                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0913
                                  Filed May 11, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHERY THOMAS BUTRICK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,

Judge.




      Zachery Butrick appeals the judgment imposed and the sentences

pronounced after entering Alford pleas. AFFIRMED AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Zachery Butrick appeals the judgment imposed and the sentences

pronounced after entering Alford pleas1 to charges of child endangerment

causing bodily injury and domestic abuse assault causing bodily injury—

strangulation.   Butrick contends his trial counsel’s failure to object to the

prosecutor’s alleged breach of the plea agreement resulted in ineffective

assistance of counsel. He also contends the sentencing court erred in failing to

suspend the fines and surcharges in the written judgment and in stating it relied

on a dismissed charge in deciding the sentence. Because Butrick failed to prove

the prosecutor breached the plea agreement, his trial counsel was not ineffective

by failing to object on that basis. However, because we agree clerical errors in

the sentencing order require corrections, we remand the case to the district court

so that it may issue an order nunc pro tunc. We affirm in all other respects.

       I. Background Facts and Proceedings.

       The facts underlying Butrick’s convictions are not at issue. Briefly stated,

Butrick kicked his girlfriend’s four-year-old son in the face after the child was

disobedient. When the girlfriend tried to intervene, Butrick pushed her into a wall.

He then choked her, hit her in the face, and threatened to slit her throat with a

knife in front of the child.   During the altercation, Butrick punched the child

multiple times in the chest. Both the girlfriend and her son had visible injuries

when the police arrived at the scene.



1
 An Alford plea allows a defendant to maintain innocence while acknowledging that the
State has enough evidence to win a conviction. See North Carolina v. Alford, 400 U.S.
25, 37 (1970).
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       The State charged Butrick with child endangerment causing bodily injury

and domestic abuse assault causing bodily injury—strangulation. In exchange

for Butrick entering Alford pleas to the charges, the State agreed it would

recommend the court impose concurrent sentences.             The State also agreed

Butrick would be free to request probation or a deferred judgment. Finally, the

fines for each count were to be suspended upon final disposition.

       Butrick entered Alford pleas, which the court accepted.          A sentencing

hearing was held separately, during which the State recommended Butrick’s

sentences run concurrently. Butrick, who claimed the incident was caused by his

untreated mental health conditions, argued in favor of probation or a deferred

judgment to allow him to pursue treatment. The district court instead imposed

five-year sentences of incarceration on each count, with the sentences running

concurrently. The court stated that “[b]ut for the evidence on mental health, [it]

would sentence the defendant to consecutive sentences.”

       II. Ineffective Assistance of Counsel.

       Butrick first contends his trial counsel was ineffective by failing to object to

what he alleges was a breach of the plea agreement. Specifically, he complains

that the prosecutor engaged in “unfair and inflammatory” actions and that the

“recitation   of   his   [sentencing]   recommendation     pursuant    to   the   plea

agreement . . . without any reasons or mention of anything positive about [him]

violated the spirit of the plea agreement.”

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

Clay, 824 N.W.2d 488, 494 (Iowa 2012).           Ineffective assistance of counsel

occurs when counsel fails to perform in an objectively reasonable manner under
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prevailing professional standards, and that failure prejudices the defendant. See

id. at 494-95.      Ordinarily, we preserve such claims for postconviction-relief

proceedings, though we will resolve them on direct appeal when the record is

adequate. See id. at 494.

          “[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.”          State v.

Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (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.

          Here, the State agreed Butrick could request probation or a deferred

judgment.      He did.    The State also agreed to recommend Butrick receive

concurrent prison sentences. It did. As such, the letter of the agreement was

followed. Butrick complains, however, that the State violated the agreement’s

spirit.     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. See 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.

          Butrick argues the State breached the plea agreement in spirit, citing the

following actions as evidence: First, the prosecutor called one of the responding
                                          5


police officers to testify at the sentencing hearing, during which the officer

“described the injuries of the victims and the negative attitude of the defendant.”

Second, the prosecutor entered into evidence six photos documenting the

injuries Butrick inflicted on his girlfriend and her son. Finally, after describing

Butrick’s offenses as “particularly violent” and his actions as “shocking,” the

prosecutor observed Butrick needed to receive the help he needs before being

released back into society “so something like this that has all the indicators that it

could have gotten much worse, that it never happens again,” all of which Butrick

classifies as “unfair and inflammatory.” Butrick alleges his counsel had a duty to

object to each of these actions, which he claims “sabotaged any chance [he] had

for a deferred judgment or probation.”        When coupled with the prosecutor’s

sentencing recommendation, which was made “pursuant to the plea agreement”

without stating any positive attributes, Butrick claims the prosecutor violated the

plea agreement in spirit.

       On this record, we are unable to find the prosecutor breached the plea

agreement in spirit.    The prosecutor made the sentencing recommendation

required by the plea agreement.               He did not make an “alternative

recommendation” of a harsher sentence or attempt to steer the court toward a

harsher penalty than he was recommending. 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.”).    In fact, no harsher penalty was imposed.         Although Butrick’s

sentence is not as lenient as he wanted, this does not equate to a violation of the

spirit of the plea agreement. The prosecutor was in no way required to advocate
                                        6


for a lesser penalty than the one he agreed to recommend.          Consequently,

Butrick’s trial counsel had no duty to object, and his ineffective-assistance-of-

counsel claim fails.

       III. Sentence.

       Butrick also challenges the provision of the written sentencing order

requiring him to pay a fine and surcharge on each count. At the plea hearing,

Butrick’s counsel informed the court that the State was “in agreement with

suspending the fines on these two—or civil penalties as it may be, depending on

the disposition at the sentencing.” In its oral pronouncement, the court indicated

the fines would be suspended. Although nothing in the record suggests the court

intended to enter a sentence contrary to the plea agreement, the court failed to

suspend the fines and applicable surcharges in its written order. Butrick also

notes a scrivener’s error appearing in the written order that omits the word “not”

from a portion of the order, which should read as follows: “The court notes that

the PSI contained information as to one criminal offense that was dismissed.

The court did not rely on that offense in deciding the sentence in this case.”

(Emphasis added.) The State concedes these discrepancies were the result of

clerical error.

       “[W]hen a judgment entry incorrectly differs from the oral rendition of the

judgment merely as a result of clerical error, the trial court holds the inherent

power to correct the judgment entry so that it will reflect the actual

pronouncement of the court.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995).

In such instances, “the oral pronouncement of sentence controls.” Id. at 528.

Because the record unambiguously demonstrates the discrepancies were the
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result of clerical error, we remand the case to the district court so that it may

issue a nunc pro tunc order to correct the clerical error in the written order. 2 See

id. at 529. We affirm in all other respects.

       AFFIRMED AND REMANDED.




2
  Some may question why a corrected sentencing order is necessary if an
appellate court has finally resolved the issue. We recognize that final sentencing
orders are relied upon by many people, agencies, and organizations, including
the Iowa Department of Corrections, the Iowa Board of Parole, probation and
parole personnel, law enforcement agencies, other government agencies, and
the business community. It is unrealistic and administratively unwieldy for a copy
of an appellate opinion to be sent to or appended to any prior sentencing order
that was altered by an appellate opinion. A revised sentencing order provides a
final, complete memorialization of the sentence imposed to be enforced. See
State v. McLachlan, No. 15-1449, 2016 WL 1359093, at *3 n.6 (Iowa Ct. App.
Apr. 6, 2016).
