IN THE COURT OF APPEALS OF IOWA
No. 19-1087
Filed April 29, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
COREY LAMAR MORGAN SR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes (guilty
plea) and Thomas Reidel (sentencing), Judges.
A defendant appeals his conviction for domestic abuse assault by impeding
air flow causing bodily injury. AFFIRMED.
Nate Nieman, Rock Island, Illinois, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.
Corey Morgan Sr. appeals his conviction for domestic abuse assault by
impeding air flow causing bodily injury. Morgan claims he received ineffective
assistance because defense counsel did not object to the State’s breach of the
plea agreement. We find the State did not breach the plea agreement and,
therefore, defense counsel had no obligation to object. We affirm Morgan’s
conviction.
I. Background Facts & Proceedings
According to the minutes of testimony, on September 23, 2018, Morgan’s
girlfriend, E.D., reported that Morgan assaulted her repeatedly and choked her.
E.D. had difficulty breathing and redness around her neck. Morgan stated he was
“a little too drunk” at the time of the offense. Morgan was charged with domestic
abuse assault by impeding air flow causing bodily injury, in violation of Iowa Code
section 708.2A(5) (2018).
Morgan entered into a plea agreement in which he agreed to plead guilty to
the charge. The plea agreement provided, “The State is free to make any
recommendation at sentencing, but they won’t resist probation if the [presentence
investigation] done by the Seventh Judicial District recommends probation, and it
is in the plea agreement that you’re required to take the Iowa Domestic Abuse
Program.” The court pointed out, “the State can recommend under this plea
agreement five years’ incarceration for you.” Morgan pled guilty, and the court
accepted his guilty plea.
The presentence investigation report (PSI) recommended Morgan be
placed on supervised probation. At the sentencing hearing, the prosecutor stated:
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Pursuant to the plea agreement, the State has agreed to not resist
supervised probation if deemed appropriate by the presentence
investigation, which it was, so therefore the State’s agreement would
be for a five-year suspended sentence.
The State would specifically recommend three years of
supervised probation with a condition of that being the Iowa
Domestic Abuse Program pursuant to the plea agreement, and the
State would also include that another specific condition of probation
be substance abuse treatment.
The State’s recommendation is based on the reasons as
stated in the presentence investigation.
The defendant asked to be placed on supervised probation.
The district court stated:
Based on your lengthy criminal history, history of failing to appear in
court, the fact that you have had three prior domestic assault
convictions, you’ve had a conviction for violating a no contact order,
you’ve had other assaults, the fact that you haven’t decided to
undergo a substance abuse evaluation despite that being specifically
linked to this crime, but you’re willing to do so if the Court tells you
to, I believe incarceration in prison is necessary.
The court noted, “You haven’t addressed your substance abuse issues that led to
this and here we are with a fourth domestic abuse assault within your lifetime.”
The court also stated, “[U]nder the circumstances of this case I believe that
incarceration is absolutely warranted.” The court sentenced Morgan to a term of
imprisonment not to exceed five years. Morgan appeals.
II. Discussion
The PSI recommended supervised probation. Morgan asserts that under
the plea agreement, the State was then required to not resist supervised probation.
He claims the State went beyond this by requesting he be given a five-year
suspended sentence. Morgan contends the State’s promise not to resist probation
if it was recommended in the PSI was rendered meaningless because the State
also recommended a suspended sentence. Morgan claims he received ineffective
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assistance because defense counsel did not object to the State’s breach of the
plea agreement.1
“To prevail on a claim of ineffective assistance of counsel, the defendant
must prove that his counsel failed to perform an essential duty and that the
defendant suffered prejudice as a result of this failure.” State v. Horness, 600
N.W.2d 294, 298 (Iowa 1999). Morgan has the burden to show “a reasonably
competent attorney would have objected to the prosecutor’s statements as a
breach of the negotiated plea agreement.” Id. We review claims of ineffective
assistance of counsel de novo. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
In plea agreements, prosecutors are held “to the most meticulous standards
of both promise and performance.” Id. at 215. A court considers whether there
has been a violation “of either the terms or the spirit of the agreement.” Id. If the
State recommends a more severe punishment than it was required to recommend
under the plea agreement, the State has breached the plea agreement. Id. at 216.
Defense counsel has a duty to object to a breach of a plea agreement. Id. at 217.
On the other hand, if the State has not breached the plea agreement, defense
counsel has no obligation to object. See State v. Fannon, 799 N.W.2d 515, 520
(Iowa 2011).
1 Recent legislation, codified at Iowa Code section 814.7 (2020), provides that
claims of ineffective assistance of counsel should be decided in postconviction
relief proceedings rather than on direct appeal of the criminal proceedings. The
Iowa Supreme Court has determined this provision is not retroactive and does not
apply to proceedings prior to July 1, 2019. State v. Macke, 933 N.W.2d 226, 231
(Iowa 2019). Morgan was sentenced on June 19, 2019, and filed his notice of
appeal on June 28. We conclude the new legislation does not apply under the
facts of this case.
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In Macke, the parties entered into a plea agreement requiring a joint
recommendation of a deferred judgment and probation. Macke, 933 N.W.2d at
228–29. During the sentencing hearing, the prosecutor recommended a
suspended sentence and probation. Id. at 229. The Iowa Supreme Court
determined the State breached the plea agreement by recommending a
suspended sentence and defense counsel should have objected. Id. at 237.
The plea agreement in this case did not require a joint recommendation of
a deferred judgment. The State was free to make any recommendation at
sentencing, but if the PSI recommended supervised probation, the State would not
resist supervised probation. A deferred judgment, deferred sentence, or a
suspended sentence may be accompanied by probation. State v. Headley, 926
N.W.2d 545, 552 (Iowa 2019); State v. Wickes, 910 N.W.2d 554, 571 (Iowa 2018)
(citing Iowa Code § 907.3 (2018)). The State could recommend a suspended
sentence without breaching the plea agreement.
We conclude the State did not breach the plea agreement by
recommending a suspended sentence. Because the State did not breach the plea
agreement, defense counsel did not have an obligation to object. See Fannon,
799 N.W.2d at 520. We conclude Morgan did not meet his burden to show “a
reasonably competent attorney would have objected to the prosecutor’s
statements as a breach of the negotiated plea agreement.” See Horness, 600
N.W.2d at 298. Because we find there was not a breach, Morgan’s ineffective
assistance claim fails and we need not address the prejudice prong. We conclude
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Morgan has not established that he received ineffective assistance of counsel. We
affirm Morgan’s conviction.
AFFIRMED.