IN THE COURT OF APPEALS OF IOWA

No. 13-0894

Filed January 28, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CHRISTOPHER CALVERT FITZPATRICK,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clay County, Carl J. Petersen, 

Judge. 

Defendant appeals his convictions for voluntary manslaughter, first-degree 

robbery, and conspiracy to deliver methamphetamine. CONVICTIONS

AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR 

RESENTENCING.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, 

Assistant Appellate Defender, for appellant.

Christopher Calvin Fitzpatrick, Anamosa, appellant pro se.

Thomas J. Miller, Attorney General, Alexandria Link, Assistant Attorney 

General, and Michael Houchins, County Attorney, for appellee.

Considered by Doyle, P.J., Tabor, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 
2

MILLER, S.J.

Defendant Christopher Fitzpatrick appeals his convictions for voluntary 

manslaughter, first-degree robbery, and conspiracy to deliver a controlled 

substance (methamphetamine). There is a sufficient factual basis in the record 

to support Fitzpatrick’s guilty pleas to these offenses. Fitzpatrick received 

ineffective assistance because defense counsel did not object to the court’s 

failure to abide by the plea agreement or to the prosecutor’s failure to correct the 

court’s mistake. We affirm Fitzpatrick’s convictions but vacate his sentences and 

remand the case for resentencing.

I. Background Facts & Proceedings

The minutes of evidence in this case provide the following facts. On 

August 28, 2012, Christopher Fitzpatrick was at a bar in Spencer, Iowa, when he 

overheard Edward Kitto say he had $350. Fitzpatrick and Kitto left the bar 

together and walked to the home of Christopher Hegel,1 where they went onto

the porch and smoked marijuana. According to Fitzpatrick, Kitto called him a 

“mooching n****r,” and raised his fist, so Fitzpatrick punched him three times and 

Kitto fell down. Fitzpatrick left the porch and called his friend Cody Millard to ask 

for a ride home. According to Fitzpatrick, Kitto then got up and approached 

Fitzpatrick, again raising his fist. Fitzpatrick punched him several more times, 

and continued to hit him after he was on the ground.

When Millard arrived he assisted Fitzpatrick in dragging Kitto into Hegel’s 

backyard. Millard hit Kitto once or twice and kicked him. Fitzpatrick took Kitto’s 

 

1

 Fitzpatrick and Hegel went to the bar together, but Hegel remained at the bar when 

Fitzpatrick left with Kitto.
3

wallet from his pants and removed some cash. While Fitzpatrick and Millard 

were in Hegel’s backyard they heard Hegel and Jessica Kurth walking down the 

driveway of the home. Fitzpatrick and Millard drove away in Millard’s vehicle. 

Hegel and Kurth found Kitto and called 911. Fitzpatrick stated he used the 

money he took from Kitto to purchase some food and liquor. There was also 

evidence Fitzpatrick purchased drugs with the money. Kitto died as a result of 

his injuries.

Fitzpatrick was charged with murder in the first degree, robbery in the first 

degree, and conspiracy to deliver a controlled substance (methamphetamine). 

Fitzpatrick entered into a plea agreement in which he agreed to plead guilty to 

voluntary manslaughter, in violation of Iowa Code section 707.4 (2011); firstdegree robbery, in violation of section 711.2; and conspiracy to deliver a 

controlled substance, in violation of section 124.401(1)(c)(6). The State agreed 

to recommend he be sentenced to ten years, twenty-five years, and ten years, to 

be served consecutively.

A plea hearing was held on April 1, 2013. The court asked counsel if the 

plea agreement was binding on the court, and they stated it was not. In providing 

a factual basis for the charge of voluntary manslaughter, Fitzpatrick stated, “[W]e 

had got in a fight, and he called me a couple names. And we got in a fight.” 

Fitzpatrick answered in the affirmative when asked by the court if he intentionally 

struck Kitto, Kitto died as a result of Fitzpatrick striking him, and Fitzpatrick struck 

Kitto by reason of sudden violent and irresistible passion, resulting from serious 
4

provocation. Fitzpatrick then stated, “He called me some names, and then he 

came at me with his fist. That’s how that happened.”

For the charge of first-degree robbery, Fitzpatrick stated, “[A]fter he was 

knocked on the ground I took his wallet, took his money.” The court asked 

Fitzpatrick if he assaulted Kitto in the process of taking his money, if he 

purposely inflicted a serious injury on Kitto, and if he assaulted Kitto in carrying 

out the theft, and Fitzpatrick answered, “Yeah.”

In providing a factual basis for the charge of conspiracy to deliver 

methamphetamine, Fitzpatrick stated, “I was involved with some other people in 

the delivery of meth.” Fitzpatrick agreed “the substance that was involved in that 

delivery of methamphetamine,” was methamphetamine and the amount involved 

was five grams or less.

The case proceeded to a sentencing hearing on May 10, 2013. The State 

recommended the sentences set out in the plea agreement, and defense counsel

stated, “I have nothing to add to the plea agreement.” The court then stated the 

plea agreement was binding upon the court and sentenced Fitzpatrick in 

accordance with its understanding of the plea the agreement. The court stated 

Fitzpatrick’s sentences were consecutive, “because of the bargained plea 

entered by the State of Iowa and Defendant,” and “the severity of the offenses 

combined to result in the death of Edward Kitto.” Fitzpatrick now appeals his 

convictions and sentences, claiming he received ineffective assistance of 

counsel.
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II. Standard of Review

We review claims of ineffective assistance of counsel de novo. Ennenga 

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective 

assistance of counsel, a defendant must show (1) the attorney failed to perform 

an essential duty, and (2) prejudice resulted to the extent it denied the defendant 

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has 

the burden to show by a preponderance of the evidence counsel was ineffective. 

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

III. Factual Basis

Fitzpatrick claims he received ineffective assistance because defense 

counsel permitted him to plead guilty when there was not a sufficient factual 

basis to support his pleas. “It is a responsibility of defense counsel to ensure that 

a client does not plead guilty to a charge for which there is no objective factual 

basis.” State v. Finney, 834 N.W.2d 46, 50 (Iowa 2013). “On a claim that a plea 

bargain is invalid because of a lack of accuracy on the factual-basis issue, the 

entire record before the district court,” including the minutes of evidence, “may be 

examined.” Id. at 62. “Our cases do not require that the district court have 

before it evidence that the crime was committed beyond a reasonable doubt, but 

only that there be a factual basis to support the charge.” Id. It is not necessary 

to show the defendant is guilty; the court must be satisfied only that the facts 

support the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

A. Fitzpatrick asserts there is not a sufficient factual basis in the 

record to support his guilty plea to voluntary manslaughter. He contends the 
6

facts would support the defense of justification, found in section 704.3. He also 

claims the record does not show his actions caused the death of Kitto.2 He 

points out that Millard struck and kicked Kitto, and asserts Millard could have 

caused Kitto’s death.

As the State notes, Fitzpatrick’s claims on appeal improperly conflate 

possible defenses to the charge of voluntary manslaughter with the factual basis 

for the plea. “It is well established that a defendant’s guilty plea waives all 

defenses and objections which are not intrinsic to the plea.” State v. Utter, 803 

N.W.2d 647, 652 (Iowa 2011). “A guilty plea is normally understood as a lid on 

the box, whatever is in it, not a platform from which to explore further 

possibilities.” Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982).

Section 707.4 provides:

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.

During the plea colloquy Fitzpatrick stated he intentionally struck Kitto. He 

agreed that Kitto died as a result of Fitzpatrick striking him. He also agreed that 

he struck Kitto “solely by reason of sudden violent and irresistible passion as a—

resulting from serious provocation.” He stated Kitto called him names and they 

got into a fight. According to the minutes of evidence, Fitzpatrick continued to hit 

 

2

 Fitzpatrick additionally raised this issue in a pro se brief. Our discussion of this issue 

addresses the issue as raised by appellate counsel and in the pro se brief.
7

Kitto after he was already down on the ground. Millard stated Fitzpatrick “kept 

hitting him over and over again,” like Fitzpatrick “was possessed or trying to take 

something out on the old guy.” We conclude there is a sufficient factual basis in 

the record to support Fitzpatrick’s plea of guilty to the charge of voluntary 

manslaughter.

B. Fitzpatrick asserts there is not a sufficient factual basis in the 

record to support his plea of guilty to the charge of robbery in the first degree. 

He contends the record does not support a claim that he assaulted Kitto for the 

purpose of taking his wallet. He asserts that he struck Kitto because Kitto called 

him names and because of Kitto’s aggressive behavior. He claims he did not 

formulate the intent to take money from Kitto’s wallet until after the altercation 

was over.

Fitzpatrick was charged with robbery in the first degree, in violation of 

section 711.2, which provides, “A person commits robbery in the first degree 

when, while perpetrating a robbery, the person purposely inflicts or attempts to 

inflict serious injury, or is armed with a dangerous weapon.” The offense of 

robbery is defined as follows:

A person commits a robbery when, having the intent to 

commit a theft, the person does any of the following acts to assist 

or further the commission of the intended theft or the person’s 

escape from the scene thereof with or without the stolen property:

1. Commits an assault upon another.

2. Threatens another with or purposely puts another in 

fear of immediate serious injury.

3. Threatens to commit immediately any forcible felony.

Iowa Code § 711.1.
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According to the minutes of evidence, Fitzpatrick overheard Kitto stating 

he had $350. Fitzpatrick had previously told his drug dealer “that he knows some 

people he could get the money from or some people he could rob” in order to 

purchase drugs. During the plea colloquy Fitzpatrick agreed that in the process 

of taking Kitto’s money, he assaulted him. Fitzpatrick agreed he had purposely 

inflicted a serious injury on Kitto. He also agreed he assaulted Kitto in carrying 

out the theft. Fitzpatrick stated that after Kitto had been knocked on the ground 

he took his money. We conclude there is a sufficient factual basis in the record 

to support Fitzpatrick’s guilty plea to first-degree robbery.

C. Fitzpatrick asserts there is not a sufficient factual basis in the 

record to support his plea of guilty to the charge of conspiracy to deliver a 

controlled substance (methamphetamine). He points out there is nothing in the 

minutes of evidence to support his guilty plea to this offense, and the State 

agrees.

The factual basis for this offense is found in the plea colloquy:

Defendant: I was involved with some other people in the 

delivery of meth.

The Court: Okay. Did that occur on August 28, 2012?

Defendant: Yeah.

The Court: And was the controlled substance 

methamphetamine?

Defendant: Yes.

The Court: Did you know the substance that was involved 

in that delivery of methamphetamine?

Defendant: Yeah.

The Court: Was the amount of methamphetamine involved 

in that delivery five grams or less?

Defendant: Yes.
9

Section 124.401(1)(c)(6) is violated when a person “conspire[s] with one 

or more persons to manufacture, deliver, or possess with the intent to 

manufacture or deliver,” five grams or less of methamphetamine. Fitzpatrick 

stated he was involved with other people in the delivery of methamphetamine. 

He agreed he knew the substance was methamphetamine and the amount 

involved was five grams or less. We conclude there is a sufficient factual basis 

for Fitzpatrick’s plea of guilty to the offense of conspiracy to deliver 

methamphetamine.

IV. Sentencing

Fitzpatrick contends he received ineffective assistance because defense 

counsel did not object to the district court’s mistaken belief it was bound by the 

sentencing recommendation in the plea agreement. Furthermore, defense 

counsel did not object to the prosecutor’s failure to point out the court’s mistake.

Near the beginning of the sentencing hearing the court stated, “The Court 

cannot find any reason not to concur with the plea agreement as it is binding 

upon the Court and includes mandatory sentences.” Later, the court gave as one 

of the reasons for imposing consecutive sentences, “the bargained plea entered 

by the State of Iowa and the Defendant.” At the plea hearing, however, the court 

had asked both the prosecutor and defense counsel if the plea agreement was 

binding on the court. The prosecutor stated, “I don’t believe that we made it 

binding on the Court.” Defense counsel stated, “That’s correct, Your Honor.” 

Neither defense counsel nor the prosecutor corrected the court’s mistaken belief 
10

during the sentencing hearing that it was bound by the sentencing 

recommendations in the plea agreement.

Defense counsel has an obligation to object if the prosecutor is not 

following the terms of the plea agreement. State v. Fannon, 799 N.W.2d 515, 

522 (Iowa 2011). The supreme court has determined:

If the State breaches a plea agreement during the sentencing 

hearing, a reasonably competent attorney would make an objection 

on the record to “‘ensure that the defendant receive[s] the benefit of 

the agreement.’” “[N]o possible advantage could flow to the 

defendant from counsel’s failure to point out the State’s 

noncompliance. Defense counsel’s failure in this regard simply 

cannot be attributed to improvident trial strategy or misguided 

tactics.”

Id. (citations omitted). “When trial counsel fails to object to the prosecutor’s 

breach of the plea agreement and thereby prevents the defendant from receiving 

the benefit of the plea agreement, the defendant is prejudiced.” State v. 

Bergmann, 600 N.W.2d 311, 314 (Iowa 1999). 

We believe there may also be a breach of an essential duty if defense 

counsel fails to object to the court’s failure to abide by the terms of the plea 

agreement. In State v. Malone, 511 N.W.2d 423, 424 (Iowa Ct. App. 1993), in a 

written order the court stated its concurrence with a plea was a part or condition 

of the plea agreement. Thereafter at sentencing, which was held before a 

different judge, the court stated it was not bound by the plea agreement. Malone, 

511 N.W.2d at 424. The court denied the defendant’s request to withdraw the 

guilty plea. Id. We concluded the district court abused its discretion by not 

permitting the defendant to withdraw her guilty plea when the sentencing judge 

refused to accept the plea agreement. Id. at 425; see also State v. Thompson, 
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___ N.W.2d ___, ___, 2014 WL 7003808, at *7 (Iowa 2014) (“[N]either the district 

court nor the State violated the plea agreement requiring the court to allow 

Thompson the opportunity to withdraw his plea before sentencing.”); State v. 

Barker, 476 N.W.2d 624, 628 (Iowa Ct. App. 1991) (“We determine the 

sentencing court abused its discretion by not honoring the plea agreement and 

not allowing the defendant to then withdraw his guilty plea.”).

We conclude Fitzpatrick received ineffective assistance because defense 

counsel did not object when the court expressed the mistaken belief at the 

sentencing hearing that it was bound by the terms of the plea agreement or 

object to the prosecutor’s failure to correct the court’s mistake. See State v. 

Horness, 600 N.W.2d 294, 300 (Iowa 1999) (finding defense counsel failed to 

perform an essential duty by not objecting to the State’s noncompliance with a 

plea agreement); State v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009) 

(finding defense counsel failed to perform an essential duty by not correcting the 

court’s failure to inform defendant of a special sentencing provision); see also

ABA Standards for Criminal Justice: Prosecution Function 3-6.1(a) (3d ed. 1993) 

(stating a prosecutor has a duty “to assure that a fair and informed judgment is 

made on the sentence”).

When there has been a breach of the plea agreement, “we will ‘determine 

the appropriate remedy necessary to ensure the interests of justice are served—

either withdrawal of the guilty plea or resentencing before another judge.’” State 

v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008) (citations omitted). When the 

interests of justice are adequately served by remanding for resentencing, it is 
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unnecessary to expend judicial resources in starting the process anew. Id. We 

determine Fitzpatrick’s sentences should be vacated and the case remanded for 

resentencing, giving him the benefit of the bargain by demanding specific 

performance of the plea agreement. See Fannon, 799 N.W.2d at 524.

We affirm Fitzpatrick’s convictions, based upon his guilty pleas, to 

voluntary manslaughter, first-degree robbery, and conspiracy to deliver a 

controlled substance (methamphetamine). Fitzpatrick received ineffective 

assistance because defense counsel did not object to the court’s failure to abide 

by the plea agreement or to the prosecutor’s failure to correct the court’s mistake. 

Therefore, Fitzpatrick’s sentences are vacated, and the case is remanded for 

resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE 

REMANDED FOR RESENTENCING.