                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1574
                               Filed July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD RYAN TANNAHILL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



      Chad Ryan Tannahill appeals his judgment and sentence for several

crimes entered in two separate cases. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

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

General, Carlyle Dalen, County Attorney, and Nichole Benes and Steve Tynan,

Assistant County Attorneys, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

           Chad Ryan Tannahill appeals his judgment and sentence for several

crimes entered in two separate cases. Tannahill contends (A) his attorney was

ineffective in failing to object to the State’s sentencing recommendation in one of

the cases, (B) the district court abused its discretion in sentencing him, and

(C) the district court improperly failed to consider his ability to reimburse the

State for legal assistance.

I.         Background Proceedings

           In one of two cases,1 the State charged Tannahill with second-degree

criminal mischief in connection with damage to a vehicle. In the same case, the

State also charged Tannahill with second-degree kidnapping and domestic

abuse assault impeding normal breathing, following an altercation with his

girlfriend.     Tannahill entered a written guilty plea to second-degree criminal

mischief, a class “D” felony, and domestic abuse assault impeding normal

breathing, an aggravated misdemeanor.2                  Under the terms of the plea

agreement, the prosecutor was to “recommend a sentence of up to 5 years in

prison, fully suspended, to run concurrently with the sentence of two years for the

aggravated misdemeanor, fully suspended, and a suspended minimum fine.”

           At the guilty plea proceeding, the prosecutor characterized the agreement

on the aggravated misdemeanor charge as follows:

           Count Ill, domestic assault impeding normal breathing, one year in
           jail with all but 30 days suspended, credit for time already served,
           placed on probation for two years with placement at Beje Clark. As
           a condition of probation, complete a substance abuse evaluation,

1
     The merits of the second case are not at issue in this appeal.
2
     The charge of second-degree kidnapping was dismissed.
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       complete Batterer’s Education Program, a suspended fine, pay
       restitution, if any, to the victim, and the recommendations for that
       sentence to run concurrent with Count II in that case.

(Emphasis added.) The prosecutor’s characterization was inconsistent with the

written plea agreement, which stated the recommended sentence on the

aggravated misdemeanor count was “two years . . . fully suspended.”

       At the sentencing hearing, a different prosecutor again characterized the

sentence on the aggravated misdemeanor count as “one year, slash, 30.” The

prosecutor sought confirmation from Tannahill’s attorney about what this

language meant. Meanwhile, the district court noted that the written plea referred

to “two years, all suspended, to run concurrently.” Tannahill’s attorney agreed

with the court’s statement. At this point, the prosecutor stated:

       As that is the plea agreement outlined in paragraph 12 [of the
       written plea agreement] and because the [placement at a
       residential center] would basically make the 30 days moot anyway,
       the State follows our understanding of the plea agreement of two
       years, fully suspended, with two years probation and the condition
       of [residential placement], substance abuse evaluation and follow-
       through, the batterers education program, again, with the
       suspended mandatory minimum fine, which I believe is $625 for
       that charge.

       After listening to the prosecutor’s statement, the district court imposed

sentence. The court declined to suspend either of the sentences and ordered

Tannahill to serve prison terms not exceeding five years on the criminal-mischief

count and two years on the aggravated-misdemeanor count, with the sentences

to be served concurrently.      The court also ordered the sentences served

consecutively to prison terms imposed in the second case. This appeal followed.
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II.       Analysis

A.        Whether counsel was ineffective in failing to object to the State’s

sentencing recommendations.

          Tannahill first argues his attorney was ineffective in failing to object to the

prosecutor’s affirmation of the sentence recommended in the written plea

(suspended indeterminate two year prison term), as opposed to the sentence

recommended by the prosecutor at the plea proceeding (one year jail term with

all but thirty days suspended).        Implicit in his argument is a belief that the

sentencing recommendation at the plea proceeding was more favorable than the

sentencing recommendation in the written plea.            The State counters that the

record is inadequate to determine the nature of the plea agreement. The State

asks us to preserve this ineffective-assistance-of-counsel claim for postconviction

relief.

          The State is correct that ineffective-assistance claims are generally

preserved for postconviction relief unless the record is adequate to address the

claims on direct appeal. State v. Horness, 600 N.W.2d 294, 297-98 (Iowa 1999).

In the breach-of-plea-agreement context, the record has been deemed adequate

where it clearly reveals the agreement reached by a defendant. Id.; see also

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

          Tannahill’s plea agreement is not clear. First, the written plea agreement

sets forth a different sentencing recommendation than the prosecutor articulated

at the plea proceeding.         Second, Tannahill’s attorney did not object to the

prosecutor’s oral rendition, even though it called for some jail time. Third, during
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the sentencing proceeding, Tannahill’s attorney affirmed the sentencing

recommendation contained in the written plea agreement.

       If the prosecutor’s oral rendition was more favorable to Tannahill than the

written plea notwithstanding the thirty days of recommended jail time, Tannahill’s

trial attorney may have strategically decided not to object. But if that were the

case, it is unclear why the attorney changed course at sentencing and opted to

affirm the sentencing recommendation in the written plea rather than the

prosecutor’s oral rendition at the plea proceeding.

       Counsel should have an opportunity to explain what he believed to be the

plea agreement on the aggravated misdemeanor count, whether that agreement

was modified during the plea proceeding, and whether the prosecutor breached

the modified agreement by reverting to the recommendation in the written plea.

See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998) (preserving

ineffective-assistance-of-counsel claim for postconviction relief to allow counsel

an opportunity to testify).   We preserve this ineffective-assistance-of-counsel

claim for postconviction-relief proceedings to afford the attorney that opportunity.

       Tannahill also claims the State breached the plea agreement in

addressing his request for a deferred judgment.          He asserts counsel was

ineffective in failing to object to the breach. We preserve this related claim for

postconviction relief.

B.     Whether the district court abused its discretion in sentencing.

       Tannahill claims the district court applied a fixed policy in declining to

grant him a deferred judgment. A fixed policy is one that creates a rule based

upon one factor to the exclusion of other relevant factors. State v. Hildebrand,
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280 N.W.2d 393, 397 (Iowa 1979); State v. Kelley, 357 N.W.2d 638, 639 (Iowa

Ct. App. 1984). Application of a fixed policy is impermissible. Hildebrand, 280

N.W.2d at 396.

         We are not convinced the court applied a fixed policy in sentencing

Tannahill. The court found a deferred judgment “appropriate” for people “who

have very few, if any, prior criminal history in their record.” The court went on to

cite Tannahill’s criminal history, the nature of his offenses, and other pertinent

factors. The court properly exercised its discretion in sentencing Tannahill, and

we discern no abuse of discretion. State v. McKeever, 276 N.W.2d 385, 387

(Iowa 1979).

         Tannahill further contends the court failed to state reasons for imposing

consecutive sentences. We conclude the court’s reasons are apparent from its

overall sentencing plan. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa

2010).

C.       Whether the district court abused its discretion in ordering payment of

attorney fees.

         At sentencing, Tannahill’s attorney advised the court of the attorney fees

he had incurred. The district court ordered Tannahill to pay approximately ten

percent of the fees, citing his limited ability to earn wages in prison. On appeal,

Tannahill contends the court improperly failed to consider his ability to pay the

attorney fees.

         “[A] defendant who seeks to upset an order for restitution of court costs

and attorney fees has the burden to demonstrate a failure of the trial court to

exercise discretion or abuse of discretion.” State v. Storrs, 351 N.W.2d 520, 522
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(Iowa 1984). Tannahill cannot show a failure to exercise discretion because the

district court explicitly considered his restricted earning capacity and reduced his

payment obligation by ninety percent. Accordingly, we affirm the attorney-fee

restitution order.

III.   Disposition

       We affirm Tannahill’s judgment and sentences.

       AFFIRMED.
