                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1959
                               Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRADLEY ALLEN NEISEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer

(plea) and Bradley J. Harris (sentencing), Judges.




      Bradley Neisen appeals his sentence following his Alford plea to three

counts of third-degree burglary. AFFIRMED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and James Katcher and Brook

Jacobsen, Assistant County Attorneys, for appellee.



      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
                                          2


DOYLE, J.

       Bradley Neisen appeals his sentence following his Alford1 plea to three

counts of third-degree burglary, in violation of Iowa Code sections 713.1 and

.6A(1) (2013). He asserts his trial counsel rendered ineffective assistance in not

objecting to the State’s “breach” of the plea agreement. He also argues the court

erred in imposing a fine and surcharge in his written sentence. We affirm his

convictions, but we remand to the district court so that it may issue a nunc pro

tunc order to correct the clerical error in the written judgment entry.

       I. Background Facts and Proceedings.

       Pursuant to a plea agreement, Neisen entered Alford pleas to the charges

listed above, and he participated in an oral colloquy with the court concerning the

pleas. As part of the plea agreement, the State agreed to reduce one of the

burglary counts to third-degree burglary, and it did not seek the habitual offender

sentencing enhancement. See Iowa Code §§ 902.8, .9. Additionally, the State

agreed “to make a recommendation for a five-year prison term on all three counts

to each run concurrent to each other. [Neisen] will be free to argue for probation

in the matter, and it will be up to the court to decide whether it would be a prison

sentence or probation.” Neisen affirmatively stated that was his understanding of

the agreement.

       In making its recommendation for imposition of prison time at Neisen’s

sentencing hearing, the prosecutor stated:



       1
         An Alford plea allows a defendant to consent to the imposition of a prison
sentence without admitting participation in the acts constituting the crime. North
Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                        3


              The nature and basis for the State’s agreement relies nearly
      entirely upon the fact that a co-defendant came in and in sworn
      testimony in a deposition changed his version. It was not the
      version that he had previously told law enforcement, and
      unfortunately, that limited the State under some circumstances.
      Nevertheless, [Neisen] did come in and enter Alford pleas to all
      three counts of burglary in the third degree pursuant to the
      perimeters of that agreement in which he is free to argue for a
      suspended sentence.
              I don’t know that I need to spend a whole lot of time talking
      about this particular issue. It is clear from Mr. Neisen’s history that
      he is not and should not be receiving a suspended sentence. He is
      not amenable to probation. He has never been successful on
      probation. He has not been successful with drug rehabilitation or
      treatment. All that occurs when Mr. Neisen is out of custody is the
      commission of additional felonies.

Neisen’s counsel did not object to the prosecutor’s recommendation.

      After the State’s recommendation, the court asked if Neisen’s parole had

been revoked and if the court was bound by the plea agreement. The court was

advised that parole had not been revoked and that the court was not bound by

the agreement.     Neisen’s attorney then addressed the court, requesting “the

court consider suspending the sentences in these matters and place Mr. Neisen

in the work release facility.” Neisen himself addressed the court and enumerated

reasons for giving him another chance and placing him on probation.

      Ultimately, the district court rejected Neisen’s request, and it sentenced

Neisen to a term not to exceed five years for each count to run concurrent with

each other but consecutive to his existing twenty-five-year probation term. The

court explained:

               Mr. Neisen, I heard your statements just now. [I] agree
      that . . . you’re not a bad person, but . . . you’ve made mistakes.
      You’ve done bad things, and you’ve hurt a lot of people.
      And . . . these offenses . . . , within a day or two of being released
      from prison you arranged for somebody else to go slit the tires
      of . . . your child’s mother. That shows that you haven’t learned
                                            4


          anything. You . . . still decided to take matters into your own hands.
          You still decided to be involved in criminal activity, and at some
          point you’re going to have to learn, or you’re going to end up being
          locked up the rest of your life. And that’s the reason for the court’s
          sentences in this matter.

Additionally, the court stated “[t]he [$750] fine and [35%] surcharge will be

suspended.”       However, the court’s written judgment and sentencing order

imposed those costs.

          Neisen now appeals.

          II. Discussion.

          A. Plea Agreement.

          The State agreed to recommend five-year prison terms on each of the

counts, to be served concurrent to one another, and concurrent to any term of

imprisonment imposed following the presumed revocation of Neisen’s parole.

Neisen contends “[b]y advising the court that it was only due to the co-defendant

changing his story that the State even agreed to a plea bargain, the State was

undercutting its own recommendation and implying a harsher alternative was in

order.”      He argues the State breached the plea agreement in “blatantly

undermin[ing]” its own recommendation for concurrent sentences “saying it was

due to the co-defendant changing his story,” and because his trial counsel did not

object to the breach, his trial counsel was ineffective. We review his claims de

novo. See State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).

          In order to prove counsel was ineffective in failing to object to the State’s

alleged breach of the plea agreement, Neisen must prove counsel failed to

perform and essential duty and he suffered prejudice as a result.             State v.

Horness, 600 N.W.2d 294, 298 (Iowa 1999). We will not fault counsel for failing
                                       5


to object if in fact the prosecutor’s statement does not breach the plea

agreement. Id.

       Our supreme court has determined that when the State assumes an

obligation to make a certain sentencing recommendation as part of a plea

agreement, “mere technical compliance is inadequate; the State must comply

with the spirit of the agreement as well.” Id. at 296. “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.” Bearse, 748 N.W.2d at

215-16. Moreover, our supreme court, looking at the common definition of the

word “recommend,” has found that if the State has promised to “recommend” a

particular sentence, the prosecutor must “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.” Id. at 216 (internal quotation marks and

citation omitted).   Because plea agreements are “essential to the efficient

administration of justice,” and because a plea agreement “requires a defendant

to waive fundamental rights,” “we are compelled to hold prosecutors and courts

to the most meticulous standards of both promise and performance.” Id. at 215.

       The State asserts it did “vigorously advocate for the adoption of its

recommendation” over that of Neisen’s recommendation, and that it pointed out

“the considerable concessions which had already been made. But that did not in

any way breach the agreement.”        We agree there was no breach.         The
                                         6

circumstances before us are not like those in Bearse and Horness, 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.”).

Here the State recommended the sentences it had agreed to. The State did not

reach further and encourage the court to adopt a harsher sentence.              We

conclude the record evidences the State properly fulfilled its obligation to

“recommend” the agreed upon sentences. Because there was no breach of the

plea agreement, Neisen’s attorney had no duty to object, and Neisen 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 that “[i]f the State did

not breach the plea agreement, defense counsel could not have been

ineffective”).   Consequently, Neisen’s trial attorney was not ineffective in not

objecting to the State’s sentencing recommendation.
                                          7


         B. Fine and Surcharge.

         Neisen also asserts the court erred in imposing a surcharge and fine in its

written judgment and sentence when it stated during the sentencing hearing that

it would suspend the fine and surcharge. He argues we should remand to the

district court for entry of a nunc pro tunc order correcting the error. See State v.

Hess, 533 N.W.2d 525, 528 (Iowa 1995) (“A rule of nearly universal application is

that ‘where there is a discrepancy between the oral pronouncement of sentence

and the written judgment and commitment, the oral pronouncement of sentence

controls.’”); see also Iowa R. Crim. P. 2.23(3)(g). The State agrees. Accordingly,

we remand to the district court so that it may issue a nunc pro tunc order to

correct the clerical error in the written judgment entry.

         III. Conclusion.

         Having determined Neisen’s trial counsel was not ineffective in not

objecting to the State’s sentencing recommendation, we affirm Neisen’s

convictions.     However, because the district court’s written judgment entry

contained a clerical error, we remand the case for issuance of a nunc pro tunc

order.

         AFFIRMED.
