                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0032
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREW WILLIAM SCHLACHTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers,

District Associate Judge.



      A defendant appeals from his sentence following a plea to operating while

intoxicated, second offense. AFFIRMED.



      Darrell G. Meyer, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

         Andrew William Schlachter pled guilty to operating while intoxicated

(OWI), second offense, pursuant to a plea agreement. The sentencing court

entered a sentence exceeding the sentence the State recommended pursuant to

the plea agreement.         Schlachter’s counsel did not object to the State’s

recommendation, and Schlachter has appealed alleging ineffective assistance of

counsel.

   I. Background Facts and Proceedings

         Schlachter was initially charged with driving while intoxicated, third

offense, and other misdemeanor charges. The plea agreement reached between

Schlachter, his counsel, and the State provided as follows.

         State will amend to OWI 2nd
         Δ will plead
         State will recommend 180 days
         all but 30 suspended
         Minimum fine
         Dismiss simples

The State amended the charge to a second-offense OWI. Schlachter entered a

written plea of guilty to the amended charge. The plea was accepted by the

court.    The court asked the State at the sentencing hearing if it had “any

evidence, arguments, or recommendations it would like to present.” The State

responded as follows:

               The State has no evidence to present today. By way of a
         recommendation, the State is recommending the defendant be
         sentenced to 180 days in the county jail, but that all but 30 of those
         days be suspended and he be given a statutory minimum fine of
         $1,875. Additionally, as part of the plea agreement, the State has
         agreed to request dismissals of the related simple misdemeanors.
         Defendant has agreed to pay the costs on those.
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The court conducted an inquiry of Schlachter, and he confirmed he agreed to pay

the costs on the simple misdemeanors.             The court then requested the

prosecution proceed.      The prosecutor responded by setting out Schlachter’s

criminal history. The prosecutor’s rendition of Schlachter’s criminal history was

confirmed by his counsel. Schlachter and his counsel were afforded his right of

allocution, and Schlachter responded with a detailed statement that was

amplified by his counsel. The statements included Schlachter’s family situation,

his employment history, the importance of his employment, and a rendition of his

criminal history. The State made no objection and offered no rebuttal to the

statements made. The court immediately pronounced sentence and, in addition

to the minimum fine and other matters not relevant to this appeal, committed

Schlachter to the director of adult corrections for a period not to exceed two

years and ordered mittimus to issue immediately. The court gave reasons for the

sentence it had pronounced.        Schlachter appeals, alleging the State did not

appropriately follow the plea agreement and his counsel was ineffective for failing

to object to the prosecutor’s rendition of Schlachter’s criminal history.

   II. Error Preservation

         An ineffective-assistance-of-counsel claim is an exception to the usual

requirement of error preservation. State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006).

   III. Scope of Review

         Claims of ineffective assistance of counsel arising from a failure to object

to the breach of a plea agreement are reviewed de novo. State v. Lopez, 872

N.W.2d 159, 168 (Iowa 2015). When the record is adequate to determine an
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ineffective-assistance-of-counsel claim, it will be decided on direct appeal. State

v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).            In this case, the record is

adequate to permit us to decide the claim on direct appeal.

   IV. Discussion

       To prevail on a claim of ineffective assistance of counsel the claimant

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

an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001). Generally failure to establish either prong precludes relief, but

when it is alleged that counsel was ineffective for failing to object to the breach of

a plea agreement, the claimant is not required to establish the outcome would

have been different. Lopez, 872 N.W.2d at 169. A modification of the prejudice

element is based on the defendant’s right to withdraw a plea if the State has

violated the plea agreement.        Id.   A claim of ineffective assistance must

overcome the presumption that counsel is competent.            Taylor v. State, 352

N.W.2d 683, 685 (Iowa 1984). Counsel is not ineffective for failing to make a

meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

       Failure of counsel to object to a prosecutor’s breach of a plea agreement

is a failure to perform an essential duty within the meaning of the ineffective-

assistance-of-counsel claim. Lopez, 872 N.W.2d at 169. The ultimate question

in this case is whether the prosecutor breached the plea agreement.             More

specifically, the case under consideration raises the issue of what the prosecutor

must say in presenting a plea agreement to the sentencing court.             Besides

Lopez, our supreme court has considered the issue in three other recent cases—

State v. Fannon, 799 N.W.2d 515 (Iowa 2011); State v. Bearse, 748 N.W.2d 211
                                        5

(Iowa 2008); and State v. Horness, 600 N.W.2d 294 (Iowa 1999). In each case

cited, the sentencing court imposed a harsher sentence than the sentence

proposed in the plea agreement.     Fannon, 799 N.W.2d at 518; Bearse, 748

N.W.2d at 213; Horness, 600 N.W.2d at 297. Starting with Horness, the court

has held it is a prosecutor’s obligation to not only recite the recommended

sentence but also indicate that it is “worthy of the court’s acceptance.”   600

N.W.2d at 299-300.

      In United States v. Benchimol, 471 U.S. 453, 455 (1985), the United

States Supreme Court was confronted with a sentencing pursuant to a plea

agreement where the prosecutor had made a recommendation but made no

efforts to explain the leniency offered in the plea agreement and left the

impression of less than enthusiastic support for the leniency recommended. The

Court held that unless the plea agreement required the prosecutor to explain the

leniency offered or to support it with enthusiasm there was no requirement that

he do so. Benchimol, 471 U.S. at 456.

      In light of Benchimol, the State in Lopez requested the Iowa Supreme

Court reexamine its language in its holdings indicating that the State must

indicate that the plea agreement is “worthy of the court’s acceptance.” Lopez,

872 N.W.2d at 179 n.7. The Iowa Supreme Court refused to do so, noting that

Federal Rule of Procedure 11 regarding plea agreements is much more

elaborate than Iowa Rule of Criminal Procedure 2.10(1). Id. Our supreme court

did, however, favorably quote United States v. Cachucha, 484 F.3d 1266, 1270-

71 (10th Cir. 2007), in stating: “While a prosecutor normally need not present

promised recommendations to the court with any particular degree of
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enthusiasm, it is improper for the prosecutor to inject material reservations about

the agreement to which the government has committed itself.” Id.

      An examination of Horness, Bearse, Fannon, and Lopez reveals the

holdings have been consistent with the cited test set out in Cachucha. In each

case, the prosecutor made statements that undermined the plea agreement. In

Horness, the prosecutor referred to a harsher alternative recommendation made

by the presentence investigation report (PSI) and detailed facts that would

support the PSI’s recommendation.       600 N.W.2d at 296-97.      In Bearse, the

prosecutor suggested an alternative recommendation, again as suggested by the

PSI, and reminded the court it was not bound to follow the plea agreement. 748

N.W.2d at 216. In Fannon, the prosecutor initially recommended consecutive

sentences on two felony charges based on “compelling reasons” and then

corrected the recommendation to allow the court to determine whether

concurrent or consecutive sentences should be entered, which was consistent

with the plea agreement. 799 N.W.2d at 518. In Lopez, a child abuse case, the

prosecutor entered pictures of the victim that reflected the injuries and cross-

examined the defendant’s witnesses at the sentencing hearing by asking them if

they had seen the victim after being injured or the pictures of the injuries. 872

N.W.2d at 161.     In each of the cited cases, an appeal was taken, it was

concluded the prosecutor had violated the plea agreement, and the plea was set

aside. Lopez, 872 N.W.2d at 161-62; Fannon, 799 N.W.2d at 518; Bearse, 748

N.W.2d at 213; Horness, 600 N.W.2d at 296.

      In a recent Iowa Court of Appeals case, no breach was found when a

prosecutor was alleged to have emphasized negative materials, including a
                                        7


defendant’s prior criminal history, but indicated he believed the defendant could

make probation. State v. Frencher, 873 N.W.2d 281, 285 (Iowa Ct. App. 2015).

In the case under consideration, there was no reticence, reluctance, qualification,

or hesitation—implicit or explicit—in the prosecutor’s recommendation.         If a

defendant desires the court to be bound by the plea agreement, he has the right

to enter a plea conditioned on the court’s acceptance of the plea agreement.

See Iowa R. Crim. P. 2.10.

       Otherwise, it is the court’s prerogative to determine the appropriate

sentence within the terms of the applicable statute based on the information

available to it. The information includes the State’s recommendation, the plea

agreement—if there is one, the defendant’s prior record, and the statements of

the defendant and his counsel, among other factors. The county attorney did

recite Schlachter’s criminal record, which is not uncommon when no PSI is

available, as was the case in this proceeding.          The correct recitation of

Schlachter’s criminal record was not a distraction from the prosecutor’s

recommendation, but strengthened it by alerting the court the prosecutor was

aware of Schlachter’s criminal record and was making the recommendation with

that knowledge. Furthermore, we consider it inappropriate and unacceptable that

any plea agreement prohibit the court from being advised of a defendant’s

criminal record at the time of sentencing.      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.
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      In summary, to grant Schlachter the relief he requests, we would be

required to conclude (1) the prosecutor breached the plea agreement and

(2) counsel was ineffective for failing to object to the breach. We have already

stated that a sentencing court has a right to know a defendant’s criminal record

prior to sentencing. The State’s recommendation, whether pursuant to a plea

agreement or otherwise, carries with it the State’s implicit representation it is

“worthy of the court’s acceptance.” See Horness, 600 N.W.2d at 299-300. To

conclude otherwise is to question the integrity of the prosecutor. In each case,

as set out above, where the prosecutor has been held to have breached the plea

agreement, there was something the prosecutor said that implicitly or explicitly

undermined the plea agreement. The prosecution in this case did not qualify or

impeach its recommendation in any way. The prosecutor alerted the court to the

defendant’s criminal record and, by doing so, not only informed the court of

Schlachter’s criminal record, but also alerted the court it was aware of his

criminal record and made the straightforward recommendation with full

knowledge.   There was no reason for defendant’s counsel to object to the

prosecutor’s direct recitation of the plea agreement. Schlachter and his counsel

set out the merits of the plea agreement at length without objection or rebuttal

from the State. We conclude that the State did not breach the plea agreement,

and Schlachter’s counsel was not ineffective for failing to object to the State’s

sentencing recommendation.

      AFFIRMED.
