IN THE COURT OF APPEALS OF IOWA
No. 15-1365
Filed August 31, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHELLE LYNNE RISIUS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers,
District Associate Judge.
A defendant appeals her sentence following her guilty plea to possession
of a controlled substance. AFFIRMED.
Kimberly A. Voss-Orr of Law Office of Kimberly A. Voss-Orr, Ames, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., McDonald, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.
Michelle Risius appeals following her guilty plea to possession of a
controlled substance—methamphetamine—in violation of Iowa Code section
125.401(5) (2015). As part of the plea agreement, the parties presented a joint
recommendation that Risius, in exchange for her guilty plea, would receive a
deferred judgment and one year of probation. The agreement was not made
binding on the court. Ultimately, the court rejected the sentencing
recommendation, imposed judgment, sentenced Risius to thirty days in jail with
all but four days suspended, and placed Risius on probation for a year subject to
certain restrictions. On appeal, Risius claims her counsel was ineffective in
failing to object to the prosecutor’s breach of the plea agreement. She also
claims the court abused its discretion by imposing, rather than deferring,
judgment and sentence. Finally, she claims the court abused its discretion when
it imposed certain probation conditions restricting her ability to be present in
locations where drugs or alcohol are present.
I. Motion to Dismiss.
After the case was transferred to this court, the State moved to dismiss
the appeal, claiming the discharge of Risius’s sentence made the challenges to
her sentence moot. See Rarey v. State, 616 N.W.2d 531, 532 (Iowa 2000).
Risius resisted the motion to dismiss, asserting the appeal is not moot despite
the discharge of her sentence because, if we rule in her favor and remand for
resentencing, she could receive a deferred judgment rather than a conviction.
The deferred judgment could then be expunged from her record upon the
successful completion of probation, which would benefit her in the future.
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“[A]n action is moot if it no longer presents a justiciable controversy
because the issues involved have become academic or nonexistent. A case is
moot when judgment, if rendered, will have no practical legal effect upon the
existing controversy.” State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975). We
agree with Risius that the first two claims on appeal are not moot in light of the
sentencing option of a deferred judgment, if we agree with her challenges to her
sentence. However, Risius’s challenge to the court’s imposition of certain
conditions on her probation is moot because any relief this court could offer on
that claim now has no practical legal effect in light of Risius’s discharge of her
probation. We therefore grant the State’s motion to dismiss as to Risius’s final
claim on appeal, but we deny the motion to dismiss with respect to the first two
claims, which we will now address.
II. Ineffective Assistance of Counsel—Breach of Plea Agreement.
In her first claim on appeal, Risius contends her attorney rendered
ineffective assistance by failing to object to the State’s breach of the plea
agreement at the time of sentencing. Ineffective-assistance claims are reviewed
de novo “because the claims implicate the defendant’s Sixth Amendment right to
counsel.” State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct. App. 2015). To prove
counsel was ineffective, Risius must prove by a preponderance of the evidence
both that counsel failed to perform an essential duty and that this failure resulted
in prejudice. See State v. Bearse, 748 N.W.2d 211, 214–15 (Iowa 2008).
Because counsel’s failure to object could not be considered ineffective
assistance if the State did not breach the plea agreement, our analysis turns on
whether the State breached the agreement at sentencing. See State v. Lopez,
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872 N.W.2d 159, 169 (Iowa 2015) (noting defense counsel has a duty to object to
a prosecutor’s breach of a plea agreement and therefore the outcome of the
appeal turns on whether the prosecutor breached the agreement). If counsel
fails to object to a breach of the plea agreement at sentencing, prejudice is
presumed. Id. at 170.
The plea agreement was for a joint sentencing recommendation of a
deferred judgment plus the applicable fines, surcharges, and costs. At
sentencing, the court asked the State to present its evidence, arguments, or
recommendations. The prosecutor stated:
Thank you, Your Honor. The recommendation of the State
is that the defendant receive a deferred judgment today for the
charge of possession of methamphetamine. Additionally, as part of
the plea agreement with the defense, the State did agree to request
a dismissal of the related drug paraphernalia charge, a simple
misdemeanor charge, and the defendant agreed to pay the court
costs on that.
The court confirmed with Risius that she agreed to pay the costs associated with
the dismissed charges, and then the prosecutor continued by reciting Risius’s
criminal history, which included several driving-while-barred or driving-while-
suspended offenses. The court then confirmed with defense counsel the
prosecutor had accurately recited Risius’s criminal history and lived up to its end
of the plea agreement, which defense counsel confirmed.
On appeal Risius claims the prosecutor breached the agreement by
merely reciting the agreement without making any real recommendation or
advocating in favor of the agreement. While the prosecutor used the word
“recommendation,” Risius claims the prosecutor utterly failed to present the
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sentence with her approval, to commend the sentence, or to indicate the
sentence is worthy of the court’s acceptance. See Bearse, 748 N.W.2d at 216.
We conclude the State did not breach the terms of the plea agreement.
Unlike the prosecutor in Bearse, here the prosecutor did not in any way
encourage the court to adopt a harsher sentence. See id. (“Not only did the
State in this case mistakenly recommend incarceration at the outset, but it clearly
suggested incarceration should be imposed by referring to the presentence
investigation report (which recommended incarceration) and reminding the court
that it was not bound by the plea agreement.”). The prosecutor here also did not
express any implicit or explicit material reservation about the sentence it was
recommending or suggest alternative sentences. See State v. Horness, 600
N.W.2d 294, 300 (Iowa 1999) (“The prosecutor also breached the plea
agreement by informing the court of an ‘alternative recommendation’ and making
statements implying that the alternative recommendation was more worthy of
acceptance.”). Nor did the State undermine its recommended sentence by
soliciting unfavorable victim impact statements or introducing unfavorable
evidence. See Lopez, 872 N.W.2d at 178 (noting prosecutors may not “make an
end run around an agreed sentencing recommendation of probation by soliciting
a victim-impact statement urging incarceration” or “effectively undermine[] the
State’s sentencing recommendation by using the photos in a manner suggesting
a more onerous sentence [i]s warranted”).
There is no indication that, as part of the plea agreement, the State
agreed to “enthusiastically” endorse the recommended sentence or offer reasons
why the recommended sentence should be adopted. See United States v.
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Benchimol, 471 U.S. 453, 455 (1985) (“It may well be that the Government in a
particular case might commit itself to ‘enthusiastically’ make a particular
recommendation to the court, and it may be that the Government in a particular
case might agree to explain to the court the reasons for the Government’s
making a particular recommendation. But respondent does not contend, nor did
the Court of Appeals find, that the Government had in fact undertaken to do
either of these things here.”). The prosecutor did what the plea agreement called
for—to recommend a deferred judgment—and nothing the prosecutor said or did,
explicitly or implicitly, undermined the plea agreement. There was therefore no
reason for defense counsel to object at sentencing, and Risius’s ineffective-
assistance claim fails. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011)
(“We will not find counsel incompetent for failing to pursue a meritless issue.”).
III. Abuse of Discretion.
Risius also contends the court abused its discretion in not granting a
deferred judgment as evidenced by the court’s heavy focus on her age. The
court noted that this offense was not due to some “youthful indiscretion or
youthful lapse in judgment,” but the court went on to say that, at Risius’s age, she
was “old enough to know better than to be messing around with a drug—an
illegal drug of any type, but certainly methamphetamine.” After pronouncing
sentence the court again noted Risius was “too old to be sitting in a courtroom on
this type—on any type of charge, but on a charge like this. So I hope that this
has been an experience that will cause you to rethink what you are doing with
respect to illegal drugs.” Risius asserts the court improperly surmised only young
people have lapses in judgment that are worthy of a deferred judgment. Risius
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claims the court ignored the fact that older people can also have lapses in
judgment and they also have more at stake in terms of career, family, and status
in the community. Risius also points out her criminal history has no drug- or
alcohol-related charges.
We review the district court’s sentencing decision for an abuse of
discretion. See State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015) (noting the
standard of review). “In exercising discretion, the district court must ‘weigh all
pertinent matters in determining a proper sentence, including the nature of the
offense, the attending circumstances, the defendant’s age, character, and
propensities or chances for reform.’” State v. Thacker, 862 N.W.2d 402, 405
(Iowa 2015) (citation omitted). While the court must state its reasons for
imposing the sentence, “a ‘terse and succinct’ statement may be sufficient, ‘so
long as the brevity of the court’s statement does not prevent review of the
exercise of the trial court's sentencing discretion.’” Id. at 408 (citation omitted).
While the district court did focus on Risius age, it also considered other
factors:
Okay. Ms. Risius, my goals with respect to sentencing are to
provide for your rehabilitation and the protection of the community.
In trying to achieve those goals, to the extent these details have
been made known to me, I have taken into account your age, your
employment circumstances, your family background, your prior
criminal history, the nature of the offense and facts and
circumstances surrounding it, and the recommendations of the
parties. I have also considered your request for a deferred
judgment. In considering that request, I again consider all the
factors I just mentioned with the goals of rehabilitation and the
protection of the community. I realize that your criminal history
consists of driving offenses, but they do include two aggravated
misdemeanors.
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The court considered a number of factors, not just Risius’s age, and the court is
not required to “specifically acknowledge each claim of mitigation urged by a
defendant.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). We discern
no abuse of discretion in the court’s sentencing decision.
AFFIRMED.