State of Iowa v. Shane Michael Davis

IN THE SUPREME COURT OF IOWA

No. 20–0156

Submitted December 15, 2021—Filed March 18, 2022

STATE OF IOWA,

Appellee,

vs.

SHANE MICHAEL DAVIS,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Floyd County, Christopher C. Foy

(plea) and DeDra L. Schroeder (sentencing), Judges.

Defendant appealing sentencing errors after his guilty plea seeks further

review of court of appeals decision dismissing his appeal for lack of subject

matter jurisdiction. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED,

AND CASE REMANDED FOR RESENTENCING.

Waterman, J., delivered the opinion of the court, in which Appel,

Mansfield, McDonald, and McDermott, JJ., joined. Christensen, C.J., filed an

opinion concurring in part and dissenting in part, in which Oxley, J., joined.
 2

Thomas M. McIntee, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.
 3

WATERMAN, Justice.

Should direct appeals from convictions based on guilty pleas be summarily

dismissed when the defendant’s appellate brief fails to expressly argue good

cause exists to appeal under Iowa Code section 814.6(1)(a)(3)? The court of

appeals dismissed this appeal because the defendant bears the burden of

establishing good cause and failed to address that requirement. Yet the

defendant’s brief made clear he was appealing sentencing errors, including the

prosecutor’s alleged breach of a plea agreement. Our precedents hold such

appeals satisfy the statutory good-cause requirement. So we granted the

defendant’s application for further review.

On our review, we conclude the defendant’s lamentable failure to discuss

the good-cause requirement by name in his appellate brief does not mandate

dismissal. We vacate the court of appeals dismissal order, reinstate the appeal,

and decide it on the merits. For the reasons explained below, we hold the

prosecutor breached the plea agreement obligating her support for a suspended

sentence. The State does not contend otherwise. This error requires resentencing

by a different judge.

Contrary to the view of our dissenting colleagues, this is not a case about

victims’ rights. And contrary to their dissent, we do not hold “the prosecutor

breached the plea agreement by reading victim-impact statements at

sentencing.” This is a case about the prosecutor’s duty to recommend a sentence

pursuant to a plea agreement. Our obligation as a court is to uphold and enforce

the parties’ plea agreement. The prosecutor breached the plea agreement by
 4

failing to recommend a suspended sentence in the manner required by our

precedent.

I. Background Facts and Proceedings.

Shane Michael Davis pleaded guilty to lascivious acts with a child and

indecent contact with a child. According to the minutes of testimony, in the

summer of 2019, Shane Michael Davis shared a home in Charles City with his

fiancée, the victims’ aunt. The parents viewed Davis as a family friend and

allowed their daughters, then ages ten and eleven, to visit their aunt’s home. The

ten-year-old girl reported that while she was sitting on a couch there, Davis

“rubbed her privates with his hand” over her clothes and warned her not to tell

anyone “or he would beat and spank her.” The eleven-year-old girl reported she

was in the living room when Davis “grabbed” and “squeezed” her breasts and

warned her not to tell anyone “or she could not see her aunt anymore.” The girls

told their parents who called the police. The police promptly investigated.

On November 4, 2019, Davis was charged by trial information in count I

with lascivious acts with a child, a class “C” felony, in violation of Iowa Code

sections 709.1, 709.8(1)(a), 709.8(2)(a), and 903B.1 (2019), and in count II with

indecent contact with a child, an aggravated misdemeanor, in violation of

sections 709.12(1)(b) and 903B.2. On November 25, following successful plea

negotiations, Davis filed a written Alford guilty plea to a lesser included charge

of lascivious acts with a child, a class “D” felony, in violation of section

709.8(1)(e), and entered an Alford guilty plea to count II as charged. The State

agreed to follow the sentencing recommendations in the presentence
 5

investigation (PSI) report, and Davis pleaded guilty “in exchange for the State’s

recommendation.”

Davis, in his written guilty plea, acknowledged he understood the district

court was not bound by the parties’ agreed sentencing recommendation and that

he understood “that the sentence I receive is solely a matter within the discretion

of the judge.” Following a plea hearing, the court accepted the guilty pleas,

ordered a PSI report, and scheduled a sentencing hearing. Davis did not file a

motion in arrest of judgment.

On January 15, 2020, the department of correctional services filed a PSI

report that, based on Davis’s “lack of criminal history and attachments to the

community,” recommended suspended prison sentences, supervised probation

for five years, and placement at “the Beje Clark Center for 180 days or until

maximum benefits have been received.” The PSI report also recommended

no-contact orders, use of an electronic monitoring tracking device, placement on

the sex offender registry, a $250 civil penalty per section 692A.110(2), a $100

surcharge for each charge per section 911.2B, DNA sampling, and a ten year

special sentence. Four victim-impact statements were attached to the PSI report.

On January 21, Davis appeared for sentencing. The district court asked

Davis’s counsel if he had enough time to go through the PSI report with Davis.

His counsel responded in the affirmative. The district court then asked Davis’s

counsel if he had “any changes, objections, or corrections” to the PSI report, and

his counsel denied having any corrections and agreed the court could rely on the

PSI report for purposes of sentencing.
 6

The district court next asked whether the State would be providing

victim-impact statements. The prosecutor said she will read four statements, one

from each child and parent. The record does not show that the prosecutor was

designated as a victim’s representative under section 915.21(1)(a). Nor does the

record show the victims asked the prosecutor to read the statements in open

court. Davis’s trial counsel stated, “I have no objection. They are already attached

to the presentence investigation report, I believe.” The court told the prosecutor

to “go ahead” and then the prosecutor read the four handwritten statements

aloud in their entirety, beginning with the older daughter’s statement:

[This] ruined everything with family, and I am being called a liar. I
don’t understand why he did what he did. All I know is I feel dirty
and scared, confused and stressed.

Since this happened I have to do therapy and others at home.
My grades have been slipping in school. I can’t concentrate or sleep
at night. I keep asking myself why do I have to live in misery, hurt
and fear the rest of my life. . . .

I want the Defendant locked away so he can’t hurt me or my
family anymore, so that I don’t have to fear my life or being hurt
again. I don’t want him near me for the rest of my life. He is a bad
man and a mean man.

The younger daughter’s statement also asked the court to sentence Davis

to prison. Her statement shared:

I was a good kid, fun, loved to play, but now I have bad dreams
and nightmares of this person hurting me. I am always scared he
hurt me when he touched my private area. When I said no, he kept
doing it. Then he told me he would hurt me if I told my mom and
dad or anyone else and said I would never see my Aunt . . . again.
Now I have to retake these med -- now I have to take these medicines
for nightmares and anxiety and see therapist. Why he hurt me I
don’t know. But he’s a bad man and need to be in jail so he can’t
hurt me again and I can feel safe again.
 7

The prosecutor then read the parents’ statements, which both asked for

Davis to be sentenced to the maximum prison time. The father’s statement

elaborated:

This has caused us all the burden of changing how we have
lived before all this. The therapy appointments, the constant
workers in and out of our home, our privacy ruined, the loss of kids’
school for appointments, the financial with gas to all the
appointments and constant driving to other towns to go eat or shop,
loss of wages for appointments.

How about the lifetime of my girls never trusting men or law
enforcement if the Defendant is set free, the mental scarring they
have endured, the horror and fear they live with and my wife and I
as well.

I would ask the Court to give Defendant maximum time
incarcerated in prison and make it so that he does sex offender
treatment, anger management, and mental evaluation. I ask the
Defendant not to be allowed to be free to walk streets. I ask this so
that myself and my children don’t have to fear our safety or him
possibly trying to harm any of us again or in other ways and to give
my children time to heal from this and so that we don’t have to pack
up and leave our home nor children’s school and friends to feel safe
and not have to live in fear, Your Honor.

In my opinion, the Defendant has no remorse for his actions
of what has occurred or the fear and harm he has inflicted. Setting
him free isn’t fair as my girls and family have to endure his actions
for a lifetime. And why would it be fair for the Defendant to receive
probation and walk free when these children have to live in fear and
constant stress for a lifetime and have to feel confined ‘cause they
have to fear the threats he made and the loss of trust in the law
enforcement and judicial system if he is allowed to be free.

....

If he is allowed probation by courts, then I feel and my
children will feel that the judicial system is punishing them and my
wife and I as we all have to live with the mental, emotional and
financial burden and lack of safety for a lifetime while he gets a slap
on hand and has the chance to live up to his threats of harm to my
children and getting even with them, and courts sending a message
to my children and other children that people like the Defendant can
 8

get away with abusing them and that what police and courts say
about serving and protecting children or people is a myth and that
it’s okay for people to be hurt by humans like the Defendant and
that the victims are the ones who should pay and the perpetrators
set free for their crimes and the harm they have caused.

The Mother’s statement in turn revealed:

[My younger daughter] wakes up at night from nightmares,
screaming, Don’t touch me and Get away from me, or seeing the
Defendant hurting her. Since this she is on medication for
nightmares and has added medication for anxiety and depression
this has caused her. She can’t focus. She acts out at times.

[My older daughter] is now reserved instead of being outgoing
-- her outgoing self that she was before this happened.

My husband and I can’t sleep at night as we are always feeling
like we have to keep looking over our shoulders or close eye on kids
due to threats made by the Defendant, especially the threat of
making our lives and our kids’ lives a living hell, and that he knows
people who will deal with us if he is convicted. We don’t know what
or if he will do anything, but the threats like he has made make us
on edge.

This whole situation has been incredibly stressful on the girls
and us as well as other family members. I myself have had three
medications added during this time to help with depression, anxiety
attacks, and panic attacks as it’s so hard to sit back and watch my
girls go through this and my husband and myself.

....

I would like to see the Defendant sentenced to the maximum
amount of time in prison. I would also like to see the Defendant
sentenced to include the No Contact Order. Also for him to get the
help he needs after he has a mental health evaluation.

I also want to make it known that if the Defendant does not
get sentenced to prison and only gets sentenced to probation, then
not only will [my daughters] have a harder time healing from this,
they will also feel like the courts aren’t protecting them and serving
them like they say they do. The girls won’t feel safe. Most of all, the
girls will feel like it was pointless to tell Mommy, Daddy, Grandma,
Grandpa, cops, DHS, and CPC, and that the cops, DHS, CPC, county
attorney and the Judge all think they are lying because that kind of
sentence wouldn’t be punishment in their eyes because he would be
 9

out on the streets. If he gets sentenced to only probation, you’re
showing my girls and society that justice isn’t always served properly
or even at all for that matter.

The prosecutor spent about fifteen minutes reading these statements;

Davis’s counsel made no objection. When the district court next asked for the

State’s recommendation on sentencing, the prosecutor responded:

Your Honor, in this case the plea agreement was that the State
would follow the recommendation made by the presentence
investigation, so the State would join in those recommendations
being made.1

The prosecutor never specifically said the State recommended suspended

sentences, and she made no further statement in support of that

recommendation.

Davis’s trial counsel never objected that the State breached the plea

agreement. Instead, he advocated for suspended sentences with “two to five years

of supervised probation” and “the standard conditions such as the sex offender

treatment program, sex offender registry, and . . . the special sentence parole

that would apply to those.” Davis, through his counsel, adamantly denied

threatening anyone. Davis declined the opportunity for allocution.

Before pronouncing sentence, the district court stated:

The laws of Iowa require that a sentence be imposed that provides
for your rehabilitation, protects the community, and deters others
from committing this type of offense, and deters your future actions,
unlawful actions.

The Court looks at several different factors in determining
what an appropriate sentence is. I look at your age. I look at your

1The State also asked for an extension of the no-contact order for each victim and extra
time “to submit a final restitution amount.” Davis did not resist the State’s recommendation for
an extension of the no-contact orders.
 10

employment circumstances, your family circumstances, your
record, the nature of the offense, your attitude, which included some
eye rolling, some huffing and some -- I guess I wouldn’t call it
appropriate courtroom behavior, but -- It also includes everything
I’ve learned about you through the presentence investigation report.

The court, without mentioning the plea agreement or State’s recommendation,

sentenced Davis to an indeterminate term of five years of incarceration for

lascivious acts with a child and two years for indecent contact with a child, to be

served consecutively, for a combined seven-year prison sentence. Neither

sentence was suspended. Davis filed his notice of appeal the same day.

On appeal, Davis, through new counsel, argued the sentencing court

impermissibly relied on information in the victim-impact statements that was

“not admitted by the defendant or proven by the State,” and the prosecutor

breached the plea agreement by not explicitly recommending a suspended

sentence and by reading multiple victim-impact statements recommending the

maximum sentences. Davis argues his plea counsel was ineffective for failing to

object to the State’s breach of the plea agreement and for pressuring him to plead

guilty. His appellate brief neither mentioned Iowa Code section 814.6 nor argued

good cause existed to appeal.

The State argued Davis failed to preserve error because he did not to object

during the sentencing hearing, the district court did not rely on unproven

allegations, and Iowa Code section 814.7 precludes a direct appeal of ineffective-

assistance-of-counsel claims. The State did not argue that the appeal should be

dismissed under section 814.6 for lack of good cause. Most importantly, the
 11

State in this appeal makes no argument that the prosecutor honored the parties’

plea agreement.

We transferred the appeal to the court of appeals, which dismissed the

appeal because “Davis has not addressed good cause, although it is his burden

to establish it” under section 814.6(1)(a)(3). Davis filed an application for further

review arguing the sentencing errors established good cause to appeal. He

narrowed his requested relief to resentencing. Davis does not seek further review

of the ineffective-assistance-of-counsel claims that challenge his guilty plea and

sentence. We granted his application to decide the jurisdictional issue and the

State’s alleged breach of the plea agreement.

II. Standard of Review.

“Our review of a sentence imposed in a criminal case is for correction of

errors at law.” State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020) (quoting State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002)). “We will not reverse a sentence

unless there is ‘an abuse of discretion or some defect in the sentencing

procedure.’ ” Id. (quoting Formaro, 638 N.W.2d at 724). “We review de novo

claims of ineffective assistance of counsel arising from the failure to object to the

alleged breach of a plea agreement.” State v. Lopez, 872 N.W.2d 159, 168 (Iowa

2015).

III. Analysis.

We first address whether the court of appeals correctly dismissed this

appeal for lack of good cause under Iowa Code section 814.6(1)(a)(3). We

reinstate the appeal because the sentencing errors raised by Davis constitute
 12

good cause to appeal. We next reject the State’s arguments that section 814.7

prohibits this direct appeal of Davis’s claim the prosecutor breached the plea

agreement and that Davis did not preserve error. On the merits, we conclude the

State breached the plea agreement, requiring resentencing by a different judge.

A. Good Cause to Appeal Under Iowa Code Section 814.6. The district

court entered judgment and sentenced Davis on January 21, 2020, after the

omnibus crime bill went into effect on July 1, 2019. See 2019 Iowa Acts ch. 140,

§§ 28–29 (codified at Iowa Code § 814.6(1)–(2) (2020)); State v. Boldon, 954

N.W.2d 62, 68 (Iowa 2021). Iowa Code section 814.6 as amended now limits

appeals from convictions based on guilty pleas (apart from class “A” felonies) to

those “where the defendant establishes good cause.” Boldon, 954 N.W.2d at 66,

68 (quoting Iowa Code § 814.6(1)(a)(3)). Davis is appealing from his conviction

on a class “D” felony and must establish good cause to appeal. See id. But his

appellate brief never cited section 814.6, nor explained how he established good

cause to appeal. That omission prompted the court of appeals to summarily

dismiss his appeal. We reinstate the appeal.

Section 814.6(1)(a)(3) was enacted to “restrict direct appellate review of

most guilty plea challenges.” See Damme, 944 N.W.2d at 105. Davis is appealing

errors in his sentencing, not his guilty plea. We have held “that good cause exists

to appeal from a conviction following a guilty plea when the defendant challenges

his or her sentence rather than the guilty plea.” Id. We explained,

A sentencing error invariably arises after the court has accepted the
guilty plea. This timing provides a legally sufficient reason to appeal
notwithstanding the guilty plea. We save for another day the
 13

question of what constitutes good cause to appeal to challenge a
guilty plea.

Id.; see also Boldon, 954 N.W.2d at 69 (“Because Boldon challenges the

sentencing hearing and his sentence, we conclude he has established good cause

to pursue this direct appeal as a matter of right.”). Applying these precedents,

we hold Davis met the good-cause requirement to proceed with his direct appeal

challenging his sentence.

Davis should have discussed section 814.6(1)(a)(3) and cited State v.

Damme in his appellate brief to show he met the good-cause requirement.

Counsel’s failure to cite authority permits an appellate court to deem the issue

waived. Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an

issue may be deemed waiver of that issue.”). We decided State v. Boldon after

Davis filed his brief, but before the court of appeals dismissed his appeal. Boldon

made crystal clear that Davis could directly appeal the State’s alleged breach of

the plea agreement. The court of appeals erred by dismissing his appeal for lack

of jurisdiction.

B. Error Preservation and Section 814.7. Davis argues the State

breached the plea agreement at the sentencing hearing and that his plea counsel

was ineffective for failing to object to the breach at the sentencing hearing. The

State declined to address the merits of this argument, and instead argues that

Davis failed to preserve error for the prosecutor’s alleged breach without an

objection at the sentencing hearing and that section 814.7 bars his direct appeal

of ineffective-assistance-of-counsel claims. Iowa Code section 814.7 provides:
 14

An ineffective assistance of counsel claim in a criminal case
shall be determined by filing an application for postconviction relief
pursuant to chapter 822. The claim need not be raised on direct
appeal from the criminal proceedings in order to preserve the claim
for postconviction relief purposes, and the claim shall not be decided
on direct appeal from the criminal proceedings.

But we have held section 814.7 does not prohibit direct appeals of claims that a

prosecutor breached a plea agreement at the sentencing hearing. State v. Jordan,

959 N.W.2d 395, 399 (Iowa 2021) (determining that breach of a plea agreement

“was a claim of sentencing error that could be reviewed directly without being

cast as an ineffective-assistance claim”). Not all “forms of sentencing error[s]

require a timely objection or challenge to preserve an issue for appellate review.”

Boldon, 954 N.W.2d at 70. “A prosecutor’s breach of the plea agreement at

sentencing irreparably taints the sentencing proceeding and a claim of breach is

reviewable on direct appeal even in the absence of contemporaneous objection.”

Id. at 71. We therefore proceed to the merits of Davis’s appeal.2

C. Breach of the Plea Agreement. The plea agreement obligated the State

to follow the sentencing recommendation in the PSI report.3 The PSI report

recommended suspended sentences. When the district court asked for the

State’s position at the sentencing hearing, the prosecutor said only this:

Your Honor, in this case the plea agreement was that the State
would follow the recommendation made by the presentence

2Section 814.7 precludes relief on direct appeal for Davis’s ineffective-assistance claim

that his trial counsel pressured him into pleading guilty. That claim can only be pursued through
postconviction proceedings.

3The record does not indicate whether the prosecutor consulted with the victims’ parents
before entering into the plea agreement.
 15

investigation, so the State would join in those recommendations
being made.

The prosecutor did not advocate for the court’s acceptance of the

recommendation. Davis faults the prosecutor for failing to say out loud that she

recommended “suspended sentences” after spending fifteen minutes reading

four victim-impact statements calling for prison sentences. Davis argues:

The prosecutor’s narration was a de facto argument for the
victims’ requests for maximum prison sentences, contrary to the
parties’ plea agreement. The prosecutor made virtually no effort to
comply with the spirit and intent of the plea agreement and in
essence sought to undermine it by interjecting articulation of
unproven allegations, which affected the Court’s disposition.

The State’s brief did not respond to this argument on the merits and nowhere

argued that the prosecutor complied with her obligation under the parties’ plea

agreement.

The district court did not impose suspended sentences and instead

imposed consecutive prison sentences totaling seven years. We presume

prejudice when the State breaches a plea agreement, notwithstanding the lack

of a contemporaneous objection by defense counsel. Lopez, 872 N.W.2d at 170

(“We decline to play mind reader to speculate on what the sentencing court would

have done differently if trial counsel had objected to a breach of the plea

agreement.”).

“[C]riminal justice today is for the most part a system of pleas, not a system

of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). “While proper use of plea

agreements is essential to the efficient administration of justice, improper use of

the agreements threatens the liberty of the criminally accused as well as ‘the
 16

honor of the government’ and ‘public confidence in the fair administration of

justice.’ ” State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (quoting State v.

Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974)). “Further, ‘[b]ecause a plea

agreement requires a defendant to waive fundamental rights, we are compelled

to hold prosecutors and courts to the most meticulous standards of both promise

and performance.’ ” Id. (alteration in original) (quoting State v. Horness, 600

N.W.2d 294, 298 (Iowa 1999)).

“The relevant inquiry in determining whether the prosecutor breached 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.” Boldon, 954

N.W.2d at 71 (quoting State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct. App.

2015)). “Plea bargains are akin to contracts.” State v. Beres, 943 N.W.2d 575,

582 (Iowa 2020) (quoting State v. Macke, 933 N.W.2d 226, 238 (Iowa 2019)

(Mansfield, J., concurring in part and dissenting in part)). Some plea agreements

obligate the prosecutor to remain silent at sentencing and make no

recommendation. See, e.g., State v. Fannon, 799 N.W.2d 515, 518, 522–23 (Iowa

2011) (requiring resentencing because prosecutor breached agreement to “make

no sentencing recommendation during the sentencing hearing”); State v. Carrillo,

597 N.W.2d 497, 500–01 (Iowa 1999) (per curiam) (holding state breached a

“[buy]-your-silence kind of deal” under which the prosecutor would “remain

silent at sentencing, and leave unchallenged Carrillo’s request for suspended

sentences” (alteration in original)). By contrast, here, the State agreed to follow
 17

the recommendations for suspended sentences in the PSI report, and in reliance

on that recommendation, Davis pleaded guilty.

“A fundamental component of plea bargaining is the prosecutor’s

obligation to comply with a promise to make a sentencing recommendation by

doing more than ‘simply inform[ing] the court of the promise the State has made

to the defendant with respect to sentencing.’ ” Bearse, 748 N.W.2d at 215–16

(alteration in original) (quoting Horness, 600 N.W.2d at 299). The prosecutor

“must actually fulfill the promise.” Id. at 216. “ ‘[V]iolations of either the terms

or the spirit of the agreement’ require reversal of the conviction or vacation of the

sentence.” Fannon, 799 N.W.2d at 520 (alteration in original) (quoting Horness,

600 N.W.2d at 298).

The four victim-impact statements in this case were properly included in

the PSI report. Iowa Code § 915.21(1)(a) (providing that a “filed [victim] impact

statement shall be included in the presentence investigation report”). The

sentencing court was entitled to consider those statements. Id. § 901.5.4 Davis

argues the prosecutor undermined the plea agreement by reading the statements

urging prison time word-for-word without herself advocating at all for suspended

sentences. We agree the prosecutor breached the plea agreement by not actually

recommending the district court suspend the sentences.

4The parents qualify as victims entitled to present victim-impact statements. Iowa Code

§ 915.10(3) (defining “victim” to include “immediate family members of a victim” who was under
age eighteen at the time of the offense). Davis does not challenge the prosecutor’s status as a
“designated representative” under section 915.21(1)(a) to present the victim-impact statements
to the court at sentencing.
 18

The problem in this case is the juxtaposition of the prosecutor’s

perfunctory endorsement of the PSI report’s recommendation for suspended

sentences immediately after she read the four victim-impact statements calling

for prison time, some urging the maximum sentences. The prosecutor should

have followed her reading of those statements by specifically recommending

suspended sentences and giving some reason in support of that

recommendation. Instead she simply paid cryptic lip service to the plea

agreement to abide by the PSI report’s recommendation, without saying aloud

the State supported suspended sentences.5 This is not a case where the plea

agreement merely obligated the prosecutor to remain silent and make no

recommendation at the sentencing hearing. To the contrary, the State agreed to

follow the PSI report’s recommendation for suspended sentences, and we must

hold the State to that commitment when Davis agreed to plead guilty “[i]n

exchange for that recommendation.”

Nothing in this opinion should be construed as undermining victims’

rights. We are not holding the prosecutor breached the plea agreement by

reading the victim-impact statements at sentencing. Rather, we hold the

prosecutor breached the parties’ plea agreement by failing to recommend

5The partial dissent relies on State v. Bokenyi, which concluded the prosecutor did not

breach the state’s plea agreement by referring to the victim’s letter to the court. 848 N.W.2d 759,
773–74 (Wis. 2014). But in Bokenyi, the plea agreement allowed the prosecutor to request a
prison sentence of up to four years, such that “the victim’s wishes were not necessarily at odds
with the State’s sentencing recommendation.” Id. at 773. The problem here is the prosecutor’s
failure to recommend suspended sentences as required under its plea agreement with Davis.
 19

suspended sentences as the plea agreement and our precedent required. The

State does not contend otherwise.

We do not mandate florid advocacy when the State agrees to recommend

a particular sentence. But “[w]e have made clear the prosecutor must do more

than simply recite the agreed recommended sentence.” Lopez, 872 N.W.2d at

173. The prosecutor is required 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.” Id. (alterations in original) (quoting

Bearse, 748 N.W.2d at 216). We define the prosecutor’s duty to “recommend” a

sentence as follows:

(1) “to mention or introduce as being worthy of acceptance, use, or
trial,” (2) “to make a commendatory statement about as being fit or
worthy,” (3) “to bring forward as being fit or worthy,” (4) “present
with approval,” (5) “indicate as being one’s choice for something or
as otherwise having one’s approval or support,” (6) “offer or suggest
as favored by oneself.”

Bearse, 748 N.W.2d at 216 (quoting Recommend, Webster’s Third New

International Dictionary (unabr. ed. 1993)). This prosecutor fell short of that

obligation. She said nothing to indicate that suspended sentences for Davis were

worthy of the court’s acceptance.

We reiterate our admonition to prosecutors in Lopez:

If the prosecutor believes incarceration is appropriate, the State
should not enter into a plea agreement to recommend probation.
Iowans are entitled to expect the state will honor its plea agreements
and sentencing recommendations that induce guilty pleas. Courts,
to protect the integrity of our criminal justice system, must intervene
when the government breaks its promises.
 20

872 N.W.2d at 180. If the prosecutor believed Davis deserved incarceration, she

should not have committed to recommending suspended sentences. Buyer’s

remorse does not excuse breaking a contract. “Our system of justice . . . does

not allow prosecutors to make sentencing recommendations with a wink and a

nod. The concept of justice has a far greater meaning.” Id. at 173 (omission in

original) (quoting Fannon, 799 N.W.2d at 523); see also United States v. Brown,

500 F.2d 375, 377 (4th Cir. 1974) (requiring the prosecutor’s recommendation

to be “expressed with some degree of advocacy”).

The remedy for the State’s breach is “resentencing by a different judge,

with the prosecutor obligated to honor the plea agreement and sentencing

recommendation.” Lopez, 872 N.W.2d at 181. “As federal appellate courts have

stated under similar circumstances, ‘We intend no criticism of the district judge

by this action, and none should be inferred.’ ” Id. (quoting United States v.

Cachucha, 484 F.3d 1266, 1271 (10th Cir. 2007)).

IV. Conclusion.

For these reasons, we vacate the decision of the court of appeals and

reinstate this appeal. We affirm Davis’s convictions and vacate his sentence. We

remand the case for resentencing by a different judge.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE

REMANDED FOR RESENTENCING.
 21

Appel, Mansfield, McDonald, and McDermott, JJ., join this opinion.

Christensen, C.J., files an opinion concurring in part and dissenting in part, in

which Oxley, J., joins.
 22

#20–0156, State v. Shane Davis

CHRISTENSEN, Chief Justice (concurring in part and dissenting in part).

A plea agreement is not a tool to conceal the impact of a defendant’s crime

on his victims from the sentencing court. Thus, while I agree with the majority’s

holding in parts III.A and III.B that we can address Shane Davis’s claim on direct

appeal,6 I cannot agree with the majority’s decision in part III.C to disregard the

rights of victims and turn prosecutors into cheerleaders for the defense when

they recommend a sentence pursuant to a plea agreement.

“The relevant inquiry in determining whether the prosecutor breached 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.” State v. Boldon,

954 N.W.2d 62, 71 (Iowa 2021) (quoting State v. Frencher, 873 N.W.2d 281, 284

6The outcome in this case should also serve as a lesson to the State, which apparently
assumed we would decline to address Davis’s claims on direct appeal when it chose not to present
any argument on the merits of Davis’s prosecutorial breach claim. The majority relies on the
State’s lack of argument—mentioning it four times—to support its conclusion that the prosecutor
breached the plea agreement, improperly suggesting the State concedes the breach by “not
contend[ing] otherwise.” But the State was not required to make any argument, see Iowa R. App.
P. 6.903(3) (allowing appellee to waive its right to file a brief at all), and the majority’s suggestion
that the State’s silence amounted to a concession is unfounded.
Last term, we cautioned the state against this approach in State v. Zacarias, 958 N.W.2d
573, 587 n.3 (Iowa 2021), when the state relied solely on error preservation arguments in
response to one of the defendant’s arguments and did not brief the merits. There, we stated,
This is the second case in as many months in which the State has relied on
procedural arguments without responding to the merits of a defendant’s claim.
We caution against this approach. While the State’s failure to brief the merits of
an issue does not entitle the defendant “to a reversal as a matter of right, . . . the
court may, within its discretion, handle the matter in a manner most consonant
with justice and its own convenience.”
Id. (omission in original) (quoting Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976)). That
sentiment still stands.
 23

(Iowa Ct. App. 2015)). Here, the plea agreement obligated the State to follow the

sentencing recommendation in the presentence investigation (PSI) report, which

recommended suspended sentences. That is exactly what the State did. No more

and no less.

“Victim impact evidence is simply another form or method of informing the

sentencing authority about the specific harm caused by the crime in question,

evidence of a general type long considered by sentencing authorities.” Payne v.

Tennessee, 501 U.S. 808, 825 (1991). Notably, Iowa Code section 915.21(1)(a)

(2019) requires the inclusion of victim-impact statements in PSI reports, and the

sentencing court specifically asked the prosecutor if there were “[v]ictim impact

statement[s] in this case.” The sentencing court was going to receive these

statements regardless of whether the prosecutor read them on the record or not,

and Davis’s attorney at sentencing acknowledged as much when he stated that

he had “no objection” to the prosecutor reading the statements because “they

[were] already attached to the presentence investigation report.” See State v.

Phillips, 561 N.W.2d 355, 359 (Iowa 1997) (holding the sentencing court could

consider the oral statement from the victim’s father at sentencing about the

impact of the defendant’s crime because it was “pertinent information” and

“merely repeated information contained in written material already provided to

both the court and defendant Phillips, who was present with counsel at the

hearing”).

As the majority recognizes, the sentencing court was entitled to consider

those statements. Nothing in the plea agreement limited the State’s ability to
 24

read those victim-impact statements to the judge at sentencing. Nor did the

State’s agreement to follow the sentencing recommendation in the PSI report

require it to disavow the victims’ own sentencing recommendations as set forth

in the victim-impact statements simply because they differed from the PSI

report’s recommended sentence.

Moreover, the majority fails to consider how important the rights of victims

are within our criminal justice system. Just as our system has the responsibility

to uphold the rights of the accused, it also has a “fundamental responsibility to

victims and witnesses to . . . assist them in overcoming emotional and economic

hardships resulting from criminal acts.” State v. Lopez, 872 N.W.2d 159, 175

(Iowa 2015) (quoting 1986 Iowa Acts ch. 1178, § 1). This is why our legislature

has enacted an entire chapter of the Iowa Code dedicated to victim’s rights. Id.;

see also Iowa Code chapter 915.

Iowa Code section 915.21(1)(a) allows victims to “present a victim impact

statement to the court” by filing “a signed victim impact statement with the

county attorney” that “shall be included in the presentence investigation report.”

“[I]t is essential to the purpose of the victim impact statement that the victim be

given an opportunity to fully convey the impact a crime has had.” State v. Sailer,

587 N.W.2d 756, 764 (Iowa 1998). Accordingly, “[u]nless requested otherwise by

the victim, the victim impact statement shall be presented at the sentencing

hearing in the presence of the defendant . . . . The victim impact statement may

be presented by the victim or the victim’s attorney or designated representative.”

Iowa Code § 915.21(1)(a). “When the term ‘shall’ appears in a statute, it generally
 25

connotes the imposition of a mandatory duty.” Ramirez-Trujillo v. Quality Egg,

L.L.C., 878 N.W.2d 759, 771 (Iowa 2016). In contrast, the legislature’s use of the

term “may” in a statute is “ordinarily a permissive word.” Iowa Nat’l Indus. Loan

Co. v. Iowa State Dep’t of Revenue, 224 N.W.2d 437, 440 (Iowa 1974). Thus, while

the statute gives permission to the “victim or the victim’s attorney or designated

representative” to present victim-impact statements, it does not impose a

limitation on who can present the statements such that the prosecutor in this

case was prohibited from doing so. See Iowa Code § 915.21(1)(a); cf. Kopecky v.

Iowa Racing & Gaming Comm’n, 891 N.W.2d 439, 444 (Iowa 2017) (“Given the

proximity of the words ‘may’ and ‘shall’ in section 99F.7(11)(a), we conclude the

intent of the legislature could not have been for ‘may’ to mean the same thing as

‘shall.’ ”).

Prosecutors play a key role in ensuring compliance with Iowa’s Victim

Rights Act. See, e.g., Iowa Code §§ 915.12(1) (“The county attorney shall notify

the victims in writing and advise them of their registration and rights under this

subchapter. The county attorney shall provide a registered victim list to the

offices, agencies, and departments required to provide information under this

subchapter for notification purposes.”), .13 (imposing requirements on the

county attorney to notify victims registered with the county attorney’s office of

various rights, including the right to present victim-impact statements). A

“prosecutor has no right or duty to prevent victim-impact statements allowed by

the Code.” Lopez, 872 N.W.2d at 174. Likewise, “prosecutor[s], regardless of any

plea agreement, cannot block victims or their properly designated
 26

representatives from giving victim-impact statements allowed by chapter 915.”

Id. at 178.

“Because victim rights compliance is essential to the sentencing hearing

and the factors that a court must weigh in exercising its discretion, consideration

of and commentary regarding the victim’s wishes may be relevant and

appropriate at the sentencing.” State v. Bokenyi, 848 N.W.2d 759, 772 (Wis.

2014). “In fact, a victim’s wishes may often come to bear in considering the need

to protect the public.” Id. at 773. Thus, “[a] prosecutor’s reference to a victim’s

letter will not automatically operate as a breach of the plea agreement.” Id.

For example, in State v. Bokenyi, the State of Wisconsin agreed to “limit

its sentencing recommendation to ‘the high end range of the PSI’ ” in exchange

for the defendant’s guilty plea to three of the ten charges against him. Id. at 764.

“Prior to offering argument on the sentence” at the sentencing hearing, “the

prosecutor read aloud a letter to the court from Sherri, the victim” about the fear

that she and her son—another victim—faced when thinking about “the day [the

defendant] will get out [to the public].” Id. at 764–65. The state concluded its

argument by making a sentencing recommendation that was “at the ‘high end

range’of the PSI” as agreed upon in the plea agreement. Id. at 766.

On appeal, the Wisconsin Supreme Court rejected a similar argument to

the one Davis now makes that the prosecutor breached the plea agreement by

reading part of the victim’s letter at sentencing because “the prosecutor went

beyond reciting the victim’s wishes and instead adopted them as his own.” Id. at

773. The court explained that the prosecutor’s sentencing recommendation was
 27

consistent with the plea agreement, and the prosecutor’s reference to the victim’s

letter did “not translate into a request for a longer sentence.” Id. Instead, the

court reasoned that “[t]he prosecutor used the letter as a way to illustrate ‘the

need to protect the public’ from Bokenyi, a proper factor for consideration at

sentencing.” Id. Similarly, the prosecutor’s reading of the victim-impact

statements at Davis’s sentencing hearing did “not translate into a request for a

longer sentence.” Id.; see also Phillips, 561 N.W.2d at 359 (holding the victim’s

father’s statements at the sentencing hearing qualified as pertinent information

for the sentencing court to consider).

In reaching the opposite conclusion, the majority overlooks dispositive

differences between this case and our precedent, particularly State v. Lopez.

There, the prosecutor introduced photos into evidence of a “child’s burn, bite

mark, and bruises inflicted by Lopez” at the sentencing hearing when cross-

examining the defendant’s character witnesses that the sentencing judge would

not have otherwise seen. Lopez, 872 N.W.2d at 178–81. The prosecutor engaged

in vigorous cross-examination of the character witnesses to imply “that Lopez

still had anger issues and might hurt another child if released on probation.” Id.

at 179. For instance, the prosecutor asked one witness “if he had seen the photos

[of the child’s injuries,] and then showed them to him, stating, ‘It’s pretty horrible

to do to a little 2-year-old, isn’t it?’ ” Id. Rightfully so, we held that “[t]he

prosecutor’s conduct was flatly inconsistent with the State’s plea agreement to

recommend probation.” Id. To support our holding, we cited State v. Urista, a

Kansas Supreme Court opinion, in which the court “held a prosecutor breached
 28

a plea agreement she had correctly recited by [describing the defendant as a very

dangerous man with absolutely no remorse, which] ‘effectively undermined the

sentencing recommendation.’ ” Id. (quoting State v. Urista, 293 P.3d 738, 750,

759 (Kan. 2013)).

But the prosecutor’s actions in this case are a far cry from the actions in

Lopez and Urista. Unlike those prosecutors, the prosecutor at Davis’s hearing

never introduced evidence that the sentencing court would not have otherwise

seen or made negative comments about the defendant through her own advocacy

to undermine the State’s sentencing recommendation. Despite the victims’ calls

for a harsher sentence, the prosecutor herself never advocated for a harsher

sentence than the PSI report’s recommended sentence, acting in compliance with

the plea agreement. The prosecutor took none of the following actions that our

appellate courts have previously held amounts to a breach of the plea agreement:

“proposing alternative sentences; by requesting ‘an appropriate sentence’ rather

than the agreed-upon sentence; by making a recommendation and then

reminding the court it is not bound by the plea agreement; or by emphasizing a

more severe punishment recommended by the presentence investigation

author.” Frencher, 873 N.W.2d at 285. Had the court asked if the prosecutor

agreed with the victims’ sentencing recommendations and then the prosecutor

agreed or in any other way endorsed said recommendation, the prosecutor would

have expressed a material reservation of the plea agreement in violation of our

precedent. Id.; see Boldon, 954 N.W.2d at 71–72 (discussing how a prosecutor
 29

breaches a plea agreement by expressly or implicitly expressing a material

reservation about the recommendation).

The prosecutor did not—as the majority misrepresents—pay “cryptic lip

service” to the plea agreement after reading the victims’ statements. To the

contrary, immediately after the prosecutor finished the last victim statement

with, “Sincerely, [A.T.],” reinforcing that she was reading the victim’s words, the

court asked for the State’s recommendation. The prosecutor’s next words were:

“Thank you, Your Honor. Your Honor, in this case the plea agreement was that

the State would follow the recommendation made by the presentence

investigation, so the State would join in those recommendations being made.” It

is highly unlikely the State would “join” the recommendations of the PSI report

if the State did not believe those recommendations were “worthy of acceptance.”

State v. Bearse, 748 N.W.2d 211, 216 (Iowa 2008) (quoting Recommend,

Webster’s Third New International Dictionary (unabr. ed. 1993)); see Join,

Webster’s Third New International Dictionary (unabr. ed. 2002) (“to connect or

associate with”). By “joining” in the recommendations of the PSI report, the

prosecutor directly followed the requirements of the plea agreement (The State

“agrees to follow the recommendations of a Presentence Investigation Report”)

and indicated to the court that the PSI report’s recommendation was “supported

by the State and worthy of the court’s acceptance.” Bearse, 748 N.W.2d at 216

(quoting State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999)). Nothing in the plea

agreement required the State to act as an advocate for a certain sentence beyond

simply following the sentencing recommendation in the PSI report, and the State
 30

did as it agreed when the prosecutor explicitly declared that the State would

follow and join in the recommendations being made in the PSI report. The cold

record does not support the majority’s supposition that the prosecutor paid

“cryptic lip service.”

The majority’s holding that the prosecutor had to explicitly recommend

“suspended sentences” instead of expressing her recommendation to go along

with the PSI report’s recommendation, which of course recommended suspended

sentences, sorely underestimates the ability of Iowa’s sentencing judges to read

PSI reports. Further, the majority’s conclusion that the prosecutor’s reading of

the victim-impact statements and subsequently joining the PSI report’s

recommendation amounted to a “juxtaposition” takes for granted the ability of

sentencing judges to distinguish between the prosecutor’s own statements and

what the prosecutor made clear were statements from the victims. Cf. Sailer, 587

N.W.2d at 764 (“[W]e trust that our district courts, when weighing such [victim-

impact] statements as part of the sentencing determination, will filter out

improper or irrelevant evidence.”).

Finally, the majority goes too far in holding that the prosecutor should not

only have specifically recommended suspended sentences but also that she

should have given “some reason in support of that recommendation.” The

defendant had his own legal counsel to justify that recommendation. “The State’s

recommendation . . . carries with it the State’s implicit representation it is

‘worthy of the court’s acceptance’ ” absent behavior to the contrary—behavior

that was not present here. State v. Schlachter, 884 N.W.2d 782, 786 (Iowa Ct.
 31

App. 2016) (quoting Horness, 600 N.W.2d at 299); see also Boldon, 954 N.W.2d

at 71–72. “To conclude otherwise is to question the integrity of the prosecutor.”

Schlachter, 884 N.W.2d at 786–87. “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.” Id. at 786.

Victims have the statutory right to convey their experiences and

recommendations to the sentencing court. Oftentimes, those recommendations

will be the maximum punishment. But we cannot equate the victim’s advocacy

for punishment to the prosecutor’s recommendation at sentencing. To do so

would undercut the purpose of victim-impact statements and undermine the

autonomy of the victim’s experiences and recommendations. For these reasons,

I cannot agree with the majority that the prosecutor breached the plea agreement

by reading victim-impact statements at sentencing that were already part of the

PSI report before the sentencing court.

Oxley, J., joins this concurrence in part and dissent in part.