                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0530
                                  Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

OLIVER LEE LEWIS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, James D. Coil,

District Associate Judge.



       Oliver Lee Lewis appeals the judgment and sentence entered following his

guilty pleas to driving while license revoked; public intoxication, third offense; and

operating while intoxicated, second offense.       JUDGMENT AND SENTENCE

VACATED; CASE REMANDED.



       Richard R. Hollis, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



       Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, Senior Judge.

      Oliver Lee Lewis appeals his guilty pleas and sentence alleging

(1) ineffective assistance of counsel, (2) the State breached the plea

agreements, (3) the district court abused its discretion by not allowing Lewis to

withdraw his guilty pleas, and (4) the district court abused its discretion by not

recusing itself from the sentencing proceedings.

      I.     Background Facts and Proceedings

      In 2014, Lewis entered into three separate plea agreements with the State

regarding three separate offenses: driving while license revoked; public

intoxication, third offense; and operating while intoxicated, second offense (OWI).

In those agreements, the State indicated it would recommend the following on

each charge, respectively: (1) $1000 fine; (2) “2 yrs prison, $625 suspended fine,

served in [Iowa Code chapter] 321J [2013] Program concurrent with [the

operating while intoxicated charge]”; and (3) “321J Program, mandatory minimum

sentence, fines, probation 2 yrs supervised.” On the OWI plea agreement, the

county attorney separately wrote “as approved—probation prior to placement in J

if approved for direct placement.” All three plea agreements were conditioned

upon the court’s concurrence.

      On October 31, 2014, a hearing on all three guilty pleas was held. At that

hearing, the following colloquy occurred:

              THE COURT: . . . Mr. Lewis, have you been over with your
      attorney all of the rights that you waive by entering these pleas of
      guilty.
              THE DEFENDANT: Yes.
              THE COURT: And do you understand those rights?
              THE DEFENDANT: Yes.
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              THE COURT: And by entering these pleas of guilty, are you
      telling me that you’re willingly waiving those rights?
              THE DEFENDANT: Yes.
              THE COURT: Do you have any questions about your rights?
              THE DEFENDANT: No, I don’t at this time.
              THE COURT: Very well, Mr. Lewis. I will accept your written
      pleas of guilty.
              . . . I note there is contemplation, I think, in the written plea
      of guilty that the defendant would be sentenced to prison with
      placement in the 321J program, but there’s been no indication that
      he’s eligible for that. I’m assuming, then, counsel, you wish
      sentencing to be set at a later time?
              [DEFENDANT’S COUNSEL]: Yes, Your Honor.

      All three matters were then set for sentencing on January 9, 2015. At the

sentencing hearing, Lewis and his attorney first learned Lewis was ineligible for

the 321J program.

              [DEFENSE COUNSEL]: Your Honor, I don’t see that I’ve
      received anything with the worksheet disqualifying Mr. Lewis from
      the 321J program, which was the basis of the plea.
              THE COURT: It’s in the court file
              (Attorney conference.)
              [DEFENSE COUNSEL]: And, Your Honor, this is the first I’ve
      seen of the 321J rejection, and the guilty plea was conditioned,
      also. At this point, I’d request the matter be reset for trial as far as
      this case.
              THE COURT: You want to bring it back up. Bring the file.
      All right. Well, I was unaware of the defendant’s criminal history,
      which includes kidnapping, burglary second degree, and several
      assaultive offenses. He does not qualify for placement in the 321J
      program. So does the defendant wish to withdraw all of his pleas of
      guilty?
              [DEFENSE COUNSEL]: Do you wish to withdraw all of them
      or just the OWI, sir?
              (Attorney/client conference.)
              [DEFENSE COUNSEL]: All of them, Your Honor.
              THE COURT: All right. I will withdraw all of the defendant’s
      pleas. They’ll be immediately rescheduled for trial.

      Notwithstanding this in-court colloquy, the district court entered a written

order following the hearing finding Lewis’s pleas were “conditioned upon the

approval of the department for the defendant’s placement in the 321J Program”
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and thus “defendant’s request to withdraw his pleas of guilty should be denied

and the matters reschedule for sentencing.”

      At the rescheduled sentencing hearing, Lewis’s counsel requested that the

judge recuse himself from the case, which the court denied.            The State

recommended “two years on the OWI second, two years on the public

intoxication third and one year on the driving while license revoked all concurrent

to one another for a two-year sentence.” Lewis was sentenced to two years for

the OWI offense with a $1875 fine, two years for the public-intoxication offense

with a $625 fine, and one year for the driving-while-license-revoked offense with

a $1000 fine, all to run concurrently. A 35% surcharge was imposed on each fine

and a $10 Drug Abuse Resistance Education (DARE) fee was imposed on the

OWI offense.

      Lewis appealed.

      II.      Analysis

      Because we find Lewis’s third argument—the district court abused its

discretion by not allowing Lewis to withdraw his guilty pleas—to be dispositive,

we address only that claim.

      “We review a trial court’s decision to grant or deny a request to withdraw a

guilty plea for abuse of discretion.” State v. Speed, 573 N.W.2d 594, 596 (Iowa

1998). “Abuse of discretion exists only where a defendant shows the trial court’s

sound discretion was ‘exercised on grounds or for reasons clearly untenable or to

an extent clearly unreasonable.’” Id. (citation omitted). “The refusal to allow

withdrawal will be upheld ‘where “a defendant, with full knowledge of the charge

against him and of his rights and the consequences of a plea of guilty, enters
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such a plea understandably and without fear or persuasion.”’”          Id. (citations

omitted).

       From the record, it is apparent it was not made clear to Lewis at the plea

colloquy that his plea was contingent upon a determination by the department of

corrections that he was eligible for the 321J program.          Though the county

attorney added “as approved” to the plea agreement, there is no indication Lewis

interpreted and understood the clause to place a condition on his placement. To

the contrary, the record establishes both Lewis and his attorney viewed

placement in the 321J program as the basis of the pleas.

       Based upon this failure of mutual understanding, Lewis requested to

withdraw his pleas—a request the court granted. Despite informing Lewis that

his pleas were withdrawn and the cases would proceed to trial, the court then

changed its mind by written order, denying Lewis’s already granted request.

       At the rescheduled sentencing hearing, the State recommended a year

sentence for the driving-while-license-revoked charge, despite indicating in the

plea it would recommend only a $1000 fine. In imposing sentence, the district

court adopted this recommendation and further varied from the plea agreement

by failing to suspend the $625 fine for the public-intoxication offense. In addition,

the court imposed fines and a DARE fee that had not been disclosed to Lewis in

the plea agreements.     See State v. Fisher, ___ N.W.2d ___, ___, 2016 WL

1391874, at *9 (Iowa 2016) (noting the defendant “should have been informed of

the mandatory minimum and maximum possible fines, including surcharges”).

       From these unique circumstances, it is apparent that the department of

corrections’ determination Lewis was not eligible for the 321J program
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undermined the validity of the plea agreement as understood by Lewis and his

counsel. Based on this nullification of a key aspect of the plea agreements—in

conjunction with the initial grant of a withdrawal of the pleas and subsequent

imposition of a sentence inconsistent with the pleas or not otherwise disclosed in

the pleas—we conclude the district court abused its discretion in denying Lewis’s

request to withdraw his guilty pleas.

       JUDGMENT AND SENTENCE VACATED; CASE REMANDED.
