Opinion
No. 3-045 / 02-0672.
Filed March 12, 2003.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
Defendant appeals his judgment and sentence for first-degree theft, following a plea bargain, in violation of Iowa Code sections 714.1 and 714.2(1) (2001). SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat and Steve Foritano, Assistant County Attorneys, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Defendant-appellant Ryan Kite appeals his judgment and sentence for first-degree theft, following a plea bargain, in violation of Iowa Code sections 714.1 and 714.2(1) (2001). On appeal defendant contends (1) he was rendered ineffective assistance of counsel, and (2) the district court abused its discretion by relying upon improper factors in determining his sentence. We vacate defendant's sentence and remand for resentencing.
Defendant entered a guilty plea to first-degree theft. As the prosecutor stated in the plea proceeding, part of the plea agreement was that the State would recommend defendant be placed on formal probation and receive drug treatment. The State acknowledged defendant "obviously [had] problems" and needed drug and alcohol treatment. The court ordered a pre-sentence conference and sentencing to be held April 22, 2002. Under this order, the judge who presided over the plea proceedings would also preside over the pre-sentence conference and the sentencing hearing. There is no available transcript of the pre-sentence conference. Immediately after the conference, the sentencing hearing was held. During the sentencing hearing, defense counsel made the following statement:
Your Honor, at the time of the guilty plea my recollection was that the State was going to join me in recommending probation and treatment for Mr. Kite. It's true he had been in prison just previously on a Theft First and a Theft Second Degree charge. However, earlier this month the County Attorney, Ms. Horvat, agreed with me to allow Mr. Kite to go to treatment in Mt. Pleasant because he is a drug addict and that is supported by the presentence report which indicates that just prior to the arrest was using methamphetamine two and three times a day and that was the motive for him committing the crime.
So with that said, Your Honor, there is no reason why judgment shouldn't now be pronounced.
The prosecutor made no sentencing recommendation during the sentencing hearing. Defense counsel made no objections. The court then sentenced defendant to a term of imprisonment not to exceed ten years and placed him in the custody of the Department of Corrections.
Defendant first argues his attorney should have objected when the prosecutor failed to fulfill the State's end of the plea agreement, namely to recommend a sentence of formal probation and alcohol/drug treatment. The State's response is that the prosecutor was merely silent, saying nothing which would contradict the sentence proposed by defense counsel, and further that defense counsel had already indicated to the court the prosecutor's agreement with defense counsel's recommendation, making it unnecessary for the prosecutor separately to recommend the same sentence. The State argues there was no breach of the plea agreement, and consequently defense counsel had no obligation to object.
We review ineffective assistance of counsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999). To establish a claim of ineffective assistance of counsel defendant must prove by a preponderance of the evidence that (1) defense counsel failed to perform an essential duty; and (2) prejudice resulted. Id. at 298. Claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings, but we will address them on direct appeal when the record is adequate. Id. at 297. The record shows the State agreed to the plea agreement during the plea proceedings. As the terms of the plea agreement are not disputed in this case, we conclude the record here is adequate to address defendant's claims. See id. at 298.
In this case the prosecutor said nothing either before or after defense counsel articulated the plea agreement to the court. We conclude the prosecutor, in remaining silent, failed to fulfill the State's end of the plea agreement. The State's promise to recommend a specific sentence to the court requires the prosecutor to present the recommended sentences with his or her approval, to commend this sentence to the court, and to otherwise indicate to the court the recommended sentence is supported by the State and thus worthy of the court's acceptance. Id. at 299. The State must express its recommendation, and it must do so with some degree of advocacy. See id. (citing United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974)). The prosecutor in this case, in spite of the State's agreement to recommend a particular sentence, expressed nothing. We conclude this was a breach of the plea agreement.
We next determine whether defense counsel breached an essential duty in failing to object to the prosecutor's silence. In evaluating the performance of defense counsel, we presume he is competent. Horness, 600 N.W.2d at 298. As the supreme court determined in Horness, however, a defense counsel's failure to object to the State's noncompliance with a plea agreement is a breach of an essential duty. Id. at 300. In Horness the supreme court reasoned no possible advantage could come from defense counsel's failure to inform the court of the State's failure to comply with the plea agreement, and that counsel's failure could not be attributed to improvident trial strategy or misguided tactics. Id.
Further, defense counsel's failure to object to a prosecutor's breach of the sentencing agreement prejudices defendant. See id.; State v. Carrillo, 597 N.W.2d 497, 500-01 (Iowa 1999). We need not conclude defendant would have received a different sentence to find prejudice. Horness, 600 N.W.2d at 300. We need only find the outcome of the proceedings would have been different. Id. at 300-01.
The outcome would have been different in this case if defense counsel would have objected, as the sentencing court would have allowed defendant to withdraw his plea or would have scheduled a new sentencing hearing. See id. at 301. Instead defendant was sentenced at a hearing tainted by the prosecutor's silence. See id. We consequently find prejudice.
As we have found a breach of duty and prejudice, we vacate defendant's sentence and remand for resentencing. We do not address defendant's second argument that the sentencing court used impermissible factors in determining defendant's sentence.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
Vaitheswaran, J., concurring; Zimmer, J., dissenting.
I respectfully dissent. I do not believe the record supports the conclusion that defense counsel was ineffective at sentencing. The record reveals defense counsel explained the terms of the plea agreement to the district court at sentencing. The terms of the agreement were also revealed to the same judge when the defendant pled guilty. At sentencing, the court did not ask the assistant county attorney who was present to confirm the terms of the plea bargain; however, the State did nothing to contradict defense counsel's rendition of the plea agreement and made no direct or implied recommendation for a sentence other than formal probation and drug treatment. Although it might have been better if defense counsel had asked the assistant county attorney who was present to personally repeat the agreed upon recommendation; I do not believe the defendant has overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrandt, 405 N.W.2d 839, 841 (Iowa 1987). I would affirm the conviction and sentence.