Opinion
No. 3-157 / 02-0708
Filed March 26, 2003
Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart, District Associate Judge.
Larry Joseph Dressel, Jr., appeals from the judgment and sentence imposed following his guilty plea to operating while intoxicated, third offense. AFFIRMED.
Robert Thompson, Reinbeck, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton and Michael Bandy, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Larry Joseph Dressel, Jr., appeals from the judgment and sentence imposed following his guilty plea to operating while intoxicated, third offense. He contends the district court erred at sentencing by not allowing him the opportunity to withdraw his guilty plea when it decided not to follow the parties "joint recommendation" concerning sentencing. We affirm.
The State charged Dressel with operating while intoxicated (OWI), third offense, in violation of Iowa Code section 321J.2 (2001), a class "D" felony. Dressel initially pled not guilty. On February 8, 2002, he appeared in court and stated his intention to plead guilty. At the plea proceeding counsel for both parties, and Dressel personally, all informed the court there was no plea agreement. The State did indicate it would have a "recommendation," apparently a sentencing recommendation. It did not state what it might recommend at sentencing. The court accepted the plea of guilty and ordered a presentence investigation.
Dressel was also charged with, pled guilty to, and was convicted and sentenced for operating a motor vehicle while barred, but that conviction is not at issue in this appeal.
A different judge conducted a sentencing hearing on April 26, 2002. At the outset of the hearing the sentencing judge stated on the record that he had met with counsel in chambers before beginning the hearing and had indicated he "may not be able to follow the joint recommendation to the effect that Mr. Dressel would be allowed to remain out of custody until space is available at the 321J facility," but he would listen to arguments in support of the joint recommendation. Based on statements made by the parties and the court at the sentencing hearing it appears that by then the parties had agreed to a "joint recommendation" on the OWI charge of a $2500 fine, a suspended five-year prison sentence with maximum participation in a treatment program ("321J Program") at a residential facility, a substance abuse evaluation, drinking drivers school, a six-year bar of driving privileges, and that Dressel remain free until space became available in the residential facility.
After hearing from the parties regarding sentencing the court declined to follow the parties' recommendation for a suspension of the prison sentence and sentenced Dressel to a term of no more than five years imprisonment, leaving it to the Department of Corrections to determine whether he should be immediately placed in a residential treatment program or placed elsewhere. The court did not afford Dressel an opportunity to then withdraw his plea of guilty.
Our rules of criminal procedure recognize plea agreements and set forth certain procedures to be followed by the parties and the court when a plea agreement exists. In relevant part they provide the following:
Advising court of agreement. If a plea agreement has been reached by the parties the court shall require the disclosure of the agreement in open court at the time the plea is offered.
Iowa R.Crim.P. 2.10(2) (second emphasis added).
Rejection of plea agreement. If, at the time the plea of guilty is tendered, the court refuses to be bound by or rejects the plea agreement, the court shall inform the parties of this fact, afford the defendant the opportunity to then withdraw defendant's plea, and advise the defendant that if persistence in a guilty plea continues, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
Iowa R.Crim.P. 2.10(4) (second emphasis added).
Dressel claims the sentencing court "erred by not allowing the Defendant the opportunity to withdraw his former plea of guilty to [OWI, third offense] upon settling on not following the plea bargain." However, certain duties imposed on a trial court, including the duty to "afford the defendant the opportunity to then withdraw defendant's plea," apply "at the time the plea of guilty is tendered," and apply only if a plea agreement exists and is then disclosed in response to the court's inquiry concerning a plea agreement. See Iowa R.Crim.P. 2.10(2), (4).
At the plea proceeding counsel for both parties, as well as Dressel himself, had informed the court there was no plea agreement, and no plea agreement was then disclosed. In accepting Dressel's guilty plea the court was therefore under no obligation to afford him the opportunity to withdraw the plea.
If a plea agreement had in fact existed at the time of the plea proceeding, and if at the sentencing hearing the parties had so informed the court and had further informed it they had mistakenly told the court at the time of the plea proceeding that there was no plea agreement, under such circumstances the sentencing court would arguably have been obligated to then comply with rule 2.10(4) and afford Dressel the opportunity to withdraw his plea of guilty. However, at the sentencing hearing no one stated or suggested that any plea agreement which had by then been reached had existed at the time of the plea proceeding. We conclude that under the language of rule 2.10 and the facts of this case the sentencing court was entitled to rely on the parties' representations, made at the plea proceeding, that no plea agreement existed at the time Dressel's plea of guilty was tendered and accepted; was entitled to rely on Dressel's guilty plea having been properly tendered and accepted; and therefore had no duty to afford Dressel the opportunity to withdraw his plea of guilty. Stated somewhat differently, absent any claim or evidence that the parties' earlier representations were inaccurate or that the court had not properly accepted Dressel's guilty plea, in sentencing Dressel the court was entitled to rely on those representations and the propriety of the court's earlier acceptance of the guilty plea.
We conclude the sentencing court did not err by not offering Dressel the opportunity to then withdraw his plea of guilty. We need not and do not address the State's claim that Dressel failed to preserve error or waived his claim of error by failing to move to withdraw his plea after the sentencing court's intention to not follow the parties' "joint recommendation" became apparent.