Opinion
No. 2-632 / 01-1989
Filed August 28, 2002
Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.
Defendant appeals from the sentences imposed following her pleas of guilty to second-degree burglary, assault on a peace officer, and assault causing bodily injury.
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Thomas, Assistant County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Eraka Soder appeals from the sentences imposed following her pleas of guilty to second-degree burglary, assault on a peace officer, and assault causing bodily injury. She contends counsel was ineffective. We review her claim de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
Soder was charged with two counts of first-degree burglary, two counts of assault on a peace officer, interference with official acts, and public intoxication. Pursuant to an agreement, Soder pled guilty to second-degree burglary, assault on a peace officer, and serious misdemeanor assault. In exchange, the State dismissed the other charges and agreed to urge the court to follow the sentencing recommendations in the presentence investigation report.
At sentencing, the county attorney recounted Soder's actions and spoke at length about their effects on her victim. He then concurred with the recommendation in the presentence investigation report. Concerned that Soder may later contend the county attorney violated the plea agreement, the district court offered Soder the option of rescheduling the sentencing hearing before a different judge. After discussing the matter with her counsel, Soder declined the court's offer. The presentence investigation report recommended a ten year suspended sentence and two years probation. The district court sentenced Soder to a term of incarceration not to exceed ten years for second-degree burglary, and terms of incarceration not to exceed one year on the other two counts. The sentences were ordered to run concurrently. Soder appeals, contending counsel provided ineffective assistance by failing to object to the State's breach of the plea agreement, and by failing to request the sentencing hearing be continued and scheduled before a different judge.
To succeed with a claim of ineffective assistance of counsel, Soder must prove counsel failed to perform an essential duty, and she was prejudiced by counsel's error. See State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). We find counsel was not ineffective. Although the district court offered Soder the option of a continuance and another judge, the court stated its belief that the county attorney had not crossed the line of breaching the plea agreement. The county attorney's remarks essentially summarized the contents of the victim impact statement, which the court had the opportunity to review. The county attorney did recommend sentencing in accord with the presentence investigation report. The decision to proceed with sentencing was a strategic one, made with Soder's knowledge and consent. We will not interfere simply because the strategy led to a result Soder now considers unfavorable. See State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct.App. 1995).
The victim impact statement was not part of the presentence investigation report.
AFFIRMED.