                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1021
                               Filed June 24, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNNATHAN MONROE FRENCHER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      The defendant appeals his conviction following a guilty plea. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Darrel Mullins,

Assistant Attorneys General, John P. Sarcone, County Attorney, and Joseph

Crisp, Assistant County Attorney, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MCDONALD, J.

         Defendant Johnnathan Frencher claims his plea counsel provided

constitutionally ineffective representation by failing to object to the prosecutor’s

alleged breach of the parties’ plea agreement. We review claims of ineffective

assistance of counsel de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006).     Ordinarily, ineffective-assistance-of-counsel claims are preserved for

postconviction relief actions. See State v. Mulder, 313 N.W.2d 885, 890 (Iowa

1981). Where, as here, the record is sufficient to evaluate the merits of the

claim, the matter may be resolved on direct appeal. See Iowa Code § 814.7(2);

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). On de novo review, we

conclude that Frencher failed to establish that the prosecutor breached the

parties’ plea agreement and, as a consequence, that his counsel rendered

constitutionally deficient legal representation.

         Frencher was charged by trial information with possession of a controlled

substance (marijuana) with intent to deliver, in violation of Iowa Code section

124.401(1)(d) (2013), and carrying a concealed weapon, in violation of section

724.4(1). The parties entered into a plea agreement: Frencher agreed to plead

guilty to the possession charge without any sentencing enhancement, the State

agreed to dismiss the weapons charge, and the parties would jointly recommend

a suspended sentence with probation. At the time of sentencing, the prosecutor

recommended a “suspended sentence with probation.”            Although the parties

jointly recommended a suspended sentence, the district court granted Frencher a

deferred judgment, placed him on probation for five years, and ordered
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placement in the Fort Des Moines residential facility when space became

available. Subsequently, the defendant filed a motion to correct illegal sentence,

arguing that placement in a residential facility was an unlawful condition of a

deferred judgment. The district court granted the motion, vacated the prior order,

convicted the defendant of the possession charge, sentenced the defendant to

five years’ incarceration, suspended the sentence, placed the defendant on

probation for five years, and ordered placement at the Fort Des Moines

residential facility. Frencher timely filed this appeal.

       Frencher claims that his Sixth Amendment right to the assistance of

counsel was violated when his counsel failed to object to the prosecutor’s alleged

breach of the plea agreement. Specifically, Frencher contends the prosecutor

emphasized negative information regarding Frencher during the initial sentencing

proceeding, which effectively undercut the recommendation for a suspended

sentence.

       To establish a claim of ineffective assistance of counsel, the defendant

must establish that trial counsel failed to perform an essential duty and that this

failure resulted in prejudice. See Straw, 709 N.W.2d at 133 (citing Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)). The claim fails if the defendant is

unable to establish either element. See State v. Fountain, 786 N.W.2d 260, 265-

66 (Iowa 2010).      If the State breaches a plea agreement, defense counsel

breaches 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). To

establish prejudice, Frencher must demonstrate that the outcome of the
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sentencing proceeding would have been different. See State v. Fannon, 799

N.W.2d 515, 523 (Iowa 2011). This does not necessarily require the defendant

to establish he would have received a different sentence. See id. Instead, the

outcome would have been different because the defendant would have been

entitled to withdraw his guilty plea or be resentenced in an untainted proceeding.

See State v. Carillo, 597 N.W.2d 497, 501 (Iowa 1999).

      As a general rule, defense counsel has no duty to raise an issue that is

without merit. See Fannon, 799 N.W.2d at 520. “We, therefore, first consider

whether the State breached the plea agreement during the sentencing hearing.”

Id. In the absence of a breach, defense counsel had no reason or duty to object

to the prosecutor’s remarks. When the plea agreement calls for the State to

make a sentencing recommendation to the court “mere technical compliance is

inadequate; the State must comply with the spirit of the agreement as well.”

State v. Horness, 600 N.W.2d 294, 296 (Iowa 1999).

      A fundamental component of plea bargaining is the prosecutor’s
      obligation to comply with a promise to make a sentencing
      recommendation by doing more than simply informing the court of
      the promise the State has made to the defendant with respect to
      sentencing. The State must actually fulfill the promise. Where the
      State has promised to “recommend” a particular sentence, we have
      looked to the common definition of the word “recommend” and
      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 215-16.
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         The relevant inquiry in determining whether the prosecutor breached 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. See Fannon, 799

N.W.2d at 522 (noting counsel has a duty to ensure the defendant receives the

“benefit of the agreement”).     Where the State technically complied with the

agreement by explicitly recommending the agreed-upon sentence but expressed

material     reservations   regarding   the   plea    agreement     or   sentencing

recommendation, it can be fairly said the State deprived the defendant of the

benefit of the bargain and breached the plea agreement. See United States v.

Cachucha, 484 F.3d 1266, 1270-71 (10th Cir. 2007) (“While a prosecutor

normally need not present promised recommendations to the court with any

particular degree of enthusiasm, it is improper for the prosecutor to inject material

reservations about the agreement to which the government has committed

itself.”).

         The expression of a material reservation regarding the plea agreement or

sentencing recommendation can be explicit or implicit.           For example, the

prosecutor may explicitly express regret for entering into the plea agreement.

See, e.g., State v. Hickman, No. 14-0269, 2014 WL 5251116, at *2-3 (Iowa Ct.

App. Oct. 15, 2014) (holding the prosecutor breached the plea agreement when

he stated he had difficulty making the agreed upon sentencing recommendation).

The prosecutor may also implicitly express material reservation to the plea
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agreement or recommended sentence in a number of ways. For example: by

proposing alternative sentences; by requesting “an appropriate sentence” rather

than the agreed-upon sentence; by making a recommendation and then

reminding the court it is not bound by the plea agreement; or by emphasizing a

more severe punishment recommended by the presentence investigation author.

See, e.g., Bearse, 748 N.W.2d at 216 (holding the prosecutor breached the plea

agreement by suggesting greater punishment was warranted); State v. Horness,

600 N.W.2d at 300 (holding the prosecutor breached the plea agreement by

informing the court of alternative recommendation and breached the plea

agreement by requesting “an appropriate sentence”); Chest v. State, No. 13-

0069, 2014 WL 1494900, at *5 (Iowa Ct. App. Apr. 16, 2014) (holding State

breached plea agreement where prosecutor expressed it was “hard to stand

before the court” and give the recommendation and emphasized facts of the

case); State v. Dudley, No. 09-1772, 2010 WL 3157757, at *1-2 (Iowa Ct. App.

Aug. 11, 2010) (holding State breached plea agreement where prosecutor made

agreed upon recommendation but called presentence investigation (“PSI”) writer

as witness to “clarify” position on recommending a more severe sentence).

      We conclude the prosecutor did not breach the plea agreement. While the

prosecutor in this case discussed Frencher’s criminal history and some of the

negative information contained in the PSI, the prosecutor did so only to provide

context to the sentencing recommendation. The prosecutor strongly advocated

for the recommended sentence, stating that Frencher should be given the

opportunity for probation and could be successful on probation despite
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Frencher’s criminal history: “The State believes that with the proper

mentoring/programming that he could be successful . . . . That’s if he applies

himself and decides to apply himself. It appears to me that when he is motivated

to do something, that he can do so.” The prosecutor concluded, “If Mr. Frencher

can use that as a positive and make honest decisions, . . . the State believes that

he can be successful while on probation.” At no point did the prosecutor express

a material reservation regarding the plea agreement or the sentencing

recommendation. His statements were consistent with the common purpose of

the agreement. See, e.g., State v. Brocato, No. 16-0565, 2014 WL 7343462, at

*1 (Iowa Ct. App. Dec. 24, 2014) (“[The State] did not undercut its promise by

making ‘alternative recommendations,’ suggesting a more severe sentence as in

Horness. Neither did the State suggest a more severe punishment should be

imposed by reminding the court of the recommendation of presentence

investigation report and informing the court it was not bound by the plea

agreement.”); State v. Pearl, No. 13-0796, 2014 WL 1714490, at *3 (Iowa Ct.

App. Apr. 30, 2014) (holding no breach where the prosecutor provided context

but did “not propose alternative sentences or reference the sentencing

recommendation contained in the presentence investigation report” and “urge[d]

the court to adopt the terms of the agreement and sentence Pearl accordingly”).

      Because the State did not breach the plea agreement, Frencher’s counsel

had no duty to lodge an objection to the prosecutor’s statements. See Bearse,

748 N.W.2d at 214-15.      Thus, Frencher’s claim of ineffective assistance of
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counsel fails.   For these reasons, we affirm the defendant’s conviction and

sentence.

      AFFIRMED.
