IN THE COURT OF APPEALS OF IOWA
No. 15-0032
Filed July 27, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDREW WILLIAM SCHLACHTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers,
District Associate Judge.
A defendant appeals from his sentence following a plea to operating while
intoxicated, second offense. AFFIRMED.
Darrell G. Meyer, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
Andrew William Schlachter pled guilty to operating while intoxicated
(OWI), second offense, pursuant to a plea agreement. The sentencing court
entered a sentence exceeding the sentence the State recommended pursuant to
the plea agreement. Schlachter’s counsel did not object to the State’s
recommendation, and Schlachter has appealed alleging ineffective assistance of
counsel.
I. Background Facts and Proceedings
Schlachter was initially charged with driving while intoxicated, third
offense, and other misdemeanor charges. The plea agreement reached between
Schlachter, his counsel, and the State provided as follows.
State will amend to OWI 2nd
Δ will plead
State will recommend 180 days
all but 30 suspended
Minimum fine
Dismiss simples
The State amended the charge to a second-offense OWI. Schlachter entered a
written plea of guilty to the amended charge. The plea was accepted by the
court. The court asked the State at the sentencing hearing if it had “any
evidence, arguments, or recommendations it would like to present.” The State
responded as follows:
The State has no evidence to present today. By way of a
recommendation, the State is recommending the defendant be
sentenced to 180 days in the county jail, but that all but 30 of those
days be suspended and he be given a statutory minimum fine of
$1,875. Additionally, as part of the plea agreement, the State has
agreed to request dismissals of the related simple misdemeanors.
Defendant has agreed to pay the costs on those.
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The court conducted an inquiry of Schlachter, and he confirmed he agreed to pay
the costs on the simple misdemeanors. The court then requested the
prosecution proceed. The prosecutor responded by setting out Schlachter’s
criminal history. The prosecutor’s rendition of Schlachter’s criminal history was
confirmed by his counsel. Schlachter and his counsel were afforded his right of
allocution, and Schlachter responded with a detailed statement that was
amplified by his counsel. The statements included Schlachter’s family situation,
his employment history, the importance of his employment, and a rendition of his
criminal history. The State made no objection and offered no rebuttal to the
statements made. The court immediately pronounced sentence and, in addition
to the minimum fine and other matters not relevant to this appeal, committed
Schlachter to the director of adult corrections for a period not to exceed two
years and ordered mittimus to issue immediately. The court gave reasons for the
sentence it had pronounced. Schlachter appeals, alleging the State did not
appropriately follow the plea agreement and his counsel was ineffective for failing
to object to the prosecutor’s rendition of Schlachter’s criminal history.
II. Error Preservation
An ineffective-assistance-of-counsel claim is an exception to the usual
requirement of error preservation. State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006).
III. Scope of Review
Claims of ineffective assistance of counsel arising from a failure to object
to the breach of a plea agreement are reviewed de novo. State v. Lopez, 872
N.W.2d 159, 168 (Iowa 2015). When the record is adequate to determine an
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ineffective-assistance-of-counsel claim, it will be decided on direct appeal. State
v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). In this case, the record is
adequate to permit us to decide the claim on direct appeal.
IV. Discussion
To prevail on a claim of ineffective assistance of counsel the claimant
must prove by a preponderance of the evidence that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001). Generally failure to establish either prong precludes relief, but
when it is alleged that counsel was ineffective for failing to object to the breach of
a plea agreement, the claimant is not required to establish the outcome would
have been different. Lopez, 872 N.W.2d at 169. A modification of the prejudice
element is based on the defendant’s right to withdraw a plea if the State has
violated the plea agreement. Id. A claim of ineffective assistance must
overcome the presumption that counsel is competent. Taylor v. State, 352
N.W.2d 683, 685 (Iowa 1984). Counsel is not ineffective for failing to make a
meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
Failure of counsel to object to a prosecutor’s breach of a plea agreement
is a failure to perform an essential duty within the meaning of the ineffective-
assistance-of-counsel claim. Lopez, 872 N.W.2d at 169. The ultimate question
in this case is whether the prosecutor breached the plea agreement. More
specifically, the case under consideration raises the issue of what the prosecutor
must say in presenting a plea agreement to the sentencing court. Besides
Lopez, our supreme court has considered the issue in three other recent cases—
State v. Fannon, 799 N.W.2d 515 (Iowa 2011); State v. Bearse, 748 N.W.2d 211
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(Iowa 2008); and State v. Horness, 600 N.W.2d 294 (Iowa 1999). In each case
cited, the sentencing court imposed a harsher sentence than the sentence
proposed in the plea agreement. Fannon, 799 N.W.2d at 518; Bearse, 748
N.W.2d at 213; Horness, 600 N.W.2d at 297. Starting with Horness, the court
has held it is a prosecutor’s obligation to not only recite the recommended
sentence but also indicate that it is “worthy of the court’s acceptance.” 600
N.W.2d at 299-300.
In United States v. Benchimol, 471 U.S. 453, 455 (1985), the United
States Supreme Court was confronted with a sentencing pursuant to a plea
agreement where the prosecutor had made a recommendation but made no
efforts to explain the leniency offered in the plea agreement and left the
impression of less than enthusiastic support for the leniency recommended. The
Court held that unless the plea agreement required the prosecutor to explain the
leniency offered or to support it with enthusiasm there was no requirement that
he do so. Benchimol, 471 U.S. at 456.
In light of Benchimol, the State in Lopez requested the Iowa Supreme
Court reexamine its language in its holdings indicating that the State must
indicate that the plea agreement is “worthy of the court’s acceptance.” Lopez,
872 N.W.2d at 179 n.7. The Iowa Supreme Court refused to do so, noting that
Federal Rule of Procedure 11 regarding plea agreements is much more
elaborate than Iowa Rule of Criminal Procedure 2.10(1). Id. Our supreme court
did, however, favorably quote United States v. Cachucha, 484 F.3d 1266, 1270-
71 (10th Cir. 2007), in stating: “While a prosecutor normally need not present
promised recommendations to the court with any particular degree of
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enthusiasm, it is improper for the prosecutor to inject material reservations about
the agreement to which the government has committed itself.” Id.
An examination of Horness, Bearse, Fannon, and Lopez reveals the
holdings have been consistent with the cited test set out in Cachucha. In each
case, the prosecutor made statements that undermined the plea agreement. In
Horness, the prosecutor referred to a harsher alternative recommendation made
by the presentence investigation report (PSI) and detailed facts that would
support the PSI’s recommendation. 600 N.W.2d at 296-97. In Bearse, the
prosecutor suggested an alternative recommendation, again as suggested by the
PSI, and reminded the court it was not bound to follow the plea agreement. 748
N.W.2d at 216. In Fannon, the prosecutor initially recommended consecutive
sentences on two felony charges based on “compelling reasons” and then
corrected the recommendation to allow the court to determine whether
concurrent or consecutive sentences should be entered, which was consistent
with the plea agreement. 799 N.W.2d at 518. In Lopez, a child abuse case, the
prosecutor entered pictures of the victim that reflected the injuries and cross-
examined the defendant’s witnesses at the sentencing hearing by asking them if
they had seen the victim after being injured or the pictures of the injuries. 872
N.W.2d at 161. In each of the cited cases, an appeal was taken, it was
concluded the prosecutor had violated the plea agreement, and the plea was set
aside. Lopez, 872 N.W.2d at 161-62; Fannon, 799 N.W.2d at 518; Bearse, 748
N.W.2d at 213; Horness, 600 N.W.2d at 296.
In a recent Iowa Court of Appeals case, no breach was found when a
prosecutor was alleged to have emphasized negative materials, including a
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defendant’s prior criminal history, but indicated he believed the defendant could
make probation. State v. Frencher, 873 N.W.2d 281, 285 (Iowa Ct. App. 2015).
In the case under consideration, there was no reticence, reluctance, qualification,
or hesitation—implicit or explicit—in the prosecutor’s recommendation. If a
defendant desires the court to be bound by the plea agreement, he has the right
to enter a plea conditioned on the court’s acceptance of the plea agreement.
See Iowa R. Crim. P. 2.10.
Otherwise, it is the court’s prerogative to determine the appropriate
sentence within the terms of the applicable statute based on the information
available to it. The information includes the State’s recommendation, the plea
agreement—if there is one, the defendant’s prior record, and the statements of
the defendant and his counsel, among other factors. The county attorney did
recite Schlachter’s criminal record, which is not uncommon when no PSI is
available, as was the case in this proceeding. The correct recitation of
Schlachter’s criminal record was not a distraction from the prosecutor’s
recommendation, but strengthened it by alerting the court the prosecutor was
aware of Schlachter’s criminal record and was making the recommendation with
that knowledge. Furthermore, we consider it inappropriate and unacceptable that
any plea agreement prohibit the court from being advised of a defendant’s
criminal record at the time of sentencing. To have its sentence set aside
because the prosecutor did not advocate for the plea agreement beyond making
a clear-cut, unqualified recommendation impinges on the sentencing court’s
prerogative and responsibility.
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In summary, to grant Schlachter the relief he requests, we would be
required to conclude (1) the prosecutor breached the plea agreement and
(2) counsel was ineffective for failing to object to the breach. We have already
stated that a sentencing court has a right to know a defendant’s criminal record
prior to sentencing. The State’s recommendation, whether pursuant to a plea
agreement or otherwise, carries with it the State’s implicit representation it is
“worthy of the court’s acceptance.” See Horness, 600 N.W.2d at 299-300. To
conclude otherwise is to question the integrity of the prosecutor. In each case,
as set out above, where the prosecutor has been held to have breached the plea
agreement, there was something the prosecutor said that implicitly or explicitly
undermined the plea agreement. The prosecution in this case did not qualify or
impeach its recommendation in any way. The prosecutor alerted the court to the
defendant’s criminal record and, by doing so, not only informed the court of
Schlachter’s criminal record, but also alerted the court it was aware of his
criminal record and made the straightforward recommendation with full
knowledge. There was no reason for defendant’s counsel to object to the
prosecutor’s direct recitation of the plea agreement. Schlachter and his counsel
set out the merits of the plea agreement at length without objection or rebuttal
from the State. We conclude that the State did not breach the plea agreement,
and Schlachter’s counsel was not ineffective for failing to object to the State’s
sentencing recommendation.
AFFIRMED.