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).
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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.
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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); first-
degree 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
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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
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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.
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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.
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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
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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.