                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1685
                                  Filed July 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRAVIS JAMES VERONDA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Lars G. Anderson,

Judge.



      The defendant appeals from the sentence he received following a remand

for resentencing. AFFIRMED.



      Frederick Stiefel, Victor, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

      Travis Veronda appeals from the sentence he received following a remand

for resentencing. He maintains his counsel provided ineffective assistance by

failing to object when the State did not abide by the original plea agreement.

I. Background Facts and Proceedings.

      In 2016, Veronda was charged by three separate trial informations with

domestic abuse assault, a serious misdemeanor; domestic abuse assault causing

bodily injury, an aggravated misdemeanor; and second-degree burglary. Each of

the three crimes involved the same woman, who had a court-issued no-contact

order against Veronda.

      Veronda entered into a plea agreement with the State whereby he agreed

to plead guilty to the reduced charge of third-degree burglary as well as to each of

the charges of domestic abuse assault. As part of the agreement, the State agreed

to recommend a suspended sentence.

      In December 2016, Veronda entered guilty pleas to each of the three

charges and was sentenced to a five-year term of incarceration for the burglary

conviction, a two-year term for domestic abuse assault causing bodily injury, and

two years for the conviction for domestic abuse assault. Each of the sentences

was suspended.

      Veronda filed an appeal challenging the legality of his sentence, and the

State filed a motion to reverse and remand for resentencing. It was undisputed

Veronda had been improperly sentenced to a two-year term of incarceration for his

serious misdemeanor conviction of domestic abuse assault. See Iowa Code §

903.1(b) (2016) (“For a serious misdemeanor, . . . the court may also order
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imprisonment not to exceed one year.”). In August 2017, our supreme court filed

an order granting the State’s motion and remanding for resentencing.

       Between Veronda’s guilty pleas and sentencing in December 2016 and

when the matter came on for resentencing in September 2017, it was alleged

Veronda had violated the no-contact order between him and the protected party a

number of times. In a January 2017 probation violation complaint, it was alleged

Veronda had violated his probation by being in the home of the protected party

with her and by providing an alcohol breath test that registered a blood alcohol

content of .149. As a result, the State filed an application to revoke Veronda’s

probation. In June, the State filed a second application for revocation of Veronda’s

probation after it was alleged he again violated the terms of his probation and the

no-contact order by spending time in the home of and with the protected party.

The State later amended the application to include the allegation that a urinalysis

collected from Veronda in June showed the presence of alcohol in Veronda’s

system.

       At the resentencing hearing, the court began the proceedings by reciting

the procedure of the case up to that point, including:

              While the case was pending appeal, it appears there may
       have been some probation violation proceedings and some
       contempt proceedings related to a no contact order, and my
       understanding is some of those have been set for hearing today or
       at least one . . . .
              . . . [W]e’re not proceeding with any probation revocation
       proceedings or contempt proceedings at this time.
              Is that correct, [prosecutor]?

Both the State and defense counsel agreed the court’s recitation was correct, and

the hearing continued:
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              THE COURT: So essentially the State is dismissing those at
      this time; is that correct?
              PROSECUTOR: Yes, the probation revocation and the
      violations of the no contact order in exchange for [Veronda’s]
      agreement on the sentence on the underlying offense.
              ....
              THE COURT: Is there a plea agreement in this case,
      [prosecutor]?
              PROSECUTOR: Yes, your Honor. I believe the plea
      agreement is that [Veronda] will be—the sentence will be imposed
      for the [third-degree burglary conviction,] which is a class “D” felony
      and that [Veronda] should be remanded to the custody of the
      Department of Correctional Services to serve that sentence, and that
      the sentences in the other two matters, the serious misdemeanor and
      the aggravated misdemeanor, would be concurrent to the felony in
      these matters.
              THE COURT: The sentences in those two misdemeanors, are
      you talking about the maximum, so two years and one year
      respectively?
              ....
              DEFENSE COUNSEL: That’s correct, your Honor.
              PROSECUTOR: Yes.
              THE COURT: And obviously we’re here for a resentencing.
      That sounds like, because it’s a different result than what was
      achieved during the first sentencing, perhaps a different—I’m not
      sure. Is this a different plea agreement than the parties had initially?
              DEFENSE COUNSEL: Yes, your Honor. The original plea
      agreement was for a suspended sentence, but this is obviously a
      new plea agreement.
              THE COURT: And every—everybody is okay with that?
              DEFENSE COUNSEL: Yes, your Honor.
              PROSECUTOR: Yes, your Honor.
              ....
              THE COURT: All right. One thing I do want to confirm, Mr.
      Veronda, there was some discussion about the plea agreement and
      how that plea agreement has changed since prior to the time you
      pled guilty last time. Are you okay with that, sir? Your attorney
      indicated that you were, but I want to verify with you.
              VERONDA: Yes.

The court then proceeded to sentence Veronda to a five-year term of incarceration

for the burglary conviction, with the shorter sentences running concurrently.

Veronda appeals.
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II. Discussion.

       Veronda maintains he received ineffective assistance at his resentencing

hearing because his counsel failed to object when the prosecutor did not abide by

the first plea agreement, i.e. to recommend a suspended sentence for the burglary

charge and an “open disposition” for the other two charges.

       A defendant may raise claims of ineffective assistance on direct appeal if

he or she has reasonable grounds to believe the record is adequate to address the

claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing

Iowa Code § 814.7(2)). Here, we find the record is adequate. See State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (providing “it is for the court to

determine whether the record is adequate” to reach the merits of a claim of

ineffective assistance on direct appeal).

       To establish his claims of ineffective assistance, Veronda has the burden to

establish by a preponderance of the evidence that “(1) his . . . counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.” Straw, 709

N.W.2d at 133.     “A defendant establishes prejudice by showing ‘there is a

reasonable probability that, but for the counsel’s unprofessional errors, the result

of the proceeding would have been different.’” State v. Pace, 602 N.W.2d 764,

774 (Iowa 1999) (citation omitted). If either element is lacking, Veronda’s claim

fails. See Straw, 709 N.W.2d at 133.

       Veronda concedes that a plea agreement may be amended or modified.

And he does not dispute that the prosecutor accurately conveyed the new plea

agreement when she told the court the State would dismiss its applications for

probation revocation if Veronda agreed the sentences for the underlying burglary
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and domestic-abuse charges be imposed and not suspended. Therefore, his

argument is not actually that the prosecutor breached the plea agreement. Rather,

he claims the plea agreement can only be modified for “good reasons” and such

reasons must be adequately stated on the record, which he asserts is not the case

here. His relies on only one authority for this claim—an unpublished case from

this court, State v. Montes, No. 08-1043, 2009 WL 928515, at *2–3 (Iowa Ct. App.

Apr. 8, 2009), which does not stand for the proposition for which Veronda cites it.

       Here, the prosecutor presumably stated the new plea agreement on the

record accurately, as defense counsel agreed with the rendition at the time and

Veronda has not stated otherwise on appeal. The court then asked Veronda

directly if he agreed to the new plea agreement, and Veronda indicated on the

record that he did.1 Veronda has not since claimed that his agreement was given

unwillingly or involuntarily. Moreover, it is Veronda who has the burden to establish

that counsel had an essential duty that required him to object to the new plea

agreement, and we cannot say Veronda has met this burden.

       We affirm Veronda’s sentence.

       AFFIRMED.




1
 Veronda asserts “there is nothing in the sentencing record . . . to indicate [he] understood
his options.” His own statements belie this assertion.
