CARROLL CALHOUN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-013 / 07-1688
Filed May 6, 2009
CARROLL CALHOUN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Jeffrey L. Larson,
J.C. Irvin, and James S. Heckerman, Judges.
Carroll Calhoun appeals his conviction based on his guilty pleas to
voluntary manslaughter and attempt to commit murder. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Dennis Hendrickson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, and Richard Davidson, County Attorney, for appellee State.
Heard by Vaitheswaran, P.J., and Eisenhauer and Doyle, JJ.
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DOYLE, J.
In a dispute over twenty bucks, Carroll Calhoun brutally killed his
roommate Rickie Lane Kimbro by stabbing him eighteen times. Calhoun was
charged with first-degree murder and willful injury.
To avoid a potential life
sentence, Calhoun entered into a plea agreement wherein he pled guilty to
attempted murder and voluntary manslaughter. He was sentenced to thirty-five
years of imprisonment.
Calhoun appeals his convictions claiming, among other things, that his
trial counsel provided ineffective assistance because they failed to file a motion in
arrest of judgment alleging an inadequate factual basis for the pleas, and that his
postconviction counsel was ineffective for failing to raise the issue. Upon our
review, we affirm Calhoun’s convictions.
I. Background Facts and Proceedings.
On May 23, 2002, the State filed a two-count trial information, along with
the minutes of testimony, charging Calhoun with first-degree murder and willful
injury for the stabbing death of Kimbro. Relevant here, the minutes state:
[Iowa Division of Criminal Investigation Special Agent Mitch]
Mortvedt will testify . . . he [interviewed Mr. Calhoun at the hospital],
advised Mr. Calhoun of his rights which Mr. Calhoun waived in
writing . . . . Agent Mortvedt will testify Mr. Calhoun admitted living
at his current residence . . . . Mr. Calhoun then stated “I done it, I
killed the bastard, I stabbed him to death . . . .” Agent Mortvedt will
testify Mr. Calhoun had told Mr. Kimbro to get him and his stuff
[out]. Mr. Calhoun then got his knife out and “put the shit to a
screeching halt.” Mr. Kimbro then beat him down to the ground and
then let him up. Mr. Kimbro then left the room, then quickly
returned and as he was walking through the door into the living
room, Mr. Calhoun stated “I stuck him because he bugs me all the
. . . time. I told him to quit bugging me and he didn’t so I . . .
stabbed him. I kept stabbing him like a hundred times to get all of
the hate and violence out of me . . . . He was breathing when I left
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so I put a sheet over him. He got to the telephone and I said that’s
it and I kept stabbing him repeatedly.
The minutes further state:
Agent Mortvedt will testify Mr. Calhoun repeated that Mr. Kimbro
tried to punch him and he wanted twenty bucks. When he agreed,
he went into the room, got his knife, and when Mr. Kimbro returned,
he “stabbed him right in the belly.” Agent Mortvedt will testify Mr.
Calhoun then stated “I got down and stabbed him like [thirty] more
times. I changed my clothes because there was blood all over me
and then I left for a while. When I came back, I thought that he was
maybe still alive so I checked him but he was dead.”
Calhoun subsequently entered into a plea agreement with the State
whereby the trial information was amended to charge him with voluntary
manslaughter, in violation of Iowa Code section 707.4 (2001) (Count I), and
attempt to commit murder, in violation of section 707.11 (Count II). At the plea
hearing,1 the district court inquired as to the factual basis for the two charges.
The State explained:
It’s the State’s theory and our facts—what we believe is the factual
basis here—is the victim was stabbed numerous times, [sixteen,
seventeen] times. And we believe that the facts, as they would
come out in trial, would show that the victim was stabbed at least
two or three times, and then there was a break. And it was—all the
wounds were not inflicted at the same time. There was a telephone
call that was placed from the apartment where all this happened.
And it’s our belief that the facts would demonstrate that the victim
made that telephone call. [Mr. Calhoun’s] voice is heard on the
tape inquiring as to who is on the other line and then simply states,
“But we don’t need you” and hung up the phone. The telephone
call was to 911. We believe that [Mr. Calhoun] had inflicted certain
wounds at that time.
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The hearing was held February 9, 2004, almost twenty-one months after the crime was
committed. On February 6, 2003, Calhoun filed a request for a competency hearing,
claiming he suffered from a mental disorder. An Iowa Code section 812.4 order was
entered May 22, 2003, finding Calhoun not competent to stand trial and ordering
Calhoun to undergo examination and treatment. After an October 31, 2003 hearing, the
court entered an order finding Calhoun competent to stand trial. Calhoun entered his
guilty plea at a hearing on February 9, 2004.
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We also, for lack of a better term, would state that was kind
of a line of demarcation between the two. We believe there were
certain other instances after that phone call which we believe would
be the—serve as a factual basis for the provocation that lead to the
final stabbing and the death of the victim. . . . Count II was actually
the first crime, and then Voluntary Manslaughter, Count I, followed
at some point after the telephone call.
Calhoun’s attorney agreed, stating:
[T]hat is the factual basis that was discussed with the State’s
attorneys during plea negotiations. Both [Calhoun’s other trial
attorney] and I have gone over that with Mr. Calhoun. He has
agreed to stipulate, for lack of a better term, for purposes of a
factual basis and purposes of this plea agreement that there was
an attempt on his part initially in the confrontation with Mr. Kimbro
to stab—or he actually did stab Mr. Kimbro with the intent to kill Mr.
Kimbro, but there was a break in their activities. After that break,
Mr. Kimbro did come after Mr. Calhoun, at which point Mr. Kimbro
met his ultimate demise at the hands of Mr. Calhoun.
The court then conducted the following colloquy with Calhoun:
Q. Mr. Calhoun, you understand what’s been said here?
A. Yeah. I think I do.
Q. . . . Do you think it’s to your advantage to take this plea
bargain and avoid standing trial and possible being convicted of
Murder in the First Degree that carries the life—mandatory life
sentence? A. Yeah.
Q. And you’ve discussed that with your attorneys?
A. Yeah.
Q. Also, I think what’s been said here is there was a
confrontation between you and Mr. Kimbro or some sort of an
attack. What was this, with a knife? A. Yeah.
Q. And that Mr. Kimbro was stabbed on two or three
occasions before there was a break in the action, so to speak?
A. That’s only part. There was no break.
Q. Was there a phone call at one time? A. That was after
everything, phone calls, two of them. I put two calls in, because I
was going to call them and tell what happened, and I changed my
mind. I was trying to think what to do, forgot what to do.
Q. That was after it all happened? A. It’s all once with
Kimbro. There was no break in between, none of that.
Q. We talked about what we call the minutes of testimony.
That’s the testimony of the witnesses. You had—you received the
copies of that. Do you have any reason to believe that those
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witnesses wouldn’t testify as set forth in those papers that were
given to you if they were actually called at trial? A. Yeah.
Q. Do you believe they would testify that way? A. Yeah.
Based on the record, the court found a factual basis existed for the pleas.
Additionally, the court found Calhoun voluntarily entered his pleas.
It then
accepted and entered Calhoun’s guilty pleas to the amended charges. The court
later sentenced Calhoun to consecutive sentencing of thirty-five years and
ordered restitution in the amount of $150,000 pursuant to Iowa Code section
910.3B(1).
Calhoun did not file an arrest of judgment motion following entry of his
guilty pleas, nor did he file a direct appeal of the judgment after sentencing.
Calhoun later filed an application for postconviction relief, which was denied by
the district court. Calhoun now appeals, contending there was no factual basis
supporting his guilty pleas and therefore his trial counsel were ineffective for
failing to file a motion in arrest of judgment to challenge the adequacy of the
pleas. He further contends his postconviction counsel was ineffective for failing
to assert his trial counsel was ineffective.
II. Scope and Standards of Review.
When a defendant claims trial counsel was ineffective for permitting a
guilty plea to a charge not supported by a factual basis, our review is de novo.
State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
III. Discussion.
A. Lack of Factual Basis.
On appeal, Calhoun argues there was no factual basis for the theory
supporting the plea agreement “that Calhoun attempted to murder Kimbro, but
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failed to do so, with these events then followed by serious provocation from
Kimbro which resulted in his death at the hands of Calhoun” because the record
does not support a break or bifurcation in his actions. He argues that his actions
were one unbroken chain of events, and thus implies there was no factual basis
for two separate crimes. Additionally, in citing to State v. Hack, 545 N.W.2d 262
(Iowa 1996), Calhoun implies “that [his trial] counsel may have had strategic
reasons for permitting [Calhoun] to plead guilty notwithstanding the lack of a
factual basis.” Hack, 545 N.W.2d at 263. Of course, such strategies erode the
integrity of all pleas and the public’s confidence in our criminal justice system and
therefore cannot be permitted. See id.
It is axiomatic that a trial court may not accept a guilty plea without first
determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b); see also
Keene, 630 N.W.2d at 581. Where a defendant pleads guilty to two crimes, the
record must minimally support a factual basis for two separate crimes. State v.
Walker, 610 N.W.2d 524, 527 (Iowa 2000). In order to support Calhoun’s two
convictions, there must have been two separate and distinct crimes.
Calhoun cites no law suggesting that multiple offenses cannot arise out of
a continuity of action—acts closely connected in time and place. Iowa Rule of
Criminal Procedure 2.6(1) recognizes that two or more indictable public offenses
may arise from the same transaction or occurrence. “[M]ultiple violations of a
single statute will support multiple convictions and punishments, even if a
defendant commits all the violations in the same course of conduct.” State v.
Ross, 512 N.W.2d 830, 833 (Iowa Ct. App. 1993) (citations omitted). Separate
charges can be based on multiple assaults, and a defendant may be convicted
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separately for each attack. See State v. Newman, 326 N.W.2d 788, 793 (Iowa
1982) (“A defendant should not be allowed to repeatedly assault his victim and
fall back on the argument his conduct constitutes but one crime.”). But, each
separate act must be separate and distinct, either in time, place, means, or
nature. Id.; see also State v. Holderness, 301 N.W.2d 733, 739-40 (Iowa 1981);
State v. Flanders, 546 N.W.2d 221, 224-25 (Iowa Ct. App. 1996).
To support a factual basis for a guilty plea, the record includes the minutes
of testimony and statements made by the defendant and prosecutor at the guilty
plea proceeding; this record, as a whole, must disclose facts to satisfy elements
of the crime. Keene, 630 N.W.2d at 581. At the plea hearing, the district court
stated it found a factual basis existed for the pleas based on the record. Upon
our de novo review, we agree.
The State explained at the plea hearing that, under its theory and facts,
there was a break (a telephone call to 911) in Calhoun’s stabbing of the victim to
support two separate crimes. During his colloquy with the district court, Calhoun
denied there was any temporal break in his actions, stating that he made two
phone calls “after everything.” Although not crystal clear, the minutes do support
the State’s alleged facts that there was such a break. In any event, we conclude
the record supports a factual basis for two separate crimes. See Walker, 610
N.W.2d at 526-27. In Walker, Walker’s willful injury conviction was based upon
his initial assault, which consisted of throwing several swift punches which
knocked his victim to the ground.
Id.
Instead of stopping the fight there,
Walker’s rage so consumed him that he proceeded to kick his victim in the head
while his victim was down. Id. The court found this separate act of uncontrolled
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aggression, resulting in the victim’s death, furnished the factual basis for the
voluntary manslaughter conviction.
Id. at 527.
The record here, at least
minimally, establishes two clearly delineated and separate criminal acts.
Because a factual basis did exist independently for each of the two crimes to
which Calhoun pled guilty, his trial counsel and postconviction relief counsel were
not ineffective in failing to raise the inadequate factual basis issue.
B. Consecutive Sentences.
Calhoun next asserts the district court erred in imposing consecutive
sentences. On Count I, voluntary manslaughter in violation of Iowa Code section
707.4, Calhoun was sentenced to ten years imprisonment. On Count II, attempt
to commit murder in violation of section 707.11, Calhoun was sentenced to
twenty-five years imprisonment with a mandatory minimum sentence of seventy
percent pursuant to section 902.12.
The court ordered the sentences to be
served consecutively pursuant to the plea agreement. Section 901.8 provides in
part: “If a person is sentenced for two or more separate offenses, the sentencing
judge may order the second or further sentence to begin at the expiration of the
first or succeeding sentence.”
Calhoun argues, by analogy, that principles of merger should preclude
attempt to commit murder and voluntary manslaughter (with the same facts for
each) from becoming the foundation for consecutive sentencing.
We have
already concluded in our analysis of the factual basis claim that there were
separate offenses. In State v. Taylor, after concluding Taylor committed two
separate offenses, the Iowa Supreme Court rejected Taylor’s claim that the
consecutive sentences imposed by the trial court “were inappropriate inasmuch
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as the two charges were so factually intertwined as to essentially constitute one.”
State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999). Taylor cites to State v. Criswell,
which approved the prevailing view:
[If an] accused . . . is convicted on several counts of an indictment,
and each count is for a separate and distinct offense, a separate
sentence may be pronounced on each count, and the court may
pronounce separate and distinct sentences which are cumulative,
and are to run consecutively. This is true, even though the several
offenses were committed in the course of a single transaction. . . .
State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976) (citations omitted). The
prevailing view continued with the adoption of Iowa Code section 901.8. See
State v. Jones, 299 N.W.2d 679, 682-83 (Iowa 1980). An argument similar to
Calhoun’s was rejected most recently in Stradt v. State, 608 N.W.2d 28, 29-30
(Iowa 2000). We therefore find no error in the court’s imposition of consecutive
sentences.
C. Failure to Pursue Defenses.
Lastly, Calhoun argues his postconviction relief counsel were ineffective
for failing to pursue or present an insanity defense, diminished responsibility
defense, and/or intoxication defense. He makes no claim that that his plea was
not voluntary or knowing, nor does he argue that the plea was not taken in
conformance with Iowa Rule of Criminal Procedure 2.8(2)(b).
It is well
established that the entry of a guilty plea in conformance with rule 2.8(2)(b)
waives all defenses and objections which are not intrinsic to the plea itself. See
Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (citations omitted). Failure to
raise defenses is not a circumstance that bears on the knowing and voluntary
nature of a plea. When these challenges, not bearing on the knowingness and
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voluntariness of a plea, are then brought disguised as ineffective assistance of
counsel claims, the result is unchanged, and the objection is waived. See id.;
see also State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). Accordingly, we
hold that Calhoun waived his ineffective assistance claims upon pleading guilty.
IV. Conclusion.
Because we conclude Calhoun’s guilty pleas were supported by the facts
upon the record, we affirm Calhoun’s convictions. The trial court did not err in
imposing consecutive sentences.
We pass no judgment on the ineffective
assistance claim for failure to raise defenses because we hold they were waived
by virtue of Calhoun’s informed guilty plea. Accordingly, Calhoun’s convictions,
and sentence thereon, are affirmed.
AFFIRMED.
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