State of Iowa v. Valentin Velez

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
 4

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
 5

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,
 6

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.
 7
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
 8

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.
 10

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.
 11

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
 12
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
 13

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
 14

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
 15

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
 18

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
 19
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
 23

469, 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.