Opinion
No. 2-463 / 01-1724.
Filed July 19, 2002.
Appeal from the Iowa District Court for Black Hawk County, BRUCE B. ZAGER, Judge.
Defendant Jeremy Green appeals from his guilty pleas and sentences for three drug-related charges. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas Ferguson, County Attorney, and Jack Lammers, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Defendant-Appellant, Jeremy Green, appeals from his guilty pleas and sentences for three drug-related charges. This appeal focuses on the plea and sentence for the most serious of the three charges, possession of methamphetamine, more than five grams, with intent to deliver. Defendant contends (1) he was denied effective assistance of counsel because his attorney failed to file a timely motion in arrest of judgment; and (2) the district court erred in allowing the State to withdraw its recommendation for a reduction in the mandatory minimum sentence because of prosecutorial vindictiveness. Defendant asks that his guilty pleas be set aside or his sentences be vacated and the case be remanded to the district court for a new sentencing hearing. We affirm in part, reverse in part, and remand.
The offense carries a mandatory prison sentence not to exceed twenty-five years with a one-third mandatory minimum before defendant could be eligible for parole. See Iowa Code §§ 124.401(1) (b) and 124.413. Section 901.10(2) permits the court to reduce the mandatory minimum sentence by one-third if defendant pleads guilty.
On January 26, 2001 the defendant entered pleas of guilty to the offenses of possession of a controlled substance, methamphetamine more than five grams, with intent to deliver, in violation of Iowa Code section 124.401(1)(b) (1999), drug tax stamp violation, in violation of section 453B.12, and possession of a controlled substance, marijuana, in violation of section 124.401(5).
Defendant appeared for sentencing on August 2, 2001 and objected to the State's sentencing recommendation contending the State had violated the plea agreement. Sentencing was postponed. On August 17, 2001 the court held a hearing on the question of a violation of the plea agreement. The district court found the State had not violated the plea agreement.
Defendant appeared for sentencing on September 7, 2001. Defendant objected to the State's sentencing recommendation contending it did not include a recommendation for further reduction in the mandatory minimum sentence based upon defendant's cooperation with law enforcement authorities. Defendant contended the refusal of the State to include such a recommendation was the result of prosecutorial vindictiveness driven by defendant's claim the plea agreement had been violated. Sentencing was continued for the district court to review a transcript of the original sentencing hearing.
On October 25, 2001 the district court overruled defendant's claim of prosecutorial vindictiveness and sentenced the defendant to a term of imprisonment not to exceed twenty-five years for possession of methamphetamine with intent to deliver charge, a term not to exceed five years for the drug tax stamp violation, and a term not to exceed six months for possession of marijuana. The district court ordered that the mandatory minimum sentence be reduced by one-third because defendant had pled guilty. There was no further reduction of the mandatory minimum based on defendant's cooperation in the prosecution of others. The sentences were to run concurrently with each other and with prison sentences imposed on an unrelated theft charge and probation violation. Defendant filed a notice of appeal the next day.
I. INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO FILE A TIMELY MOTION IN ARREST OF JUDGMENT.
The defendant asserts that his counsel provided ineffective assistance for (1) not challenging misinformation provided by the district court as to possible reductions in defendant's sentence (2) failing to request a further record be made as to the knowing, intelligent, and voluntary nature of defendant's guilty plea, and (3) failing to file a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3). Defendant asks that his guilty plea be set aside, arguing that the incorrect information given him by the court and his attorney's failure to correct it rendered his plea involuntary.
Failure to challenge the adequacy of guilty plea proceedings by motion in arrest of judgment precludes direct appeal of a conviction. Iowa R. Crim. P. 2.24(3)(a). However, failure to do so will not preclude a challenge to a guilty plea if it is the result of the ineffective assistance of counsel. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982).
To establish a claim of ineffective assistance of counsel, a defendant has the burden to prove: (1) counsel failed in an essential duty, and (2) prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To prove his attorney failed in an essential duty defendant must overcome the strong presumption that his attorney's actions were reasonable under the circumstances and fell within the normal range of professional competency. See State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). In a guilty plea situation, in order to establish prejudice, usually the defendant must show there is a reasonable probability that, but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985). Because a constitutional right is presented, the standard of review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984).
The issue revolves around Iowa Code section 901.10 which provides in relevant part:
1. A court sentencing a person for the person's first conviction under section 124.406, 124.413, or 902.7, may at its discretion, sentence the person to a term less than provided by the statute if mitigating circumstances exist and those circumstances are stated specifically in the record.
2. Notwithstanding subsection 1, if the sentence under section 124.413 involves amphetamine or methamphetamine offense under 124.401, subsection 1, paragraph "a" or "b"., the court shall not grant any reduction of sentence unless the defendant pleads guilty. If the defendant pleads guilty, the court may, at its discretion, reduce the mandatory minimum sentence by up to one-third. If the defendant additionally cooperates in the prosecution of other persons involved in the sale or use of controlled substances, and if the prosecutor requests an additional reduction in the defendant's sentence because of such cooperation, the court may grant a further reduction in the defendant's mandatory minimum sentence, up to one-half of the remaining mandatory minimum sentence.
(Emphasis added).
At the time of the plea colloquy the district court, in addressing the potential reduction in the mandatory minimum sentence, more than once told the defendant that his maximum sentence could be reduced by one-third. The State concedes the district court at the time of defendant's plea gave defendant incorrect information in that the judge incorrectly told defendant the reduction he would receive in return for pleading guilty was one-third of the mandatory maximum sentence. The State notes however, the applicable statute was read to defendant and the judge taking the plea testified he correctly told defendant, though not a part of the record, that the reduction was one-third of the mandatory minimum sentence.
We agree with the defendant that there was misinformation given at the time he pled guilty. Though the State correctly notes the applicable code section was read to defendant, he was told at least twice that the reduction for his plea was a reduction of the maximum sentence when the statute only provided for a reduction of the minimum sentence.
Before the judge began to take defendant's plea the following colloquy took place:
The court: My understanding is that the State has agreed to recommend the fullest possible reduction of one-third of the otherwise maximum sentence and in return for Mr. Green's plea; is that correct?
Prosecutor: We have no objection to that, yes, judge.
The Court: I understand if Mr. Green gives cooperation, then the State looks at whether or not the cooperation is sufficient to warrant an additional recommendation; is that correct?
Prosecutor: That is correct.
The Court: Mr. Green, is that your understanding of what you want to do here?
Defendant: Yes, sir.
The Court: Mr. Thompson, [defendant's attorney] is that your understanding of the agreement?
Thompson: Yes, it is, your Honor.
Then before taking the defendant's plea the court said:
"I do have to approve the State's recommendation that I reduce the possible maximum sentence by one-third in return for your plea of guilty, and I am willing to be bound by that agreement between you and the state. So at the time of sentencing I will reduce the possible maximum sentence at least by a third. Whether there will be an additional reduction remains to be seen."
The judge's references to a reduction of the maximum sentence were not in accord with the statute and defendant's attorney by both silence and assent made no attempt to correct the record. Defendant contends that because of his attorney's failure he did not make a knowing and voluntary plea. The record is not sufficient for us to address this on direct appeal and it is preserved for postconviction proceedings.
II. CLAIM OF PROSECUTORIAL VINDICTIVENESS.
Defendant next contends the district court erred in allowing the State to withdraw a recommendation to reduce defendant's mandatory minimum sentence. Defendant contents the prosecutor withdrew it because of prosecutorial vindictiveness.
At the time the plea was taken it was indicated that, should defendant cooperate with the prosecution, an additional reduction would be possible in his sentence. When defendant appeared for sentencing defendant had cooperated and made some controlled buys. Again we have a confusing record, but it appears the defendant was seeking a fifty-percent reduction in the mandatory minimum and the prosecutor was agreeing to recommend a thirty-percent reduction of the mandatory minimum for cooperation.
The prosecutor said if the defendant was attempting to obtain a reduction of more than they previously talked about he was going to withdraw his offer to make a recommendation for cooperation. The defendant then claimed a breach of the plea agreement. The court sought to conclude the proceedings and set a hearing to determine whether the agreement had been breached. The prosecutor then said, "I will not be making a recommendation [as to a reduction for cooperation] if we have a further hearing in regards to this case."
At the hearing where defendant ultimately was sentenced, the prosecutor did not make a recommendation based on defendant's cooperation. Defendant's attorney made a professional statement that, at the earlier sentencing hearing the prosecutor had agreed to recommend the remaining two-thirds of the mandatory minimum sentence be reduced by twenty-five percent if the defendant cooperated and the defendant claimed it was withdrawn because of prosecutorial vindictiveness.
The prosecutor responded that he resented the allegation of prosecutorial vindictiveness. He conceded that he told defendant's attorney he would agree to a further reduction but later withdrew the offer. He contended then, and the State on appeal contends, that is not prosecutorial vindictiveness.
A claim of prosecutorial vindictiveness implicates a defendant's constitutional rights of due process; consequently, our review is de novo. See North Carolina v. Pearce, 395 U.S. 711, 723-25, 89 S.Ct. 2072, 2079-80, 23 L.Ed.2d 656, 668-69 (1969) overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 795, 109 S.Ct. 2201, 2203, 104 L.Ed.2d 865, 870 (1989); State v. Hamrick, 595 N.W.2d 492, 493 (Iowa 1999); State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975).
A prosecutor's actions are vindictive and violate due process if the action is initiated to punish a person because that person has done what the law plainly allows him or her to do. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74, 80 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, 610 (1978)). It is the defendant's burden to prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424, 433 (1984). In the absence of objective proof of vindictiveness, the regularity of the prosecutor's action is presumed. Id. Due process does not forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 669; see also State v. Moritz, 293 N.W.2d 235, 241-42 (Iowa 1980); Wasman, 468 U.S. at 568, 104 S.Ct. at 3223, 82 L.Ed.2d at 433. However, to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. Id. But in the give-and-take of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer. Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667, 54 L.Ed.2d at 610.
The Federal Constitution proscribes a prosecutor from taking action to punish a criminal defendant for having challenged his or her conviction. North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 669; see also Moritz, 293 N.W.2d at 241-42. Wasman states the rule as follows: "Due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights." 468 U.S. at 568, 104 S.Ct. at 3223, 82 L.Ed.2d at 424 (Brennan, J. dissenting).
The State contends this issue is controlled by Bordenkircher v. Hayes. In Bordenkircher the defendant was indicted for uttering a forged instrument. Bordenkircher v. Hayes, 434 U.S. at 358-60, 98 S.Ct. at 665-66, 54 L.Ed.2d at 607-08. During plea discussions a prosecutor offered to recommend a particular sentence in return for the defendant's guilty plea to that charge. Id. However, the prosecutor warned the defendant that if he did not agree to this, the prosecutor would seek an additional indictment under the state habitual offender law. Id. The defendant did not accept the offer, the habitual offender charge was brought, and the defendant was ultimately convicted of both charges at a trial. Id. Defendant argued before the Supreme Court that the prosecutor's conduct in seeking the habitual offender indictment constituted illegal prosecutorial vindictiveness, to discourage him from exercising his constitutional right to a trial. Id. The Supreme Court disagreed.
The State argues Bordenkircher is controlling. The State's reasoning is that the offer the prosecutor made to the defendant here was one the defendant was free to accept or reject. The State, while not denying the prosecutor threatened negative consequences if the defendant exercised his right to a hearing on any alleged plea bargain made, contends it was not punishment for having pursued a hearing.
In Bordenkircher the Court said:
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667, 54 L.Ed.2d at 610-11 (citations omitted).
We conclude on our de novo review the prosecutor at the time of the plea agreed to a recommendation to further reduce the minimum sentence for defendant's cooperation. The record is not clear as to the extent of reduction anticipated nor the extent of cooperation expected for the recommendation for reduction. Defendant did cooperate and put himself at risk to do so. At the first scheduled sentencing hearing the prosecutor agreed to an additional twenty-five percent reduction of the two-thirds mandatory minimum remaining after the defendant received a reduction for pleading guilty. Defendant was of the opinion that the reduction would be greater and contended the plea agreement had been breached. The district court indicated a hearing was necessary on the issue. The prosecutor pronounced, "I will not be making any recommendation if we have a further hearing in regards to this case." It is not disputed that a recommendation was to be made if defendant cooperated. A prosecutor's plea bargain promise must be kept. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971). What was disputed was the percentage of time the prosecutor would recommend be cut from the mandatory sentence. At the first sentencing hearing the prosecutor told defendant he would withdraw his recommendation if defendant asked the court to make a determination as to what the plea agreement was. Though the district court ultimately accepted the prosecutor's version of the plea, as confusing as the plea transcript is we do not determine the defendant acted in bad faith in proceeding with the hearing, although we are not certain such a finding is relevant to the issue we are asked to decide.
Is the State correct that we have a situation similar to Bordenkircher where the negotiation was whether the defendant would accept a plea on one charge for the agreement not to bring a second charge? Or is the defendant correct that this is a situation where the prosecutor's purpose was to discourage defendant from exercising the right to have the hearing the district court sought to schedule by subjecting defendant to a greater term of incarceration if the hearing was held?
This case is not on all fours with Bordenkircher because there the defendant had not yet entered a plea when the challenged negotiations transpired. Here defendant had pled guilty and then cooperated, facts the State does not dispute. The mere fact of cooperation does not necessarily mean a reduction has been earned. See State v. Johnson, 630 N.W.2d 583, 588 (Iowa 2001). However, by the time the matter finally came to the court for sentencing, defendant had in fact done undercover drug work, the prosecutor had already recognized the cooperation, and was ready to offer a recommendation for a further reduction. The only reason reflected in the record for the prosecutor to withdraw the recommendation was that defendant did not forego the hearing on the plea agreement. The record does not reveal, nor does the State argue, there is any other reason shown for the State's withdrawal of the recommendation. Vindictiveness was found where even though there was no evidence of bad faith and the record was void of an explanation as to why the prosecutor brought additional charges where defendant exercised a right of appeal. Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628, 634 (1974). We remand to the district court to reconsider defendant's sentence as if the prosecutor had made the claimed recommendation of an additional twenty-five percent reduction in the mandatory minimum sentence.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.