                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1060
                               Filed April 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AARON MICHAEL HERMEN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Karen

Kaufman Salic, District Associate Judge.



      Aaron Hermen appeals from the sentences imposed following his guilty

pleas. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary Triick, Assistant Attorney

General, and Carlyle D. Dalen, County Attorney, for appellee.




      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.

      Aaron Hermen appeals from the sentences imposed following his guilty

pleas to domestic abuse assault by strangulation, OWI third offense, and child

endangerment. He contends his trial counsel was ineffective in not objecting to

the State’s breach of the plea agreement and the trial court abused its discretion

in sentencing. We affirm the sentences.

                                         I.

      Pursuant to a plea agreement, Hermen entered written guilty pleas to the

charges listed above and also participated in an oral colloquy with the court

concerning the pleas. As part of the plea agreement, the State agreed to dismiss

all other charges and to recommend one year in jail with all but thirty days

suspended on the domestic assault charge, a five-year sentence with all but

thirty days suspended on the OWI, and sixty days in jail on the child

endangerment charge. The State was also to recommend the two thirty-day

sentences be served consecutive to each other but concurrent with the sixty-day

sentence.     A   presentence     investigation    report   was   prepared,       which

recommended concurrent sentences of five years for domestic assault, five years

for OWI, and two years for child endangerment.

      At sentencing, the prosecutor said:

             Your Honor, the—going through each of the three counts, for
      Count I, the Domestic Assault of Impeding Air Flow, as an
      aggravated misdemeanor, the State’s recommendation is a one
      year in jail, with all but thirty days suspended, credit for time served,
      that he be placed on probation for a period of two years, receive a
      suspended minimum fine, and be required to—be required to
      complete the batterer’s education program. For—we ask that that
      sentence be consecutive to Count II and concurrent to Count III.
      Count II the recommendation for an O.W.I., Third, is a term in
                                         3


      prison not to exceed five years, with all but thirty days being
      suspended, credit for time served, the minimum fine, and be placed
      on probation for three years, and also be required to complete a
      substance abuse evaluation, if he’s not already done so and follow
      through on any recommended treatment. We ask that that be
      consecutive to Count I and concurrent with Count III.
              And then for Count III, the Child Endangerment, the
      recommendation is sixty days and a $625.00 fine, which is the
      minimum fine, as well as credit for time served. And as I already
      stated that is to be concurrent with the other two counts. We’ve
      already dismissed Count IV, so no recommendation is needed
      there
              The history as stated in the PSI and so the Court can review
      that as well as in the court file. The State’s requesting restitution as
      stated in their statement of pecuniary damages that they’ve already
      filed for the utility pole that Defendant hit in this case, and that’s to
      be paid to Alliant Energy in the amount of $2,947.39. I’m not aware
      of any other restitution.
              So in light of that, these recommendations seem very
      reasonable considering the severity of the charges and the facts
      that are behind them such as getting in an accident, he was very
      uncooperative with the police saying—using language like, FU; and
      so in light of that, this recommendation seems reasonable and we
      ask the Court to adopt it.

      The State’s sentencing recommendation was in accord with paragraph

twelve of the written plea agreement. Hermen’s counsel did not object to the

prosecutor’s recommendation. Hermen’s attorney said, “We are also asking the

Court to adopt the recommendations as set forth in the plea agreement.” The

attorney then enumerated several mitigating factors before closing with, “So we

would ask that you accept the State’s recommendations set forth in the plea

agreement.”

      The district court rejected the parties’ joint recommendation:

      Mr. Hermen, the law requires that I take a number of factors into
      account when deciding what an appropriate sentence is for
      someone. One of those things obviously is your rehabilitation, not
      just your need for it but also your potential for it. Also protecting the
      community. In this particular case, you have specific victims, but
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      the protection of the community as a whole. And also deterring
      others from committing similar offenses.
             Some of the things that are kind of subcategories of those
      considerations, your age, your family situation, your criminal
      history, the nature of this offense, and anything that I considered in
      reading the Pre-Sentence Investigation Report and what I have
      learned about you in the hearing today both through your
      statements as well as the argument of your counsel.
             And as I’m sure you understand and even Ms. Turner has
      alluded to it, you have a horrible criminal history for someone who’s
      twenty-five years of age. In November of 2006, you were convicted
      of a weapons charge. While you were still on probation for that
      offense, you—and an O.W.I. sorry; while you were on probation for
      those offenses, you were charged with Assault Causing Bodily
      Injury in June of 2007. Because of that offense you had a
      probation revocation proceeding on the first two charges where
      there was a contempt finding. You were placed on probation for
      the assault charge which has now been revoked apparently. In
      October of 2007, you have a new charge of Possessing a Firearm
      as a Felon, there was a prison term on that which was suspended
      but has since been revoked. 2009 you had an Eluding charge,
      given probation and that has also been revoked, along with an
      O.W.I., Second Offense, that occurred at the same time.
             And as I’m sure you’ve noticed this pattern of weapons, of
      alcohol violations of driving, of assaulting people, and that’s
      unacceptable. Obviously, it’s illegal and we’re here today on
      charges of you strangling your wife, of endangering your child and
      of you driving drunk for the third time. Every attempt to have you
      on probation has failed. And I have no reason to believe given your
      history that we’re going to have any other result on this—these
      charges. And so I’m not going to adopt the recommendations of
      the parties. I will adopt the recommendation of the pre-sentence
      investigator.
             ....
             In light of your recent employment and other compliance with
      the Department of Human Services, I am going to order that these
      sentences be served concurrently with hopes that when you do
      return from prison, that you will start on the right path.

                                        II.

      Hermen contends his trial counsel was ineffective in failing to object to the

State’s breach of the plea agreement. Our review is de novo. See State v.

Bearse, 748 N.W.2d 211, 214 (Iowa 2008). He argues the State did not truly
                                       5


“recommend” the sentences agreed upon because it mentioned the presentence

investigation report, the severity of the charges, and that the recommendation

was “reasonable.” He contends the State’s recommendation was really a “wink

and a nod” and “can only be characterized as insincere.” We disagree.

      The circumstances before us are not like those in the cases cited by

Hermen: Bearse and State v. Horness, 600 N.W.2d 294 (Iowa 1999), where the

court found the State breached the plea agreement by not recommending the

agreed-upon sentences. See Bearse, 748 N.W.2d at 216 (“Not only did the State

in this case mistakenly recommend incarceration at the outset, but it clearly

suggested incarceration should be imposed by referring to the presentence

investigation report (which recommended incarceration) and reminding the court

that it was not bound by the plea agreement. The State clearly breached the

plea agreement by suggesting more severe punishment than it was obligated to

recommend.”); Horness, 600 N.W.2d at 300 (“[T]he county attorney breached the

plea agreement by failing to commend the recommended sentences to the court

or otherwise inform the court that the State supported the suggested sentencing

of the defendant. . . .   The prosecutor also breached the plea agreement by

informing the court of an “alternative recommendation” and making statements

implying that the alternative recommendation was more worthy of acceptance.”).

The State here recommended the agreed-upon sentences, assured the court the

sentences were reasonable, and explicitly asked the court to adopt the

recommendation. The passing reference to the presentence investigation was in

the context of restitution, not, as Hermen suggests by omitting the restitution

discussion from his quote, in reference to the sentencing recommendation. We
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conclude the State properly fulfilled its obligation to “recommend” the agreed-

upon sentences and ask the court to adopt the recommendation.

      Because there was no breach of the plea agreement, Hermen’s attorney

had no duty to object, and Hermen was not prejudiced by the lack of objection.

See Bearse, 748 N.W.2d at 214-15 (setting forth the two elements of ineffective

assistance and noting, “If the State did not breach the plea agreement, defense

counsel could not have been ineffective”).      Hermen’s trial attorney was not

ineffective in not objecting to the State’s sentencing recommendation.

                                        III.

      Hermen also contends the court abused its discretion in sentencing

because it relied “solely on Hermen’s criminal history when determining the

appropriate sentence.” Because the sentences imposed fall within the statutory

limits, we review the trial court’s sentencing decision for an abuse of discretion.

See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).

      “In exercising its discretion, the district court is to weigh all pertinent

matters in determining a proper sentence, including the nature of the offense, the

attending circumstances, the defendant’s age, character, and propensities or

chances for reform.”    State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994).

Although “a sentencing court has a duty to consider all the circumstances of a

particular case,” it is not “required to specifically acknowledge each claim of

mitigation urged by a defendant.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.

App. 1995). Furthermore, “the failure to acknowledge a particular sentencing

circumstance does not necessarily mean it was not considered.” Id.
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       The sentencing court considered the statements and recommendations of

counsel, the defendant’s statements, and the presentence investigation report.

The court expressly noted mitigating factors in determining to order concurrent

sentences. Although the court recited much of Hermen’s criminal history, it was

in the context of determining his “propensities or chances for reform” and how

best to protect society. See Johnson, 513 N.W.2d at 719; see also Iowa Code

§ 907.5(1) (2013). The trial court did not rely solely on Hermen’s criminal history

and did not fail to consider mitigating circumstances.      We find no abuse of

discretion.

                                        IV.

       Having determined trial counsel was not ineffective in not objecting to the

State’s sentencing recommendation and the court did not abuse its discretion in

determining the appropriate sentence, we affirm.

       AFFIRMED.
