                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1861
                             Filed October 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTONYO MARTIN MACHADO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Emily Dean,

District Associate Judge.



      Antonyo Machado appeals his plea of guilty to possession of a controlled

substance, first offense. AFFIRMED.




      William Monroe, Burlington, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and Vaitheswaran and and Doyle, JJ.
                                            2


BOWER, Chief Judge.

       Antonyo Machado appeals his plea of guilty to possession of a controlled

substance, first offense, in violation of Iowa Code section 124.401(5) (2018).1 The

State contends we should not reach the merits of Machado’s claims because he

did not file a motion in arrest of judgment to preserve error as required. See Iowa

R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty

plea proceeding by motion in arrest of judgment shall preclude the defendant’s

right to assert such challenge on appeal.”). Machado argues he has adequately

preserved error and the district court abused its discretion in imposing sentence

rather than deferring judgment.

       On September 11, 2018, Machado signed a written plea of guilty, containing

the following paragraphs:




       ....




1
 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective July 1,
2019, limiting direct appeals from guilty pleas and eliminating direct-appeal ineffective-
assistance-of-counsel claims. 2019 Iowa Acts ch. 140, §§ 28, 31 (to be codified at Iowa
Code §§ 814.6–.7). The amendments “apply only prospectively and do not apply to cases
pending on July 1, 2019,” and therefore do not apply in this case. State v. Macke, 933
N.W.2d 226, 235 (Iowa 2019).
                                        3




      ...




      ....




It is unclear whether the handwritten line is intended as a strike out of the

paragraph.

      The district court entered an order accepting the plea that same date and

scheduled a sentencing hearing.

      At the September 28 sentencing hearing, the prosecutor stated:

             The State would just make a brief argument, Your Honor. The
      State would be requesting—pursuant to the plea agreement from the
      State’s end—a jail sentence of thirty days in jail, all suspended
      except for five days, the minimum fine, two years of informal
      probation.
             The State would note that the substance in this matter was
      methamphetamine. It did return positive as methamphetamine from
      the state crime lab. Additionally, the State would note that the
      defendant does have a criminal record, albeit, it is fairly brief. It
      appears that he has a 2012 conviction for a theft fifth.
             But maybe the bigger one, at least in the State’s eyes, that it
      appears the defendant has already been granted the benefit of a
      deferred judgment. The State would note it appears that was a 2011
      felony forgery case. So with that in mind, the State would be resisting
      the issuance of another deferred judgment in this case and would
      ask the court to accept the State’s recommendations.
                                            4


          Machado stated, “I’m willing to take the plea that the State gives me. I just

want my deferred judgment so that way I can complete this and it will be off my

record.”     His counsel requested deferred judgment, noting Machado’s prior

deferred judgment was seven years ago “so he is eligible to get a chance for one

more.”

          The court declined to defer judgment and sentenced Machado to thirty days

in jail, with all but five days suspended, two years of unsupervised probation, and

a fine.

          Machado appeals, asserting the court abused its discretion in failing to allow

him to withdraw his plea when the court did not grant him a deferred judgment as

stated in paragraph “4” of the written plea agreement.

          An appellate court generally reviews a challenge to a guilty plea for

corrections of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).

Sentencing decisions are reviewed for an abuse of discretion. State v. Wickes,

910 N.W.2d 554, 564 (Iowa 2018).

          We must ask ourselves the question, “So what were the terms of the parties’

plea agreement, if any, as to a sentencing recommendation?” Macke, 933 N.W.2d

at 236. Our supreme court states, “The controlling terms . . . are those described

on the record during the plea hearing[.]” Id. at 237.

          We have no record of a plea hearing. However, at the sentencing hearing

the prosecutor recommended a jail sentence “pursuant to the plea agreement from

the State’s end.” Defense counsel did not disagree with that statement or assert

different terms. “If [the prosecutor] misstated the terms of the plea agreement,

[defense counsel] should have said so in open court.” Id. (noting the State did not
                                            5


object to defense counsel’s description of the plea agreement or assert different

terms and therefore was held to the terms described in open court).

       The record before us does not show Machado’s plea was conditioned upon

the court granting Machado a deferred judgment. See Iowa R. Crim. P. 2.10(3),

(4) (providing that when the plea agreement is conditioned upon the court’s

concurrence and the court rejects the plea agreement, the court is to allow the

defendant an opportunity to withdraw his plea). Rather, the prosecutor described

the plea agreement as allowing the State to make a sentencing recommendation,

which it did. Thus, we conclude the court was not required to allow Machado to

withdraw his plea.

       As for the sentence imposed by the district court, we will reverse only “when

an abuse of discretion occurs.” State v. Thompson, 856 N.W.2d 915, 918 (Iowa

2014). An abuse of discretion occurs if the court exercises its discretion on

grounds or for reasons that were clearly untenable or unreasonable. Id.

       Here, the district court explained why it was not inclined to defer judgment,2

and the reasons given were not untenable or unreasonable. Therefore, the district

court did not abuse its sentencing discretion. We affirm.

       AFFIRMED.

       Doyle, J., concurs specially; Vaitheswaran, J. dissents.




2
  The court considered: “what’s going to provide the maximum opportunity for rehabilitation
of Mr. Machado, but at the same time protect the Burlington community from further
offenses”; the State’s recommendation; and Machado’s age, work history, and request for
deferred judgment. Based on the “nature of the offense itself, as well as the fact that Mr.
Machado has previously had the benefit of a deferred judgment” the court “opt[ed] to deny
the defendant’s request for a second deferred judgment in this matter.”
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DOYLE, J. (concurring specially).

       This paper plea is not a model of clarity. Judge Bower accurately sets out

Machado’s written plea of guilty. The document was signed by Machado and his

counsel but lacked a signature line for the State and was not signed by the

prosecutor. The date the document was originally signed is illegible. The date “9-

11-18” appears next to Machado’s initials where he crossed out two waiver

paragraphs.    Apparently, he changed his mind about these paragraphs after

originally initialing them. The written plea of guilty was filed September 11, 2018.

Filed on the same date and at the same time (presumably attached to the written

plea—although it is impossible to tell with electronic filing) as a June 18, 2018 email

from the assistant county attorney to Machado’s counsel setting forth a plea offer.

The offer states, “The State would offer the following for Mr. Machado: Parties will

jointly recommend the following:”




“AM” are Machado’s initials, and “CS” are the assistant county attorney’s initials.

Machado signed his name at the end of the document and dated it “9-11-18.”

Seemingly, Machado changed his mind about conditioning his plea upon the grant

of a deferred judgment and by initialing and signing the State’s plea offer agreed

that at sentencing he could ask for a deferred judgment and that the State would
                                           7


recommend jail time with two years’ probation.3 And that is precisely what took

place at the sentencing hearing—the prosecutor requested jail time and probation

and resisted deferred judgment, while Machado’s counsel argued for a deferred

judgment. So, based on the record before us, I agree with the majority that the

record does not show Machado’s plea was conditioned upon the court granting

him a deferred judgment.       The court did not abuse its discretion in denying

Machado a deferred judgment and in not allowing Machado a chance to withdraw

his guilty plea. I therefore concur with Judge Bower.




3
 The court accepted the paper plea without a hearing and set the matter for a sentencing
hearing.
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VAITHESWARAN, J. (dissenting).

       I respectfully dissent. I believe the plea was conditioned upon the court’s

concurrence and, when the district court declined to grant Machado a deferred

judgment as set forth in the written plea of guilty, the court was obligated to afford

Machado the opportunity to withdraw the plea. See Iowa R. Crim. P. 2.10(3).
