Opinion
No. 2-313 / 01-1033.
Filed June 19, 2002.
Appeal from the Iowa District Court for Des Moines County, DAVID B. HENDRICKSON and John G. Linn, Judges.
Christopher Waterman appeals the judgment and sentence entered upon his guilty plea to burglary in the third degree and possession of a controlled substance with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Patricia C. Jackson, County Attorney, and Andrew Prosser and Michael Bennett, Assistant County Attorneys, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
On June 5, 2000, Christopher Waterman pled guilty to burglary in the third degree and possession with intent to deliver a controlled substance in violation of Iowa Code sections 124.401(1)(c)(6), 713.1, and 713.6A (1999). According to the terms of the plea agreement, the State would recommend concurrent sentences. On August 4, 2000, the court was notified Waterman had been arrested on a warrant in Missouri that had issued on June 22, 2000. At the sentencing hearing on June 4, 2001, the prosecutor recommended the sentence in the Iowa case be served consecutively to the sentence imposed in the Missouri case. On appeal, Waterman contends his trial counsel was ineffective in failing to object to the prosecutor's sentencing recommendation.
During the plea colloquy, the prosecutor communicated the following relevant terms of the plea agreement: "[t]he State will be arguing for a ten-year and a five-year sentence, to run concurrently with each other . . ."
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
We conclude counsel breached no duty in failing to object to the prosecutor's sentencing recommendations. The plea agreement required the State to recommend concurrent sentences for the two offenses charged in the Des Moines County trial information. The State complied with this agreement. Waterman's conviction and sentence in Missouri was not contemplated at the time of the plea agreement and was therefore not within its scope. Accordingly, Waterman's trial counsel did not fail in an essential duty by not objecting to the prosecutor's sentencing recommendations because she was under no duty to do so. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to make a meritless motion).
AFFIRMED.