IN THE COURT OF APPEALS OF IOWA
No. 14-1021
Filed June 24, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHNNATHAN MONROE FRENCHER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger, Judge.
The defendant appeals his conviction following a guilty plea. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Darrel Mullins,
Assistant Attorneys General, John P. Sarcone, County Attorney, and Joseph
Crisp, Assistant County Attorney, for appellee.
Considered by Tabor, 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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MCDONALD, J.
Defendant Johnnathan Frencher claims his plea counsel provided
constitutionally ineffective representation by failing to object to the prosecutor’s
alleged breach of the parties’ plea agreement. We review claims of ineffective
assistance of counsel de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006). Ordinarily, ineffective-assistance-of-counsel claims are preserved for
postconviction relief actions. See State v. Mulder, 313 N.W.2d 885, 890 (Iowa
1981). Where, as here, the record is sufficient to evaluate the merits of the
claim, the matter may be resolved on direct appeal. See Iowa Code § 814.7(2);
State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). On de novo review, we
conclude that Frencher failed to establish that the prosecutor breached the
parties’ plea agreement and, as a consequence, that his counsel rendered
constitutionally deficient legal representation.
Frencher was charged by trial information with possession of a controlled
substance (marijuana) with intent to deliver, in violation of Iowa Code section
124.401(1)(d) (2013), and carrying a concealed weapon, in violation of section
724.4(1). The parties entered into a plea agreement: Frencher agreed to plead
guilty to the possession charge without any sentencing enhancement, the State
agreed to dismiss the weapons charge, and the parties would jointly recommend
a suspended sentence with probation. At the time of sentencing, the prosecutor
recommended a “suspended sentence with probation.” Although the parties
jointly recommended a suspended sentence, the district court granted Frencher a
deferred judgment, placed him on probation for five years, and ordered
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placement in the Fort Des Moines residential facility when space became
available. Subsequently, the defendant filed a motion to correct illegal sentence,
arguing that placement in a residential facility was an unlawful condition of a
deferred judgment. The district court granted the motion, vacated the prior order,
convicted the defendant of the possession charge, sentenced the defendant to
five years’ incarceration, suspended the sentence, placed the defendant on
probation for five years, and ordered placement at the Fort Des Moines
residential facility. Frencher timely filed this appeal.
Frencher claims that his Sixth Amendment right to the assistance of
counsel was violated when his counsel failed to object to the prosecutor’s alleged
breach of the plea agreement. Specifically, Frencher contends the prosecutor
emphasized negative information regarding Frencher during the initial sentencing
proceeding, which effectively undercut the recommendation for a suspended
sentence.
To establish a claim of ineffective assistance of counsel, the defendant
must establish that trial counsel failed to perform an essential duty and that this
failure resulted in prejudice. See Straw, 709 N.W.2d at 133 (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). The claim fails if the defendant is
unable to establish either element. See State v. Fountain, 786 N.W.2d 260, 265-
66 (Iowa 2010). If the State breaches a 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). To
establish prejudice, Frencher must demonstrate that the outcome of the
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sentencing proceeding would have been different. See State v. Fannon, 799
N.W.2d 515, 523 (Iowa 2011). This does not necessarily require the defendant
to establish he would have received a different sentence. See id. Instead, the
outcome would have been different because the defendant would have been
entitled to withdraw his guilty plea or be resentenced in an untainted proceeding.
See State v. Carillo, 597 N.W.2d 497, 501 (Iowa 1999).
As a general rule, defense counsel has no duty to raise an issue that is
without merit. See Fannon, 799 N.W.2d at 520. “We, therefore, first consider
whether the State breached the plea agreement during the sentencing hearing.”
Id. In the absence of a breach, defense counsel had no reason or duty to object
to the prosecutor’s remarks. When the plea agreement calls for the State to
make a sentencing recommendation to the court “mere technical compliance is
inadequate; the State must comply with the spirit of the agreement as well.”
State v. Horness, 600 N.W.2d 294, 296 (Iowa 1999).
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 informing the court of
the promise the State has made to the defendant with respect to
sentencing. The State must actually fulfill the promise. Where the
State has promised to “recommend” a particular sentence, we have
looked to the common definition of the word “recommend” and
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 215-16.
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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. See Fannon, 799
N.W.2d at 522 (noting counsel has a duty to ensure the defendant receives the
“benefit of the agreement”). Where the State technically complied with the
agreement by explicitly recommending the agreed-upon sentence but expressed
material reservations regarding the plea agreement or sentencing
recommendation, it can be fairly said the State deprived the defendant of the
benefit of the bargain and breached the plea agreement. See United States v.
Cachucha, 484 F.3d 1266, 1270-71 (10th Cir. 2007) (“While a prosecutor
normally need not present promised recommendations to the court with any
particular degree of enthusiasm, it is improper for the prosecutor to inject material
reservations about the agreement to which the government has committed
itself.”).
The expression of a material reservation regarding the plea agreement or
sentencing recommendation can be explicit or implicit. For example, the
prosecutor may explicitly express regret for entering into the plea agreement.
See, e.g., State v. Hickman, No. 14-0269, 2014 WL 5251116, at *2-3 (Iowa Ct.
App. Oct. 15, 2014) (holding the prosecutor breached the plea agreement when
he stated he had difficulty making the agreed upon sentencing recommendation).
The prosecutor may also implicitly express material reservation to the plea
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agreement or recommended sentence in a number of ways. For example: by
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.
See, e.g., Bearse, 748 N.W.2d at 216 (holding the prosecutor breached the plea
agreement by suggesting greater punishment was warranted); State v. Horness,
600 N.W.2d at 300 (holding the prosecutor breached the plea agreement by
informing the court of alternative recommendation and breached the plea
agreement by requesting “an appropriate sentence”); Chest v. State, No. 13-
0069, 2014 WL 1494900, at *5 (Iowa Ct. App. Apr. 16, 2014) (holding State
breached plea agreement where prosecutor expressed it was “hard to stand
before the court” and give the recommendation and emphasized facts of the
case); State v. Dudley, No. 09-1772, 2010 WL 3157757, at *1-2 (Iowa Ct. App.
Aug. 11, 2010) (holding State breached plea agreement where prosecutor made
agreed upon recommendation but called presentence investigation (“PSI”) writer
as witness to “clarify” position on recommending a more severe sentence).
We conclude the prosecutor did not breach the plea agreement. While the
prosecutor in this case discussed Frencher’s criminal history and some of the
negative information contained in the PSI, the prosecutor did so only to provide
context to the sentencing recommendation. The prosecutor strongly advocated
for the recommended sentence, stating that Frencher should be given the
opportunity for probation and could be successful on probation despite
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Frencher’s criminal history: “The State believes that with the proper
mentoring/programming that he could be successful . . . . That’s if he applies
himself and decides to apply himself. It appears to me that when he is motivated
to do something, that he can do so.” The prosecutor concluded, “If Mr. Frencher
can use that as a positive and make honest decisions, . . . the State believes that
he can be successful while on probation.” At no point did the prosecutor express
a material reservation regarding the plea agreement or the sentencing
recommendation. His statements were consistent with the common purpose of
the agreement. See, e.g., State v. Brocato, No. 16-0565, 2014 WL 7343462, at
*1 (Iowa Ct. App. Dec. 24, 2014) (“[The State] did not undercut its promise by
making ‘alternative recommendations,’ suggesting a more severe sentence as in
Horness. Neither did the State suggest a more severe punishment should be
imposed by reminding the court of the recommendation of presentence
investigation report and informing the court it was not bound by the plea
agreement.”); State v. Pearl, No. 13-0796, 2014 WL 1714490, at *3 (Iowa Ct.
App. Apr. 30, 2014) (holding no breach where the prosecutor provided context
but did “not propose alternative sentences or reference the sentencing
recommendation contained in the presentence investigation report” and “urge[d]
the court to adopt the terms of the agreement and sentence Pearl accordingly”).
Because the State did not breach the plea agreement, Frencher’s counsel
had no duty to lodge an objection to the prosecutor’s statements. See Bearse,
748 N.W.2d at 214-15. Thus, Frencher’s claim of ineffective assistance of
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counsel fails. For these reasons, we affirm the defendant’s conviction and
sentence.
AFFIRMED.
State of Iowa v. Johnnathan Monroe Frencher
Combined Opinion