                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0839
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIN MACKE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol S. Egly, District

Associate Judge.



      Erin Macke appeals the judgement and sentence entered following her plea

to four counts of child endangerment. AFFIRMED.



      Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Erin Macke appeals her convictions and sentences for four counts of child

endangerment. She contends that the State breached the parties’ plea agreement

and her attorney was ineffective in failing to object to the breach. Macke also urges

this court to adopt the plain-error doctrine. Because the record is insufficient to

resolve Macke’s ineffective-assistance-of-counsel claim on the merits, we affirm

her convictions and preserve the issue of ineffective assistance of counsel for

potential postconviction-relief proceedings.

       I. Background Facts and Proceedings.

       The State charged Macke with four counts of child endangerment, in

violation of Iowa Code section 726.6(1)(a) (2017), and one count of transfer of a

pistol or revolver to a person under twenty-one, first offense, in violation of Iowa

Code section 724.22(2). Macke filed a “Petition to Plead Guilty (Alford).”1 The

petition states: “The plea agreement is Alford plea to Counts 1-4 of TI; joint

Recommendation of Deferred Judgment and Probation. State will dismiss Ct 5.”

(Underlining in original).     Macke and her attorney both signed the petition.

Although the prosecutor did not sign the petition, nothing in the record shows the

State objected to the petition’s statement that the recommendation of deferred

judgement would be joint.

       At the plea hearing, Macke’s attorney described the plea agreement to the

court as follows:




1
  An Alford plea is a variation of a guilty plea; a defendant, while maintaining innocence,
acknowledges that the State has enough evidence to win a conviction, and consents to
the imposition of a sentence. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                            3


                [DEFENSE COUNSEL]: . . . Your Honor, a substantial
       [benefit] is being received by Ms. Macke in this case. That
       substantial benefit being dismissal of . . . Count V, the gun charge,
       in this case, as well as the . . . joint recommendation of a deferred
       judgment to the charges.
                THE COURT: And regarding the likelihood of conviction?
                [DEFENSE COUNSEL]: Your Honor, in regards to the
       likelihood of conviction, and based on the information provided in the
       trial information, we believe that, if tried, there is a substantial risk of
       conviction, at least to the four counts of child endangerment, should
       a jury hear that case. In addition, Your Honor, as an option of not
       trying to take the children through this avenue, we have also decided
       to ask the Court to accept a guilty plea.
                THE COURT: So that is one of the benefits as well as the
       dropping of the fifth count.
                [DEFENSE COUNSEL]: Correct, Your Honor.
                THE COURT: The Court has now reviewed the minutes of
       testimony, and I do find that it’s substantially likely that if this matter
       went to trial before a jury that the defendant would be found guilty of
       the four counts of child endangerment. I accept the plea pursuant to
       North Carolina vs. Alford. . . . The discussion between your counsel
       and the State’s attorney was regarding whether the Court would
       order a presentence investigation report. All parties agree that is
       warranted in this case, and I will order that you submit to a
       presentence investigation.

The court did not ask the prosecutor if defense counsel accurately described the

plea agreement nor did the prosecutor offer her opinion on the matter.

       The court followed up with a written order. With regard to sentencing

recommendations, the order describes the plea agreement as follows:

       Barring any new criminal activity or violation of this order, at
       sentencing the parties will recommend: The Defendant will ask for
       a deferred judgement and probation. The State reserves its
       recommendations until it has an opportunity to review the PSI.
       The State will recommend dismissal of Count V. On any new
       criminal charge or violation of this order, established by a
       preponderance of evidence, the State is not bound by this
       agreement.

(Emphasis in original). Neither party objected to the sentencing recommendations

as set out in the court’s order.
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      At the sentencing hearing, when asked to state the State’s position

regarding the sentence, the prosecutor responded:

             Our position is that the defendant should receive a suspended
      sentence and probation, that as a condition of probation, and in
      accordance with what the PSI sets out, she should have whatever
      therapy and/or counseling is available to her through the Department
      of Corrections, and that she’d agree to do—at least with the children
      in Cedar Rapids, that she and her ex-husband in Cedar Rapids have
      agreed to counseling for these children in a setting that would be best
      for them. But I think she needs counseling too. Her behavior was
      immature and reckless.
             The State has agreed to dismiss Count V.
             So, Your Honor, we’re asking that she receive a suspended
      sentence and probation. I’m not arguing for consecutive sentences,
      Your Honor. I think it’s okay for these counts to run concurrently.
      But to do something less than place her on probation and give a
      suspended sentence, I think, would diminish the nature of this crime.

      Immediately after the prosecutor finished reciting the State’s sentencing

recommendation, defense counsel asked for a break. The sentencing resumed

one minute later without any objection to the State’s recommendation. After the

victim impact statements were presented, defense counsel presented Macke’s

position regarding sentencing as follows:

      [W]e are standing here asking the Court for a deferred judgment, and
      it would be a fair assessment if the Court would be able to grant that.
             The drama that has surrounded this case, as fanned by the
      fathers in this case, has created a situation where the Court is placed
      in a very odd position. If we look at the bare facts, if we look at the
      PSI, which fairly lays out those facts as well, simply put, Ms. Macke
      made a mistake. We ask the Court to allow her to rectify that.
             In an effort not to drag the kids through this process, she has
      not done anything in the context of this case to exacerbate the
      problem. And despite their suggestions through these victim impact
      statements that she is the unfettered and untethered person that they
      suggest, other than the statement, there was no evidence to provide
      to this Court recordings that would indicate that she has been as
      untethered as they suggest.
             Your Honor, we’re asking the Court to grant a deferred
      judgment. This is Ms. Macke’s only criminal appearance. She’s a
                                         5


      professional. She works. She’s done a very good job keeping the
      kids out of this process.
             And I think as the court in the matter in Linn County
      adequately pointed out, there’s some real concerns if the Court
      doesn’t modify the no-contact order that at least Mr. Macke, and
      possibly Mr. McQuary, would be using that no-contact order as a
      weapon against the children to cut them out of their mother’s life.
             I don’t think anybody would be advocating that that is a good
      outcome for these kids. And if the concerns of the fathers are
      genuine, let’s take care of the kids, then they should be advocating
      for contact and advocating for counseling, as it appears that Mr.
      Macke did in the Linn County case.
             With that said, Your Honor, I have nothing further.

      After Macke’s allocution, the court asked if she was requesting a deferred

judgment, to which Macke responded, “Yes, ma’am.” The court then stated its

sentencing decision as follows:

      [T]he Court concludes that a deferred judgment is not appropriate in
      this circumstance. I’ll speak to the reasons for that specifically.
              And I was just reviewing again the victim statement that she
      filed on the presentence investigation report. I rarely give deferred
      judgments when there’s been an Alford plea. I believe that an Alford
      plea was a vehicle that was agreeable based on both the prosecutor
      and the defense attorney’s representation to me that it was
      appropriate under the circumstances.
              I accept that both the prosecution and defense and the victims
      in this circumstance that made statements were trying to avoid
      having the children drug through additional proceedings, and that’s
      appreciated. But it’s still an Alford plea, and there’s a certain
      acceptance of responsibility when someone is willing to stand in front
      of the Court and specifically outline what they did that they’re
      pleading guilty to, and that did not occur in this circumstance.
              The enhancing factor in this case . . . is that there was a gun.
      It was unloaded, but it was certainly accessible by the four children,
      particularly the two older children. They knew about it. There was a
      magazine or ammunition right there by it, and to leave children with
      that type of gun in the house is an enhancing factor. And I don’t
      understand that Ms. Macke has ever really accepted the possibility
      of what kind of specific danger this could add to the circumstances.
              I do note there’s mitigation. I believe that the judge that heard
      the original case to the two younger children and decided just ten
      days ago made some findings of fact that would certainly mitigate
      some of . . . what I believe has been publicized, although I certainly
      have not heard most of it. The children did have care arranged past
                                          6


       the period of time when they were picked up. It was basically a 48-
       hour period. Again, . . . it does minimize the total circumstances of
       what their mother did. It does not minimize the danger to them.
              With that, I will follow the State’s recommendation in this
       circumstance and sentence you to two years in prison on each count,
       make those sentences concurrent with each other, and place you on
       probation.

       The court filed a sentencing order memorializing its decision to suspend the

sentence as stated above. Macke filed a timely notice of appeal.

       II. Scope and Standards of Review.

       On appeal, Macke contends her trial counsel was ineffective by failing to

object to the State’s recommendation at the sentencing hearing for a suspended

sentence instead of a deferred judgement, as it constituted a breach of the parties’

plea agreement. Claims of ineffective assistance of counsel are reviewed de novo.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). In addition, “[w]e review de

novo claims of ineffective assistance of counsel arising from the failure to object to

the alleged breach of a plea agreement.” State v. Lopez, 872 N.W.2d 159, 168

(Iowa 2015).

       III. Ineffective Assistance of Counsel.

       A claim of ineffective assistance of counsel in a criminal case “need not be

raised on direct appeal from the criminal proceedings in order to preserve the claim

for postconviction relief purposes.” Iowa Code § 814.7(1). Generally, ineffective-

assistance-of-counsel claims are preserved for postconviction-relief proceedings,

unless the record is sufficient to address the claim on direct appeal. State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006). The trial record alone is rarely sufficient to

resolve claims of ineffective assistance of counsel on direct appeal. State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006). We often prefer to preserve such claims for
                                          7


postconviction-relief proceedings in order to develop a record of the trial counsel’s

performance. Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981). Indeed,

lawyers, just like any other accused, are entitled to their day in court, especially

when their professional reputation is at stake. See State v. Coil, 264 N.W.2d 293,

296 (Iowa 1978). For the reasons that follow, we deem the record insufficient and

preserve Macke’s claim for potential postconviction-relief proceedings.

       In order to establish a claim of ineffective assistance of counsel, a defendant

must prove by a preponderance of the evidence: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted. State v. Carroll, 767 N.W.2d 638, 641

(Iowa 2009). If a defendant is unable to prove either prong, the ineffective-

assistance-of-counsel claim will be defeated. State v. Scalise, 660 N.W.2d 58, 62

(Iowa 2003). It is well established law that “when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it can be said to be

part of the inducement or consideration [for the plea], such promise must be

fulfilled.” State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999) (alteration in original)

(quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). “The State’s promise

to make a sentencing recommendation . . . [carries] with it the implicit obligation to

refrain from suggesting more severe sentencing alternatives.” Id. at 299.

       Macke claims that her attorney was ineffective by failing to object to the

State’s recommendation for a suspended sentence instead of a deferred

judgement, as the State’s recommendation at sentencing was a breach of the

parties’ plea agreement. The record is unclear as to just what the agreement was.

On the one hand, the written “Petition to Plead Guilty (Alford)” provides both parties

would recommend a deferred judgment. Although the State did not sign the
                                          8


petition, it made no objection to the petition prior to or during the plea hearing. Nor

did the State object when defense counsel represented to the court at the plea

hearing that both parties would recommend a deferred judgment. On the other

hand, defense counsel did not object at any time to the court’s written order

accepting the plea that stated the State reserved its recommendation until it had

the opportunity to review the presentence investigation report (PSI).         Nor did

defense counsel object when, at the sentencing hearing, the State recommended

a suspended sentence.

       It is likewise unclear from the record if the parties ever discussed and

mutually agreed to any version of the plea agreement or if the agreement simply

changed over time. While the parties had ample opportunity to alert the court that

the agreement was misrepresented, neither party raised those concerns or

objected when the agreement differed from their understanding of it. Because we

conclude that the record before us is insufficient to determine the actual agreement

between the parties, we must affirm Macke’s convictions and preserve the issue

of ineffective assistance of counsel for future postconviction-relief proceedings.

See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If the development of the

ineffective-assistance claim in the appellate brief was insufficient to allow its

consideration, the court of appeals should not consider the claim, but it should not

outright reject it.”); State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (requiring

the court to preserve a the claim for a postconviction-relief proceedings if it cannot

be addressed on appeal).
                                             9


       IV. Plain-Error Doctrine.

       On appeal, Macke also urges this court to adopt the plain-error doctrine.2

Although Iowa is one of only two states that have not adopted the plain-error

doctrine, our supreme court has repeatedly and expressly declined to adopt it.

See, e.g., State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016), In re K.C., 660

N.W.2d 29, 38 (Iowa 2003); State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999)

(“We do not subscribe to the plain error rule in Iowa, have been persistent and

resolute in rejecting it, and are not at all inclined to yield on the point.”); State v.

McCright, 569 N.W.2d 605, 607 (Iowa 1997) (“[W]e do not recognize a “plain error”

rule which allows appellate review of constitutional challenges not preserved at the

district court level in a proper and timely manner.”); State v. Johnson, 476 N.W.2d

330, 333 (Iowa 1991); State v. Miles, 344 N.W.2d 231, 233 (Iowa 1984); State v.

Hutchinson, 341 N.W.2d 33, 38 (Iowa 1983) (“We do not now choose to abandon

our preservation of error rules in favor of a discretionary plain error rule.”); State v.

Rinehart, 283 N.W.2d 319, 324 (Iowa 1979); State v. Johnson, 272 N.W.2d 480,

484 (Iowa 1978).

       This court has noted before that “there may be merit in adopting a plain

error rule rather than continuing to stretch the doctrinal limits of the right to counsel

to address unpreserved error.”         State v. Sahinovic, No. 15-0737, 2016 WL

1683039, at *2 (Iowa Ct. App. Apr. 27, 2016) (McDonald, J., concurring). However,

we are not at liberty to overturn Iowa Supreme Court precedent. See Figley v.




2
 Federal Rule of Criminal Procedure 52(b) allows an appellate court to consider a “plain
error that affects substantial rights . . . even though it was not brought to the [district]
court’s attention.”
                                         10

W.S. Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011); State v. Hastings, 466

N.W.2d 697, 700 (Iowa Ct. App. 1990). Therefore, we decline to adopt the plain-

error doctrine.

          V. Conclusion.

          For the foregoing reasons, we affirm Macke’s convictions and sentences,

and we preserve her ineffective-assistance-of-counsel claim for postconviction

relief.

          AFFIRMED.
