IN THE SUPREME COURT OF IOWA

No. 13–1573

Filed October 23, 2015

Amended January 12, 2016

STATE OF IOWA,

Appellee,

vs.

JOSEPH D. CERETTI,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Glenn E. Pille, 

Judge.

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 

JUDGMENT OF DISTRICT COURT VACATED; CASE REMANDED.

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.
2

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.
3

Police conducted an investigation, eventually arrested Ceretti, and 

charged him with first-degree murder. Before trial was to begin, the 

parties reached a plea agreement. No written memorialization of it

appears in the record, but the parties announced the terms of the 

agreement during the plea colloquy before the district court. Ceretti 

agreed to plead guilty if the State filed an amended trial information, and 

the district court granted the State’s subsequent motion to amend. 

Instead of first-degree murder, the amended trial information charged 

Ceretti with voluntary manslaughter, attempted murder, and willful 

injury causing serious injury. See Iowa Code §§ 707.4, .11 (2011); id.

§ 708.4(1). 

Ceretti entered an Alford plea1 to the attempted murder charge, 

but pled guilty to the other two charges.2 He agreed to join the State’s 

sentencing recommendation: a twenty-five-year prison sentence for 

attempted murder and two ten-year sentences (one for voluntary 

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.

 
4

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.

 
5

investigation report. The district court adopted the parties’ sentencing 

recommendation and sentenced Ceretti to consecutive prison sentences 

totaling forty-five years—twenty-five years with a seventy percent 

mandatory minimum for attempted murder, ten years for voluntary 

manslaughter, and ten years for willful injury.

Ceretti appealed, contending attempted murder and willful injury 

are both included offenses of voluntary manslaughter, and therefore, the 

three convictions should merge and his total sentence should not exceed 

ten years. We transferred the case to the court of appeals, which 

rejected Ceretti’s contentions, concluded attempted murder and willful 

injury resulting in serious injury are not included offenses of voluntary 

manslaughter because the latter offense can be committed without a 

specific intent to kill, and affirmed the district court. Ceretti then sought 

further review, and we granted his application.

II. The Parties’ Positions.

A. Ceretti. Ceretti asserts it is impossible to commit voluntary 

manslaughter without also committing attempted homicide and willful 

injury. Accordingly, Ceretti contends Iowa Code section 701.9 and Iowa 

Rule of Criminal Procedure 2.22(3) mandate that all three offenses 

merge. See id. § 701.9; Iowa R. Crim. P. 2.22(3). The linchpin of 

Ceretti’s contention is the premise that one element of voluntary 

manslaughter is the defendant’s specific intent to kill. See State v. 

Hellwege, 294 N.W.2d 689, 690 (Iowa 1980) (“Although no intent element 

is specified, a requirement of intent to kill may be inferred from the 

language of [Iowa Code] section 707.4.”).

Ceretti contends in the alternative that even if we conclude the 

convictions for attempted murder and voluntary manslaughter do not 

merge because those offenses do not share a common specific intent 
6

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 
7

(Iowa 1976) (noting a defendant’s success “should not turn on defense 

gamesmanship”).

III. Scope of Review.

Ceretti asserts the district court’s sentence violated the merger 

statute. See Iowa Code § 701.9 (“No person shall be convicted of a public 

offense which is necessarily included in another public offense of which 

the person is convicted.”). “Section 701.9 codifies the double jeopardy 

protection against cumulative punishment.” State v. Gallup, 500 N.W.2d 

437, 445 (Iowa 1993); see also State v. Bullock, 638 N.W.2d 728, 731 

(Iowa 2002). We review challenges under the merger statute to correct 

errors at law. State v. Stewart, 858 N.W.2d 17, 19 (Iowa 2015); State v. 

Finnel, 515 N.W.2d 41, 43 (Iowa 1994).

IV. Analysis.

A. The Elements Test. To determine whether section 701.9 

requires that convictions merge, we examine legislative intent. Bullock, 

638 N.W.2d at 731; State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 

1995). “Legislative intent is indicated, in part, by whether the crimes at 

issue meet the legal elements test for lesser-included offenses.” Bullock, 

638 N.W.2d at 731; accord Halliburton, 539 N.W.2d at 344; Finnel, 515 

N.W.2d at 43. If one offense is not an included offense within the other, 

“there is a presumption that multiple punishments can be assessed.” 

Finnel, 515 N.W.2d at 43.

The legal elements test is often called the Blockburger test. See 

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 

L. Ed. 306, 309 (1932). To apply the Blockburger test, “we compare the 

elements of the two offenses to determine whether it is possible to 

commit the greater offense without also committing the lesser offense.” 

Halliburton, 539 N.W.2d at 344.
8

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. 
9

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, 

1255, 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. 

Shaver, 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 
10

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. 

Christie, 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 firstdegree 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 
11

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 

exist.”).

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.”).

 
12

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. 

1999).

Additionally, we have previously noted—albeit impliedly—that 

voluntary manslaughter contains no specific intent element. State v. 

Couser, 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. 

Gramenz, 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. 

Montgomery, 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 
13

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. 

Taylor, 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 
14

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 “thirddegree 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 . . . .”).
15

“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. 

Rust, 650 F.2d 927, 928 (8th Cir. 1981) (per curiam); cf. State v. 

Waterbury, 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 

murder.

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 onehomicide 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 

1995). 

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. 

State, 867 N.W.2d 853, 856 (Iowa Ct. App. 2015); accord People v. 

Latham, 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’ 
16

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 
17

because the basis on which the defendant entered the plea 

included the impermissible inducement of an illegal 

sentence.

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 
18

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. 

Kelty, 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
19

convictions. We remand the case to the district court for further 

proceedings consistent with this opinion. Costs are taxed to the State.

DECISION OF COURT OF APPEALS AND JUDGMENT OF 

DISTRICT COURT VACATED; CASE REMANDED.