IN THE COURT OF APPEALS OF IOWA
No. 14-1993
Filed November 25, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
XAIVER JAMIE LEE RHONE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice
(plea) and Kurt L. Wilke (sentencing), Judges.
A defendant appeals his sentence after entering a guilty plea to going
armed with intent. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Alexandra Link,
Assistant Attorneys General, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Xaiver Jamie Lee Rhone appeals his sentence after entering a guilty plea
to one count of going armed with intent. Rhone claims trial counsel was
ineffective for failing to object to the State’s failure to follow the plea agreement.
Because we conclude the State did not breach the plea agreement, trial counsel
had no duty to preserve a meritless objection. We affirm.
I. Background Facts and Proceedings
Following a drive-by shooting, eighteen-year-old Rhone was charged with:
one count of going armed with intent, one count of intimidation with a dangerous
weapon, one count of carrying weapons, and two counts of assault while using or
displaying a dangerous weapon. The State and Rhone reached a plea
agreement whereby Rhone agreed to plead guilty to going armed with intent and
also agreed to enter a written plea of guilty to fourth-degree criminal mischief in
an unrelated case. In exchange, the State agreed to dismiss the other counts
and recommend a suspended sentence.
The court accepted Rhone’s plea, and the State dismissed the other
charges. At the sentencing hearing, defense counsel submitted Rhone’s medical
records to the court, and Rhone’s mother testified that from a young age Rhone
suffered from mental health problems and abused drugs. She also stated
Rhone’s father had not been present in his life and explained that neither she nor
Rhone’s father had provided a positive role model.
Pursuant to the plea agreement, the State recommended a suspended
sentence and probation. The prosecutor explained the plea agreement was
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necessary due to a “substantial lack of evidence in the case. At the time the
case was charged, the State believed [it] would be able to recover bullets” from
the crime scene. “Without any physical evidence, the State is, essentially,
unable to prove that a dangerous weapon was utilized.” The court questioned
the prosecutor and later found the defendant had, in fact, committed a criminal
act, which involved pointing a gun at another person and shooting it. The
prosecutor responded the “State believes it was a gun but we would be unable to
prove it.” The court then asked if Rhone had admitted using a gun during his
plea. The prosecutor acknowledged Rhone had done so. The court then
analogized Rhone’s conduct to that of another recent defendant and asked the
prosecutor how Rhone’s case differed. The prosecutor replied the cases were
not different “other than they could prove it in that case.”
At this point, defense counsel objected, stating the State was not fulfilling
the plea agreement by recommending probation. The court noted but did not
rule on the objection, telling defense counsel to make his sentencing
recommendation. Defense counsel affirmed the terms of the plea agreement
and provided the court with many reasons why the court should follow the
agreement, including Rhone’s young age and brain development, his unstable
upbringing, his problems that caused him to be unsuccessful in school, the
ongoing feud between Rhone and the victim over a girl, and Rhone’s desire to
accept responsibility and be a better person. During his right of allocution,
Rhone told the court he was “ready to show everybody I can do better.”
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The district court stated its reasons for rejecting the probation
recommendation and sentencing Rhone to a five-year term:
First of all, you say he’s eighteen years old. Where did he
get the firearm? And how did he possibly get a firearm, you know,
first of all? And he used it in an attempt, you know, at least
apparent attempt to try and harm somebody, to kill somebody.
And I just don’t look at that as a probation-type offense and
the Department of Corrections agrees with me. Their
recommendation of the PSI was that he go to . . . prison. I realize
what [both counsel] talked about, but that’s the way I’m looking at it.
You got to give me . . . a very, very good solution; and I’m
not seeing it. He’s got a PSI, shows a criminal history going back
to . . . 2006. You know, it’s been constant ever since . . . .
....
Suffice it to say, it is the protection of society that has to take
top tier in certain cases, and . . . with the type of offense that was
perpetrated here, I’m looking at protection of society as probably
more important than in talking about rehabilitation.
....
. . . I do believe the prison system provides mental health
counseling as well, certainly substance abuse counseling.
Finally, the court qualified the sentence, telling Rhone: “[I]f you get into
counseling, and you comply with the counseling, and work hard at it and give me
some indication that you mean what you just got done saying, I’ll reconsider your
sentence.” Rhone timely appealed, claiming his counsel rendered ineffective
assistance.
II. Scope and Standard of Review
Rhone may raise his ineffective-assistance claim on direct appeal. See
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We conclude the record is
adequate to address Rhone’s challenge. See id. We review ineffective-
assistance-of-counsel claims de novo. Id. To succeed on his claim, Rhone must
show, by a preponderance of the evidence, that his counsel breached an
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essential duty and he was prejudiced by counsel’s failure. See State v. Hopkins,
860 N.W.2d 550, 556 (Iowa 2015). “Failure to prove either element is fatal to an
ineffective-assistance claim.” State v. Robinson, 841 N.W.2d 615, 617 (Iowa Ct.
App. 2013).
III. Discussion
The sole claim on appeal is defense counsel was ineffective in not
sufficiently objecting and obtaining a ruling on the prosecutor’s alleged breach of
the plea agreement. We are not persuaded. The record shows the court made
its own assessment of the appropriate sentence to impose and there is no
evidence to demonstrate the State breached the plea agreement. The State
informed the court of the agreement and indicated its support of the
recommended sentence. In response to the court’s push back to the sentence of
probation, the State continued to emphasize the reasonableness of the State’s
position due to the lack of evidence. The circumstances of this case are
dissimilar from cases holding the State breached the plea agreement during
sentencing. See State v. Bearse, 748 N.W.2d 211, 216 (Iowa 2008) (“The State
clearly breached the plea agreement by suggesting more severe punishment
than it was obligated to recommend.”). Here, the court adamantly rejected the
plea agreement while giving specific reasons for imposing the sentence the court
determined was more appropriate. Because counsel has no duty to persist in a
meritless objection, Rhone’s counsel was not ineffective during the sentencing
hearing. See id. at 214 (“Counsel cannot fail to perform an essential duty by
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merely failing to make a meritless objection.”). We affirm Rhone’s conviction and
sentence.
AFFIRMED.