IN THE COURT OF APPEALS OF IOWA
No. 17-0532
Filed April 4, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MASON DAVIS VANG,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Mason Vang appeals after pleading guilty to assault with intent to commit
sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.
Mason Vang appeals after pleading guilty to assault with intent to commit
sexual abuse. See Iowa Code § 709.11(3) (2015). On appeal, he asserts the plea
court failed to substantially comply with the Iowa Rule of Criminal Procedure
2.8(2)(b)(4) colloquy requirements regarding his right to confrontation. We find the
plea court substantially complied with the rule. Vang also asserts his trial counsel
was ineffective in failing to object to the prosecutor’s alleged breach of the plea
agreement. We find the prosecutor did not breach the plea agreement, and
therefore Vang’s counsel had no duty to object. We affirm the district court.
I. Plea Colloquy.
Vang claims the plea court’s rule 2.8(2)(b) colloquy was deficient. Relevant
to this appeal, the rule provides that, unless the procedure is waived under certain
circumstances, before accepting a guilty plea, the court must address the
defendant personally in open court and inform the defendant that the defendant
has the right to be tried by a jury and has the right to confront and cross-examine
witnesses against the defendant. Iowa R. Crim. P. 2.8(2)(b). “We review
challenges to plea proceedings for correction of errors at law.” State v. Weitzel,
905 N.W.2d 397, 401 (Iowa 2017).
During the plea colloquy, the plea court addressed Vang’s constitutional
rights to a jury trial and explained to him, “At the trial, your lawyer could cross-
examine anyone who accuses you. If you wanted witnesses to come to the trial to
testify and they would not do so voluntarily, the court would use its power to bring
them to the courtroom to testify.” Vang indicated he understood.
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On appeal, Vang acknowledges the court advised him of his right to cross-
examine witnesses against him and of the compulsory process but argues the
court failed to advise him of his right to confront witnesses against him. The crux
of Vang’s argument is that the right of confrontation and the right to cross-examine
are not the same thing—the right to confrontation is more expansive than the right
to cross-examine. Although the right to confrontation includes the right to effective
cross-examination, Vang notes the right to confrontation also encompasses the
right to testimony under oath and the right to have a jury observe a witness’s
demeanor. See State v. Shearon, 660 N.W.2d 52, 55 (Iowa 2003) (“Three main
rights may be claimed under the Confrontation Clause: (1) testimony under oath,
(2) cross-examination by his counsel, and (3) the right to have the jury observe the
witness’s demeanor.”); see also State v. Newell, 710 N.W.2d 6, 24 (Iowa 2006)
(“Two important policies underlie the Confrontation Clause: ‘a preference for face-
to-face confrontation at trial and the right of cross-examination.’” (citation omitted)).
We believe testimony under oath and observation of a witness’s demeanor
by a jury are implicit in cross-examination by defense counsel at a jury trial, but
even if they are not, we conclude there was no violation of rule 2.8(2)(b)(4).
Although strict or actual compliance with the rule is preferred, substantial
compliance is acceptable. See Weitzel, 905 N.W.2d at 406. So, we ask whether
the record establishes the plea court conveyed the required information to Vang
such that it could be said he understood the information. See State v. Meron, 675
N.W.2d 537, 544 (Iowa 2004) (“Substantial compliance requires that the essence
of each requirement of the rule be expressed to allow the court to perform its
important role in each case.”). Although the plea court’s statement does not parrot
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the rule 2.8(2)(b)(4) requirement that a defendant be informed of “the right to
confront,” the court’s advisory substantially complies with the rule. See State v.
Myers, 653 N.W.2d 574, 578 (Iowa 2002) (“Under the substantial-compliance
standard, a trial court is not required to advise a defendant of his rights using the
precise language of the rule; it is sufficient that the defendant be informed of his
rights in such a way that he is made aware of them.”); see, e.g., State v. Aherns,
No. 13-1026, 2016 WL 351235, at *3 (Iowa Ct. App. Jan. 27, 2016) (holding that
telling a defendant he “could cross-examine the State’s witness” met the
substantial compliance standard concerning rights to cross-examine and
confrontation); State v. Taylor, No. 14-1688, 2015 WL 2089711, at *1 (Iowa Ct.
App. May 6, 2015) (finding statement that “I have a right to hear the evidence
against me from the witnesses and subject them to cross-examination”
substantially complied with the rule regarding the right to confront and cross-
examine witnesses); State v. Hayes, No. 04-0043, 2004 WL 2002596, at *5 (Iowa
Ct. App. Sept. 9, 2004) (holding statement that the defendant was giving up his
“right to have the opportunity to ask questions of the State’s witnesses” sufficiently
informed the defendant of his right to confront witnesses against him and, thus,
substantially complied with the rule’s requirement).
We conclude the plea court sufficiently informed Vang of his right to confront
witnesses against him.
II. Ineffective Assistance of Counsel.
Vang also contends his counsel provided constitutionally deficient
representation in failing to object to the alleged breach of the plea agreement by
the prosecutor. We review ineffective-assistance-of-counsel claims de novo.
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State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017). To establish his counsel
provided ineffective assistance, Vang must establish his counsel failed to perform
an essential duty and this failure resulted in prejudice. See State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). If the State breaches the plea agreement, defense
counsel breaches an essential duty by failing to object to the breach or otherwise
take remedial action. See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008).
Prejudice is presumed under the circumstances because had counsel objected,
the defendant would have been entitled to withdraw the guilty plea or be
resentenced in an untainted proceeding. See State v. Frencher, 873 N.W.2d 281,
284 (Iowa Ct. App. 2015).
When the State enters into a plea agreement, the prosecutor must comply
with both the letter and spirit of the plea agreement. See State v. Horness, 600
N.W.2d 294, 296 (Iowa 1999). When the State has promised to recommend a
sentence, we have required “the prosecutor to present the recommended
sentence[ ] with his or her approval, to commend the sentence[ ] to the court, and
to otherwise indicate to the court that the recommended sentence[ is] supported
by the State and worthy of the court’s acceptance.” Bearse, 748 N.W.2d at 216
(alterations in original) (citations omitted). The ultimate inquiry in determining
whether the prosecutor complied with the letter and spirit of the plea agreement “is
whether the prosecutor acted contrary to the common purpose of the plea
agreement and the justified expectations of the defendant and thereby effectively
deprived the defendant of the benefit of the bargain.” Frencher, 873 N.W.2d at
284. The prosecutor can act contrary to the plea agreement and deprive the
defendant of the benefit of the plea bargain implicitly. See id. at 285. Typically,
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implicit action contrary to the plea agreement involves the prosecutor’s expression
of material reservation regarding the plea agreement while still in technical
compliance with the plea agreement. See id. The prosecutor could do this in a
number of ways. For example, the prosecutor could propose alternative
sentences, request an “an appropriate sentence” rather than the agreed-upon
sentence, remind the court it is not bound by the plea agreement, or emphasize a
more severe punishment recommended by the presentence investigation author.
See id.
At the plea hearing, the prosecutor stated the plea agreement as follows:
The plea agreement is that I’m going to reduce this from a Class “C”
felony to an aggravated misdemeanor. At the time of sentencing, I’m
going to recommend probation for this defendant, a suspended
sentence. I’m going to ask that this probation run consecutive to the
probation he’s currently on.
I told the defendant and his defense counsel that there will be
a victim impact statement from the family that’s involved, the victim
and her parents. They may ask the court for incarceration. The
defendant knows that you’re the final arbiter of his sentence.
There will be, regardless of what the punishment is, other
ramifications: The lifetime registration with the Sex Offender
Registry, a special sentence. I’m not going to ask for a fine. He
needs to make payments on court costs, probation fees, restitution.
And paramount is a no-contact order with the victim and her family.
Vang and his counsel acknowledged this was the plea agreement.
At the sentencing hearing, the victim read her victim impact statement and
her mother also gave a statement. Vang’s allocution followed, and then the court
asked for the State recommendation for sentencing. The prosecutor responded:
Thank you, Judge. You know, by case law, I’m not allowed
to, in a jury trial, talk about emotion or show emotion, but this was an
excellent victim impact statement, Judge. It encapsulates everything
about this crime and about how whenever we look at a sexual assault
case, there’s a real person who has benefited and also been hurt by
the crime, and that’s . . . the very young girl in this case. And over
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the course of the time that I have known her she’s grown up because
of this crime.
The defendant, when you read his PSI, has had in the past a
life that is out of control, reckless, no supervision. I’m not sure where
he lived during the period of time that he was involved in Polk County
in crime, but he was unsupervised and out of control. And his
behavior impacted other people. He committed a crime against this
victim, which maybe now in hindsight was really—well, there’s no
explanation for it. You can’t get somebody drunk and then sexually
assault them. You just can’t. And you learn that from a very early
age, so it’s not about mistakes of youth.
But I do think because of his youth and the fact that he has
had no supervision, no parents that have paid attention to him and
that he was allowed to just wander recklessly, that that should be
taken into account. I told [defense counsel] at the start of these plea
negotiations, and I will continue to say it today, he’s a person who
should be on probation but not get a deferred. There are
ramifications for this kind of behavior. He should be on probation to
be afforded all the opportunities that he could have for mental health
care, job development, education, pay restitution, and benefit from
the services that are available through sex offender treatment for a
person who needs to wise up and learn about the consequences.
I do not think that the law about deferred judgments was ever
written for this kind of behavior. I just can’t imagine that the
legislature anticipated that this kind of behavior should ultimately be
washed away. He will be on the sex offender registry by virtue of the
crime he pled guilty to for life, and that is a suitable albatross, but it
is one that he has earned.
However, I think that the consequences of his behavior
require not a prison sentence where he could just sit like a lump in
the penitentiary. I think he needs to be in a community-based setting
where someone monitors him and makes him do things, school,
work, go to counseling, which is not available until the very ending of
a penitentiary stay.
So it’s the State’s position that he should have a probation and
that it should run consecutive to a probation he’s currently serving
out of Polk County in, I believe, Hamilton County where he resides.
The court then discussed with the prosecutor issues concerning victim restitution,
fines and surcharges, and DNA sampling. The prosecutor noted all penalty options
were open to the judge but concluded, “You should just know I’m not asking for
prison, but I’m not agreeing to a deferred either.”
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Vang’s counsel agreed with the prosecutor that the victim’s statement was
“probably today the best and most poignant victim impact statement that I have
ever heard in a criminal case. Certainly this young lady is very well-educated, very
well-spoken, and has a very strong voice. There is no question about that.”
Counsel followed with an impassioned argument for a deferred judgment.
The court acknowledged defense counsel’s “good arguments” but
disagreed that a deferred judgment was appropriate. The court detailed its
response to the victim impact statement and counsels’ arguments. In the end, the
court sentenced Vang to 364 days in jail.
On appeal, Vang accuses the prosecutor of failing to comply with the spirit
of the plea agreement. He specifically argues, “While paying lip service to the plea
agreement, the prosecutor also emphasized the victim impact statement, which
requested a year of incarceration, and argued to the court how horrible was Vang’s
PSI and that he was out of control and reckless.”
Vang’s extrapolation of the victim impact statement is mistaken. Although
the victim stated her life had been put “on hold over a year,” that Vang did not
deserve “a mitigating sentence,” and that she hoped that Vang’s “life can be on
hold for some time too,” we do not read the statement as a request for a year of
incarceration. The prosecutor’s remarks that the victim’s impact statement was
“excellent,” merely expressed an observation patently obvious to anyone in the
court room—and to anyone reading the transcript.
The prosecutor’s commentary that the presentence investigation (PSI)
report indicated that in the past Vang had a life “out of control, reckless, [and] no
supervision” may be a bit of a stretch, but Vang’s counsel fully responded to the
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comment and the sentencing court put no stock in it. The court stated, “I do not
agree at all with the proposition that this incident occurred simply because you
were unsupervised, you were uncontrolled, and somehow your parents failed you.”
The PSI does indicate that Vang was serving a two-year deferred judgment
probation for assault and harassment at the time.
We disagree with Vang’s characterization of the prosecutor’s remarks. As
we read them, the prosecutor was making a reasoned and forceful argument
against a deferred judgment, not for incarceration. She did not cross the line to
undermine the plea agreement.
On de novo review, we disagree with the contention that the prosecutor
breached the plea agreement. Vang’s counsel had no duty to object to the
prosecutor’s statements because no breach of the plea agreement occurred. See
Frencher, 873 N.W.2d at 286. Accordingly, Vang has failed to establish his claim
that counsel provided constitutionally deficient representation. See id.
We affirm Vang’s conviction and sentence.
AFFIRMED.
State of Iowa v. Mason Davis Vang
Combined Opinion