                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1367
                                Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA MICHAEL BERGEN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Louisa County, Cynthia H.

Danielson (plea hearing) and John M. Wright (sentencing), Judges.



      Joshua Bergen appeals his sentence for burglary in the third degree.

AFFIRMED IN PART, VACATED IN PART,                      AND REMANDED FOR

RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Ryan Ashley, Legal Intern, Adam Parsons, County Attorney, and David

L. Matthews, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and McDonald, JJ.
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VAITHESWARAN, P.J.

         Joshua Bergan appeals his judgment and sentence for third-degree

burglary. He contends the State breached the plea agreement and the district

court relied on an unproven charge in sentencing him.

   I.       Background Proceedings

         The State charged Bergen with three counts of third-degree burglary, in

connection with multiple break-ins and thefts from the same home. See Iowa

Code § 713.6A(1) (2013). The trial information specified a distinct time frame for

each count: January 1 through January 11, 2014 for count I; “the 26th-27th days of

January, 2014” for count II; and January 27 through February 10, 2014 for count

III. The minutes of testimony narrated a series of events occurring in each time

frame.    For “January 26-27, 2014,” corresponding with count II, the minutes

stated, “this time they gained entrance by damaging a deadbolt lock and forcing

the door open” and “on this occasion, it appeared that whoever entered the

residence had made themselves at home.”

         Bergen agreed to plead guilty to count I in exchange for dismissal of

counts II and III at the expiration of the appeal period. The district court accepted

the plea. In imposing sentence, the court referred to two events described in the

minutes as occurring on the “26th-27th of January, 2014.” The court stated, “you

made yourself at home when you did go to that person’s home.” The court

further mentioned “damage [to] someone’s property.” Based on these and other

reasons, the court sentenced Bergen to prison.
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   II.      Analysis

         On appeal, Bergen contends the prosecutor did not dismiss counts II and

III, as agreed, and his attorney was ineffective in failing to challenge this claimed

breach of the plea agreement. We are not persuaded by this argument.

         As noted, Bergen’s plea agreement stated counts II and III would be

dismissed only at the expiration of the appeal period. The appeal period had yet

to begin let alone expire at the time of the plea and sentencing hearings.

Accordingly, there could be no breach of the plea agreement by the prosecutor or

breach of an essential duty by Bergen’s attorney.        See State v. Lyman, 776

N.W.2d 865, 878 (Iowa 2010) (to determine if trial counsel failed to perform an

essential duty, trial counsel’s performance is measured “objectively by

determining whether counsel’s assistance was reasonable, under prevailing

professional norms, considering all the circumstances”).

         Bergen also contends the district court considered unproven or

unadmitted facts in sentencing him. See State v. Gonzalez, 582 N.W.2d 515,

517 (Iowa 1998) (“A sentence will not be upset on appellate review unless the

defendant demonstrates an abuse of trial court discretion or a defect in the

sentencing procedure such as the trial court’s consideration of impermissible

factors.”). He cites the court’s reference to allegations concerning count II, which

was to be dismissed. See id. (quoting State v. Black, 324 N.W.2d 313, 316 (Iowa

1986) (“The sentencing court should only consider those facts contained in the

minutes that are admitted to or otherwise established as true.”)).        The State

concedes error on this point based on State v. Lovell, 857 N.W.2d 241, 243
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(Iowa 2014). There, the Iowa Supreme Court vacated a sentence and remanded

for resentencing before a different judge in light of the district court’s discussion

of an unproven allegation contained in the minutes. Lovell, 857 N.W.2d at 243.

Accordingly, we vacate Bergen’s sentence and remand to the district court for

resentencing before a different judge.

       AFFIRMED IN PART, VACTAED IN PART, AND REMANDED FOR

RESENTENCING.
