                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0953
                             Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHANE JASON EDWARDS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      Defendant appeals following conviction for possession of a controlled

substance, methamphetamine, third offense, in violation of Iowa Code section

124.401(5) (2016). AFFIRMED.



      Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Shane Edwards pleaded guilty to possession of a controlled substance,

methamphetamine, third offense, in violation of Iowa Code section 124.401(5)

(2016). Pursuant to the plea agreement, the parties were “free to argue for an

appropriate disposition” at the time of sentencing with the understanding the

prosecutor would recommend Edwards receive a suspended sentence and

Edwards would argue for a deferred judgment. During the guilty plea colloquy,

Edwards stated he understood the court was “not bound at sentencing by any

recommendations of the parties” and the court was not “required to suspend that

prison sentence.”     At sentencing, the district court rejected the prosecutor’s

recommendation for a suspended sentence and the defendant’s request for a

deferred judgment and instead sentenced Edwards to an indeterminate term of

incarceration not to exceed five years.           On appeal, Edwards contends the

prosecutor breached the plea agreement by not recommending a suspended

sentence and Edwards’ counsel provided constitutionally deficient representation

in failing to object to the alleged breach.

       To   establish   his   plea   counsel      provided   constitutionally   deficient

representation, Edwards must establish his counsel failed to perform an essential

duty and this failure resulted in constitutional prejudice. See State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006). If the State breached a plea agreement, defense

counsel breached an essential duty by failing to object to the breach or otherwise

take remedial action. See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008).

Prejudice is presumed under the circumstances because had counsel objected the

defendant would have been entitled to withdraw his guilty plea or be resentenced
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in an untainted proceeding. See State v. Frencher, 873 N.W.2d 281, 284 (Iowa

Ct. App. 2015).

       When the State enters into a plea agreement, the prosecutor must comply

with both the letter and spirit of the plea agreement. See State v. Horness, 600

N.W.2d 294, 296 (Iowa 1999). When 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.” Bearse, 748 N.W.2d at 216.

The ultimate inquiry in determining whether the prosecutor complied with the letter

and spirit of 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.” Frencher, 873 N.W.2d at 284. The prosecutor can act contrary to the

plea agreement and deprive the defendant of the benefit of the plea bargain

explicitly or implicitly. See id. at 285. Explicit action contrary to the plea agreement

is exactly what it sounds like and is easy to identify. Implicit action contrary to the

plea agreement is more ambiguous and harder to identify. Typically, implicit action

contrary to the plea agreement involves the prosecutor’s expression of material

reservation regarding the plea agreement while still in technical compliance with

the plea agreement. See id. The prosecutor could do this in a number of ways.

For example, the prosecutor could propose alternative sentences, request an “an

appropriate sentence” rather than the agreed-upon sentence, remind the court it
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is not bound by the plea agreement, or emphasize a more severe punishment

recommended by the presentence investigation author. See id.

      Here, Edwards contends the prosecutor failed to comply with the spirit of

the plea agreement by unduly emphasizing the defendant’s criminal history at the

time of sentencing. The contested recommendation was as follows:

              Your Honor, the State would ask this Court to impose an
      indeterminate term of incarceration as to Count I not to exceed five
      years and that sentence be suspended and the defendant be placed
      on a term of probation.
              Your Honor, the basis of the recommendation, as can be
      evidenced by the PSI, is based on the defendant’s age, his criminal
      history, his substance abuse history, and his employment
      circumstances.
              It is the understanding of the State the defendant will ask this
      Court to issue a deferred judgment. The State finds that a suspended
      sentence would be more appropriate, specifically based on the
      content of the defendant’s criminal history as well as his own
      admitted use of illegal narcotics after his arrest to the PSI writer.
              While we commend the defendant for his honesty, it does go
      to show the defendant’s continued criminal activity since the arrest
      in this case. The State feels that substance abuse treatment and the
      recommendations proposed by the PSI writer would give the
      defendant both the maximum opportunity for rehabilitation as well as
      protect the community from further offenses by the defendant, Your
      Honor.

      On de novo review, we disagree with the contention that the prosecutor

breached the plea agreement and defense counsel had a duty to object to the

prosecutor’s   recommendation.         The    presentence     investigation      report

recommended the defendant receive a suspended sentence and, among other

things, complete substance-abuse treatment.         The prosecutor relied on the

recommendation at the time of sentencing. The prosecutor’s reference to the

defendant’s criminal history and substance-abuse history provided context to the

sentencing recommendation and demonstrated support of the presentence
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investigation report’s recommended disposition of a suspended sentence,

supervised probation, and treatment. In similar circumstances, we have concluded

discussion of the defendant’s criminal history when made to provide context in

support of the recommendation is consistent with the spirit of the plea agreement.

See, e.g., State v. McDowell, No. 17-0679, 2017 WL 6034123, at *1 (Iowa Ct. App.

Dec. 6, 2017) (holding prosecutor’s discussion of defendant’s criminal history was

not in violation of the plea agreement where the discussion provided context in

light of “a strong recommendation for a suspended sentence”); State v. Schlachter,

884 N.W.2d 782, 786 (Iowa Ct. App. 2016) (“The correct recitation of Schlachter’s

criminal record was not a distraction from the prosecutor’s recommendation, but

strengthened it by alerting the court the prosecutor was aware of Schlachter’s

criminal record and was making the recommendation with that knowledge.”);

Frencher, 873 N.W.2d at 285 (concluding there was no breach where the

prosecutor discussed criminal history “only to provide context to the sentencing

recommendation”).

       Our conclusion is bolstered by an additional consideration.        Here, the

parties were not making a joint recommendation for a sentence. The parties

reserved the right to argue for an appropriate disposition at the time of sentencing.

The State recommended a suspended sentence, but the defendant argued for a

deferred judgment. The prosecutor acted within the spirit of the plea agreement

by identifying considerations that supported the State’s recommendation for a

suspended sentence but that also militated against the grant of a deferred

judgment.
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       Plea counsel had no duty to object to counsel’s statement because no

breach of the plea agreement occurred.        See Frencher, 873 N.W.2d at 286.

Accordingly, Edwards has failed to establish his claim that counsel provided

constitutionally deficient representation. See id.

       AFFIRMED.
