                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1937
                             Filed October 14, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDDIE CHEST,
     Defendant-Appellant.
________________________________________________________________

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

Bitter, Judge.



       Appeal from the sentence on remand for resentencing.        SENTENCE

VACATED AND REMANDED FOR RESENTENCING.



       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik and Martha E. Trout,

Assistant Attorneys General, Ralph Potter, County Attorney, and Chris Corken,

Assistant County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       This is the third time this case has been before the court. On the first

occasion, the defendant Eddie Chest challenged his sentence, contending the

district court considered an impermissible factor in imposing sentence.          See

State v. Chest, No. 11-0262, 2011 WL 4952951, at *1 (Iowa Ct. App. Oct. 19,

2011). The court affirmed the defendant’s sentence.          See id. at 3.    On the

second occasion, arising out of a postconviction-relief claim, the court held

Chest’s plea counsel rendered constitutionally-ineffective assistance in not

challenging the State’s breach of the plea agreement. See Chest v. State, No.

13-0069, 2014 WL 1494900, at *8 (Iowa Ct. App. April 16, 2014). The court

vacated the sentence and remanded for resentencing.             In this appeal, the

defendant contends the State again breached the parties’ plea agreement by not

recommending the bargained-for sentence. We agree.

       The defendant’s criminal conduct is set forth in sufficient detail in our prior

cases and need not be repeated here. What is material to this case is the

defendant agreed to plead guilty to attempted murder and first-degree robbery in

exchange for the State’s agreement to dismiss two weapons charges and to

recommend the defendant’s sentences be served concurrent to each other. At

the   first   sentencing hearing,   the   assistant   county    attorney   reluctantly

recommended the imposition of concurrent twenty-five year sentences but also

made many contradictory statements expressing material reservation regarding

the plea agreement. See id. at 8; see also State v. Frencher, No. 14-1021, 2015

WL 3876726, at *2 (Iowa Ct. App. June 24, 2015) (discussing the material
                                          3



reservation standard). The district court imposed consecutive sentences. We

noted the prosecutor’s “reluctant and contradictory statements breached [the]

agreement and tainted the entire sentencing proceeding.”            Chest, 2014 WL

1494900, at *7. We further explained, “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.’” Id. at *5 (quoting State v. Horness, 600 N.W.2d 294, 296

(Iowa 1999)). We thus remanded the case for resentencing with the following

directive:

       The appropriate remedy, . . . 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.

See Chest, 2014 WL 1494900, at *7.

       On remand, the same prosecutor failed to make a meaningful

recommendation consistent with the terms of the plea agreement. The entirety of

the State’s recommendation at resentencing is as follows:

               Well, Your Honor, the State is well aware of what the
       appellate court decision is and we believe that the appellate court’s
       decision was directed at the behavior of the State, and in light of
       that, the State’s position at this time is the same as it was originally,
       that we support the plea negotiation and we have nothing further to
       say.

The State did not recommend the sentencing court follow the plea agreement.

The State did not recommend the bargained-for sentence.


       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
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       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, 215-16 (Iowa 2008) (internal quotations and

citations omitted).

       We again vacate the sentence and remand for proceedings before a new

judge and direct the State to make a meaningful recommendation consistent with

both the terms of the plea agreement and the established standard of a

recommendation. See id. Because of our resolution of Chest’s first claim, we

need not address Chest’s remaining claim.

       SENTENCE VACATED AND REMANDED FOR RESENTENCING.
