                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1788
                               Filed July 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD LLOYD LAWSON, II,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, Michael J.

Schilling (plea) and John M. Wright (sentencing), Judges.



      Ronald Lawson appeals from his conviction asserting his trial counsel

provided ineffective assistance. AFFIRMED.



      William R. Monroe of Law Office of William Monroe, Burlington, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Ronald Lawson appeals his conviction following his guilty plea for

possession of a controlled substance, methamphetamine, third or subsequent

offense, in violation of Iowa Code section 124.401(5) (2017). He contends his trial

counsel was ineffective for failing to request his plea be conditioned on the court’s

willingness to accept the plea agreement or a more favorable disposition under

Iowa Rule of Criminal Procedure 2.10(3), for failing to object to the use of risk-

assessment tools used in the presentence investigation report, and for failing to

object to a breach of the plea agreement.         The State asserts the record is

inadequate on direct appeal to address Lawson’s rule 2.10(3) conditioned plea

argument, Lawson was not prejudiced by the use of risk-assessment tools, and

counsel did not have a duty to object to the prosecutor’s communication of the plea

agreement. Agreeing with the State, we affirm.

       I.     Ineffective Assistance of Counsel

       Lawson concedes no motion in arrest of judgment was filed in this case, so

he raises his challenges to the guilty plea through an ineffective-assistance-of-

counsel claim.    State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (noting a

challenge to a guilty plea is not barred “if the failure to file a motion in arrest of

judgment resulted from ineffective assistance of counsel”).           To prove his

ineffective-assistance claim, Lawson must prove counsel failed to perform an

essential duty and the failure resulted in prejudice. See id. The prejudice burden

requires proof “there is a reasonable probability that, but for counsel’s errors, he

or she would not have pleaded guilty and would have insisted on going to trial.” Id.

When an ineffective-assistance claim is made on direct appeal, we must first
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determine whether the record is adequate to address the claim made. State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010).               “[M]ost claims of ineffective

assistance of counsel in the context of a guilty plea will require a record more

substantial than the one [available on direct appeal].” Straw, 709 N.W.2d at 138.

       A. Rule 2.10(3)

       Lawson and the State presented a plea agreement to the district court at

sentencing in which the State recommended suspended sentences.                      After

reviewing the presentence investigation report, the district court rejected the plea

agreement and sentenced Lawson to a term of incarceration. There is no record

of Lawson’s, or his trial counsel’s, conversations with the State regarding the plea.

Because the record on appeal does not contain evidence regarding what was

discussed during plea negotiations, including any record of whether Iowa Rule of

Criminal Procedure 2.10(3) would have been acceptable to the State, we conclude

the record on appeal is not adequate to address Lawson’s claim that his trial

counsel was ineffective. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a

lawyer is entitled to his day in court, especially when his professional reputation is

impugned.”).        We       preserve   Lawson’s   ineffective-assistance   claim     for

postconviction proceedings. See Johnson, 784 N.W.2d at 198 (“If . . . the court

determines the claim cannot be addressed on appeal, the court must preserve it

for a postconviction-relief proceeding, regardless of the court's view of the potential

viability of the claim.”).

       B. Risk-Assessment Tools

       Lawson next claims his trial counsel was ineffective for failing to object to

the district court’s use of the presentence investigation report because it contained
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improper risk-assessment tools. We find the record sufficient to address Lawson’s

claim.

         Lawson claims there is no foundation for using scientific tests like the Iowa

Risk Revised (“IRR”) or the Dynamic Risk Assessment for Offender Re-Entry

(“DRAOR”) in sentencing and these tests are not reliable in the context of

sentencing.1 However, upon our review of the record, unlike the cases of Gordon

and Guise, there is no evidence the district court relied upon or even considered

risk-level scores in announcing Lawson’s sentence. Instead, the court focused on

Lawson’s age, his lengthy criminal history, the nature of his crimes, and his various

attempts at rehabilitation. The district court only referenced the recommendation

of the Department of Corrections once, noting he was a “supervising problem”

when he was arrested, defying instructions and instigating an altercation with

another inmate. The district court did not refer to the IRR or the DRAOR and did

not use either as an aggravating factor. Accordingly, the district court did not abuse

its discretion and Lawson cannot prove he was prejudiced by counsel’s failure to

object to the PSI. Accordingly, Lawson’s claim of ineffective assistance fails.

         C. Breach of Plea Agreement

         Lawson’s final claim of ineffective assistance is that his trial counsel failed

to object to the State’s alleged breach of the plea agreement. Specifically, Lawson


1
  We recently addressed the issue of a court’s use of risk-assessment tools during
sentencing. See State v. Gordon, No. 17-0395, 2018 WL 2084847, at *9 (Iowa Ct. App.
May 2, 2018); State v. Guise, No. 17-0589, 2018 WL 2084846, at *4 (Iowa Ct. App. May
2, 2018). In Gordon we held that the district court abused its discretion in using such risk-
assessment tools as an aggravating factor during sentencing because there was no
statutory authority for using such tools. 2018 WL 2084847 at *9. In Guise, we held the
court abused its discretion because there was no information in the record on the tool’s
intent, how it was scored, what factors were considered, or how it was applied to the
defendant. 2018 WL 2084846 at *4.
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contends the prosecutor lacked enthusiasm for recommending a suspended

sentence during the sentencing hearing and effectively deviated from the plea

agreement. The relevant portion of the sentencing hearing reveals the following

recommendation:

             PROSECUTOR: Thank you for correcting me. The domestic
      was dismissed at costs. The harassment was the plea of guilty for
      the two year suspended sentence.
             So the basis of the State’s recommendation for suspended
      sentences, taking into consideration all the factors that I had
      available to me, and it was primarily based on the family’s request in
      this matter. The family’s request for further substance abuse
      treatment, which Mr. Lawson did complete. So I’ve had extensive
      contact with his family in this matter and I note that he has done well
      since being released pending sentencing.
             So the State would continue in the recommendation for a
      suspended sentence. However, if the sentence should have to be
      served, the State is recommending a consecutive sentence to the
      two year sentence he recently received and the minimum fines.
             At the time I made the original offer, I was insisting on a
      specific term of probation, which included substance abuse and
      mental health evaluation and recommended treatment.                Mr.
      Lawson’s already done that and he’s working on that at this time. So
      those would be the State’s recommendations.

      “Our precedent makes clear the prosecutor must do more than merely recite

the plea recommendation; the prosecutor must indicate to the court that the

recommended sentence is supported by the State and worthy of the court’s

acceptance.” State v. Lopez, 872 N.W.2d 159, 179 (Iowa 2015). In addition, the

prosecutor cannot act contrary to the purpose of the agreement. “The relevant

inquiry in determining whether the prosecutor breached the plea agreement is

whether the prosecutor acted contrary to the common purpose of the plea

agreement and the justified expectations of the defendant and thereby effectively

deprived the defendant of the benefit of the bargain.” State v. Frencher, 873

N.W.2d 281, 284 (Iowa Ct. App. 2015).
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       Here, the prosecutor did not breach the plea agreement. The relevant

portion of the plea agreement states, “The State will recommend the suspended

sentences in AGIN015372 and FECR009131 to run consecutively in the event they

are to be served, minimum fine, specific terms of probation and the no contact

order issued in AGIN015372 lifted.” (emphasis added). The prosecutor expressly

advocated for a suspended sentence based on treatment Lawson completed and

his successes since being released prior to sentencing. The prosecutor also

recommended a consecutive term of imprisonment only in the event the district

court decided to not follow the plea agreement. Because the State did not breach

the plea agreement, Lawson’s counsel had no duty to object to the prosecutor’s

statements. Thus, Lawson’s ineffective-assistance claim fails.

       II.    Conclusion

       Because the district court did not rely on risk-assessment tools during

sentencing and because the prosecutor did not breach the plea agreement, these

ineffective-assistance claims fail, and we affirm. Also, because the record

pertaining to the plea negotiations is insufficient, we preserve Lawson’s claim

regarding rule 2.10(3) for postconviction relief.

       AFFIRMED.
