                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1982
                              Filed June 21, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES MICHAEL PRYOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,

District Associate Judge.



      A defendant appeals following his plea of guilty to driving while barred as

an habitual offender. AFFIRMED.



      Edward S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des

Moines, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       James Pryor appeals the judgment and sentence imposed following his

guilty plea to driving while barred as an habitual offender. Pryor argues his plea

counsel was ineffective for failing to file a motion in arrest of judgment after the

district court advised Pryor it would not follow the sentencing recommendation

from his plea bargain with the State but allegedly did not afford Pryor the

opportunity to withdraw his guilty plea. Because Pryor’s plea agreement was not

conditioned upon concurrence of the court, counsel had no duty to file a motion

in arrest of judgment. Accordingly, we affirm.

       On July 11, 2016, the State charged Pryor with driving while barred as an

habitual offender, an aggravated misdemeanor, in violation of Iowa Code

section 321.561 (2016). On October 12, Pryor signed a petition to plead guilty to

the offense, indicating, “[t]he plea agreement is: $1000 fine” and “[t]he Court is

not bound by the plea agreement and may impose the maximum sentence as

allowed by law.” The district court accepted Pryor’s guilty plea that same day.

The court’s order notified Pryor of his right to contest the plea by filing a motion in

arrest of judgment and then stated: “COURT HAS ADVISED THE DEF THE

COURT WILL NOT AGREE TO PLEA AGREEMENT.”

       Pryor appeared for sentencing on November 16, 2016.              Following the

hearing, the court issued an order sentencing Pryor to a suspended two-year

term of incarceration. Later that day, the court issued a nunc pro tunc order

stating the suspension of Pryor’s sentence was in error and ordering his

incarceration for two years.

       Pryor now appeals.
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      We review ineffective-assistance-of-counsel claims de novo because they

are based in the Sixth Amendment. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).      To succeed on appeal, Pryor must demonstrate by a

preponderance of the evidence both: (1) his counsel breached an essential duty

and (2) the breach resulted in prejudice. See State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006).     Generally, we preserve ineffective-assistance claims for

postconviction-relief proceedings to allow counsel in the underlying proceedings

the opportunity to defend against the accusation.        State v. Thorndike, 860

N.W.2d 316, 319 (Iowa 2015). Only when the record is adequate will we resolve

the claims on direct appeal. See id. We find the record is adequate here.

      Pryor argues his plea counsel should have filed a motion in arrest of

judgment because Pryor “was not allowed to withdraw his guilty plea after the

Court indicated it would not follow the plea agreement.” In support of this claim,

Pryor relies on Iowa Rule of Criminal Procedure 2.10, which governs plea

bargaining. Rule 2.10(4) 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 a right
      subsequently to withdraw the plea except upon a showing that
      withdrawal is necessary to correct a manifest injustice.

      The State contends this rule requires a district court to allow a defendant

to withdraw a guilty plea only if the plea agreement is conditioned upon the

concurrence of the district court. We agree. While “[o]n its face, subsection (4)
                                           4


appears to apply any time a court declines to follow a plea agreement entered

into by the defendant and the State . . . subsection (4) cannot be viewed in

isolation.” State v. Weaver, No. 05-0764, 2006 WL 3018498, at *3 (Iowa Ct. App.

Oct. 25, 2006). When the rule is read as a whole, “it soon becomes clear that the

requirements of subsection (4) are meant to apply only when the plea agreement

has been conditioned on the court’s concurrence in the agreement between the

parties.”1   Id.; see also State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981)

(noting predecessor to rule 2.10 “gives a court three options regarding the plea

agreement at the time the plea is offered if the agreement is conditioned on the

court’s acceptance” (emphasis added)).

       In Pryor’s case, the written plea agreement expressly stated the

sentencing recommendation was not binding on the district court. Therefore, the




1
  The two preceding subsections of the rule guide our analysis. Rule 2.10(2) provides:
                 Advising court of agreement. If a plea agreement has been
        reached by the parties the court shall require the disclosure of the
        agreement in open court at the time the plea is offered. Thereupon, if the
        agreement is conditioned upon concurrence of the court in the charging
        or sentencing concession made by the prosecuting attorney, the court
        may accept or reject the agreement, or may defer its decision as to
        acceptance or rejection until receipt of a presentence report.
Iowa R. Crim. P. 2.10(2). Further, rule 2.10(3) states:
                 Acceptance of plea agreement. 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 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).
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district court was not required to allow Pryor to withdraw his guilty plea.2 See

State v. Thompson, 856 N.W.2d 915, 922 (Iowa 2014) (finding district court was

not required to allow defendant the opportunity to withdraw his plea before

sentencing when court rejected sentencing agreement, agreement did not

require court’s concurrence, and defendant acknowledged in written petition to

plead guilty that “[t]he court is not bound by the agreement and may impose the

maximum sentence as required by law”). Accordingly, Pryor’s plea counsel did

not breach an essential duty by failing to file a meritless motion in arrest of

judgment on this ground, and Pryor’s ineffective-assistance claim cannot prevail.

See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (noting we may affirm

if either ineffective-assistance element is lacking).

       AFFIRMED.




2
  Our record on appeal does not include a transcript of the guilty plea hearing.
Accordingly, we have no documentation of Pryor’s claim that the district court failed to
provide him with the opportunity to withdraw his guilty plea after indicating it would not
“agree to [the] plea agreement.”
