                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0069
                               Filed April 16, 2014

EDDIE CHEST,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      A criminal defendant appeals from denial of his application for

postconviction relief. SENTENCE VACATED AND REMANDED.



      Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Ralph Potter, County Attorney, and Christine O. Corken,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                          2



MULLINS, J.

       Eddie Chest appeals from a ruling denying him postconviction relief

following his guilty pleas to attempted murder and robbery in the first degree.

Chest raises three claims: first, he contends trial counsel was ineffective in failing

to object after the State allegedly breached their plea agreement; he further

contends appellate and postconviction counsel were ineffective in failing to raise

the claim in those proceedings.         Second, he contends trial counsel was

ineffective in failing to withdraw his guilty plea after the alleged breach of the plea

agreement. Third, he contends the district court imposed the sentence illegally

when it failed to comply with sentencing requirements under Iowa Code section

901.5 (2009); alternately, he argues trial, appellate, and postconviction counsel

were ineffective in failing to raise this claim. We find the State breached the plea

agreement. Trial counsel should have raised an objection, and Chest suffered

prejudice as a result. Therefore, we vacate the sentence and remand for a new

sentencing hearing.

I.     Facts and Background Proceedings.

       On December 3, 2009, Eddie Chest and his son robbed a pub in

Dubuque. Chest and his son wore ski masks and bore sawed-off shotguns.

There were about twenty diners in the pub eating lunch. Chest and his son

entered, pointed the shot guns at the diners, and forced an employee to give

them money from the cash register and safe.            Police officers responded to

reports of a robbery at the pub. While escaping from the scene on foot, Chest
                                         3



fired his shotgun at a pursuing police officer.      The shot ricocheted off the

sidewalk and hit the officer in the abdomen, wrist, thigh, and arm.

      Chest and the State reached a plea agreement that Chest would plead

guilty to attempted murder and robbery in the first degree. The plea to attempted

murder was an Alford plea. Each charge carried a twenty-five year sentence. In

exchange, the State would recommend concurrent sentences.               At the plea

hearing, the district court repeatedly informed Chest that the negotiations with the

State were not binding upon the court. Chest stated he understood this and

wished to proceed with his pleas. The district court accepted Chest’s pleas,

ordered a presentence investigation, and set the case for a sentencing hearing.

The presentence investigation report detailed an extensive criminal history

involving multiple periods of incarceration. Chest himself stated he had spent

twenty-nine years in prison. At the time of the robbery, Chest had been out of

prison on parole only five months. He was seventy-two-years old at the time of

sentencing.   The presentence investigation report recommended twenty-five

years on each count, to be served consecutively.

      At the sentencing hearing, the prosecutor stated the following:

              We’re here today for the sentencing of Mr. Chest. The State
      stands by its original plea negotiation, which was for a concurrent
      sentence of twenty-five for the attempted murder and twenty-five for
      the armed robbery. We made no apologies for when we entered
      into it intentionally knowing this to be the correct remedy for this
      particular offense.
              But this is a very hard day to stand before the Court. This is
      a crime that impacts all kinds of victims in this community. The
      Defendant came to town, solely to commit a crime, solely to commit
      a robbery. It was not just the victim, the bar patrons, but the—that
      were victimized. That were told to lay on the ground and have guns
      pointed at them when they went just to have a beer and a lunch.
                                         4



       We have the people walking or driving down Central Avenue, which
       is one of our main thoroughfares, on a—on a work day, who have
       the right to be in that area, nonetheless, without a shotgun going
       off. We have the people who send off their spouses, who
       happened to be police officers, in the morning to work, hoping and
       having faith that they will come home intact and alive at the end of
       the shift, and we have a community that believes that when we put
       police officers in uniforms and give them guns and send them out
       into the community, that they are there and they are going to
       protect us.
              Nobody anticipated this would result in what it did result in.
       The State has great belief in the integrity of the court system, and
       that the court system can solve these problems. Not solve these
       problems, but can address these problems in the way that is most
       appropriate.      The State has no qualms about making a
       recommendation for a susp—or excuse me, for a concurrent
       sentence in this matter because of Mr. Chest’s age and because of
       Mr. Chest’s willingness to come forward and admit to what he did.
       Our community has the right to be protected. This kind of crime
       runs at the entire fabric of our community, not just the individual
       persons who were hurt, but the community has the right to believe
       that we are going to be safe going through an ordinary course of
       business.
              I believe that this remedy deals appropriately with this, with
       this Defendant; that this is a way not only to keep the community
       safe, but to send the message that this behavior will not be
       tolerated, that we cannot—we cannot live like this. We cannot
       expect people to live like this. We cannot put people in uniforms
       and send them off to work and tell them that, if you’re shot at, we
       don’t really much care. We are not going to live that way. For
       these reasons, Your Honor, after entering into the negotiations that
       we did, we stand by it, we believe in it, we stand by it today. We
       believe it’s an appropriate sentence, and it’s the correct sentence in
       this particular matter.

       Chest’s trial counsel then made a statement recommending concurrent

sentences. The court imposed consecutive twenty-five-year sentences, stating

the following:

              A couple of things cause me very severe concern. I look
       through, the pre-sentence investigation, Mr. Chest, and I realize
       that at your age, a good portion of your life has been spent doing
       things that are illegal and against the norms of society. You woke
       up that morning, you left Freeport, and you came here, instead of
                                   5



the design to go to the aquarium, to the riverboat, you came here
with the design to commit a crime.
        ....
        . . . [Y]ou didn’t come here with any other design. You had
no reason to be here.
        ....
        We like to think that this is a safe community. You know, we
all live here with children and families. We all respect the officers
that try to protect that. They put their lives on the line every day, to
make sure that this is a safe community. And the other thing that
causes me severe concern is, this was broad daylight. That’s as
bold as any criminal conduct I have ever witnessed, in my eighteen
years of practicing law. And I remember the day, I remember when
it came across, the whole entire city, there was a crime committed
in broad daylight, and Officer Baxter was shot. That was a horrible
thing for us to hear. Horrible.
        And you were on parole. So I have no hope and no faith,
based on your history, and what you did, that if I did give you a
concurrent sentence, and you did have any possibility of getting
out, that you wouldn’t do something again. So I really thought long
and hard about this. I spent a good deal of time here last night
going over this and trying to figure out what it is that I could say to
you.
        Most of the time, when I see young men come into this
courtroom, I try to talk to them about rehabilitation. Change your
thought process. Move forward with your lives. Become very good
citizens based on the fact that you’re learning from your
experiences. You don’t seem to be able to do that, sir. And I
guess the reason for what your children do, the only thing I can do
is point to what you did. Twenty children. Twenty children, put into
this world, that have you as a role model. One crime after the
other.
        I have a great deal of respect for this police force and our
sheriff’s office here in this county. They come in here every day.
When they testify, they provide information to this Court. I hope
that I can trust everything that they tell me. I hope that they are
doing exactly what they are taught and trained to do, and I know
every day, they are leaving someone at home, and someone who’s
concerned about whether or not what you did that day may result in
the loss of a family member. The loss of a father in Mr. Baxter’s
case. The loss of a husband, a son. You had a sawed-off shotgun.
Not just something simple. You disguised yourself. You went in
there, and you put those people in a terrible mental state. You
have to think about that. In broad daylight.
        And concurrent sentence, I understand, is what you
negotiated for. I did express to you at the time that I took that plea
                                             6



       that I am not bound by that, and I won’t be bound by that. I look at
       this PSI, and I indicated, and I’ll tell you again, I have given it a
       great deal of consideration, and I will not impose a concurrent
       sentence.

       Chest filed a motion to reconsider the sentence because it was contrary to

the plea agreement, which the court denied. On direct appeal, Chest argued the

district court considered an inappropriate factor, the number of children he had

fathered, in sentencing. State v. Chest, No. 11-0262, 2011 WL 4952951, at *1

(Iowa App. Oct. 19, 2011). We affirmed the sentences, finding the district court

did not consider this factor inappropriately. Id. at *3. The supreme court denied

further review. Id.

       On his postconviction application Chest asserted his trial counsel informed

him the court would certainly accept the State’s recommendation of concurrent

sentences if Chest agreed to plead guilty.           Chest also argued counsel was

ineffective in failing to file a motion in arrest of judgment asserting the attempted

murder plea lacked a factual basis. After taking testimony from trial counsel, 1 the

postconviction court found trial counsel had adequately informed Chest that the

plea bargain was not binding on the court. The postconviction court also found

that because there was a clear factual basis for the plea, trial counsel had no

duty to file a motion in arrest of judgment and, therefore, was not ineffective. On

appeal from the postconviction court, Chest raises three different claims




1
  Chest had two attorneys at trial. Both testified to substantially the same facts regarding
their advice to Chest regarding the likelihood of the court accepting the State’s
recommendation pursuant to the plea bargain.
                                         7



regarding trial counsel’s ineffectiveness, arguing appellate and postconviction

counsel were ineffective in not raising them prior to this appeal.

II.    Standard of Review.

       We generally review postconviction proceedings for correction of errors at

law. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).           However, when the

applicant’s claims are of a constitutional nature, as in ineffective-assistance-of-

counsel claims, we engage in a de novo review. Id.

III.   Analysis.

       A.     Failure to Object to Breach of Plea Agreement.

       In evaluating defense counsel’s performance, we presume counsel
       is competent. To overcome this presumption, the defendant must
       prove that counsel’s performance fell below the normal range of
       competency. Our task, then, is to determine whether [Chest] has
       demonstrated that a reasonably competent attorney would have
       objected to the prosecutor’s statements as a breach of the
       negotiated plea agreement. . . . [D]efense counsel has not failed to
       perform an essential duty when counsel fails to raise a claim or
       make an objection that has no merit. Accordingly, the defendant’s
       counsel here cannot be faulted for failing to object to the
       prosecutor’s statements as being a breach of the plea agreement if,
       in fact, they were not contrary to the State’s agreement. Therefore,
       we first consider whether the State breached the plea agreement.

State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999) (internal citations omitted).

We then decide whether trial counsel provided ineffective assistance in failing to

object to the breach.

              1.     Did the State Breach the Plea Agreement?

       Chest argues the prosecutor cannot make a recommendation and then

argue against it, but must present the recommended sentence with his or her

approval. Chest asserts the prosecutor’s statement indicated to the court that a
                                          8



concurrent sentence was not genuinely worthy of the court’s acceptance, and

arguing against the recommendation constituted a breach of the plea agreement.

The prosecutor did state multiple times that she thought the plea was appropriate

“because of Mr. Chest’s age” and his “willingness to come forward and admit to

what he did.” However, the prosecutor went on at some length to emphasize that

Chest came to the area solely to commit the robbery and that his actions

victimized the bar patrons and other residents. The prosecutor also stated it was

“a hard day to stand before the court,” that the community “cannot live like this,”

and that “this kind of crime runs at the entire fabric of our community.”

       Our supreme court has determined that when the State assumes an

obligation to make a certain sentencing recommendation as part of a plea

agreement, “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.

State v. Bearse, 748 N.W.2d 211, 215-216 (Iowa 2008) (internal quotations and

citations omitted).
                                       9



      Despite the prosecutor’s assurances that the recommendation was

appropriate, her disclosure that it was “hard to stand before the court” and give

this recommendation, her evocative recounting of the alarming facts of the

case—that Chest traveled to the area solely to commit a crime, that it occurred

“in broad daylight,” that such crime deeply affects the community—and her

suggestion that the sentence sent a message to law enforcement officers and

their families that “we don’t care” overall did not give the impression that the

prosecutor approved of the recommendation or sincerely commended it to the

court as being worthy of the court’s acceptance.       The court’s reasoning in

imposing consecutive sentences directly echoes many of the points in the

prosecutor’s statements.      The   prosecutor’s   reluctant and contradictory

statements made it all too easy for the court to disregard the State’s and the

defendant’s recommendation and impose the greater sentence recommended by

the PSI. Because plea agreements are “essential to the efficient administration

of justice,” and because 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.” See Bearse, 748

N.W.2d at 215.    The prosecutor’s recommendation here failed to meet that

standard; therefore, we find the State breached the plea agreement.

             2.     Was Trial Counsel Ineffective in Failing to Object to the
                    State’s Breach of the Plea Agreement?

      To prevail on a claim of ineffective assistance of counsel, the applicant

must prove by a preponderance of the evidence (1) trial counsel failed to perform
                                        10



an essential duty and (2) prejudice resulted. State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006).

      Trial counsel has a duty to object where the State fails to fulfill its

obligations pursuant to a plea agreement. See State v. Fannon, 799 N.W.2d

515, 522 (Iowa 2011).     Here, trial counsel failed to object to the State’s breach

of the plea agreement, or request Chest be given an opportunity to withdraw his

guilty pleas or a new sentencing hearing before a different judge.          See id.

Consequently, counsel failed in an essential duty.

      To establish prejudice, Chest must show that “the outcome of the

proceeding would have been different.” Id. at 523. “A defendant who pleads

guilty in reliance on a promise from the State suffers prejudice when the State

later breaks that promise.” State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).

“Where a prosecutor breaches a plea agreement, the remedy is either specific

performance of the agreement, or withdrawal of the guilty plea.” State v. Carillo,

597 N.W.2d 497, 500 (Iowa 1999). Trial counsel’s failure to object deprived

Chest of a sentencing hearing free from the influence of the prosecutor’s breach

and of either of the possible remedies. See Fannon, 799 N.W.2d at 523; Carrillo,

597 N.W.2d at 501. Consequently, trial counsel was ineffective.

      B.       Failure to Withdraw Guilty Plea.

      Chest argues his trial counsel was ineffective in failing to withdraw the

guilty pleas when the State breached the plea agreement. He further asserts,

alternately, counsel should have withdrawn his guilty plea at the sentencing

hearing when the court indicated it would not impose concurrent sentences. He
                                         11



asserts counsel could have withdrawn the plea at any time prior to judgment,

pursuant to Iowa Rule of Criminal Procedure 2.8(2).

       Iowa Rule of Criminal Procedure 2.10(4) provides:

       If, at the time the plea of guilty is tendered, the court refuses to be
       bound by or rejects the plea agreement, the court shall inform the
       parties of this fact, afford the defendant the opportunity to then
       withdraw defendant’s plea, and advise the defendant that if
       persistence in a guilty plea continues, the disposition of the case
       may be less favorable to the defendant than that contemplated by
       the plea agreement. If the defendant persists in the guilty plea and
       it is accepted by the court, the defendant shall not have the right
       subsequently to withdraw the plea except upon a showing that
       withdrawal is necessary to correct a manifest injustice.

(Emphasis added.) Although the court repeatedly informed Chest at the plea

hearing that it would not be bound by the plea agreement, Chest chose to persist

in the guilty plea. By the end of the plea hearing, there was no cause “necessary

to correct a manifest injustice” to withdraw the plea.

       We have already stated that trial counsel was ineffective in failing to object

to the breach in the plea agreement at the sentencing. The appropriate remedy

at that time would have been either specific performance of the agreement, or

withdrawal of the guilty plea. See Carrillo, 597 N.W.2d at 500. Chest asserts,

“[I]f counsel had withdrawn the plea, it is likely that Mr. Chest could have secured

a plea agreement for a single 25 year sentence.” Chest cites no evidence in the

record to support this assertion and we find none. Chest suffered prejudice as a

result of counsel’s failure to object and one possible remedy was withdrawal of

the guilty plea.     Therefore, counsel was ineffective in failing to attempt to

withdraw the plea.
                                         12



      C.     Failure to Comply with Sentencing Requirements of Iowa Code
             Section 901.5(9)(a).

      Chest’s final argument is that the court failed to announce publicly, as

required during sentencing under Iowa Code section 901.5(9)(a), that his term of

incarceration could be reduced for earned time, work credits, and program

credits. Alternately, Chest argues his counsel were ineffective in failing to assert

this claim as a ground for appeal and postconviction relief.

      In State v. Johnson, 513 N.W.2d 717, 720 (Iowa 1994), our supreme court

stated, “[I]n order to invalidate proceedings taken in disregard of stated

procedural requirements, it must be determined that the omitted duty is essential

to accomplishing the purpose of the statute as applied to the party seeking to

take advantage of the omission.” The Court further determined that

      [T]he manifest intent of the requirement to announce the potential
      for sentence reduction under section 901.5(9) is to inform the public
      of the true dimension of the sentence imposed. While the court’s
      responsibility to comply with this directive is essential to that goal, it
      serves no function in imparting information to the defendant that is
      necessary for a valid plea and sentencing.

Johnson, 513 N.W.2d at 720. Consequently, a claim under this code section

would have failed. Further, counsel has no duty to assert a meritless claim.

State v. Flintel, 689 N.W.2d 95, 104 (Iowa 2004). Therefore trial, appellate, and

postconviction counsel were not ineffective as to this claim.

IV.   Remedy.

      Chest asks for this court to vacate his convictions and sentence. We have

already stated the possible remedies for the State’s breach of the plea

agreement are withdrawal of the plea or specific performance of the agreement.
                                       13



Carrillo, 597 N.W.2d at 500. It is within the court’s discretion which remedy to

use. State v. Hinners, 471 N.W.2d 841, 845 (Iowa 1991) (citing Santobello v.

New York, 404 U.S. 257, 263 (1971)); accord State v. Wenzel, 306 N.W.2d 769,

771 (Iowa 1981)).

        Chest bargained for the State to recommend concurrent sentences in a

manner consistent with the established concept of a recommendation.          The

prosecutor’s reluctant and contradictory statements breached that agreement

and tainted the entire sentencing proceeding. See State v. King, 576 N.W.2d

369, 371 (Iowa 1998). On appellate review, we must determine the appropriate

remedy for remand. Chest provides no compelling reason for us to find the guilty

plea was defective or constitutionally infirm.   Thus, we reject the remedy for

which he argues—withdrawal of his guilty plea. The central claim of his appeal is

that he did not get the benefit of the plea bargain that he negotiated with the

State. We agree. The appropriate remedy, however, is that Chest should get

the benefit of his bargain: a hearing before a new sentencing judge with a

meaningful recommendation from the prosecutor that is consistent with the terms

of the plea agreement and the established standard of a recommendation.

V.    Conclusion.

      We find the State breached the plea agreement by giving a reluctant and

contradictory recommendation for concurrent sentences that fell short of the

established standard. Trial counsel was ineffective in failing to object to the

State’s breach. Chest was prejudiced by the sentencing hearing tainted by this

breach. We vacate the sentence and remand for proceedings before a new
                                     14



judge and order that the State specifically comply with the plea agreement it

negotiated.

      SENTENCE VACATED AND REMANDED.
