                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1210
                             Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW A. McCANNA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



      Matthew McCanna appeals his judgment and sentence following his guilty

plea to absence from custody. AFFIRMED.



      Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Matthew McCanna signed out of a residential work release center and did

not return at the appointed time. The State charged him with absence from

custody, a serious misdemeanor. See Iowa Code § 719.4(3) (2017). McCanna

pled guilty to the crime, and the State agreed to recommend ninety days in jail with

credit for time served and a $315.00 fine plus costs and applicable surcharges.

The sentence was to be served consecutively to “all other cases.” The written plea

agreement stated, “I understand that the court may sentence me up to the

maximum provided by the law.”

       The district court accepted the plea. The court sentenced McCanna to a jail

term not exceeding one year, with credit for time served. The court also imposed

the fine and surcharge.

       On appeal, McCanna contends his plea attorney was ineffective “in failing

to file a motion in arrest of judgment where the district court did not allow [him] to

withdraw his plea when the court did not follow the plea agreement.” We assume

without deciding this is the appropriate framework.1            Although we generally

preserve ineffective-assistance claims for postconviction relief, we find the record




1
  In State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014), the court stated the motion-in-
arrest-of-judgment rule “has no applicability to a situation . . . where the defendant does
not know the deficiency in the plea proceeding until after sentencing.” The court
concluded the defendant could raise the issue of whether the district court erred in
imposing a greater sentence than agreed to in the plea agreement “without first filing a
motion in arrest of judgment.” Thompson, 856 N.W.2d at 922. Like Thompson, McCanna
could not have known prior to the sentencing hearing that the court would decline to accept
the recommended sentence. Accordingly, a motion in arrest of judgment was
unnecessary, and we could review the issue directly, on error, rather than under an
ineffective-assistance-of-counsel rubric. But because the defendant and the State use
this rubric, so will we.
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adequate to address the issue. See State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015).

          McCanna must establish the breach of an essential duty and prejudice. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006). We will focus on the breach prong.

          McCanna hangs his hat on Iowa Rule of Criminal Procedure 2.10(4), which

states:

          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 the contemplated by the plea
          agreement.

As McCanna asserts, the rule does indeed authorize the withdrawal of a plea. But

the rule cannot be read in isolation. See State v. Pryor, No. 16-1982, 2017 WL

2684361, at *2 (Iowa Ct. App. June 21, 2017) (citing State v. Weaver, No. 05-0764,

2006 WL 3018498, at *3 (Iowa Ct. App. Oct. 25, 2006)).               One of the rule’s

subsections states in part, “[I]f 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). Another subsection states in part:

          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.
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Iowa R. Crim. P. 2.10(3). Both provisions speak to pleas conditioned on the court’s

concurrence. Rule 2.10(4) must be read in that context.

       The Iowa Supreme Court said as much in State v. Wenzel, 306 N.W.2d 769,

771 (Iowa 1981). The court held the rule

       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. First, the court may accept the agreement and “inform
       the defendant that it will embody in the judgment and sentence the
       disposition provided for in the plea agreement” or a more favorable
       disposition. Second, the court may reject the plea agreement and
       “afford the defendant the opportunity to then withdraw his or her
       plea.” Third, the court “may defer its decision as to acceptance or
       rejection until receipt of a presentence report.”

Wenzel, 306 N.W.2d at 771 (citations omitted).

       McCanna’s plea was not conditioned upon the court’s concurrence. It

unequivocally stated the court was free to impose the maximum sentence allowed

by law, which was one year. See Iowa Code § 903.1(1)(b).          Because the court

was not bound by the State’s agreement to recommend a ninety-day jail sentence,

counsel had no duty to challenge the district court’s failure to allow him to withdraw

the plea following the imposition of the one-year sentence.            See State v.

Thompson, 856 N.W.2d 915, 922 (Iowa 2014) (“Here the plea agreement was that

the State would recommend a certain sentence upon Thompson’s plea of guilty.

Nowhere in the plea agreement did it state the agreement required the district

court’s concurrence.”).    On our de novo review, we conclude McCanna’s

ineffective-assistance-of-counsel claim necessarily fails.

       McCanna also argues the district court failed to consider mitigating factors

in sentencing him, such as the nature of the offense and his decision to take

immediate responsibility for the offense. Our review is for an abuse of discretion.
                                        5

See State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). We discern no abuse.

The court considered the nature of the offense and, in particular, the fact McCanna

was absent “for four or five months.” The court also considered MCanna’s failure

to think about “the consequences” and his violation of the laws “time and time

again.” Although the court did not mention McCanna’s expression of remorse at

leaving the facility, the court was not required to acknowledge each claim of

mitigation urged by him. See State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App.

1995).

         We affirm McCanna’s judgment and sentence for absence from custody.

         AFFIRMED.
