                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1824
                            Filed November 26, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BILLY TRUE BENEDICT,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Madison County, Paul R. Huscher,

Judge.



      A defendant asks to be resentenced on his conviction for possession of

methamphetamine, second offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

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

General, and Julie Forsyth, County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

       Billy True Benedict claims he received ineffective assistance of counsel at

his sentencing hearing because his attorney did not object to the State’s alleged

breach of the plea agreement.        Because the State honored the agreement

recited at the plea hearing, we affirm.

       During the execution of a search warrant at a Winterset residence in

March 2013, police discovered Benedict in possession of a baggie containing

methamphetamine and a pipe used to smoke the controlled substance. In April

2013, the State charged Benedict by trial information with possession of

methamphetamine, second offense, an aggravated misdemeanor, in violation of

Iowa Code section 124.401(5) (2013).

       The Madison County Attorney engaged in a series of plea negotiations

with Benedict. Benedict’s counsel made a record concerning the last two plea

offers rejected by his client; those offers included resolution of not just the current

drug charge, but other pending charges of theft and criminal mischief. Defense

counsel asked the prosecutor on September 10, 2013, the morning of trial, if the

earlier plea offers were still on the table. At that point, the prosecutor limited the

plea offer to the methamphetamine possession charge.

       Off the record, Benedict and his counsel discussed the possibility of

accepting the State’s plea offer rather than going forward with the trial. After that

discussion, defense counsel stated on the record his client was willing to enter a

guilty plea to the charge of possession of methamphetamine, second offense,

“and then we would ask that a PSI [presentence investigation report] be done
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and we be free to argue sentencing.” The county attorney told the court that

agreement was acceptable to the State.

      The court then started to step through the plea colloquy with Benedict,

determining he was thirty-three years old and understood the charge against him.

Before Benedict entered his guilty plea, the county attorney expressed her desire

to clarify the terms of the plea agreement.

             [The State]: Your Honor, I believe the State needs to set
      forth what the plea agreement is so that all parties understand.
             THE COURT: Very well. You may do so.
             [The State]: Your Honor, the offer that was made, and my
      understanding is that Mr. Benedict has accepted, is that he would
      plead guilty as charged in this Trial Information. There is no
      agreement as to sentencing. A Presentence Investigation will be
      ordered, and the parties are free to argue whatever sentence that
      they would like to have imposed.
             THE COURT: Is that agreeable?
             [Defense Counsel]: That is agreeable, and that is my
      understanding of the plea agreement.
             THE COURT: Is that agreeable with you?
             [Benedict]: Yeah.
             THE COURT: Okay. Is there anything, Mr. Benedict, you
      don’t understand about the plea agreement as it stands now?
             [Benedict]: Everything’s clear.

      The court resumed the plea colloquy, during which Benedict admitted

possessing methamphetamine on March 21, 2013, and also admitted a previous

drug conviction. The court accepted his guilty plea.

      Benedict appeared for sentencing on November 12, 2013.          The State

asked the court to adopt the sentencing recommendation set forth in the PSI,

namely a two-year prison term.        Defense counsel argued for one year of

probation, telling the court: “I think probation actually would be a greater

punishment for Mr. Benedict than prison.      Mr. Benedict has been in prison
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before. In fact, when he entered the plea to this, he had informed me that he

probably would prefer prison over probation.” Benedict personally spoke to the

court, confirming what his attorney had said: “[I]t’s probably going to be more of a

challenge on probation than just going and sitting in prison doing nothing.” But

Benedict explained because of his family situation, he was asking to be placed

on probation.

       Citing Benedict’s criminal history and prior unsuccessful probationary

terms, the district court determined incarceration was the appropriate sentence.

The court sentenced Benedict to an indeterminate two-year prison term.

       Benedict now argues his counsel provided ineffective assistance at the

sentencing hearing by failing to object to the State’s recommendation of a two-

year prison term instead of a two-year suspended sentence and one year of

probation.

       Because they invoke constitutional rights, we review claims of ineffective

assistance of counsel de novo. See State v. Finney, 834 N.W.2d 46, 49 (Iowa

2013). “To prevail on a claim of ineffective assistance of counsel, the defendant

must prove that his counsel failed to perform an essential duty and that the

defendant suffered prejudice as a result of this failure.” State v. Horness, 600

N.W.2d 294, 298 (Iowa 1999).

       The State must comply with both the letter and the spirit of a plea

agreement. Id. at 296. If the State breaches a plea agreement, counsel has a

duty to object because “only by objecting could counsel ensure that the

defendant received the benefit of the agreement.”         Id.   Defense counsel’s
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objection would lead to a different outcome—sufficient to show prejudice—

because it would alert “the court to correct the taint by allowing the defendant to

withdraw the plea or by scheduling a new sentencing hearing with a prosecutor

who will make the promised recommendation.” State v. Bearse, 748 N.W.2d

211, 218 (Iowa 2008).

      On appeal, Benedict argues the two discussions at the plea hearing must

be “read together” and, if we do so, we will find the State agreed to recommend a

two-year suspended sentence and one-year probation as part of the final plea

agreement. Benedict recognizes “there was talk that the parties would argue

sentencing and that there was no agreed upon sentence,” but he contends those

statements “most likely meant that the defense was going to request a lesser

sentence than the State.” Benedict claims he received little benefit from entering

a plea to “the maximum offense in return for the State’s recommendation of the

maximum sentence. He might as well have gone to trial and taken his chances.”

      The State acknowledges “some confusing and possibly contradictory

statements” regarding the plea offer available to Benedict made during the

pretrial hearing which turned into a plea proceeding. But the State points out the

county attorney, “in an effort to make things abundantly clear,” took the

opportunity before Benedict entered his plea to articulate the express terms of

the offer. Specifically, the county attorney stated Benedict “would plead guilty as

charged in this Trial Information. There is no agreement as to sentencing. A

presentence investigation will be ordered, and the parties are free to argue

whatever sentence that they would like to have imposed.”
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       Both counsel and Benedict himself acknowledged the county attorney’s

recitation reflected their understanding of the plea agreement. When asked by

the district court if there was anything he did not understand about the plea

agreement “as it stands now,” Benedict responded: “Everything’s clear.” Having

said the final plea offer was clear to him, Benedict cannot now fault counsel for

not attempting to resurrect terms of a plea offer the State had taken off of the

table. The final plea agreement contemplated the parties were free to argue

whatever sentence they believed appropriate.               Accordingly, the State’s

sentencing recommendation of a two-year prison sentence, in accord with the

PSI report, did not breach its agreement with Benedict. Benedict’s counsel had

no cause to object at sentencing and did not perform below constitutional

standards. See State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003) (holding

trial counsel cannot be held ineffective for failing to raise meritless issue).

       In response to Benedict’s argument that the final plea offer was of little

benefit, the State contends Benedict may have accepted it because he was

actually “anticipating requesting a term of incarceration over probation.” Benedict

and his counsel both told the sentencing court that probation could be viewed as

a more onerous punishment for him than prison.              But whatever Benedict’s

motivation for accepting the plea offer; he fails to show his attorney breached an

essential duty by not objecting to the State’s sentencing recommendation.

       AFFIRMED.
