                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0818
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANGELIA MAURICE SCHULTZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Adam D.

Sauer, District Associate Judge (plea), and Gregg R. Rosenbladt, Judge

(sentencing).



      Angelia Schultz appeals following her guilty plea to operating a motor

vehicle while intoxicated, third or subsequent offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



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

       Angelia Schultz pled guilty to operating a motor vehicle while intoxicated,

third or subsequent offense. Iowa Code § 321J.2(2)(c) (2017). On appeal, Schultz

contends her attorney was ineffective in allowing her to plead guilty.

I.     Background Proceedings

       Schultz’s plea agreement identified the penalties for the crime, including

“[a]n indeterminate prison term of up to five (5) years,” with “30 days jail” as “the

mandatory minimum.” The agreement stated the court could “suspend execution

of any portion of the jail sentence in excess of 30 days,” there was “no guaranteed

outcome,” and “any plea bargain . . . [was] not binding on the court and the court

[would] affix the sentence at its discretion.”

       At the plea hearing, the prosecutor informed the court, “If Ms. Schultz pleads

guilty as charged to operating while intoxicated, third offense, . . . I will recommend

the mandatory minimum sentences.”          Specifically, he pledged to recommend

“commitment to the custody of the director of adult corrections for a term not to

exceed five years, but that be suspended except for the mandatory minimum term

of thirty days in jail, with two years probation, plus the mandatory minimum fine of

$3125.00 and surcharges and fees.” The prosecutor also agreed to dismiss a

marijuana possession charge and certain other misdemeanors.

       The district court asked Schultz whether she understood the court was “not

bound by the plea agreement.” She responded, “Yes.” Schultz also was asked

whether she understood the court could “impose any sentence up to the

maximum.”     Schultz responded, “Absolutely, I understand.”        The court found
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Schultz “voluntarily enter[ed] the plea, with a full understanding of the nature of the

charge, available defenses and the nature and the consequences of the plea.”

       At sentencing, the prosecutor recommended Schultz “be committed to the

custody of the director of adult corrections for an indeterminate term not to exceed

five years, but that be fully suspended except for the mandatory minimum term of

30 days in jail.”   He also recommended “two years probation under section

907.7(2), plus the mandatory minimum fine of $3125, and surcharges and fees

assessed pursuant to chapter 911.”            The prosecutor acknowledged the

presentence investigator recommended five rather than two years of probation but

noted that Schultz had begun “the evaluation and treatment process” and “that’s a

very good sign . . . that suggests . . . she will be successful.” Schultz’s attorney

agreed with the recommendation.

       The court declined to follow the sentencing recommendation.               After

providing a comprehensive statement of reasons, the court sentenced Schultz to

a prison term not exceeding five years and declined to suspend the sentence.

II.    Ineffective Assistance

       Schultz’s appeal implicates Iowa Rule of Criminal Procedure 2.10 on plea

agreements. Under the rule, a plea may or may not be conditioned on the district

court’s concurrence. Two provisions address pleas conditioned on the court’s

concurrence. One states:

       When the plea agreement is conditioned upon the court’s
       concurrence, and the court accepts the plea agreement, the court
       shall inform the defendant that it will embody in the judgment and
       sentence the disposition provided for in the plea agreement or
       another disposition more favorable to the defendant than that
       provided for in the plea agreement. In that event, the court may
       accept a waiver of the use of the presentence investigation, the right
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       to file a motion in arrest of judgment, and time for entry of judgment,
       and proceed to judgment.

Iowa R. Crim. P. 2.10(3). Another provides:

       If, at the time the plea of guilty is tendered, the court refuses to be
       bound by or rejects the plea agreement, the court shall inform the
       parties of this fact, afford the defendant the opportunity to then
       withdraw defendant’s plea, and advise the defendant that if
       persistence in a guilty plea continues, the disposition of the case may
       be less favorable to the defendant than that contemplated by the plea
       agreement. If the defendant persists in the guilty plea and it is
       accepted by the court, the defendant shall not have the right
       subsequently to withdraw the plea except upon a showing that
       withdrawal is necessary to correct a manifest injustice.

Iowa R. Crim. P. 2.10(4).

       The provisions give a court three options when the plea is conditioned on

the court’s concurrence: (1) the court may accept the agreement and “inform the

defendant that it will embody in the judgment and sentence the disposition

provided for in the plea agreement” or a more favorable disposition; (2) the court

may reject the plea agreement and “afford the defendant the opportunity to then

withdraw his or her plea”; or (3) the court “may defer its decision as to acceptance

or rejection until receipt of a presentence report.” State v. Wenzel, 306 N.W.2d

769, 771 (Iowa 1981) (citation omitted).

       Schultz contends her attorney should have understood that the district court

was unlikely to grant a suspended sentence in light of her extensive criminal history

and should have recognized that the plea bargain “was meaningless” unless it was

conditioned on the court’s concurrence. In her view, counsel was ineffective in

permitting her “to plead guilty . . . without insisting that the plea and sentencing

recommendations be binding on the sentencing court.”
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       Schultz must establish the breach of an essential duty and prejudice. See

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). We find the record

adequate to address the issue. See State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015).

       Schultz’s argument begins with a faulty premise—that she has an absolute

right to a particular sentence. She does not. See Wenzel, 306 N.W.2d at 771 (“A

defendant has no constitutional right to have a plea accepted.”). The court has an

independent obligation to consider an appropriate sentence in each case. See

State v. Hager, 630 N.W.2d 828, 834–35 (Iowa 2001). Even if defense counsel

had insisted on a plea conditioned on the court’s concurrence, the district court

could have rejected the plea. See Iowa R. Crim. P. 2.10(4). Accordingly, we

conclude counsel did not breach an essential duty in failing to demand a plea

conditioned on the court’s concurrence.

       On our de novo review, we affirm Schultz’s judgment and sentence for

operating a motor vehicle while intoxicated (third offense).

       AFFIRMED.
