               IN THE SUPREME COURT OF IOWA

                           No. 116 / 06–0916

                           Filed April 18, 2008


STATE OF IOWA,

      Appellee,

vs.

GREAGORY ALLEN BEARSE,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire and Charles H. Pelton, Judges.



      Appellant seeks further review of court of appeals decision

affirming the district court judgment and sentence following a guilty plea

to third-degree sexual abuse.     DECISION OF COURT OF APPEALS

VACATED; SENTENCE VACATED; CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant

Attorney General, William E. Davis, County Attorney, and Joseph A.

Grubisich and Robert Weinberg, Assistant County Attorneys, for

appellee.
                                      2

CADY, Justice.

      In this appeal from a guilty plea and sentencing for third-degree

sexual abuse, we must decide whether trial counsel was ineffective in

failing to object to an alleged breach of a plea agreement by the

prosecutor.   We conclude the prosecutor breached the plea agreement

and counsel was ineffective in failing to object. We preserve the claim

that defense counsel was ineffective for failing to file a motion in arrest of

judgment to challenge the alleged involuntariness of the plea. We affirm

the conviction, but vacate the sentence and remand for resentencing.

      I. Background Facts and Proceedings.

      Greagory Bearse was charged by trial information with the crime of

sexual abuse in the third degree in violation of Iowa Code section

709.4(2)(c)(4) (2005). The State claimed Bearse engaged in a long-term

sexual relationship with a fourteen-year-old girl. Bearse was thirty-seven

years old at the time. The relationship was revealed after the girl became

pregnant. Bearse’s attorney eventually negotiated a plea agreement with

the State prior to trial. The agreement required Bearse to enter a plea of

guilty to the charge and required the State to recommend against

incarceration at the time of sentencing, “recognizing that the court may

grant a deferred judgment or place the defendant on probation.”           The

plea agreement was formalized in writing.
      Bearse subsequently entered a plea of guilty to sexual abuse in the

third degree at a hearing before the district court. The district court was

informed of the plea agreement at the hearing, and the plea colloquy

revealed the sentencing court was not bound to follow the State’s

sentencing recommendation. Following the hearing, the department of

correctional services conducted a presentence investigation.              The
                                        3

presentence investigation report ultimately recommended Bearse be

incarcerated.

      Bearse appeared for sentencing in district court with his attorney.

The prosecuting attorney who appeared for the State was not the same

prosecutor who had negotiated the plea agreement and had appeared for

the State at the guilty-plea hearing.

      During the course of the sentencing hearing, the court asked the

State to make a sentencing recommendation.               In response, the

prosecutor stated “[t]he State concurs in the recommendation of the

presentence investigation report, your honor, for incarceration.”        The

court immediately informed the prosecutor that the recommendation by

the State was inconsistent with the plea agreement.         The prosecutor

acknowledged the existence of some confusion based on the contents of

his file. Yet, after the correct terms of the plea agreement were identified,

the prosecutor merely said: “Your Honor, the court is not bound by the

plea agreement. The State is, so we’ll . . . abide by the plea agreement.

The court has the presentence investigation report.” Counsel for Bearse

did not object to the comments by the prosecutor.

      At the conclusion of the sentencing hearing, the court sentenced

Bearse to an indeterminate term of incarceration not to exceed ten years.

The court detailed its reasons for imposing incarceration, which included
the age difference between Bearse and the victim and an absence of

remorse on the part of Bearse.              The court did not mention the

prosecutor’s recommendation as a sentencing factor.            Additionally,

Bearse was not sentenced to the special life sentence provided for in Iowa
                                           4

Code section 903B.1, and no mention of the special life sentence appears

in the record.1
       Bearse appeals and asserts two claims of error. First, he makes a

two-part argument that the prosecutor breached the plea agreement by

failing to recommend against incarceration, and his trial counsel was

ineffective by failing to object to the breach. Second, Bearse argues his

trial counsel was ineffective for failing to file a motion in arrest of

judgment after the court failed to inform him at the guilty-plea hearing of

the special life sentence applicable to his case. Even though the district

court failed to impose the special sentence, Bearse points out the

provisions would be applicable to him in the event resentencing is

required.

       We transferred the case to the court of appeals.                  The court of

appeals affirmed the judgment and sentence of the district court.                    It

determined defense counsel was not ineffective because the prosecutor

did not breach the plea agreement.              The court of appeals found the

record inadequate for consideration of Bearse’s second ineffective-

assistance-of-counsel claim and preserved the issue for postconviction

proceedings. We granted further review.

       II. Standard of Review.

       We review ineffective-assistance-of-counsel claims de novo. State

v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).




       1Iowa Code section 903B.1 requires that a person convicted of an offense under

chapter 709
       shall also be sentenced, in addition to any other punishment provided by
       law, to a special sentence committing the person into the custody of the
       director of the Iowa department of corrections for the rest of the person’s
       life, with eligibility for parole as provided in chapter 906.
                                     5

      III. Discussion.

      A. Breach of Plea Agreement.

      1. Error preservation. Bearse concedes his trial attorney did not

object during the sentencing hearing when the prosecutor allegedly

breached the plea agreement.      Consequently, he claims the failure to

object amounts to ineffective assistance of counsel.      We consider this

claim on appeal.    See State v. Bergmann, 600 N.W.2d 311, 313 (Iowa

1999).

      2. Adequacy of record for review. Bearse argues his counsel was

ineffective for failing to object to the prosecutor’s breach of the plea

agreement.   “If an ineffective assistance of counsel claim is raised on

direct appeal from the criminal proceedings, the court may decide the

record is adequate to decide the claim or may choose to preserve the

claim for determination under chapter 822 [postconviction proceedings].”

Iowa Code § 814.7(3).     “Although claims of ineffective assistance of

counsel are generally preserved for postconviction relief proceedings, we

will consider such claims on direct appeal where the record is adequate.”
Horness, 600 N.W.2d at 297. The record in this case clearly reflects the

written plea agreement and the circumstances giving rise to Bearse’s
claim that the prosecutor breached the agreement, as well as defense

counsel’s response.    As such, we find the record adequate to review

Bearse’s first ineffective-assistance-of-counsel claim on direct appeal.

      3. Failure to perform essential duty.      A successful ineffective-

assistance-of-counsel claim requires proof by a preponderance of the

evidence that (1) counsel failed to perform an essential duty, and (2)

prejudice resulted. Id. at 298. In analyzing the first prong of the test, we

presume counsel acted competently. Id. Counsel cannot fail to perform

an essential duty by merely failing to make a meritless objection. Id. at
                                    6

297. Consequently, to determine whether counsel failed to perform an

essential duty in failing to object to the prosecutor’s recommendation, we

must first determine whether the State breached the plea agreement. Id.

If the State did not breach the plea agreement, defense counsel could not

have been ineffective.

      We begin our consideration of this question by recognizing the

important role plea agreements play in our scheme of justice and the

concomitant need for strict compliance with those agreements.

      The disposition of criminal charges by agreement between
      the prosecutor and the accused, sometimes loosely called
      “plea bargaining,” is an essential component of the
      administration of justice. Properly administered, it is to be
      encouraged. If every criminal charge were subjected to a
      full-scale trial, the States and the Federal Government would
      need to multiply by many times the number of judges and
      court facilities.

Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30

L. Ed. 2d 427, 432 (1971).

      While proper use of plea agreements is essential to the efficient

administration of justice, improper use of the agreements threatens the

liberty of the criminally accused as well as “the honor of the government”

and “public confidence in the fair administration of justice.”    State v.

Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974).        Violations of plea

agreements “adversely impact the integrity of the prosecutorial office and

the entire judicial system.”   State v. King, 576 N.W.2d 369, 370 (Iowa

1998).   Further, “ ‘[b]ecause 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.’ ” Horness, 600 N.W.2d at 298 (quoting State ex rel. Brewer

v. Starcher, 465 S.E.2d 185, 192 (W. Va. 1995)). For all those reasons,

“ ‘violations of either the terms or the spirit of the agreement’ require
                                       7

reversal of the conviction or vacation of the sentence.” Id. (quoting Stubbs

v. State, 972 P.2d 843, 844 (Nev. 1998)).

      In this case, the prosecutor initially breached the plea agreement

as the result of confusion or perhaps inattention.      A prosecutor must

take care to properly carry out all obligations and promises of the state in

good faith. This duty requires each prosecutor who enters a courtroom

on behalf of the state in every case to understand the state’s obligations

under a plea bargain and to strictly comply with those obligations. “The

staff lawyers in a prosecutor’s office have the burden of ‘letting the left

hand know what the right hand is doing’ or has done.” Santobello, 404

U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433. The prosecutor is not

merely the representative of an ordinary party in a private controversy,

“but of a sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all.” United States v. Shanahan,

574 F.2d 1228, 1231 (5th Cir. 1978) (describing the role of the United

States Attorney).    As such, “our time-honored fair play norm and

accepted     professional    standards”     require    strict       compliance.

Kuchenreuther, 218 N.W.2d at 624. Thus, inadvertence by a prosecutor

will not excuse noncompliance.

      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 inform[ing] the court of the

promise the State has made to the defendant with respect to sentencing.”

Horness, 600 N.W.2d at 299. The State must actually fulfill the promise.

Where the State has promised to “recommend” a particular sentence, we

have looked to the common definition of the word “recommend” and

required
                                      8
       the prosecutor to 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. (citing Webster’s Third New International Dictionary 1897 (unabr. ed.

1993) (defining “recommend” to mean (1) “to mention or introduce as

being worthy of acceptance, use, or trial,” (2) “to make a commendatory

statement about as being fit or worthy,” (3) “to bring forward as being fit

or worthy,” (4) “present with approval,” (5) “indicate as being one’s choice

for something or as otherwise having one’s approval or support,” (6) “offer

or suggest as favored by oneself”)); see also United States v. Brown, 500

F.2d    375,   377     (4th   Cir.   1974)    (requiring   the   prosecutor’s

recommendation be “expressed with some degree of advocacy”).

       The record in this case not only demonstrates noncompliance with

the express terms of the plea agreement, but also with the spirit of the

plea agreement.      Despite the prosecutor’s initial confusion about the
terms of the plea agreement, the applicable plea agreement clearly

required the State to recommend against incarceration. Yet, even after

the initial confusion was resolved and the prosecutor understood the

terms of the agreement, he failed to comply with the obligation of the
State to recommend that Bearse not be incarcerated. Instead, he merely

indicated the State would “abide by the agreement,” but only after first

telling the court it was “not bound by the plea agreement,” followed by a

reminder that the court had “the presentence investigation report.” We

have said “[t]he State’s promise to make a sentencing recommendation

. . . [carries] with it the implicit obligation to refrain from suggesting more

severe sentencing alternatives.” Horness, 600 N.W.2d at 299 (recognizing

the plea agreement “is of little value to the defendant” if the State is

allowed to recommend alternative sentences); see also State v. Birge, 638
                                    9

N.W.2d 529, 536 (Neb. 2002) (finding breach of a plea agreement cannot

be cured by prosecutor’s offer to withdraw improper remarks, even in

case where district court affirmatively stated it was not influenced by the

improper comments).     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.

      The argument by the State that it ultimately complied with the plea

agreement ignores our previous jurisprudence requiring the prosecutor

to do more than merely inform the court of the promise made by the

State. Horness, 600 N.W.2d at 299. The agreement in this case required

a   recommendation     against   incarceration.      The   State’s      initial

recommendation of incarceration and subsequent agreement to “abide by

the plea agreement” do not amount to a recommendation against

incarceration.   The prosecutor did not present the recommended

sentence with his approval or commend a sentence to the court other

than incarceration, such as probation. Consequently, the State failed to

fulfill the promise under the plea agreement to recommend against
incarceration.

      Having found a breach of the plea agreement, we must next

consider whether defense counsel failed to perform an essential duty by

failing to object to the breach. We have previously held defense counsel

has a duty to object to the breach of a plea agreement:

      When the State breached the plea agreement, the
      defendant’s trial counsel clearly had a duty to object; only by
      objecting could counsel ensure that the defendant received
                                   10
      the benefit of the agreement.         Moreover, no possible
      advantage could flow to the defendant from counsel’s failure
      to point out the State’s noncompliance. Defense counsel’s
      failure in this regard simply cannot be attributed to
      improvident trial strategy or misguided tactics.

Id. at 300 (citations omitted). As such, defense counsel failed to perform

an essential duty.
      4. Prejudice. The ineffective-assistance-of-counsel claim by Bearse

also requires that he demonstrate prejudice. In determining prejudice,

we have rejected the standard that, “but for his counsel’s failure to

object, he would have received a different sentence.” Id. (citing State v.

Carrillo, 597 N.W.2d 497, 500 (Iowa 1999)).      Instead, “the defendant

must simply show that the outcome of the [sentencing] proceeding would

have been different.” Id. at 300–01 (citing Carrillo, 597 N.W.2d at 500).

In Horness, we said:

      The proper objection by the defendant’s attorney would have
      alerted the sentencing court to the prosecutor’s breach of the
      plea agreement. In that circumstance, the court would have
      allowed the defendant to withdraw his guilty plea[], or would
      have scheduled a new sentencing hearing at which time the
      prosecutor could make the promised recommendations. The
      outcome of the defendant’s sentencing proceeding was
      different, however, because defense counsel did not make
      the necessary objection. Consequently, the defendant was
      sentenced by the court at a hearing tainted by the
      prosecutor’s improper comments.

Id. at 300 (citations omitted).

      The State asserts that the absence of an objection in this case did

not result in prejudice at sentencing because the sentencing judge knew

the State was obligated to recommend against incarceration, and the

tactics employed by the prosecutor to imply the State nevertheless

actually wanted the court to impose a sentence of incarceration had no

impact on the sentencing decision of the court. The State points out the

sentencing judge enumerated the factors upon which the ten-year
                                     11

indeterminate sentence was based, and the State’s recommendation of

incarceration was not one of those. In Carrillo, we noted that

       we have no way of knowing what sentence this judge would
       have imposed had the State [performed its obligation under
       the plea agreement], and we certainly will not speculate
       about the sentence a different judge would have imposed
       had [defendant’s] counsel objected and the case been set for
       resentencing.

597 N.W.2d at 501. We likewise refuse to engage in such speculation in

this case.    See Santobello, 404 U.S. at 262–63, 92 S. Ct. at 499, 30

L. Ed. 2d at 433 (finding error and remanding even though sentencing
court stated it would have given the same sentence had prosecutor

fulfilled plea bargain); Birge, 638 N.W.2d at 536 (same). Moreover, the

ability of the sentencing court to stand above the fray and overlook the

conduct of the prosecutor cannot be used by the State to minimize the

prejudice component of the analysis.      Our system of justice requires

more    and    does    not   allow   prosecutors   to   make     sentencing

recommendations with a wink and a nod. The concept of justice has a

far greater meaning.

       Additionally, as in Horness, an objection by defense counsel leads

to a procedure that alerts 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.
600 N.W.2d at 301. Thus, the outcome of the sentencing proceeding in

this case would have been different if defense counsel would have

objected. The sentencing hearing would have been rescheduled, or the

plea of guilty would have been withdrawn.      Consequently, Bearse has

shown his counsel was ineffective.

       5. Remedy. Having determined counsel was ineffective, we must

decide what remedy is appropriate.        Bearse asks us to vacate the
                                      12

conviction and allow him to plead anew.            When the district court

erroneously fails to remedy a prosecutor’s breach of the plea agreement,

we will “determine the appropriate remedy necessary to ensure the

interests of justice are served—either withdrawal of the guilty plea or

resentencing before another judge.”         See King, 576 N.W.2d at 371

(determining defendant was entitled to specific enforcement of the

bargained-for plea agreement and remanding for resentencing).               The

interests of justice are adequately served in this case by remanding for

resentencing. Bearse can still receive the benefit of his bargain under

the plea agreement if the State carries out its obligation at resentencing.

Consequently, there is no need to expend the added prosecutorial and

judicial resources that would be required by vacating the conviction and

allowing the process to start anew. Therefore, we affirm the conviction,

but vacate the decision of the court of appeals, vacate Bearse’s sentence,

and remand the case for resentencing.

      B. Special Life Sentence.        Iowa Code section 903B.1 requires

that a person convicted of an offense under chapter 709

      shall also be sentenced, in addition to any other punishment
      provided by law, to a special sentence committing the person
      into the custody of the director of the Iowa department of
      corrections for the rest of the person’s life, with eligibility for
      parole as provided in chapter 906.

This provision essentially requires sex-abuse offenders to remain on

parole or probation for life. The word “shall” in the statute indicates the

legislature intended the special life sentence to be mandatory. See Iowa

Code § 4.1(36)(a) (requiring that unless otherwise specifically provided by

the legislature, “[t]he word ‘shall’ imposes a duty”); State v. Tenny, 493

N.W.2d 824, 826 (Iowa 1992) (stating “ ‘shall’ indicates mandatory intent

unless the context indicates otherwise”).
                                     13

      Bearse argues the district court failed to advise him of the special

life sentence prior to accepting his plea of guilty, which rendered his

guilty plea involuntary and unintelligent. In order to challenge a guilty-

plea proceeding on appeal, a defendant must file a motion in arrest of

judgment. Iowa R. Crim. P. 2.24(3)(a); State v. Kress, 636 N.W.2d 12, 19

(Iowa 2001).    Counsel for Bearse failed to file the required motion.

“However, this failure does not bar a challenge to a guilty plea if the

failure to file a motion in arrest of judgment resulted from ineffective

assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)

(citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)).

      The State argues defense counsel could not have been ineffective

for failing to raise the special life sentence by filing a motion in arrest of

judgment because Bearse was not sentenced under the special provision.

Yet, on remand, Bearse will face resentencing under all applicable

provisions, and he will be subject to the special sentencing provision.

Thus, even if Bearse failed to preserve his claim by filing a motion in

arrest of judgment, we can consider whether the failure to file a motion

in arrest of judgment resulted from ineffective assistance of counsel.

      In considering a claim of ineffective assistance of counsel on direct

appeal, Iowa Code section 814.7(3) allows us to evaluate the record

surrounding    an   ineffective-assistance-of-counsel   claim   and   choose
whether we will decide the claim on direct appeal or preserve it for

postconviction proceedings.     As mentioned earlier, we apply the well-

settled, two-prong test to analyze Bearse’s ineffective-assistance-of-

counsel claim. Bearse “must demonstrate (1) his trial counsel failed to

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

      Even assuming defense counsel failed to perform an essential duty

by failing to file a motion in arrest of judgment, Bearse cannot meet his
                                          14

burden to prove he was prejudiced by the failure on this record. As we

clarified in Straw, a defendant who relies on an ineffective-assistance-of-

counsel claim to challenge the adequacy of a guilty plea has the burden

to prove “there is a reasonable probability that, but for counsel’s errors,

he or she would not have pleaded guilty and would have insisted on

going to trial.”2 Id. at 138. In Straw, we explained:

       Under the “reasonable probability” standard, it is
       abundantly clear that most claims of ineffective assistance of
       counsel in the context of a guilty plea will require a record
       more substantial than the one now before us. . . . [T]here is
       nothing in this record to indicate whether or not Straw’s trial
       counsel told him about the possibility of consecutive
       sentences. Such evidence could be a significant part of our
       prejudice analysis. This case exemplifies why claims of
       ineffective assistance of counsel should normally be raised
       through an application for postconviction relief. In only rare
       cases will the defendant be able to muster enough evidence
       to prove prejudice without a postconviction relief hearing.

Id. As in Straw, the record before us on this direct appeal is devoid of

evidence indicating Bearse would not have pleaded guilty, but would

have insisted on going to trial. In the absence of such evidence, we must

preserve the claim for postconviction proceedings.                 To do otherwise,

would be to adopt a per se rule of prejudice and shift the burden to the

State. See id. at 137 (refusing to adopt a per se rule of prejudice). We

refused to do so in Straw, and we again refuse to do so here. This record

makes it impossible for Bearse to muster sufficient evidence to satisfy his

burden of demonstrating prejudice. His claim should be preserved for

postconviction proceedings.




       2In   Straw, the defendant appealed from judgments and sentences entered
following guilty pleas. Id. at 130. As in this case, the defendant complained that “his
counsel rendered ineffective assistance by failing to file a motion in arrest of judgment
after the district court did not inform him of the maximum punishment he could face by
pleading guilty.” Id.
                                     15

         IV. Conclusion.

         We vacate the decision of the court of appeals and sentence of the

district court and remand for resentencing before a new district court

judge.

         DECISION OF COURT OF APPEALS VACATED; SENTENCE

VACATED; CASE REMANDED.

         All justices concur except Wiggins, J., who concurs in part and

dissents in part.
