                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1696
                              Filed October 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN McCONNELEE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar

(plea) and David P. Odekirk (sentencing), Judges.



       Brian McConnelee appeals his sentences for multiple convictions, claiming

his counsel provided ineffective assistance by failing to object to the prosecutor’s

breach of the parties’ plea agreement.           SENTENCES VACATED AND

REMANDED FOR RESENTENCING.




       John J. Bishop, Cedar Rapids, for appellant.

       Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.




       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Brian McConnelee appeals his sentences for three counts of possession of

marijuana,   third   or subsequent offense;       one    count of    possession     of

methamphetamine, third or subsequent offense; one count of possession of

alprazolam, third or subsequent offense; and two counts of operating while

intoxicated, first offense. McConnelee claims his counsel provided constitutionally

ineffective representation by failing to object to the prosecutor’s breach of the

parties’ plea agreement. We determine defense counsel failed to perform an

essential duty by failing to timely object to the prosecutor’s breach of the plea

agreement.    We presume McConnelee was prejudiced by defense counsel’s

failure. We vacate McConnelee’s sentences and remand for resentencing before

a different judge.

       I.     Background Facts & Proceedings

       On June 19, 2016, McConnelee was arrested after he was found asleep

behind the wheel of a running vehicle parked in the middle of the road. Controlled

substances were found in the vehicle, McConnelee failed field sobriety tests, and

lab testing revealed intoxicating substances in his urine. He was charged in case

FECR081081 with possession of marijuana with intent to deliver, second or

subsequent offense, in violation of Iowa Code section 124.401(1)(d) and 124.411

(2016); possession of methamphetamine, third or subsequent offense, in violation

of section 124.401(5); and operating while intoxicated, first offense, in violation of

section 321J.2. He was released on bond.

       On September 13, McConnelee was stopped while driving without a valid

license. McConnelee admitted to the officer there might be marijuana in the car
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and the subsequent search revealed marijuana and controlled medications not

prescribed to McConnelee. In case FECR081232, McConnelee was charged with

possession of marijuana with intent to deliver, in violation of section 124.401(1)(d),

and possession of alprazolam, third or subsequent offense, in violation of section

124.401(5). He was again released on bond.

       On September 16, police pulled McConnelee over in a traffic stop for driving

erratically and found marijuana and paraphernalia in the car. McConnelee refused

to provide a urine sample under the implied consent procedure. McConnelee was

charged in case FECR081239 with possession of marijuana with intent to deliver,

in violation of section 124.401(1)(d), and operating while intoxicated first offense,

in violation of section 321J.2.

       McConnelee entered into a plea agreement with the State. The State

lowered each count of possession of marijuana with intent to deliver, a class “D”

felony, to possession of marijuana, third or subsequent offense, an aggravated

misdemeanor. McConnelee entered an Alford plea1 to possession of marijuana,

third or subsequent offense; possession of methamphetamine, third or subsequent

offense; and operating while intoxicated, first offense, in case FECR081081. He

entered an Alford plea to possession of marijuana, third or subsequent offense,

and possession of alprazolam, third or subsequent offense, in case FECR081232.

Finally, he entered an Alford plea to possession of marijuana, third or subsequent

offense, and operating while intoxicated, first offense, in case FECR081239. The




1
    In an Alford plea, an accused acknowledges the evidence negates his claim of
innocence and enters a guilty plea without admitting guilt. See North Carolina v. Alford,
400 U.S. 25, 37 (1970).
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district court accepted McConnelee’s guilty pleas at a hearing on September 7,

2017.

        An email dated September 5 from the county attorney to McConnelee’s

counsel set forth the plea agreement: “Each party free to argue any/all aspects of

sentencing.” But when the county attorney recited the plea agreement to the court

at the plea hearing on September 7, he characterized the State’s sentencing

recommendation as “State is agreeing to ask for—well, essentially the State is

going to ask for at least a five-year sentence imposed—prison sentence imposed.

However, the [presentence investigation (PSI) report] recommends any

consecutive sentences or anything higher than the 5 years, the State will follow the

recommendations of the PSI.” The email version of the plea agreement was not

provided to the court at the plea hearing.

        The sentencing hearing was held on October 24.            The PSI report

recommended prison for each count, with the sentences for each case to be run

consecutive to each other. McConnelee asked for a suspended sentence and

probation. The State recommended prison for each count, with every count and

every case to run consecutively. The court sentenced McConnelee to prison for

each count and ordered fines for each count, with the fines on the drug counts

suspended. The court ordered the prison sentences for counts within each case

to run concurrently, but for the three cases to run consecutive to each other.

        McConnelee appeals, claiming ineffective assistance of counsel for trial

counsel’s failure to object to the State’s sentencing recommendation as a breach

of the plea agreement.
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       II.    Standard of Review

       “We review ineffective-assistance-of-counsel claims de novo.” State v.

Bearse, 748 N.W.2d 211, 214 (Iowa 2008). We ordinarily preserve such claims

for postconviction proceedings, but may resolve them on direct appeal if the record

is adequate. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). When the

claim involves a breach of a plea agreement, the record is adequate if it clearly

reveals the agreement reached by the parties. Bearse, 748 N.W.2d at 214.

       III.   Merits

       “To establish a claim of ineffective assistance of counsel, the defendant

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

an essential duty, and (2) that prejudice resulted from this failure.”      State v.

Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). A defendant must prove both

elements. Id. at 266. “Counsel does not fail to perform an essential duty by failing

to raise a meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015).

       When a prosecutor breaches a plea agreement, “a reasonably competent

attorney would make an objection on the record to ‘ensure that the defendant

receive[s] the benefit of the agreement.’” State v. Fannon, 799 N.W.2d 515, 522

(Iowa 2011) (quoting Bearse, 748 N.W.2d at 217). Defense counsel has a clear

duty to object, and failure to object cannot be considered a valid trial strategy or

tactic. Bearse, 748 N.W.2d at 217.

       “[T]o determine whether counsel failed to perform an essential duty in failing

to object to the prosecutor’s recommendation, we must first determine whether the

State breached the plea agreement.           If the State did not breach the plea
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agreement, defense counsel could not have been ineffective.” Id. at 215 (citation

omitted).

       A. Breach of Plea Agreement

       Our first step in determining whether the State breached the plea agreement

is to determine which sentencing recommendation is part of the plea agreement.

The Iowa Rules of Criminal Procedure require the terms of a plea agreement to be

disclosed on the record at the plea hearing at the time the plea is offered. Iowa

Rs. Crim. P. 2.8(2)(c) (“The terms of any plea agreement shall be disclosed of

record as provided in rule 2.10(2).”), .10(2) (“If a plea agreement has been reached

by the parties the court shall require the disclosure of the agreement in open court

at the time the plea is offered.”). “The terms disclosed in open court at the time

the plea is offered are the only enforceable terms of the agreement—absent some

extraordinary circumstances.” State v. Coleman, No. 12-1557, 2013 WL 3458181,

at *3 (Iowa Ct. App. July 10, 2013); see Baker v. United States, 781 F.2d 84, 90

(6th Cir. 1986) (holding where the plea colloquy was fully adequate and absent

extraordinary circumstances the plea agreement consists of the terms revealed in

open court).

       During the plea hearing, immediately after a recitation of the charges

McConnelee agreed to plead to, the State described the sentencing agreement as

follows:

                STATE: State is agreeing to ask for—well, essentially the
       State is going to ask for at least a five-year sentence imposed—
       prison sentence imposed. However, the PSI recommends any
       consecutive sentences or anything higher than the 5 years, the State
       will follow the recommendations of the PSI.
                COURT: Okay. [Defense counsel], is that your understanding
       of the agreement between the parties?
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              DEFENSE: Yes, Your Honor. And the defense is free to
       argue for a different disposition.

With this understanding of the sentencing recommendation, McConnelee then

entered Alford guilty pleas to the charges contained in the plea agreement.

       Because plea agreements require a defendant to waive fundamental rights,

we hold prosecutors to strict standards of promise and performance. Bearse, 748

N.W.2d at 215. The State did not submit the email with its version of the agreement

into the record at the plea hearing. The State cannot supplement the record with

a different plea agreement than disclosed in open court on the record after the plea

has been entered. See State v. Loye, 670 N.W.2d 141, 149 (Iowa 2003).

       The plea agreement disclosed on the record at the plea hearing requires

the State to ask for a five-year sentence or follow the recommendations of the PSI.

The PSI recommended the sentences for the three cases run consecutively. The

State’s recommendation to run all charges in all three cases consecutively

exceeds the scope of and does not follow the PSI recommendation, and therefore

breached the plea agreement.

       B.     Defense Counsel Response

       A prosecutor’s breach of the plea agreement taints the entire sentencing

proceeding. State v. King, 576 N.W.2d 369, 371 (Iowa 1998). A proper objection

by defense counsel alerts the sentencing court to the prosecutor’s breach of the

plea agreement. State v. Horness, 600 N.W.2d 294, 301 (Iowa 1999). “[O]nly by

objecting could counsel ensure that the defendant received the benefit of the

agreement.” Id. at 300. “[T]he prudent action to be taken by a sentencing court

when faced with a similar breach would be to stop the proceeding and determine
                                         8


the appropriate remedy necessary to ensure the interests of justice are served—

either withdrawal of the guilty plea or resentencing before another judge.” King,

576 N.W.2d at 371. For this reason, “prejudice is presumed when defense counsel

fails to object to the state’s breach of a plea agreement at the sentencing hearing.”

Lopez, 872 N.W.2d at 170.

       During the sentencing hearing, the State recommended all counts run

consecutively twice: during the initial recommendation and then as a clarification

for the court.   Defense counsel did not object either time.        After the court

pronounced McConnelee’s sentence, defense counsel raised the State’s breach

of the agreement in its recommendation and the court made the following record:

               DEFENSE: I just, if I could make a record now, um, with
       respect to I guess the PSI recommendation, I did want to bring to the
       court’s attention that the State was going to recommend concurrent
       time or whatever was recommended in the presentence
       investigation, so I’m a little concerned with what the State
       recommended is not in compliance with the plea agreement if this
       court is disregarding the recommendation contained in the
       presentence investigation. And even if that’s the case, um, the
       presentence investigation recommended that the cases run
       consecutive to one another, but it doesn’t say anything about the
       counts running consecutive to one another, so I just want to put on
       the record, I believe that this is—may cause appellate issues
       because the recommendation by the State is beyond what they had
       agreed to in the plea agreement.
               And then also that if we’re not going by what the PSI
       recommended, I don’t know that the State can make a
       recommendation as they did if it’s being disregarded what was being
       recommended.
               COURT: [State counsel]?
               STATE: Your Honor, thank you. What I have as far as what
       the plea agreement was between the parties was a written document
       that I sent [defense counsel] that outlines the details of each count
       for each case and specifically provides each party is free to argue
       any and all aspects of sentencing.
               COURT: Okay. And the court was not—I did not take the
       guilty pleas, so I have no idea what record was made at that time
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      beyond what the parties have represented here. The court notes
      [defense counsel]’s concerns for the record.

      Defense counsel’s failure to object before the court pronounced the

sentence prevented McConnelee from receiving the benefit of the plea agreement

of record. See State v. Bergmann, 600 N.W.2d 311, 314 (Iowa 1999). Nor did

defense counsel ask the court to take appropriate remedial actions. No valid trial

tactic or strategy can support a failure to timely object to the State’s breach. See

Bearse, 748 N.W.2d at 217. A record made after judgment has been entered does

not cure the failure to timely object to the State’s sentencing recommendation.

Defense counsel failed to perform an essential duty by failing to timely object to

the prosecutor’s breach of the plea agreement. We presume McConnelee was

prejudiced by defense counsel’s failure. See Lopez, 872 N.W.2d at 170.

      McConnelee does not seek the opportunity to withdraw his plea but is

entitled to a new sentencing hearing where the prosecutor’s recommendation

complies with the plea agreement. We remand for resentencing before another

judge. See King, 576 N.W.2d at 371.

      SENTENCES VACATED AND REMANDED FOR RESENTENCING.
