                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2102
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KYRA J. WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II

and Stuart P. Werling, Judges.



      Kyra Williams appeals her conviction for conspiracy to commit a forcible

felony. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

      Kyra Williams appeals her conviction for conspiracy to commit a forcible

felony, claiming her trial counsel was ineffective in failing to object during the

prosecutor’s sentencing recommendation. We affirm Williams’s conviction.

      On February 12, 2015, the State charged Williams with first degree

robbery, in violation of Iowa Code sections 703.1, 703.2, 711.1, and 711.2

(2015), and conspiracy to commit a forcible felony, in violation of Iowa Code

sections 706.1 and 706.3(1). In September, the State and Williams entered into

a plea agreement in which the State agreed to dismiss the first-degree robbery

charge, allow Williams to plead guilty to conspiracy to commit a forcible felony,

and recommend probation. Williams was required to cooperate with the State in

its prosecution of her two co-defendants. The district court accepted Williams’s

guilty plea to conspiracy to commit a forcible felony. At sentencing, the district

court entered an order for a ten-year suspended sentence, two years of

supervised probation, restitution, fees, and costs. Williams now appeals.

      We review ineffective assistance of counsel claims de novo.           State v.

Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).

      Williams claims her trial counsel was ineffective for failing to object to the

prosecutor’s sentencing recommendation because the recommendation violated

the spirit of the plea agreement. She claims the prosecutor technically complied

with the State’s obligation to recommend against incarceration but undercut the

recommendation by emphasizing the serious nature of the charged crime and by

focusing on the acts committed by the co-defendants.         When an ineffective-

assistance-of-counsel claim is raised on direct appeal from the criminal
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proceedings, the court must decide whether the record is adequate to decide the

claim on direct appeal or whether it should be preserved for postconviction

proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). Although such

claims are generally preserved for postconviction relief, we will consider them on

direct appeal where the record is adequate. Id. Upon our review of the record,

we find the record adequate to address Williams’s ineffective-assistance-of-

counsel claim. See id.

      “[T]o determine whether counsel failed to perform an essential duty in

failing to object to the prosecutor’s recommendation, we must first determine

whether the State breached the plea agreement. If the State did not breach the

plea agreement, defense counsel could not have been ineffective.” Id. at 215

(citation omitted). If the prosecutor breaches either the terms or the spirit of the

plea agreement, reversal of the conviction or vacation of the sentence is

required. See id.

      Pursuant to the plea agreement, the State agreed to recommend against

incarceration. At the sentencing hearing, the prosecutor stated:

             The State will follow the plea agreement. So, essentially, the
      State is recommending that [Williams] be committed to the Director
      of Adult Corrections for an indeterminate term not to exceed ten
      years. The State will recommend the suspension of that sentence,
      with her being placed on probation for a period of two years.
             ....
             The basis for the recommendation draws on the following: I
      mean, obviously, the circumstances of the offense were very
      serious in terms of the robbery to the victim, with the two co-
      defendants having physically assaulted him and used a weapon.
             [Assistant County Attorney] Ripley offered this plea
      agreement because [Williams’s] role was more minor in the sense
      that she was a driver of a vehicle that picked up the victim and then
      she went inside a business establishment when [co-defendants] Mr.
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      Govain and Ms. Byers carried out the assault and the theft of
      money.
              Mr. Ripley also noted that she was cooperative with law
      enforcement, not only in attempting to locate her two co-defendants
      so that they could be arrested and brought to justice, but, of course,
      she was willing to cooperate with the State as far as any
      prosecution of those two subjects.
              You take that—I have to say, you know, when you look at
      the circumstances of this, this is very serious for her first time out of
      the gate. Because, obviously she doesn’t have a prior criminal
      history.
              But I think under the circumstances, even though it was very,
      very serious in terms of what happened, the corrective action that
      she takes, I think, warrants a recommendation of probation at this
      time.

The prosecutor is obligated to make the promised sentencing recommendation,

which requires more than informing the court of the promise the State has made

to the defendant with regard to sentencing. Id. at 215–16. The prosecutor must

also present the recommended sentence with approval; if not, the prosecutor has

fallen short of fulfilling the promise under the plea agreement. See id. at 216–17.

It is implied the prosecutor is obligated to refrain from suggesting more severe

sentencing alternatives. See id. at 216.

      Upon our de novo review, we find the prosecutor did not breach the plea

agreement in spirit or undercut the sentencing recommendation. The prosecutor

did not make an alternate recommendation or attempt to persuade the court to

impose a harsher sentence. See State v. Horness, 600 N.W.2d 294, 299–300

(Iowa 1999) (“[T]he prosecutor breached the plea agreement by requesting ‘an

appropriate sentence’ rather than the sentence he had agreed to recommend.”).

We acknowledge the prosecutor described the crime as “very very serious,” but it

was in context of explaining why a suspended sentence was warranted.

Moreover, on a cold record, it is impossible to determine the emphasis placed on
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the words used by the speaker. See, e.g. State v. Frencher, 873 N.W.2d 281,

285 (Iowa Ct. App. 2015) (noting the prosecutor discussed the defendant’s

criminal history and other negative information, it was merely done to provide

context for the sentencing recommendation). The court did not impose a harsher

penalty and followed the recommendation in the plea agreement. While Williams

may have preferred a deferred judgment, the prosecutor did not have a duty to

advocate for a lesser sentence than the one contained in the plea agreement.

       We find Williams’s trial attorney had no duty to object to the prosecutor’s

sentencing recommendation as it complied with the spirit and language of the

plea agreement. We deny Williams’s ineffective-assistance-of-counsel claim and

affirm her conviction.

       AFFIRMED.
