IN THE COURT OF APPEALS OF IOWA

No. 19-0072

Filed February 19, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BRETT EUGENE NOBLE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Tom Reidel, 

Judge.

Brett Noble appeals the district court’s ruling on remand. AFFIRMED.

Jeffrey Powell, Coralville, and Thomas J. O’Flaherty of O’Flaherty Law Firm, 

Bettendorf, (until withdrawal), for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

VAITHESWARAN, Presiding Judge.

Brett Noble pled guilty to attempt to commit murder, first-degree theft, 

voluntary manslaughter, and assault while participating in a felony. The district 

court imposed sentence and ordered the sentences to run consecutively. Noble 

filed a motion to correct an illegal sentence, which the district court denied.1 On 

review of the court’s decision, the court of appeals held “the defendant’s 

convictions for attempted murder and voluntary manslaughter are predicated on 

the same act directed against the same victim and violate the rule announced in 

[State v.] Ceretti, [871 N.W.2d 88 (Iowa 2015)].” Noble v. Iowa Dist. Ct., 919 

N.W.2d 625, 634 (Iowa Ct. App. 2018) (“Noble I”). The court remanded the case 

for further proceedings, with the following instruction:

At the State’s election, the district court shall either: (1) vacate the 

defendant’s conviction and sentence for voluntary manslaughter and 

resentence the defendant on the remaining convictions; or (2) vacate 

the plea bargain and the resulting convictions. In the event the State 

elects the latter remedy, “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.”

Id. (quoting Ceretti, 871 N.W.2d at 97). 

On remand, the district court filed an amended sentencing order, explaining 

that the State “elected to have the conviction and sentence on Count 3, Voluntary 

Manslaughter, vacated and for resentencing to take place on the remaining 

counts.” The court sentenced Noble to consecutive prison terms for the three 

remaining offenses—attempted murder, first-degree theft, and assault while 

participating in a felony—for a total term not to exceed forty years. 

 

1 Noble filed two motions to correct an illegal sentence. Only the second motion is 

at issue.
3

On appeal from the remand order, Noble contends (1) “the district court 

improperly applied existing law when it vacated [his] voluntary manslaughter 

conviction and resentenced [him] on attempted murder in a ‘one homicide’ case, 

resulting in an illegal sentence” and (2) his “appellate and resentencing counsel 

were ineffective for not adequately contesting the court of appeals decision that 

incorrectly instructed vacating voluntary manslaughter instead of attempted 

murder at resentencing.” The State responds that the law-of-the-case doctrine 

precludes this court from revisiting the amended sentence.

“The law of the case doctrine ‘represents the practice of courts to refuse to 

reconsider what has once been decided.’” State v. Ragland, 812 N.W.2d 654, 658 

(Iowa 2012) (quoting State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987)). “The 

doctrine, however, is not absolute or inflexible.” United Fire & Cas. Co. v. Iowa 

Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). For example, it is well established 

that an illegal sentence may be challenged at any time. See Iowa R. App. P. 

2.24(5)(a); State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) (“Where, as here, 

the claim is that the sentence itself is inherently illegal, whether based on 

constitution or statute, we believe the claim may be brought at any time.”). The 

doctrine also has not been applied to ineffective-assistance-of-counsel claims. 

See State v. Ondayog, 722 N.W.2d 778, 783–84 (Iowa 2006) (“Such claims are an 

exception to normal error-preservation rules and the ‘law of the case’ doctrine”). 

In Termaat v. State, 867 N.W.2d 853, 855 n.2 (Iowa Ct. App. 2015), this 

court declined to apply the law-of-the-case doctrine in an appeal raising the same

sentencing issue Noble has raised. We stated, “Relying on our tolerant stance 

toward illegal sentence claims, we find the State’s arguments of issue preclusion 
4

and law of the case fail.” Termaat, 867 N.W.2d at 855 n.2. In light of that tolerant 

stance, we decline to apply the law-of-the-case doctrine to preclude review of 

Noble’s amended sentence. We turn to the merits of Noble’s assertion that the 

sentence was illegal.

As noted, the court of appeals afforded the State the option to elect one of 

two remedies on remand: “either: (1) vacate the defendant’s conviction and 

sentence for voluntary manslaughter and resentence the defendant on the 

remaining convictions; or (2) vacate the plea bargain and the resulting convictions.” 

Noble I, 919 N.W.2d at 634. On remand, the district court approved the first option 

chosen by the State. Noble argues that option contravened the court’s holding in 

Ceretti. 

In Ceretti, the defendant entered an Alford plea2to attempted murder and 

he also pled guilty to voluntary manslaughter and willful injury causing serious 

injury. 871 N.W.2d at 90. The court held, “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.” Id. at 96. The court 

next pondered the “appropriate disposition.” Id. The court stated:

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. 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.

 

2 See North Carolina v. Alford, 400 U.S. 25, 37 (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”).
5

However, some courts faced with analogous circumstances 

apply principles of contract law and vacate the entire plea 

agreement. For example, the Colorado Supreme Court has stated:

“[W]hen a defendant enters into a plea agreement that 

includes as a material element a recommendation for 

an illegal sentence and the illegal sentence is in fact 

imposed on the defendant, the guilty plea is invalid and 

must be vacated because the basis on which the 

defendant entered the plea included the impermissible 

inducement of an illegal sentence.”

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.” Ceretti 

“willingly embraced the . . . sentence in the plea agreement in return 

for not risking life imprisonment following a guilty verdict at trial.” 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.

Id. at 96–97 (citations omitted). Accordingly, the court “vacate[d] all three 

convictions and the entire plea bargain and remand[ed] the case to the district 

court” with the following instructions: “‘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.’ . . . Of course, the 

parties may negotiate a new plea agreement on remand or try the case.” Id. at 

97–98 (citation omitted). 

The State characterizes the quoted paragraphs of Ceretti as a “speck of 

dicta.” In our view, the language has more than a speck of significance. 

Nonetheless, we agree with the State that the disposition in Ceretti was not “the 

only possible way to remedy problems with multiplicity.” 

In Noble I, this court was cognizant of Ceretti and discussed it extensively. 

With Ceretti in the forefront, the court provided two options on remand. The district 
6

court approved the State’s selection of the first option. Because the court in Ceretti

did not categorically foreclose that option, choosing to base its disposition “under 

the circumstances of t[he] case,” we conclude Noble’s amended sentence was 

legal. In light of our conclusion that a different sentence was not mandated by 

Ceretti, we conclude counsel did not breach an essential duty in failing to seek 

further review of this court’s disposition in Noble I or in failing to raise the issue on 

remand.

We affirm Noble’s amended sentence.

AFFIRMED.