                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0882
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT POWELL JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter

(plea & sentencing) and Michael J. Shubatt (motion to withdraw), Judges.



      Robert Powell Jr. appeals the judgments and sentences entered following

his guilty plea. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                               2


DOYLE, Judge.

        Robert Powell Jr. appeals the judgments and sentences entered following

his guilty plea, alleging his trial counsel was ineffective. See State v. Carroll, 767

N.W.2d 638, 641 (Iowa 2009) (noting that although a guilty plea waives all

defenses that are not intrinsic to the plea, a defendant may “challenge the validity

of his guilty plea by proving the advice he received from counsel in connection with

the plea was not within the range of competence demanded of attorneys in criminal

cases”). We review ineffective-assistance claims de novo. See State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006). To succeed on an ineffective-assistance claim,

a defendant must show counsel failed to perform an essential duty and this failure

resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

Straw, 709 N.W.2d at 133.

        Powell was facing multiple charges in four criminal cases when he reached

a plea agreement with the State.1 Powell agreed to plead guilty to charges of

domestic abuse assault impending air flow causing bodily injury and domestic

abuse assault causing bodily injury as a second offender in case number



1
   The document signed by Powell, his attorney, and the prosecutor, is entitled
“Memorandum of Plea Negotiations (B).” Regardless of its title, we regard the document
as a guilty plea agreement (if it looks like a duck, if it swims like a duck, if it quacks like a
duck, then it probably is a duck). See Neill v. Western Inns, Inc., 595 N.W.2d 121, 126
(Iowa 1999) (“[T]he designation given a pleading is not determinative; rather, the content
of the pleading identifies its essential character.”); Meier v. Senecaut, 641 N.W.2d 532,
539 (Iowa 2002) (“We treat a motion by its contents, not its caption.”). It begins, “COMES
NOW the State of Iowa and the Defendant and hereby submit the following plea
negotiations to the Court.” The document indicates: “The Defendant will enter a plea of
guilty to the following charge(s):” and lists the charges to which Powell agreed to plead
guilty. It lists the charges to be dismissed, and also indicates the sentences that the State
agreed to recommend. The document further states: “The Defendant will/not join in that
recommendation.” It also states: “The negotiations are contemplated to be binding/non-
binding on the court,” but neither “binding” nor “non-binding” is crossed- or lined-out.
                                          3


FECR120371, child endangerment and domestic abuse assault as a second

offender in case number AGCR120456, assault in case number SMCR120621,

and a probation revocation. In exchange, the State agreed to dismiss a charge of

domestic abuse assault causing bodily injury as a second offender in case number

FECR120371 and a charge of second-degree harassment in case number

SMCR120621. The State also agreed to recommend suspended sentences on

the convictions in case numbers FECR120371 and AGCR120456, thirty days in

jail on the assault conviction in case number SMCR120621, and one year at a

residential treatment facility in relation to Powell’s probation revocation. Central to

this appeal, paragraph ten of the agreement states: “Should the Defendant receive

any additional law violations before sentencing, these plea negotiations will be null

and void.”2

       The court accepted Powell’s guilty plea and scheduled a sentencing

hearing. However, before sentencing, Powell violated a no-contact order and the

conditions of his pretrial release. The court found Powell to be in contempt and

sentenced him to 120 days in jail.

       Prior to sentencing, Powell filed a pro se motion to withdraw his guilty plea,

arguing he did not understand the terms of the plea agreement and his counsel

coerced him to enter into it. The court appointed Powell new counsel. Following

a hearing on the motion, the court entered an order stating: “Since the parties

presented no evidence, the Court has no factual basis to support [Powell]’s




2
  Presumably, “these plea negotiations” is reference to the resultant plea agreement
reached between Powell and the State, for it is the agreement—not the negotiations
leading up to the agreement—that is relevant.
                                         4


request. Accordingly, the motion to withdraw plea is denied.” Noting that Powell’s

motion appeared to attack the validity of his plea, the court also addressed it as a

motion in arrest of judgment, but it found Powell failed to demonstrate that his plea

was invalid and denied the motion.

       At sentencing, the prosecutor informed the court that the State was

“exercising its right to ask that a recommendation be null and void” based on the

contempt finding. The prosecutor recommended the court send Powell to prison

and not to a residential treatment facility.     The court declined and instead

sentenced Powell to consecutive prison terms totaling eleven years, suspended

the sentences, and ordered Powell to reside at a residential treatment facility for

one year—just as the State had originally recommended in the plea agreement.

       On appeal, Powell alleges his replacement trial counsel was ineffective in

failing to argue at the hearing on the motion to withdraw his plea that his violation

of the no-contact order voided the plea agreement. He asks that we vacate his

convictions, judgments, and sentences and remand the case to allow him to

withdraw his plea to return him to the position he would have been in before

entering his guilty plea.3

       Powell argues application of paragraph ten of the memorandum nullifies his

agreement with the State, thus “alleviating both parties of their duties under the

contract.” (Emphasis ours). He points out the paragraph ten “null and void”

language differed from the paragraph seven language, which provides: “The State


3
  Of course, setting aside the plea would allow the State to reinstate any charges
dismissed in contemplation of a valid plea bargain and file any additional charges
supported by the available evidence. See State v. Weitzel, 905 N.W.2d 397, 411 (Iowa
2017).
                                         5


is not bound to this agreement if the Defendant fails to appear for sentencing as

ordered.” Powell posits that “[i]f the parties intended that only the State was

released from its obligations under the agreement if Powell incurred a law violation,

the language of [paragraph ten] and [paragraph seven] would have been identical.”

At first blush, the argument is attractive and makes sense. But, as so often is the

case in the law, words do not always mean what they appear to say.

       The parties have not provided us with any case law, nor has our own

independent research dredged up any Iowa appellate case interpreting a “null and

void” guilty plea agreement provision like the one at issue here. So, for the reasons

that follow, we use general contract principles to help us navigate through

uncharted waters.

       A plea agreement is akin to a contract. See Boge v. State, 309 N.W.2d 428,

430 (Iowa 1981); see also State v. Ceretti, 871 N.W.2d 88, 97 (Iowa 2015) (noting

other jurisdictions “apply principles of contract law” when fashioning the

appropriate disposition following the vacation of an entire plea agreement); State

v. Smith, 753 N.W.2d 562, 563 (Iowa 2008) (noting district court invalidated an

entire plea agreement because the agreement was “akin to a contract”); State v.

Horness, 600 N.W.2d 294, 298 (Iowa 1999) (discussing breach of plea

agreement).

              Where a plea agreement has been accepted by the court, we
       generally interpret the meaning of the terms in the agreement
       according to basic principles of contract law. This is because plea
       agreements are like contracts, and so contract principles provide a
       useful means by which to analyze their enforceability. We also
       recognize, however, that plea agreements are not contracts, and
       therefore contract doctrines do not always apply to them.
                                            6

United States v. Ritchison, 887 F.3d 365, 369 (8th Cir. 2018) (cleaned up)4; accord

United States v. Hanshaw, 686 F.3d 613, 615 (8th Cir. 2012) (“Because plea

agreements are contractual in nature we must interpret them according to general

contractual principles.” (cleaned up)).

       In contract law, the phrase “null and void” is sometimes interpreted to mean

the contract is “voidable.” See, e.g., Fletcher v. United States, 303 F. Supp. 583,

586 (N.D. Ind. 1967) (“‘Null and void’ as here used means that the contract is

voidable at the election of the seller.”); Metro. Life Ins. Co. v. Hall, 12 S.E.2d 53,

60-61 (Ga. 1940) (“[W]e think the phrase ‘null and void’ should be construed to

mean voidable.”); Becker v. Becker, 416 A.2d 156, 162 (Vt. 1980) (construing the

words “null” and “void” “to mean voidable only”); Marshall v. Porter, 80 S.E. 350,

351 (W. Va. 1913) (“We do not think the words ‘null and void’ should be construed

literally. When these words are employed in contracts of this kind they are

generally construed to mean that the contract is voidable at the election of the party

in whose favor they were inserted, in this case the vendor. It is evident from their

conduct that these words in the contract were so construed by the parties thereto.”

(citing 5 Words and Phrases, 4867)); see also generally Khabbaz v. Swartz, 319

N.W.2d 279, 284 (Iowa 1982) (finding “null and void” a conditional offer to buy and

sell where the purchaser failed to satisfy the requisite condition—obtaining a

traditional loan—and holding rescission of the contract and return of buyer’s

escrowed money was proper, putting the parties back at their starting point). This


4
  “Cleaned up” is a new parenthetical used to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations for readability purposes. See
United States v. Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack Metzler, Cleaning
Up Quotations, 18 J. App. Prac. & Process 143 (Fall 2017).
                                          7


is because the terms “void” and “voidable” are oftentimes used interchangeably,

as explained in Black’s Law Dictionary:

              Again the word “void” has been used, even by judges and the
       framers of statutes, where “voidable” is meant. One illustration will
       suffice. By 17 Geo. III, c. 50, failure to pay certain duties at an
       auction is stated to make a bidding ‘nul and void to all intents,’ but
       this does not entitle a purchaser who has repented of his bargain to
       avoid the contract by his own wrong, that is by refusal to pay the
       statutory duty. The contract is voidable at the option of the party who
       has not broken the condition imposed by law.

Contract – void contract, Black’s Law Dictionary (10th ed. 2014) (quoting William

R. Anson, Principles of the Law of Contract 20-21 (Arthur L. Corbin ed., 3d Am.

ed. 1919)); see also 17A Am. Jur. 2d Contracts § 9 (Westlaw 2018) (“There is an

important distinction between ‘void’ and ‘voidable’ contracts, and confusion has

resulted from the fact that a contract is sometimes said to be void although it is

only voidable. Because a voidable contract continues in effect until active steps

are taken to disaffirm the contract and because a void contract is wholly ineffective

from the outset, the distinction is significant.”); 17A C.J.S. Contracts § 169

(Westlaw 2018) (“A contract that is void never attains legal effect as a contract and

cannot be enforced, whereas a contract that is voidable is one where one or more

of the parties have the power, by the manifestation of an election to do so, to avoid

the legal relations created by the contract.” (footnotes omitted)); Jesse A.

Schaefer, Beyond a Definition: Understanding the Nature of Void and Voidable

Contracts, 33 Campbell L. Rev. 193, 193 (Fall 2010) (noting, at least in the context

of informal commercial contracts, the meaning of “void” and “voidable” “is

persistently and maddeningly slippery,” and that “litigants are often surprised to
                                          8


find the court announce that a transaction formerly (and unequivocally) declared

to be void is, in fact, merely voidable or unenforceable.”).

       Here, the terms of the agreement stated that certain actions by Powell

would render the agreement “null and void.” We think it evident that when the

parties used the phrase “null and void,” they meant that the agreement was merely

voidable by the State if Powell picked up additional charges before sentencing, not

that the agreement would become void from its outset. This is evident from the

State’s conduct.    Upon Powell’s contempt finding, an additional law violation

triggering paragraph ten of the agreement, the State took no action to disaffirm the

contract; it only rescinded its sentencing recommendation. The agreement was

not treated as void from its outset. Moreover,

              A classic rule of contract law is that a party should be
       prevented from benefitting from its own breach. This rule carries
       particular importance in the criminal context, as a court’s failure to
       enforce a plea agreement against a breaching defendant would have
       a corrosive effect on the plea agreement process by rendering the
       concept of a binding agreement a legal fiction. Given that our
       criminal justice system depends upon the plea agreement process,
       that result cannot be countenanced.

United States v. Erwin, 765 F.3d 219, 230 (3d Cir. 2014) (cleaned up).

       Also, our conclusion that the agreement was voidable at the State’s election

upon Powell’s failure to uphold his end of the bargain does not run counter to the

general proposition that a defendant’s violation of the plea agreement does not

grant the defendant a right to withdraw the plea. State v. Foy, 547 N.W.2d 337,

339 (Iowa 1998) (“If a defendant fails to uphold his or her end of the agreement,

the State has no obligation to provide the defendant the anticipated benefits of the

bargain.”).
                                           9


       We cannot brand Powell’s replacement trial lawyer as ineffective for failing

to raise a doomed-to-failure “null and void” argument. See Millam v. State, 745

N.W.2d 719, 721-22 (Iowa 2008) (“Trial counsel has no duty to raise an issue that

has no merit.”). We next turn to Powell’s second contention.

       In the alternative, Powell argues his trial counsel was ineffective in failing to

object when the prosecutor breached the plea agreement by recommending the

court impose prison sentences. We find no breach on the part of the prosecutor.

“Once a plea based upon a plea bargain has been accepted by the trial court, the

prosecutor may not unilaterally withdraw the plea bargain without providing some

sort of basis for its action or affording some sort of due process.” State v. Barker,

476 N.W.2d 624, 628 (Iowa Ct. App. 1991). In such cases, the remedy is either

specific performance of the agreement or withdrawal of the guilty plea. See Foy,

574 N.W.2d at 339. If the prosecutor breaches the plea agreement and defense

counsel fails to object to the breach, counsel is ineffective. See State v. Brown,

911 N.W.2d 180, 186 (Iowa 2018). However, if a defendant fails to perform as

promised under the plea agreement, no breach occurs because the State has no

obligation to provide the defendant the anticipated benefits of the bargain. Foy,

574 N.W.2d at 339. The State has the burden of proving the defendant failed to

perform in accordance with the plea agreement, and we look to the record made

at the time of sentencing to determine whether the State has carried this burden.

See id. at 339-40.

       The plea agreement specifically required Powell to avoid additional

violations of the law. Cf. State v. Weig, 285 N.W.2d 19, 21 (Iowa 1979) (finding

defendant’s legal violation during time between plea and sentencing did not relieve
                                        10


the State of its duty to perform under the plea agreement because the State did

not impose any such obligation in the plea agreement). It is undisputed that the

court found Powell in contempt for violating the no-contact order after he entered

his guilty plea. Because Powell failed to keep his nose clean before sentencing,

his counsel had no duty to object to the prosecutor’s failure to recommend the

sentences set forth in the agreement.

      We affirm Powell’s convictions, judgments, and sentences.

      AFFIRMED.
