                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2155
                              Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDDIE CHEST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Joel A.

Dalrymple, Judge.



      Eddie Chest appeals the sentence imposed following his guilty plea.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

      In December 2009, Eddie Chest, then age seventy, robbed a restaurant

and bar during the middle of the day and shot a police officer while attempting to

escape. Chest pleaded guilty to attempted murder and first-degree robbery. In

exchange for Chest’s guilty pleas, the prosecutor agreed to recommend

concurrent sentences at the time of sentencing. The district court ordered Chest

to serve an indeterminate term of incarceration not to exceed twenty-five years

for each offense, said sentences to be served consecutively. The defendant is

required to serve seventy percent of his sentences prior to becoming eligible for

parole. At issue in this appeal is whether the prosecutor complied with the plea

agreement.

      We do not paint on a blank canvas; this case has been before the court on

multiple occasions.   In the first appeal, this court rejected Chest’s claim the

district court considered an impermissible sentencing factor when imposing

sentence. See State v. Chest, No. 11-0262, 2011 WL 4952951, at *1 (Iowa Ct.

App. Oct. 19, 2011). In the second appeal, arising from postconviction-relief

proceedings, Chest contended the State breached its agreement to recommend

concurrent sentences. See Chest v. State, No. 13-0069, 2014 WL 1494900, at

*8 (Iowa Ct. App. Apr. 16, 2014).     We agreed, vacated the sentences, and

remanded the matter for resentencing before a new judge. Following remand,

the district court again imposed consecutive sentences. See State v. Chest, No.

14-1937, 2015 WL 5970339, at *1 (Iowa Ct. App. Oct. 14, 2015).              Chest

appealed again, contending the same prosecutor painted with the same brush

and again failed to truly recommend concurrent sentences. See id. We agreed,
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vacated the sentences, and remanded for resentencing before a new judge. See

id. at *2. For the second time, we “direct[ed] the State to make a meaningful

recommendation consistent with both the terms of the plea agreement and the

established standard of a recommendation.” Id.

      Following the most recent remand, the matter came on for another

sentencing hearing. At the beginning of the hearing, the prosecutor explicitly

recommended concurrent sentences:

      Q. All right. What’s the state’s recommendation at this time? A.
      Your Honor, the state’s recommendation is that the defendant, after
      having pled guilty to the offense of attempted murder in violation of
      707.11; and robbery in the first degree, 711.1, 711.2, be sentenced
      to serve 25 years on each. We are recommending that the
      sentence be served concurrently.

The prosecutor then asked the court whether it wished to hear the history of the

parties’ plea negotiations. After making that inquiry, the prosecutor explained the

plea negotiations as follows:

               Your Honor, the State entered into this negotiation, as the
      Court is aware, several years ago. The State entered into this
      negotiation for a very specific reason. The State wanted to make
      sure that the defendant was convicted of the offenses of attempted
      murder and robbery in the first degree. That was our primary goal
      because it was the State’s position that that was, in fact, what the
      defendant was guilty of.
               The State entered into the negotiation for the concurrent
      recommendation for the sentences for a very simple reason. We
      were willing to sacrifice the opportunity to ask for consecutive or
      asking the defendant to be agreeable to a consecutive because we
      did not want to risk these two convictions to the vagaries of a jury
      trial. It was simply—it was as simple as that.
               Our primary goal was that we get the convictions and
      therefore we were willing to make this negotiation. We made this
      negotiation in good faith when we made it. We are making this
      recommendation to the Court today in good faith. The State
      understands that when we make a negotiation with the defense it is
      not with the Court, but it is an agreement and a promise that that
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      will be our recommendation at the time of sentence—at sentencing
      to the Court. At the time of sentencing to the Court.
              We believe that this is an appropriate negotiation. We
      recommend that the Court accept this negotiation. We are
      affirmatively asserting that this negotiation is the one that we
      believe is the most appropriate under the circumstances. The State
      does not have to like its negotiations, but it does have to honor
      them. And that is what we are doing today.
              We believe that the Court should accept this with our
      approval. We are recommending and commending the sentence to
      the Court, and we are stating to the Court that we believe it is
      worthy of the Court’s acceptance based on the State’s negotiation.

      Chest’s counsel objected to the prosecutor’s statements as a breach of

the plea agreement.           The prosecutor’s statements were not a true

recommendation for concurrent sentences, counsel argued.        Chest’s counsel

also argued for specific performance of the parties’ plea agreement, contending

the prosecutor’s breach of the plea agreement on two prior occasions irreparably

tainted the proceedings—a legal pentimento revealing itself despite overpainting.

The seventy-seven-year-old defendant did not present much of an argument for

himself at the sentencing hearing; even if the district court had imposed

concurrent sentences, the defendant would not be eligible for parole until he is

more than ninety years old.

      The question presented is a narrow one: whether the prosecutor’s

remarks breached the plea 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).   “Where the State technically complied with the agreement by
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explicitly recommending the agreed-upon sentence but expressed material

reservations regarding the plea agreement or sentencing recommendation, it can

be fairly said the State deprived the defendant of the benefit of the bargain and

breached the plea agreement.” Id.

      Taken as a whole, when viewed in procedural context, we do not interpret

the prosecutor’s remarks to express a material reservation regarding the plea

agreement. The prosecutor explicitly recommended concurrent sentences at the

outset of the hearing, repeatedly commended the sentences, and stated the

sentences were worthy of the court’s acceptance.           More important, the

prosecutor did not engage in the kind of conduct our cases have held to be a

breach of a plea agreement: the prosecutor did not propose alternative

sentences, request “an appropriate sentence” rather than the agreed-upon

sentence, make a recommendation and then remind the court it is not bound by

the plea agreement, or emphasize the presentence investigation author’s

recommendation. See id. at 285. The prosecutor did not suggest the sentencing

court impose a sentence harsher than the sentence recommended. See State v.

Lopez, 872 N.W.2d 159, 173 (Iowa 2015) (summarizing prior case law and

concluding “the prosecutor in each case had undercut the plea agreement by

suggesting harsher sentences”).      While the prosecutor did engage in an

extended discussion regarding her motivation to enter into the plea agreement,

we do not interpret her remarks as a whole to express material reservation

regarding this agreement.    Instead, the undertones of three prior sentencing

hearings tinted the resentencing hearing.      The undertones needed to be
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acknowledged and explained—as both the prosecutor and defense counsel did—

given the unique procedural posture of the case.

      Where the State has promised to recommend a sentence, we have

required “the prosecutor to present the recommended sentence[] with his or her

approval, to commend the sentence[] to the court, and to otherwise indicate to

the court that the recommended sentence[] [is] supported by the State and

worthy of the court’s acceptance.” State v. Bearse, 748 N.W.2d 211, 216 (Iowa

2008) (quoting State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999)) (alterations

in original). Within the context of the rather extraordinary procedural hue of this

case, we conclude the prosecutor complied with the spirit of the parties’

agreement. We affirm the defendant’s sentences.

      AFFIRMED.

      Vogel, P.J., concurs; Vaitheswaran, J., dissents.
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VAITHESWARAN, Judge (dissenting).

      I respectfully dissent. The prosecutor said the following: “The State does

not have to like its negotiations, but it does have to honor them.” In my view, the

prosecutor’s statement violated the spirit of the plea agreement. See State v.

Lopez, 872 N.W.2d 159, 173 (Iowa 2015) (reiterating “the prosecutor’s obligation

to scrupulously comply with the letter and spirit of plea agreements” and stating

“when a prosecutor fails to commend or otherwise indicate to the court that the

recommended sentence is supported by the state, let alone signals that the court

should impose a harsher sentence, the plea agreement is breached”); State v.

Fannon, 799 N.W.2d 515, 522 (Iowa 2011) (holding the prosecutor failed to

strictly comply with the plea agreement and his conduct—“whether intentional or

inadvertent” and whether followed by an attempt to “start again”—“fell below the

most meticulous standards of both promise and performance”).

      I recognize the prosecutor here, like the prosecutor in Lopez, “never

overtly advocated for a tougher sentence.” Lopez, 872 N.W.2d at 173. And, the

prosecutor here, like the prosecutor in Fannon, did not make reference to a

harsher recommendation in a PSI report. Id. at 172 (citing Fannon, 799 N.W.2d

at 522). But, in my view, the prosecutor unambiguously voiced her disagreement

with the sentencing deal she struck, while simultaneously noting her obligation to

honor it. See State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct. App. 2015)

(stating “[w]here the State technically complie[s] with the agreement by explicitly

recommending the agreed-upon sentence but expresse[s] material reservations

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

the State deprive[s] the defendant of the benefit of the bargain and breache[s]
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the plea agreement.”). Accordingly, I would vacate the sentence and remand for

resentencing before a different judge. See Lopez, 872 N.W.2d at 181; Fannon,

799 N.W.2d at 524.
