                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1602
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN JOSEPH HAUERSPERGER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers,

District Associate Judge.



      The appellant appeals his guilty plea and sentence, asserting his trial

counsel was ineffective and the sentencing court abused its discretion.

AFFIRMED.




      Kimberly A. Voss-Orr of Law Office of Kimberly A. Voss-Orr, Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., Bower, J., and Blane, S.J. *

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                         2


BLANE, Senior Judge.

       John Joseph Hauersperger appeals his guilty plea and sentence claiming:

(1) his trial attorney was ineffective in failing to object to the county attorney’s

breach of the plea agreement, and (2) the trial court abused its discretion in

imposing sentence. After reviewing the record, we find trial counsel was not

ineffective and the sentencing court did not abuse its discretion; we affirm.

    I. Procedural Background.

       On March 27, 2015, Hauersperger was charged by trial information with

driving while barred in violation of Iowa Code section 321.256 (2015). In August,

Hauersperger, while represented by counsel, signed and filed a written guilty

plea to the charge.1 The guilty plea contained the plea agreement, which was

filed of record. The agreement provided Hauersperger would plead guilty as

charged and the county attorney would recommend to the court at sentencing a

one-year sentence with all but ninety days suspended, two years’ probation, the

statutory minimum fine, and dismissal of an unrelated charge and any other

charges related to this matter. Hauersperger could request a lesser jail term and

the ability to make payments towards fines and fees. By order on August 25,

2015, the court accepted the guilty plea and set sentencing.2

       At a later date, Hauersperger appeared with his counsel before the court

for sentencing. The court inquired as to the plea agreement and the prosecutor

set it forth exactly as contained in Hauersperger’s written guilty plea, without



1
  See Iowa R. Crim. P. 2.8(2)(b)(5).
2
  The plea was not conditioned upon the court’s acceptance of the plea agreement. See
Iowa R. Crim. P. 2.10(3).
                                            3


extraneous comment, and also described Hauersperger’s criminal record.3

Hauersperger’s trial counsel did not lodge an objection to the State’s recitation of

the agreement.       Hauersperger’s attorney then presented his own sentencing

recommendation, which was for one year in jail with all but twelve days

suspended and credit for time served—meaning Hauersperger would spend no

further time in custody, as he had already served twelve days.

         The court then allowed Hauersperger to exercise his right of allocution.

Following Hauersperger’s statement, the court imposed sentence, rejecting the

plea agreement and sentencing him to two years of imprisonment. The court

stated on the record the reasons for imposing the prison sentence. Following

sentencing, Hauersperger filed this timely appeal.




3
    Specifically, the prosecutor stated:
        The State has no evidence to present today. The plea agreement
        between the defense and the State begins by including dismissal of case
        ending 164 as part of the defendant’s agreement to plea to Case 063.
        Additionally, the State agreed to recommend one year in jail with all but
        90 days of that suspended, the statutory minimum fine, and request the
        defendant be placed on probation for a period of two years. Additionally,
        the State agreed that the defense is free at sentencing to request a
        differing sentence from this recommendation of the State.
                  With regard to the defendant’s criminal history, Your Honor, his
        records indicate a 2000 conviction for Operating While Intoxicated, First
        Offense; a 2000 conviction for Driving While Suspended; 2002 conviction
        for Driving While Barred; 2002 conviction for Possession of a Controlled
        Substance; 2003 conviction of Driving While Barred as a Habitual
        Offender, 2007 conviction for Driving While Barred as a Habitual
        Offender; 2008 conviction for Driving While Barred as a Habitual
        Offender; 2009 conviction for Operating While Intoxicated, Second
        Offense; 2009 conviction for Possession of a Controlled Substance; 2010
        conviction for Driving While Barred as a Habitual Offender; 2012
        conviction for Possession of Marijuana; 2012 conviction for Driving While
        Barred as a Habitual Offender; 2013 conviction for Driving While Barred
        as a Habitual Offender.
                                         4


   II.      Ineffective Assistance of Counsel.

            A. Standard of Review.

         Ineffective-assistance-of-counsel claims are reviewed de novo as they

involve a constitutional issue of the right to effective counsel. State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).

            B. Discussion.

         To succeed on a claim of ineffective assistance of counsel, a claimant

must establish by a preponderance of the evidence (1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.      State v.

Tompkins, 859 N.W.2d 631, 637-38 (Iowa 2015) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). While claims of ineffective assistance of counsel are

typically reserved for postconviction-relief proceedings, such claims can be

considered on direct appeal where the record is adequate. State v. Bearse, 748

N.W.2d 211, 214 (Iowa 2008). Since the plea agreement was in writing and the

sentencing was reported, we find the record here adequate to address

Hauersperger’s ineffective assistance claim on this direct appeal.        See Iowa

Code § 814.7(2); State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

         Hauersperger claims his trial attorney was duty-bound here to object to

the prosecutor’s statements to the court outlining the plea agreement.            He

specifically relies on State v. Horness, 600 N.W.2d 294 (Iowa 1999) and State v.

Lopez, 872 N.W.2d 159 (Iowa 2015).           He argues that under these cases,

although the prosecution correctly informed the court of the plea agreement, it

did not fulfill the “spirit” of the agreement, and his trial counsel was obligated to

object. A review of these cases in light of the record shows the prosecution did
                                         5


not breach the “spirit” of the plea agreement; thus, defense counsel had no basis

to object and was not ineffective.

       As the supreme court stated in Horness:

       Our task, then, is to determine whether [appellant] has
       demonstrated that a reasonably competent attorney would have
       objected to the prosecutor’s statements as a breach of the
       negotiated plea agreement. We have stated on previous occasions
       that defense counsel has not failed to perform an essential duty
       when counsel fails to raise a claim or make an objection that has no
       merit. Accordingly, the defendant’s counsel here cannot be faulted
       for failing to object to the prosecutor’s statements as being a
       breach of the plea agreement if, in fact, they were not contrary to
       the State’s agreement.

600 N.W.2d at 298 (citations omitted).       The court found that although the

prosecution set forth the plea recommendation, it also twice referenced the

“alternative recommendation” in the presentence investigation, which contained a

“more severe” sentencing proposal, and did not put forth the plea agreement

“with some degree of advocacy.” Id. at 299-300.

       In State v. Lopez, the supreme court restated the obligation of prosecutors

to abide by plea agreements. In that case, it found the prosecutor breached that

duty by gratuitously introducing photos of the child victim’s injuries not otherwise

before the court and using those photos on cross-examination to signal the

defendant deserved incarceration rather than probation, as provided by the plea

agreement. Lopez, 872 N.W.2d at 180.

       The supreme court has addressed this issue in two other cases: State v.

Bearse, 748 N.W.2d 211, 214 (Iowa 2008) and State v. Fannon, 799 N.W.2d

515, 523 (Iowa 2011). In Bearse, the plea agreement committed the State to

recommend against incarceration. 748 N.W.2d at 213. At sentencing, a different
                                        6


prosecutor recommended a prison sentence based upon the recommendation in

the presentence investigation report (PSI)—a clear departure from the plea

agreement. Id. In Fannon, the parties reached a plea agreement under which

the defendant pled guilty to two counts of sexual abuse in the third degree and

the State was to make no sentencing recommendation at the sentencing hearing.

799 N.W.2d at 517. A different prosecutor attended the sentencing hearing and

urged the court to impose two consecutive ten-year prison sentences. Id. Again,

this was a clear breach of the plea agreement that imposed on defense counsel

an obligation to object. Id. at 522. In Hauersperger’s case, we do not have a

similar situation as found in these four supreme court opinions.

      Our court has more recently addressed two cases that raised the same

contention of ineffective assistance of counsel regarding enforcement of plea

agreements: State v. Frencher, 873 N.W.2d 281 (Iowa Ct. App. 2015) and State

v. Schlachter, 884 N.W.2d 782 (Iowa Ct. App. 2016). Both analyzed the four

earlier supreme court cases cited above. “While a prosecutor normally need not

present promised recommendations to the court with any particular degree of

enthusiasm, it is improper for the prosecutor to inject material reservations about

the agreement to which the government has committed itself.” Schlachter, 884

N.W.2d at 785 (quoting United States v. Cachucha, 484 F.3d 1266, 1270-71

(10th Cir. 2007)). “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 . . . .” Frencher, 873 N.W.2d at 284.

Thus, “[w]here the State technically complied with the agreement by explicitly

recommending the agreed-upon sentence but expressed material reservations
                                           7


regarding the plea agreement or sentencing recommendation, it can fairly be said

the State deprived the defendant of the benefit of the bargain and breached the

plea agreement.”        Id. (citing Cachucha, 484 F.3d at 1270-71).           During

Hauersperger’s plea, the prosecution did not inject any material reservations

about the plea agreement.

          During the sentencing the prosecutor, in addition to setting forth the plea

agreement, advised the judge of Hauersperger’s prior convictions. Whether this

would constitute a breach of the plea agreement by the prosecution was

discussed in Schlacter and rejected.        884 N.W.2d at 786 (“Furthermore, we

consider it inappropriate and unacceptable that any plea agreement prohibit the

court from being advised of a defendant’s criminal record at the time of

sentencing.”).

          Because the State did not breach the plea agreement, Hauersperger's

counsel had no duty to lodge an objection to the prosecutor's statements. See

Bearse, 748 N.W.2d at 214–15.           Thus, Hauersperger's claim of ineffective

assistance of counsel fails.

   III.      Abuse of Discretion in Sentencing.

             A. Standard of Review.

          When a defendant’s sentence is within the statutory limits, the appellate

court reviews the district court’s decision for abuse of discretion. State v. Seats,

865 N.W.2d 545, 552 (Iowa 2015). The district court has broad discretion to act

within legal parameters. State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).

The district court necessarily has latitude to act “according to the dictates of a

judge’s own conscience, uncontrolled by the judgment of others” for sentencing
                                        8

decisions. Id. The appellate court’s review is limited to deciding if the district

court’s decision “was unreasonable or based on untenable grounds.” Id.

          B. Discussion

      The sentencing court must craft a sentence that both addresses

rehabilitation of the defendant and protects the community.       See Iowa Code

§ 901.5. In creating this sentence, the sentencing court should

      [w]eigh and consider all pertinent matters in determining proper
      sentence, including the nature of the offense, the attending
      circumstances, defendant’s age, character and propensities and
      chances of his reform. The courts owe a duty to the public as much
      as to defendant in determining a proper sentence. The punishment
      should fit both the crime and the individual.

State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006) (alteration in original)

(quoting State v. August, 589 N.W.2d 740, 744 (Iowa 1999)).

      In this case, the district court weighed the appropriate factors in

sentencing Hauersperger. In sentencing him, the court stated, in pertinent part:

      In terms of sentencing, my goals are to provide for your
      rehabilitation and the protection of the community. I understand
      [defense attorney’s] comments that this is a status-related offense,
      meaning your status is barred. I disagree with his assessment that
      you don’t pose a danger. The driving regulations are put in place
      for a reason. Whether you agree with it or not, it’s been determined
      that certain people should not have driver’s licenses because of
      their past lack of responsibility with their driver’s license, and you
      have lost your driving privileges through your own criminal
      behavior. The legislature has deemed it appropriate to set this
      offense at the aggravated misdemeanor level to impress upon folks
      the serious nature of the offense. And I believe you are aware, Mr.
      Hauersperger, of the serious nature of the offense, given the fact
      that you have been sent to prison before because of your repeated
      commission of this crime.
              With the goals of rehabilitation and protection of the
      community in mind, in trying to achieve those goals, to the extent
      these details have been made known to me, I have taken into
      account your age; your employment circumstances; your family
      circumstances and obligations; the nature of the offense and facts
                                          9


         and circumstances surrounding it; the recommendations of the
         parties; the information presented here today; and your criminal
         history, which includes the fact by my count that this is your eighth
         Driving While Barred offense since 2002. You made the comment
         that sending you to a term of incarceration isn’t going to do any
         good. That begs the question to me, Mr. Hauersperger, of what is
         going to do any good, since it doesn’t seem like anything stops you
         from repeatedly committing this crime. Even sending you to prison
         the last time you did it apparently didn’t deter you because you got
         out, and you have done it again. So I’m out of ideas as to what can
         be done to fix the problem, but what I do know is that whatever has
         happened in the past is just not deterring you, so I guess we will
         keep doing this until something does deter you.

As the record shows, the court considered Hauersperger’s age, employment,

family circumstances and obligations, the nature of the offense, the

recommendations of the parties, and his criminal history.         The district court

determined that Hauersperger was a danger to the community. It noted that he

had committed eight driving-while-barred offenses since 2002.         Hauersperger

argues in his brief that the sentencing factors required the court to grant him

probation and failing to do so was an abuse of discretion.

         We find the sentencing court considered appropriate factors, set them out

on the record, and imposed a sentence that meets statutory and constitutional

requirements. It is not for this court on appeal to substitute our judgment as to

what might have been the appropriate sentence.          The sentence was neither

unreasonable nor based on untenable grounds. Therefore, there was no abuse

of discretion.

   IV.      Conclusion.

         As we find trial counsel was not ineffective and the sentencing court did

not abuse its discretion, we affirm.

         AFFIRMED.
