Opinion
No. 3-025 / 02-0590
Filed March 26, 2003
Appeal from the Iowa District Court for Allamakee County, John Bauercamper, Judge.
Ronni Kachanes appeals from the judgment and sentences entered following his conviction for attempted murder and willful injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall and Robert Glaser, Assistant Attorneys General, and William J. Shafer, County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Ronni Kachanes appeals from the judgment and sentences entered following his conviction for attempted murder and willful injury. We affirm.
I. Background facts and proceedings. While at the synagogue in Postville, Iowa, Ronni Kachanes sought an invitation to dinner from teacher Avraham Holtzberg and his family. Holtzberg agreed Kachanes could come to dinner, and the two walked to Holtzberg's house together. Before dinner was served, Kachanes complained he was not feeling well and went downstairs to rest. He remained downstairs for the rest of the night, not coming up for dinner. The Holtzberg family went to bed about 9:00 p.m. after checking on Kachanes a couple of times.
At about 8:00 a.m. the next morning, Holtzberg found Kachanes awake in the living room. The two went into the kitchen to have coffee. As Holtzberg prepared the coffee, he was attacked from behind and stabbed repeatedly in the neck, chest and back. Holtzberg's screams woke up his wife, who found her husband lying on the kitchen floor bleeding with Kachanes standing next to him. She pushed Kachanes from the room and called 911. Kachanes was arrested later that morning and was charged with attempted murder and willful injury. After a trial, a jury found Kachanes guilty of both charges, and the district court sentenced him to twenty-five years for the attempted murder conviction and ten years for the willful injury conviction.
Kachanes appeals, alleging the district court's failure to merge his sentences for attempted murder and willful injury violates Iowa Code section 701.9 (1999) because willful injury is a lesser-included offense of attempted murder.
II. Standard of review. Our review of an alleged violation of Iowa Code section 701.9 is for correction of errors at law. Iowa R.App.P. 6.4; State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999).
III. Discussion. Our supreme court explicitly held in State v. Clarke, 475 N.W.2d 193 (Iowa 1991) that willful injury is not a lesser included offense of attempted murder. Clarke, 475 N.W.2d at 196. Kachanes concedes that as long as the "legal elements" test is used, willful injury cannot be considered a lesser-included offense of attempted murder because willful injury includes a legal element not present in attempted murder. "The distinguishing element is proof of serious injury, required for conviction of willful injury, but not attempted murder." Id.at 194.
Kachanes argues the "legal elements" test is no longer applicable because of the recent decision in State v. Hickman, 623 N.W.2d 847 (Iowa 2001). He contends the language in Hickmansignals a shift to a more pragmatic and fact-based approach to determining whether one offense is a lesser-included offense of another. Relying on Hickman, Kachanes argues the first two elements of attempted murder (stabbing and risk of death) are so intertwined with the proof of serious injury element of willful injury that "they are one and the same." Kachanes, however, fails to identify the specific language in Hickman which indicates this shift in approach. Our review of the Hickmandecision uncovered no indication our supreme court has rejected the "legal elements" test. We therefore rely on the supreme court's prior holding in Clarke, 475 N.W.2d at 196, and affirm.