Opinion
No. 5-502 / 05-0265
Filed July 27, 2005
Appeal from the Iowa District Court for Dubuque County, R.J. Curnan and Lawrence H. Fautsch, Judges.
Kohl appeals his sentence, claiming the sentencing court was bound by a plea agreement term because the district court judge did not inform him during the plea hearing that the sentencing court was not bound by the sentence recommended in the plea agreement. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Christen Odell-Douglass, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine Corker, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
If a district court rejects a plea agreement, the court must give a defendant the option of withdrawing a guilty plea. Iowa R. Crim. P. 2.10(4). In distilled form, Dale Kohl contends he was not given this option. Under the unique facts of this case, we conclude the court was not required to do so.
I. Background Facts and Proceedings
Kohl's counsel and the prosecuting attorney signed a document styled "Memorandum of Plea Negotiations," under which Kohl agreed to plead guilty to lascivious acts with a minor rather than second-degree sex abuse, as charged. Iowa Code § 709.8 (2003). The prosecutor also agreed to recommend a suspended sentence with formal probation and participation in a sex offender treatment program. Kohl did not join in this sentencing recommendation, electing instead to seek a deferred judgment. The plea document ended by stating "[t]he negotiations are contemplated to be non-binding on the Court."
At the plea proceeding, the district court had discussions with counsel and Kohl about the charging and sentencing concessions contained in the plea document. The court then stated, "I find your plea of guilty to be knowing and voluntary. I'm going to accept the same." The court ordered a presentence investigation and scheduled a sentencing hearing in six weeks.
At the sentencing hearing, a different district court judge declined to impose either of the sentences urged by the parties. Instead, the court sentenced Kohl to not more than five years in prison and a $200 civil penalty.
II. Arguments and Analysis
On appeal, Kohl contends (A) "[t]hough the Memorandum of Plea Agreement indicated the plea negotiations were not binding on the court, the court, prior to acceptance of the plea, stated that it would impose probation;" (B) "the court did not advise [him] that the sentencing court would not be bound by the plea agreement or that the disposition could be less favorable than the terms of the agreement, as would be required by Iowa Rule of Criminal Procedure 2.10(4);" and (C) "the sentencing court was bound to impose a sentence consistent with the terms of the plea agreement or permit [him] to withdraw his plea." He also raises several ineffective-assistance-of-counsel claims.
Our review of the plea and sentencing issues is for correction of legal error. Iowa R. App. p. 6.4. Our review of ineffective-assistance-of-counsel claims is de novo. Ledezma v. State, 626 N.W.2d 139, 141 (Iowa 2001).
A.
Iowa Rule of Criminal Procedure 2.10 states in pertinent part that the State and defense may negotiate for charging and sentencing concessions and, if an agreement is reached, must disclose the terms to the court. Iowa R. Crim. P. 2.10(1), (2). The rule also states, "if the agreement is conditioned upon concurrence of the court in the charging or sentencing concession made by the prosecuting attorney, the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a pre-sentence report." Iowa R. Crim. P. 2.10(2).
Kohl concedes that, under the terms of the plea document, the parties' negotiations were not binding on the court. He argues, however, that the district court, by its words, bound itself to the State's recommendation of probation contained in that document.
At the plea proceeding, the district court expressed concerns that the prosecutor's recommendation of probation would violate the minimum probation requirement prescribed by statute. See Iowa Code § 907.7. The court stated Kohl might not be able to get off probation within two years as the prosecuting attorney envisioned because "[t]he Iowa Code says on a felony, probation can be no less than two years and up to five." The court continued:
Just so you know, if I go forward with this, I will simply provide suspended with probation and the treatment program. I don't think that any judge wants to order an early release of probation at sentence time.
In light of its observation, the court gave defense counsel an opportunity to postpone the proceeding. Defense counsel declined the invitation, stating "[w]e'd be prepared to go forward today, Your Honor." The court then stated, "while I'm on it, I also understand that — that the defendant will be seeking and continuing argument at the time of sentencing for a deferred judgment, but the same rules apply to a deferred, is what I'm talking about." Defense counsel responded, "[t]hat's right, Your Honor. We're okay with that." The court then asked defense counsel, "[h]ave you advised your client of the maximum penalty for the offense of Lascivious Acts with a Child?" Defense counsel responded, "yes, Your Honor." After ascertaining a factual basis for the plea, the court asked Kohl, "[n]ow, [defense counsel] has told you that the maximum penalties for this is not more than five years, minimum fine of $750, maximum fine of $1,500. . . . Do you understand that?" Kohl responded, "Yes." The court then "accepted" the plea and scheduled the matter for sentencing.
We are not convinced that, by virtue of this exchange, the plea-taking court bound itself to the State's sentencing recommendation of probation. The district court's discussion of probation was an attempt to clarify the parameters of the State's recommendation and to determine whether those parameters were consistent with the law. The court specifically noted that if the court went forward, it would modify the probation recommendation so that it was not tied to release from the sex abuse treatment program. The court then re-confirmed that defense counsel was recommending a different sentence than the sentence proposed by the State. Finally, the court confirmed with defense counsel as well as Kohl that Kohl understood the maximum penalties for the crime to which he was pleading. In short, the district court, by its words, merely clarified the available sentencing options. The court did not agree to be bound by the State's sentencing recommendation. Although our disposition of this issue signals our resolution of the remaining issues, we will proceed to address those issues.
B.
Iowa Rule of Criminal Procedure 2.10(4) requires the district court to inform a defendant that it is rejecting a plea, allow the defendant to withdraw the plea, and, if the defendant insists on pleading guilty, advise the defendant that the disposition might be less favorable than contemplated by the plea agreement.
Having first argued that the plea-taking court bound itself to the State's sentencing recommendation, Kohl next contends the plea-taking court did not advise him that "the sentencing court would not be bound by the plea agreement or that the disposition could be less favorable than the terms of the agreement." This argument is untenable for several reasons. First, as noted, the district court did not bind itself to the State's recommendation. Second, the court did not reject the State's sentencing recommendation, but merely deferred argument and decision on sentencing until the time of the sentencing hearing, as urged by the State and defense. Finally, as is clear from the discussion summarized above, the State and defense did not together present the plea-taking court with a sentencing option it could accept or reject. Defense counsel in fact reiterated that he would pursue his own recommendation at the time of sentencing, which diverged from the State's recommendation. For these reasons, the disclosure obligations set forth in Rule 2.10(4) were not triggered. Cf. State v. Malone, 511 N.W.2d 423, 425 (Iowa Ct.App. 1993) (holding court abused its discretion in not allowing defendant to withdraw plea where State recommended against incarceration if special conditions were satisfied, there was no evidence of failure to comply with special conditions, and plea-taking court accepted plea).
C.
Rule 2.10(3) states:
When the plea agreement is conditioned upon the court's concurrence, and the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.
Kohl assumes for purposes of this argument that the plea-taking court "accepted" the State's sentencing recommendation contained in the plea document. We are convinced the court did not. It is clear that the State and defense agreed to a charging concession of lascivious acts with a minor. It is equally clear that the court found a factual basis for this crime and found the plea was made knowingly, voluntarily, and intelligently. When the court "accepted" the plea, it simply accepted that portion of the plea document containing this charging concession. As there was no agreement on a sentencing concession, the court could not "accept" such a concession. The court clarified this fact on the record and confirmed that the State and defense would continue to argue their respective positions at sentencing.
The State and defense proceeded to do just that, with the prosecuting attorney stating she maintained her "original negotiation" and defense counsel arguing against probation and sex offender treatment and for a deferred judgment. Under these circumstances, the sentencing court was not obligated to impose probation or permit Kohl to withdraw his plea. Cf. State v. Horness, 600 N.W.2d 294, 299-300 (Iowa 1999) (holding defense counsel had obligation to object and seek withdrawal of plea when prosecutor did not stand by recommendation on plea bargain); State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981) (holding district court not barred from rejecting plea that court previously accepted where court permitted defendant to withdraw guilty plea); State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App. 1991) (vacating sentence where court conditionally accepted plea but did not warn defendant that court would not be bound by plea arrangement and afford Barker the opportunity to withdraw his plea).
Compare the following pre-Rule 2.10 case law: State v. Weig, 285 N.W.2d 19, 21 (Iowa 1979) (holding court was obligated to allow defendant to withdraw guilty plea where State backed away from sentencing recommendation based on additional facts that came to light in presentence investigation report); State v. Townsend, 238 N.W.2d 351, 357 (Iowa 1976) (holding defendant could not have been induced by a promise that the State's recommendation would be followed as judge "directly and forcefully" told her he would not be bound); State v. Parrish, 232 N.W.2d 511, 515 (Iowa 1975) (holding court was not required to allow withdrawal of the plea where: "(1) the court renounces participation in the bargain, (2) denies any inclination to be bound thereby, (3) such renunciation and denial are made known to the defendant, and (4) the defendant thereafterenters or (as in this case) affirms his plea of guilty"); State v. Runge, 228 N.W.2d 35, 37 (Iowa 1975) (stating guilty plea was not shown of record to be "free from inducement flowing from the county attorney's pre-plea concessions" and county attorney's promise was never kept, requiring reversal to set aside sentence and allow withdrawal of guilty plea); State v. Fisher, 223 N.W.2d 243 (Iowa 1974) (holding district court was bound to inquire into county attorney's promise of probation which, although not binding on court, was factor that induced guilty plea; court was further obligated to give meaningful opportunity to withdraw plea where court chose to impose prison sentence instead of probation).
D.
Kohl claims that he received ineffective assistance by virtue of his attorney's failure to (1) advise the sentencing court that it was bound by the plea bargain, (2) object to the court's imposition of a sentence outside the terms of the plea bargain, (3) request withdrawal of his plea, (4) advise him of the punishment for the crime, and (5) file a motion in arrest of judgment to challenge the court's purported failure to advise him he could be incarcerated.
To prevail on a claim of ineffective assistance of counsel, a defendant must show two components: (1) the counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Having found no legal error with the plea and sentencing issues discussed in parts A through C, we reject the first three ineffective-assistance-of-counsel claims. With respect to the fourth and fifth claims, we note that the plea-taking court advised Kohl of the maximum punishment. Accordingly, we reject those claims.
III. Disposition
We affirm Kohl's judgment and sentence for lascivious acts with a minor.