               IN THE SUPREME COURT OF IOWA
                               No. 09–1492

                            Filed May 20, 2011


STATE OF IOWA,

      Appellee,

vs.

RICHARD WARREN FANNON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Linn County, Thomas L.

Koehler, Judge.



      On further review, defendant claims his trial counsel was

ineffective for failing to object after the State allegedly breached the plea

agreement during sentencing.       DECISION OF COURT OF APPEALS

VACATED; SENTENCES VACATED AND CASE REMANDED FOR
RESENTENCING.



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

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Harold L. Denton, County Attorney, and

Gerald A. Vander Sanden and Jennifer P. Clinton, Assistant County

Attorneys, for appellee.
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APPEL, Justice.

      In this case, we consider whether a criminal defendant receives

ineffective assistance of counsel when the defendant’s attorney fails to

object after the State allegedly breaches its plea agreement with the

defendant during the sentencing hearing.      For the reasons expressed

below, we answer in the affirmative.        As a result, we vacate the

defendant’s sentences and remand the case for resentencing before a

different judge.

      I. Factual and Procedural Background.

      The State charged by trial information the defendant, Richard

Fannon, with two counts of sexual abuse in the second degree against a

minor child.       Prior to trial, Fannon and the State reached a plea

agreement.     The agreement provided that, in exchange for Fannon’s

guilty pleas, the State would reduce both counts to sexual abuse in the

third degree and make no sentencing recommendation during the

sentencing hearing.        The State subsequently amended the trial

information in accordance with the agreement, and Fannon entered a

plea of guilty on both counts.

      A different prosecutor represented the State at the sentencing

hearing. The following discussion took place during the hearing:
           The Court: State have a recommendation, Mr. Vander
      Sanden? A. Yes, your Honor. Thank you.
              With regard to Counts I and II, the State requests the
      Court sentence the Defendant to an indeterminate term not
      to exceed ten years on both counts and order that both those
      terms run consecutive to each other for a total of twenty
      years, along with the mandatory minimum fines that apply
      on both counts and the other terms and conditions of the
      sentence that would be typical for a Class C felony offense,
      court costs, attorney fees, and, of course, the requirement
      for lifetime parole and registry with the sex offender registry
      once he is released from his incarceration.
                                       3
            I believe that there are compelling reasons to run the
      two sentences consecutive to one another.
           Mr. Sissel [defense counsel]:        Your Honor, can we
      approach real quick?
               The Court: You may.
           (A discussion was held off the record at the bench
      between the Court and counsel.)
             Mr. Vander Sanden: Your Honor, if I can start again, I
      understand that based upon the conversation we’ve had up
      at the bench, the plea agreement was that Mr. Fannon would
      plead guilty to both counts of Sexual Abuse in the Third
      Degree, and we would leave the matter of consecutive versus
      concurrent up to the Court and that the defense would be
      free to argue for concurrent sentences.

Defense counsel did not request to withdraw Fannon’s guilty pleas, nor

did counsel request specific performance of the agreement before a

different sentencing judge. Also, the record shows defense counsel did

not consult with Fannon before electing to proceed with the hearing.

      The court, citing the presentence investigation report and Fannon’s

criminal history, subsequently ordered that each sentence be served

consecutively. Fannon appealed.

      On   appeal,    Fannon   claimed      that   his   state   and   federal

constitutional rights to the effective assistance of counsel were violated.

Specifically, Fannon argued that his trial counsel failed to perform an

essential duty by failing to object after the State breached the plea

agreement during sentencing.      Relying on Santobello v. New York, 404

U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), Fannon argued he was

prejudiced by his counsel’s failure because the breach “tainted” the

sentencing hearing.

      In response, the State argued there was no breach and that the

prosecutor’s     recommendation      for   consecutive   sentences     was   a

“misstatement” and a “mistake.” The State argued that defense counsel
                                          4

provided effective assistance because counsel “was aware of the mistake,

addressed it with counsel and the court, and chose to proceed with

sentencing.”     According to the State, the prosecutor’s “quick and

complete acknowledgement of the error” and the decision of Fannon’s

counsel to proceed with sentencing satisfied the requirements of the

Sixth Amendment and article I, section 10 of the Iowa Constitution. In

the alternative, the State asserted that the record was inadequate for the

court to consider the ineffective-assistance-of-counsel claim on direct

review.

      The court of appeals affirmed. The court first noted that, although

ineffective-assistance-of-counsel     claims       are     typically     reserved    for

collateral review, the record was adequate to decide the case on direct

review. Addressing the merits, the court reasoned that Fannon failed to

show that the State breached the plea agreement or that Fannon suffered

prejudice. The court noted that defense counsel did not fail to perform

an   essential   duty   because      counsel        “immediately        brought      the

misstatement of the prosecutor to the court’s attention, therefore

fulfilling his duty.”   The court also explained that Fannon failed to

establish   prejudice   because     the       sentencing    court      relied   on   the

presentence investigation report, not the prosecutor’s statements, in

ordering consecutive sentences.           Fannon applied for further review,

which we granted.

      II. Discussion.

      The Sixth Amendment of the United States Constitution and article

I, section 10 of the Iowa Constitution guarantee to each criminal

defendant not only the right to the assistance of counsel, but the effective
                                            5

assistance of counsel. 1 Simmons v. State Pub. Defender, 791 N.W.2d 69,

75 (Iowa 2010).        Ineffective-assistance-of-counsel claims are generally

preserved for postconviction relief proceedings, but “ ‘we will consider

such claims on direct appeal where the record is adequate.’ ” State v.

Bearse, 748 N.W.2d 211, 214 (Iowa 2008) (quoting State v. Horness, 600

N.W.2d 294, 297 (Iowa 1999)); see also Iowa Code § 814.7(3) (2007). To

prevail on a claim of ineffective assistance of counsel, the defendant

must show: “ ‘(1) counsel failed to perform an essential duty and (2)

prejudice resulted.’ ” State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006)

(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)); see also

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984).

       A. Adequacy of the Record. A defendant requesting the court to

decide an ineffective-assistance-of-counsel claim on direct appeal must

establish “an adequate record to allow the appellate court to address the

issue.” State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). “[I]t is for

the court to determine whether the record is adequate and, if so, to

resolve the claim.” Id.; see also Iowa Code § 814.7. In this case, the

record reflects the terms of the plea agreement, the State’s conduct that
is alleged to have breached the plea agreement, and defense counsel’s

response to the alleged breach.              Further, the record shows defense

counsel did not consult with Fannon before allowing the hearing to

continue.     Therefore, we are satisfied that the record is adequate to

        1Fannon asserts his ineffective-assistance-of-counsel claim under both the Sixth

Amendment of the United States Constitution and article I, section 10 of the Iowa
Constitution. Fannon does not, however, argue that we should interpret the legal
standards of article I, section 10 in a fashion different from those governing the parallel
provisions of the Sixth Amendment of the United States Constitution. In this situation,
although we reserve the right to apply the principles differently, we generally assume
that the legal principles governing both provisions are the same. See Simmons v. State
Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).
                                     6

decide this case on direct review.       See Bearse, 748 N.W.2d at 214

(concluding that the record was adequate to decide the matter on direct

review because it reflected “the written plea agreement and the

circumstances giving rise to [the defendant’s] claim that the prosecutor

breached the plea agreement, as well as defense counsel’s response”);

Horness, 600 N.W.2d at 297–98 (holding the record was adequate to

consider ineffective-assistance claim on direct review because the record

provided the terms of the plea agreement). We decide the issue de novo.

Bearse, 748 N.W.2d at 214.

       B.   Failure to Perform an Essential Duty. A defense attorney

fails to perform an essential duty when his or her performance falls

below the “ ‘normal range of competence.’ ”       State v. McPhillips, 580

N.W.2d 748, 754 (Iowa 1998) (quoting State v. Spurgeon, 533 N.W.2d

218, 219 (Iowa 1995)). Counsel is presumed to have performed within

the normal range of competence.      Horness, 600 N.W.2d at 298.      This

presumption may be overcome by a showing that counsel failed to raise a

valid objection. See Bearse, 748 N.W.2d at 215, 217. However, “[t]rial

counsel is not ineffective in failing to urge an issue that has no merit.”

McPhillips, 580 N.W.2d at 754. We, therefore, first consider whether the

State breached the plea agreement during the sentencing hearing. See

Bearse, 748 N.W.2d at 215–17. If so, we must then address whether

defense counsel adequately responded to the State’s breach. See id. at

217.

       “[A] guilty plea is a serious and sobering occasion inasmuch as it

constitutes a waiver of . . . fundamental rights . . . .”   Santobello, 404

U.S. at 264, 92 S. Ct. at 500, 30 L. Ed. 2d at 434 (Douglas, J.,

concurring).    Although the use of plea agreements is an “essential
                                           7

component of the administration of justice,” 2 the validity of the plea-

bargaining process “presuppose[s] fairness in securing agreement

between an accused and a prosecutor.” Id. at 260–61, 92 S. Ct. at 498,

30 L. Ed. 2d at 432; see also State v. Kuchenreuther, 218 N.W.2d 621,

624 (Iowa 1974).       “ ‘[V]iolations of either the terms or the spirit of the

agreement’ require reversal of the conviction or vacation of the sentence,”

Horness, 600 N.W.2d at 298 (quoting Stubbs v. State, 972 P.2d 843, 845

(Nev. 1998)), regardless of whether the violation is intentional or

accidental, Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at

433; Bearse, 748 N.W.2d at 215.

       The parties agree that the sentencing prosecutor initially violated

the express terms of the plea agreement by recommending consecutive

sentences. The fighting issue in this case is whether the prosecution’s

attempt to cure its improper remarks salvaged an otherwise broken

promise.     The question of whether such improper remarks may be so

cured is an issue of first impression in Iowa. 3

       Several courts in other jurisdictions have had occasion to address

this issue.      In State v. Birge, 638 N.W.2d 529, 531 (Neb. 2002), the

defendant pled no contest to unlawful possession with intent to deliver
cocaine in exchange for the State’s promise to dismiss other charges and

remain silent at sentencing.             During the sentencing hearing, the

prosecutor asked the court to consider the full range of potential


       2An estimated ninety-five percent of convictions are secured through the plea-
bargaining process. Michael M. O’Hear, Plea Bargaining & Procedural Justice, 42 Ga. L.
Rev. 407, 409 & n.1 (2008).
       3Though   similar, Bearse does not control our analysis on this issue. The State
correctly points out that Bearse turned on whether the State satisfied its obligation to
recommend against incarceration under the plea agreement. See Bearse, 748 N.W.2d
at 216–17. Bearse left unresolved whether the State may cure an alleged breach by
withdrawing its improper remarks and starting anew.
                                       8

punishments. Birge, 638 N.W.2d at 531. Defense counsel objected and

explained the plea agreement to the court.         Id.   The prosecutor then

stated, “I will withdraw the remarks. I do not make any recommendation

as to sentencing at all.” Id. at 532. Relying on Santobello, the Nebraska

Supreme Court concluded:
      [O]nce the State has violated the plea agreement by failing to
      remain silent at sentencing, the violation cannot be cured
      either by the prosecutor’s offer to withdraw the comments or
      by the trial court’s statement that it will not be influenced by
      the prosecutor’s comments in imposing sentence.

Id. at 535–36; but see State v. Timbana, 186 P.3d 635, 638–39 (Idaho
2008); State v. Knox, 570 N.W.2d 599, 600–01 (Wis. Ct. App. 1997).

      Federal cases draw similar conclusions. Particularly, in White v.

United States, 425 A.2d 616, 616 (D.C. 1980), the Government agreed

not to oppose defense counsel’s recommendation that the defendant be

placed in a drug rehabilitation program in lieu of incarceration. During

sentencing, however, the Government expressed its agreement with the

district court’s concerns that the defendant had unsuccessfully gone

through many programs before.              White, 425 A.2d at 617.       These

comments drew an objection, which prompted the prosecutor to

withdraw his statements.     Id.    The D.C. court found the prosecutor’s

comments in breach of the agreement. Id. at 620.

      The court first noted that the Government must strictly comply

with the terms of plea agreements. Id. at 618. The court was troubled

by the fact that the prosecutor’s statements implied that, but for the plea

agreement, the Government would oppose placing the defendant in a

drug rehabilitation program.       Id. at 619.   Thus, the court concluded,

“Although the prosecutor formally withdrew his statement after defense

counsel objected to it, that perfunctory gesture alone could not cure the
                                       9

breach.” Id.; see also United States v. Munoz, 408 F.3d 222, 228 (5th Cir.

2005) (holding that the prosecutor’s request to have the court follow the

plea   agreement    after   the   prosecutor’s    breach   during    sentencing

“amounted to little more than lip service to the plea agreement and did

not rectify the breach”); United States v. Taylor, 77 F.3d 368, 370–71

(11th Cir. 1996) (concluding that the Government breached the plea

agreement      by   supporting,    prior    to   sentencing,   a    presentence

investigation report that was incompatible with the plea agreement, even

though the Government advocated for the terms of the plea agreement

during the sentencing hearing); United States v. Kurkculer, 918 F.2d 295,

298 & n.5 (1st Cir. 1990) (stating that “[i]t is clear error to say that no

breach    ever occurred”     when    “the   prosecution withdrew       its   first

recommendation, which was contrary to the plea agreement, and told the

court that it was recommending sentencing in accordance with the

agreement”).

       We agree with these decisions and hold that the State’s conduct

during Fannon’s sentencing hearing constitutes a breach of the plea

agreement that could not be cured by the prosecutor’s withdrawal of the

improper remarks.      The improper use of a plea agreement not only

“threatens the liberty of the criminally accused,” but also “ ‘the honor of

the government’ and ‘public confidence in the fair administration of

justice.’ ”   Bearse, 748 N.W.2d at 215 (quoting Kuchenreuther, 218

N.W.2d at 624). We therefore hold prosecutors “ ‘to the most meticulous

standards of both promise and performance.’ ” Horness, 600 N.W.2d at

298 (quoting State ex rel. Brewer v. Starcher, 465 S.E.2d 185, 192

(W. Va. 1995)).     These standards demand of prosecutors strict, not

substantial, compliance with the terms of plea agreements. Bearse, 748

N.W.2d at 215.
                                         10

       Here, the State violated both the spirit and express terms of the

agreement.      Although the sentencing prosecutor attempted to “start

again” following the breach, his conduct, whether intentional or

inadvertent, 4 revealed that, but for the agreement, the State would

recommend       consecutive     sentences.        The    sentencing     prosecutor,

therefore, failed to strictly comply with the agreement, and, accordingly,

his conduct fell below the most meticulous standards of both promise

and performance. See Horness, 600 N.W.2d at 298.

       Because the State breached the plea agreement, we must

determine whether defense counsel adequately responded to the breach.

If the State breaches a plea agreement during the sentencing hearing, a

reasonably competent attorney would make an objection on the record to

“ ‘ensure that the defendant receive[s] the benefit of the agreement.’ ”

Bearse, 748 N.W.2d at 217 (quoting Horness, 600 N.W.2d at 300). “[N]o

possible advantage could flow to the defendant from counsel’s failure to

point out the State’s noncompliance.           Defense counsel’s failure in this

regard simply cannot be attributed to improvident trial strategy or

misguided tactics.” Horness, 600 N.W.2d at 300 (citation omitted).

       After the State breached the plea agreement, defense counsel

requested a bench conference.           Following the bench conference, the

prosecutor withdrew his earlier remarks and explained the terms of the

agreement to the court. At no point did defense counsel object on the

record to the State’s breach, request Fannon be given an opportunity to

withdraw the guilty pleas, or request a new sentencing hearing before a

       4Although the record suggests the breach in this case may have been the result
of miscommunication or confusion between the prosecutor who entered into the plea
agreement and the sentencing prosecutor, “inadvertence . . . will not excuse
noncompliance.” Bearse, 748 N.W.2d at 215. “The staff lawyers in a prosecutor’s office
have the burden of ‘letting the left hand know what the right hand is doing’ or has
done.” Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433.
                                         11

different judge. Counsel also failed to consult with Fannon to discuss

these legal options in light of the prosecutor’s breach. Therefore, defense

counsel failed to perform an essential duty. 5 See id.

       C. Prejudice.     In order to establish prejudice, Fannon need not

establish that, “ ‘but for his counsel’s failure to object, he would have

received a different sentence.’ ”       Bearse, 748 N.W.2d at 217 (quoting

Horness, 600 N.W.2d at 300).           Instead, Fannon must show that “the

outcome of the [sentencing] proceeding would have been different.”

Horness, 600 N.W.2d at 300–01. The State asserts Fannon suffered no

prejudice because “the record is clear that the court did not consider” the

prosecutor’s improper recommendation.

       The State raised, and we rejected, a similar argument in Bearse.

We explained:
        [T]he ability of the sentencing court to stand above the
        fray and overlook the conduct of the prosecutor cannot be
        used by the State to minimize the prejudice component of
        the analysis. Our system of justice requires more and
        does not allow prosecutors to make sentencing
        recommendations with a wink and a nod. The concept of
        justice has a far greater meaning.

Bearse, 748 N.W.2d at 217–18; see also State v. Carrillo, 597 N.W.2d

497, 501 (Iowa 1999). We set forth the appropriate analytical framework

to assess prejudice in this context in Horness, stating:

       A proper objection by the defendant’s attorney would have
       alerted the sentencing court to the prosecutor’s breach of the
       plea agreement. In that circumstance, the court would have
       allowed the defendant to withdraw his guilty pleas, or would
       have scheduled a new sentencing hearing at which time the
       prosecutor could make the promised recommendations. The
       outcome of the defendant’s sentencing proceeding was

       5After the conference at the bench, the record shows that Fannon was sentenced
without an opportunity to consult with counsel. We, therefore, have no occasion to
consider whether the district court could have validly sentenced Fannon had Fannon
made an on-the-record, knowing and voluntary waiver of his right to withdraw his
guilty pleas or be sentenced by a different judge during a new sentencing hearing.
                                    12
      different, however, because defense counsel did not make
      the necessary objection. Consequently, the defendant was
      sentenced by the court at a hearing tainted by the
      prosecutor’s improper comments.

Horness, 600 N.W.2d at 301 (citations omitted); accord Bearse, 748

N.W.2d at 217; see also State v. Bergmann, 600 N.W.2d 311, 314 (Iowa

1999) (“When trial counsel fails to object to the prosecutor’s breach of the

plea agreement and thereby prevents the defendant from receiving the

benefit of the plea agreement, the defendant is prejudiced.”).

      As in Horness, defense counsel’s failure to object to the State’s

breach prevented Fannon from having an opportunity to either demand

specific performance of the agreement before a new sentencing judge or

withdraw the guilty pleas. We have no reason to doubt the ability of the

sentencing court to disregard improper remarks made by prosecutors

during   sentencing.     Nevertheless,   “the   interests   of   justice   and

appropriate recognition of the duties of the prosecution in relation to

promises made in the negotiation of pleas of guilty will be best served by”

ensuring defendants who plead guilty in reliance on promises made by

the State receive the benefit of the bargain. See Santobello, 404 U.S. at

262–63, 92 S. Ct. at 499, 30 L. Ed. 2d at 433.         Therefore, counsel’s

failure to object to the State’s breach caused prejudice by depriving

Fannon of the benefit of the bargain, namely, that the State would make

no sentencing recommendation during the sentencing hearing.

      D. Remedy.       An appropriate remedy for a breached plea

agreement is one that “ensure[s] the interests of justice are served.”

Bearse, 748 N.W.2d at 218. Generally, a breached plea agreement may

be remedied by allowing the defendant to withdraw the guilty plea or by

remanding for resentencing before a new judge. Id.; State v. King, 576

N.W.2d 369, 371 (Iowa 1998); see generally George L. Blum, Choice of
                                   13

Remedies Where State Prosecutor Has Breached Plea Bargain, 9 A.L.R.6th

541   (2005)   (discussing   remedies   when   prosecutors   breach   plea

agreements).   Fannon does not request a specific remedy; he merely

requests us to grant him an opportunity to withdraw his guilty pleas or

vacate his sentences and remand for resentencing before a new

sentencing judge.

      The interests of justice are best served in this case by vacating

Fannon’s sentences and remanding for resentencing. Doing so ensures

Fannon receives the benefit of the bargain by demanding specific

performance of the plea agreement.      See Bearse, 748 N.W.2d at 218.

“[T]here is no need to expend the added prosecutorial and judicial

resources that would be required by vacating the conviction and allowing

the process to start anew.” Id. Therefore, we affirm Fannon’s convictions

for sexual abuse in the third degree, vacate his sentences, and remand

the matter for resentencing before a new judge.

      III. Conclusion.

      For these reasons, we vacate the decision of the court of appeals,

vacate the defendant’s sentences, and remand the matter to the district

court for resentencing.

      DECISION OF COURT OF APPEALS VACATED; SENTENCES

VACATED AND CASE REMANDED FOR RESENTENCING.

      All justices concur except Mansfield, J., who takes no part.
