after acquittal,
be tried from the same offence.” Iowa Const. art. I, § 12. As Velez was
not acquitted, we need not evaluate his claims based on Iowa’s double
jeopardy clause.
In contrast, the Federal Double Jeopardy Clause protects against
three types of offenses: protection against a second prosecution after
acquittal; protection against a second prosecution after conviction; and
protection against multiple punishments for the same offense. Franzen,
495 N.W.2d at 716.
21
It is well established in Iowa law that a single course of conduct
can give rise to multiple charges and convictions. See State v.
McKettrick, 480 N.W.2d 52, 57 (Iowa 1992) (discussing how we typically
resolve “[t]he question of whether the legislature intended that a criminal
defendant may be cumulatively punished based upon a single incident”).
“In considering a double jeopardy claim within the multiple punishments
context, we are guided by the general principle that the question of what
punishments are constitutionally permissible is no different from the
question of what punishments the legislature intended to impose.” Id. at
57. In order to determine if Velez’s second conviction constitutes a
violation of his double jeopardy protections, the key question we must
answer is what the legislature intended would constitute a unit of
prosecution under Iowa Code section 708.4. In our analysis of whether
two distinct factual bases existed to accept Velez’s guilty plea, we
analyzed legislative intent. We found that under both the break-in-the-
action test and the completed-acts test, Velez committed two or more
discrete acts of willful injury. Because the legislative intent was to
punish these two or more acts, double jeopardy is not violated.
VII. The Rule of Lenity.
Velez argues the statute is ambiguous, therefore triggering the rule
of lenity. We construe criminal statutes strictly and resolve doubts in
favor of the accused. State v Lindell, 828 N.W.2d 1, 12 (Iowa 2013).
However, we only invoke the rule of lenity after we have “exhausted all
interpretive techniques, including consideration of legislative history and
other extrinsic evidence.” State v. Hearn, 797 N.W.2d 577, 586 (Iowa
2011). Hearn represents an exhaustive look at the way the United States
Supreme Court and our courts have interpreted the rule of lenity and
concludes that the rule of lenity is only appropriately applied in cases of
22
“grievous ambiguity” and only as a “tie breaker in cases where there is no
basis for choosing among plausible interpretations of a statute.” Id.
Here, we are able to discern the legislative intent. Consequently, the rule
of lenity does not apply.
VIII. One Homicide Rule.
Velez urges us to expand the “one homicide” rule to apply to
convictions under the willful injury statute. We decline to do so. The
one homicide rule merely states that “where the offenses arise from one
homicide, we permit sentencing on only one of the two homicide
offenses.” State v. Wissing, 528 N.W.2d 561, 567 (Iowa 1995) (citing
State v. Gilroy, 199 N.W.2d 63, 68 (Iowa 1972), where we cited secondary
sources in supporting the rule that “two sentences imposed as the result
of one homicide . . . is double punishment”). Further, in Wissing, we
specifically stated the one homicide rule does not apply in cases where
separate nonhomicide offenses were committed. Id. “Generally, a
defendant who is convicted of distinct offenses may be punished for
both.” Id.
Velez offers no justification for extending the one homicide rule.
He does not dispute that Kennedy suffered more than one serious injury.
In contrast, if a defendant is convicted of more than one homicide with
respect to the same victim, the State will not be able to show more than a
single death. We find no reason to expand this seldom-used doctrine.
IX. Collateral Estoppel.
Velez argues that collateral estoppel should apply. “The [United
States] Supreme Court has made it clear that the doctrine of collateral
estoppels applies against the government as part of double jeopardy.”
State v. Halstead, 791 N.W.2d 805, 816 (Iowa 2010) (citing Ashe v.
Swenson, 397 U.S. 436, 442–46, 90 S. Ct. 1189, 1193–95, 25 L. Ed. 2d
23469, 474–76 (1970)). However, Velez has no collateral estoppel claim. If
a defendant has been found guilty by one trier of fact, “[u]nder collateral
estoppel, a conclusive determination of a jury cannot be tried in a
separate successive proceeding.” Id. Both of Velez’s guilty pleas
occurred in a single proceeding. We find this argument to be without
merit.
X. Conclusion.
Legislative intent is the key to determining whether Velez’s
constitutional protection against double jeopardy has been violated and
whether there is a sufficient factual basis to support his conviction on
two counts of willful injury. Because we believe the legislature intended
to establish multiple punishments for multiple completed acts of willful
injury, the decision of the court of appeals is vacated and the judgment
of the district court is affirmed.
We also find that there was a factual basis for the district court to
accept the two guilty pleas. Thus, counsel was not ineffective in allowing
Velez to enter guilty pleas to two separate counts of willful injury causing
serious injury.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Wiggins and Appel, JJ., who dissent.
24
#11–0472, State v. Velez
WIGGINS, Justice (dissenting).
I respectfully dissent. We should not adopt a legal standard that
recognizes repeated acts in a single course of criminal conduct
perpetrated against the same victim as distinct units of prosecution.
Therefore, I disagree with the majority’s conclusion that a factual basis
exists to support the defendant’s second willful injury charge.
The statute under examination prohibits the willful injury of
another. It provides:
Any person who does an act which is not justified and
which is intended to cause serious injury to another
commits the following:
1. A class “C” felony, if the person causes serious
injury to another.
Iowa Code § 708.4(1) (2009) (emphasis added). Because the legislature
did not define what constitutes “an act” causing serious injury—be it a
continuous course of conduct including repetitious or multiple acts
versus a single act—the statute is ambiguous. The majority’s acrobatic
feats and nod to other states for guidance evidences the lack of clarity in
section 708.4(1). Thus, we must first apply our established principles of
statutory construction to determine what “an act” means, and second,
consider the application of the rule of lenity.
As we have repeatedly recognized,
The goal of statutory construction is to determine legislative
intent. We determine legislative intent from the words
chosen by the legislature, not what it should or might have
said. Absent a statutory definition or an established
meaning in the law, words in the statute are given their
ordinary and common meaning by considering the context
within which they are used. Under the guise of
construction, an interpreting body may not extend, enlarge
or otherwise change the meaning of a statute.
25
Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)
(citations omitted). We derive legislative intent not just from the
language of the statute, but also from its “ ‘subject matter, the object
sought to be accomplished, the purpose to be served, underlying policies,
remedies provided, and the consequences of the various
interpretations.’ ” Postell v. Am. Family Mut. Ins. Co., 823 N.W.2d 35, 49
(Iowa 2012) (citations omitted). A statute may be ambiguous in one of
two ways: “ ‘(1) from the meaning of particular words; or (2) from the
general scope and meaning of a statute when all its provisions are
examined.’ ” State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006)
(quoting Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728
(Iowa 1995)). Section 708.4(1) is ambiguous because of the unclear
meaning of the particular words, “an act.”
The legislature expressly used the article, “an,” when referring to
the requisite act or acts causing serious injury. “A” is admittedly
singular. State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). Because “an”
is a variant of the article “a,” it can also be construed as singular and not
collective. Id. at 765–66 (finding the statute referring to possession of
“an offensive weapon” created three separate chargeable offenses, not
one all-inclusive charge, because the defendant possessed three sawed-
off shotguns). What the court failed to consider in Kidd, however, is a
fundamental principle of statutory construction memorialized in the
Code itself: “Unless otherwise specifically provided by law the singular
includes the plural, and the plural includes the singular.” Iowa Code
§ 4.1(17). We have previously applied this rule when construing criminal
statutes. See State v. Prybil, 211 N.W.2d 308, 312 (Iowa 1973) (holding
the statute governing the offense of receiving corrupt influence makes it
equally illegal for a public officer to enter a series of wrongful
26
transactions as to accept a single gratuity, based on the statutory
language referring to “any gift, commission, discount, bonus, or
gratuity”). Thus, because under this rule “an” is not definitively singular
or plural, looking to the language of the statute does not resolve the
ambiguity inherent in section 708.4(1) regarding the proper unit of
prosecution.
Adding to the confusion is the inconsistency in the language of the
criminal code. Other criminal provisions expressly refer to “a series of
acts” or “serious injury” caused “in the course” of the crime as the unit of
prosecution. See, e.g., Iowa Code § 709.2 (“A person commits sexual
abuse in the first degree when in the course of committing sexual abuse
the person causes another serious injury.” (Emphasis added.)); State v.
Carter, 602 N.W.2d 818, 822 (Iowa 1999) (recognizing that the
defendant’s act of slitting the victim’s throat was part of a continuous
series of acts involving sexual abuse, which fell into the statute’s
reference to “in the course of”). Thus, if the legislature intended a single
act or a series of acts to constitute a unit of prosecution for willful injury,
then it certainly had the wherewithal to do so when drafting section
708.4(1). More complicating is the fact that our court has construed
certain criminal statutes without express reference to a “series of acts” or
a “course of conduct” to include a series of acts as a single unit of
prosecution. Compare State v. Amsden, 300 N.W.2d 882, 887 (Iowa
1981) (finding the jury should have been instructed on the joinder of a
series of acts in a theft case when the prosecution charged the defendant
with one count of first-degree theft based on five separate acts, even
though Iowa Code section 714.2 refers only to the “theft of property”),
with State v. Melia, 231 Iowa 332, 339, 1 N.W.2d 230, 233 (1941)
27
(holding the defendant’s act of firing five shots very close together where
two deaths resulted constituted not a single act but a series of acts).
When criminal statutes are ambiguous, we consider applying the
rule of lenity. Kidd, 562 N.W.2d at 765. Under the rule of lenity, we
strictly construe criminal statutes and resolve doubts in favor of the
accused. State v. Lindell, 828 N.W.2d 1, 12 (Iowa 2013); State v. Hearn,
797 N.W.2d 577, 585 (Iowa 2011). The rule of lenity only applies when
the statute is ambiguous “regarding the application of a statute to a
given set of facts after examination of the text, the context of the statute,
and the evident statutory purpose as reflected in the express statutory
language.” Hearn, 797 N.W.2d at 587. We have specifically recognized
that “[w]here the language of a criminal statute leaves an ambiguity with
respect to the unit of prosecution, courts apply the rule of lenity: in cases
of ambiguity or doubt as to legislative intent, only one offense may be
charged.” Kidd, 562 N.W.2d at 765 (emphasis added).
This is a case where we should apply the rule of lenity because the
legislative purpose for the statute is not clear, there is a risk of arbitrary
criminal enforcement, and a potential for violating the separation of
powers doctrine by extending criminal liability beyond that which the
legislature contemplated. Hearn, 797 N.W.2d at 586–87. The potential
for ambiguous enforcement in light of the majority’s position affects
crimes committed by affirmative acts. Every bill taken from a gas
station’s cash register could give rise to an individual charge of theft.
Every threat of violence spoken in a conversation paves the way for a
slew of assault charges. Each footstep on another’s land could
constitute an independent incident of trespass.
The implications of the majority’s approach are equally
disproportional regarding crimes of omissions or negative acts. See Iowa
28
Code § 702.2 (recognizing “[t]he term ‘act’ includes a failure to do any act
which the law requires one to perform”). For example, every minute,
every hour, or every day an individual neglects to register as a sexual
offender could constitute individual violations. Iowa Code § 692A.104
(2013) (requiring registration); id. § 692A.111 (noting the failure to
register).
To follow such an approach convolutes our criminal statutes,
which already include penalty enhancements for crimes involving
multiple or repetitious acts in a single episode or course of conduct. See,
e.g., Iowa Code § 714.3A(1) (2009) (defining aggravated theft). Moreover,
the majority does not clarify the law, but instead, adds to the controversy
by failing to adopt one test to identify the applicable unit of prosecution.
The majority cites the completed acts test and the break in action test,
without expressly delineating which one Iowa courts must apply.
Courts should not throw the book at defendants by convicting on
voluminous and stacked charges arising from a single course of criminal
conduct against one victim. Accordingly, we should not define the unit of
prosecution blow-by-blow, bone-break-by-bone-break, or bruise-by-
bruise because such an approach is unfair to defendants. Although the
conduct of the defendants here and the pain inflicted upon the victim is
beyond reprehensible, all defendants are entitled to due process. For
these reasons, I would reverse the district court decision finding
sufficient factual basis for the second charge of willful injury.
Appel, J., joins this dissent.