IN THE COURT OF APPEALS OF IOWA
No. 15-2102
Filed August 17, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KYRA J. WILLIAMS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Henry W. Latham II
and Stuart P. Werling, Judges.
Kyra Williams appeals her conviction for conspiracy to commit a forcible
felony. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Kyra Williams appeals her conviction for conspiracy to commit a forcible
felony, claiming her trial counsel was ineffective in failing to object during the
prosecutor’s sentencing recommendation. We affirm Williams’s conviction.
On February 12, 2015, the State charged Williams with first degree
robbery, in violation of Iowa Code sections 703.1, 703.2, 711.1, and 711.2
(2015), and conspiracy to commit a forcible felony, in violation of Iowa Code
sections 706.1 and 706.3(1). In September, the State and Williams entered into
a plea agreement in which the State agreed to dismiss the first-degree robbery
charge, allow Williams to plead guilty to conspiracy to commit a forcible felony,
and recommend probation. Williams was required to cooperate with the State in
its prosecution of her two co-defendants. The district court accepted Williams’s
guilty plea to conspiracy to commit a forcible felony. At sentencing, the district
court entered an order for a ten-year suspended sentence, two years of
supervised probation, restitution, fees, and costs. Williams now appeals.
We review ineffective assistance of counsel claims de novo. State v.
Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).
Williams claims her trial counsel was ineffective for failing to object to the
prosecutor’s sentencing recommendation because the recommendation violated
the spirit of the plea agreement. She claims the prosecutor technically complied
with the State’s obligation to recommend against incarceration but undercut the
recommendation by emphasizing the serious nature of the charged crime and by
focusing on the acts committed by the co-defendants. When an ineffective-
assistance-of-counsel claim is raised on direct appeal from the criminal
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proceedings, the court must decide whether the record is adequate to decide the
claim on direct appeal or whether it should be preserved for postconviction
proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). Although such
claims are generally preserved for postconviction relief, we will consider them on
direct appeal where the record is adequate. Id. Upon our review of the record,
we find the record adequate to address Williams’s ineffective-assistance-of-
counsel claim. See id.
“[T]o determine whether counsel failed to perform an essential duty in
failing to object to the prosecutor’s recommendation, we must first determine
whether the State breached the plea agreement. If the State did not breach the
plea agreement, defense counsel could not have been ineffective.” Id. at 215
(citation omitted). If the prosecutor breaches either the terms or the spirit of the
plea agreement, reversal of the conviction or vacation of the sentence is
required. See id.
Pursuant to the plea agreement, the State agreed to recommend against
incarceration. At the sentencing hearing, the prosecutor stated:
The State will follow the plea agreement. So, essentially, the
State is recommending that [Williams] be committed to the Director
of Adult Corrections for an indeterminate term not to exceed ten
years. The State will recommend the suspension of that sentence,
with her being placed on probation for a period of two years.
....
The basis for the recommendation draws on the following: I
mean, obviously, the circumstances of the offense were very
serious in terms of the robbery to the victim, with the two co-
defendants having physically assaulted him and used a weapon.
[Assistant County Attorney] Ripley offered this plea
agreement because [Williams’s] role was more minor in the sense
that she was a driver of a vehicle that picked up the victim and then
she went inside a business establishment when [co-defendants] Mr.
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Govain and Ms. Byers carried out the assault and the theft of
money.
Mr. Ripley also noted that she was cooperative with law
enforcement, not only in attempting to locate her two co-defendants
so that they could be arrested and brought to justice, but, of course,
she was willing to cooperate with the State as far as any
prosecution of those two subjects.
You take that—I have to say, you know, when you look at
the circumstances of this, this is very serious for her first time out of
the gate. Because, obviously she doesn’t have a prior criminal
history.
But I think under the circumstances, even though it was very,
very serious in terms of what happened, the corrective action that
she takes, I think, warrants a recommendation of probation at this
time.
The prosecutor is obligated to make the promised sentencing recommendation,
which requires more than informing the court of the promise the State has made
to the defendant with regard to sentencing. Id. at 215–16. The prosecutor must
also present the recommended sentence with approval; if not, the prosecutor has
fallen short of fulfilling the promise under the plea agreement. See id. at 216–17.
It is implied the prosecutor is obligated to refrain from suggesting more severe
sentencing alternatives. See id. at 216.
Upon our de novo review, we find the prosecutor did not breach the plea
agreement in spirit or undercut the sentencing recommendation. The prosecutor
did not make an alternate recommendation or attempt to persuade the court to
impose a harsher sentence. See State v. Horness, 600 N.W.2d 294, 299–300
(Iowa 1999) (“[T]he prosecutor breached the plea agreement by requesting ‘an
appropriate sentence’ rather than the sentence he had agreed to recommend.”).
We acknowledge the prosecutor described the crime as “very very serious,” but it
was in context of explaining why a suspended sentence was warranted.
Moreover, on a cold record, it is impossible to determine the emphasis placed on
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the words used by the speaker. See, e.g. State v. Frencher, 873 N.W.2d 281,
285 (Iowa Ct. App. 2015) (noting the prosecutor discussed the defendant’s
criminal history and other negative information, it was merely done to provide
context for the sentencing recommendation). The court did not impose a harsher
penalty and followed the recommendation in the plea agreement. While Williams
may have preferred a deferred judgment, the prosecutor did not have a duty to
advocate for a lesser sentence than the one contained in the plea agreement.
We find Williams’s trial attorney had no duty to object to the prosecutor’s
sentencing recommendation as it complied with the spirit and language of the
plea agreement. We deny Williams’s ineffective-assistance-of-counsel claim and
affirm her conviction.
AFFIRMED.
State of Iowa v. Kyra J. Williams
Combined Opinion