                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0284
                            Filed November 13, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREW JAMES LOPEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.



      Andrew Lopez appeals from his guilty plea to child endangerment causing

bodily injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, Stephen Holmes, County Attorney, and Tiffany Meredith,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

       Andrew Lopez appeals from his guilty plea to child endangerment causing

bodily injury, in violation of Iowa Code sections 726.6(1)(a)-(b), .6(6) (2013). He

asserts trial counsel was ineffective for failing to object on the basis of the State’s

failure to comply with the plea agreement. Because we conclude the State did

not breach the plea agreement, trial counsel was not ineffective for failing to

object to the State’s actions during the sentencing hearing. Consequently, we

affirm Lopez’s conviction and sentence.

       On September 18, 2013, Lopez was watching B.H., the son of his live-in

paramour. B.H. was approximately two years old. When the mother returned

home, she discovered bruising on B.H.’s back, arms, and wrists, a bite mark on

B.H.’s upper arm, and a burn on his abdomen below the top of his diaper. Lopez

later admitted that he had pulled B.H. too roughly, which resulted in bruising. He

also stated “magical fire” had caused the burn mark.

       Lopez was initially charged with willful injury, in violation of Iowa Code

section 708.4(2), but the State later amended the trial information to charge

Lopez with child endangerment causing bodily injury, in violation of Iowa Code

sections 726.6(1)(a)-(b), .6(6). On December 30, 2013, Lopez pleaded guilty.

The plea agreement required Lopez to plead guilty to the child endangerment

charge in exchange for a joint sentencing recommendation for a deferred

judgment, two years probation, and minimum fines and fees. The agreement

also required Lopez to complete a parenting class, an anger management class,

a mental health evaluation and treatment, as well as comply with the various no-

contact orders entered with respect to B.H., his mother, and Lopez’s minor child,
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A.L. On February 13, 2014, following a hearing, the district court sentenced

Lopez to a term of incarceration not to exceed five years. Lopez appeals.

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). We may either decide the record is adequate and issue a

ruling on the merits, or we may choose to preserve the claim for postconviction

proceedings. Id. We review ineffective-assistance-of-counsel claims de novo.

Id.   To succeed on this claim, the defendant must show, first, that counsel

breached an essential duty, and, second, that he was prejudiced by counsel’s

failure. Id.

       Lopez argues trial counsel was ineffective for failing to object to the

State’s alleged failure to comply with the plea agreement.         Specifically, he

asserts the State failed to adequately inform the court that it approved of the plea

agreement, in violation of State v. Bearse, 748 N.W.2d 211, 215–16 (Iowa 2008),

which requires “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.” Lopez also claims the State introduced evidence

“whose sole function was to seek to undermine the plea agreement.”             This

evidence consisted of photographs of B.H.’s injuries and the State’s witnesses—

B.H.’s biological father and B.H.’s guardian ad litem—who presented victim

impact statements to the court.

       The guardian ad litem took the stand on behalf of B.H., in which the

following exchange occurred:
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              The Court: All right. Ms. Leighty, you may be seated and
      you may make your statement.
              Ms. Leighty: Thank you, Your Honor. I’m the guardian ad
      litem appointed to the child in the juvenile matter. Normally I don’t
      get involved in the criminal matters. I’ve been an attorney for about
      thirteen years, and this is actually the first time I’ve ever come into
      court to make a statement. However, in this case I couldn’t remain
      silent as the child needs a voice.
              I don’t believe that Mr. Lopez deserves a deferred judgment.
      I attended the guilty plea hearing hoping to hear if Mr. Lopez would
      take responsibility for his actions. Instead I heard excuses, I heard
      him minimize his actions.
              Mr. Lopez needs to have anger management classes, a
      mental health evaluation, and parenting classes. I believe that a no
      contact order needs to be extended for an additional five years. It’s
      my understanding that one wasn’t imposed, so I would ask that one
      be imposed for that time period.
              It’s very unlikely that the child would be protected if Mr.
      Lopez is on probation rather than in custody. In this matter the
      child is very young. He’s only two years of age, he won't be three
      until next month, and he’s not able to protect himself. I’m very
      concerned that if Mr. Lopez is around the child again, that further
      injuries will occur.

      The State then recited the terms of the plea agreement when making its

sentencing recommendation:

              Your Honor, in this case the State is jointly recommending a
      deferred judgment on this case. We are recommending that
      [Lopez] be imposed with the minimum fines, court costs, and
      surcharges and attorney’s fees. He pay the jail costs and
      probationary costs. That he be placed on probation for the
      minimum amount of time allowed by the law with the Department of
      Corrections. That while he’s on probation he attend a parenting
      class and complete it and file proof of completion of that with the
      Court. That he also complete an anger management course and
      file proof of completion of that with the court, and that he obtain a
      mental health evaluation, follow through with any recommended
      treatment.
              There is an agreement, Your Honor, in this case for three
      separate no contact orders to enter. The first would be with the
      young child [B.H.], and that that be entered for a period of time of
      five years. That a no contact order regarding his mother [T.H.] also
      be entered. That is the child’s primary caretaker. We are asking
      that a no contact order regarding [A.L.], Your Honor, be entered,
      and that one be different in allowing him to have visitation with his
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      daughter at the discretion of the Department of Human Services,
      but due to her young age we feel it is also appropriate in this case,
      Your Honor.

      Defense counsel affirmed the county attorney had correctly recited the

terms. She then provided the court with many reasons why the court should

follow the agreement, including detailing Lopez’s remorse for his actions, his

future plans, and his family support system, all of which supported Lopez’s

eligibility for a deferred judgment. Lopez also addressed the court, accepting

responsibility for his actions and outlining his commitment to turning his life

around.

      The Court, however, rejected the plea agreement and stated in part:

              Mr. Lopez, I think in order to be successful this sentence
      needs to make you understand how totally and completely
      unacceptable your behavior was.                No matter what the
      circumstances, you never, ever, have the right to assault a 2-year-
      old, and when you do there are going to be serious consequences,
      and you need to understand, the community needs to understand,
      your family needs to understand, and the victim’s family needs to
      understand, how seriously this Court treats assault offenses.
              Mr. Lopez, I can tell you right now you are not getting a
      deferred judgment. That’s not an issue. The issue here is: Do you
      get probation or do you go to prison? Those are the two alternative
      sentences, not a deferred judgment. You got a deferred judgment
      on an OWI, you were found in contempt because you violated
      probation, you kept your deferred, and now you’re in court again on
      a much more serious charge. Obviously a deferred judgment
      probation did not rehabilitate you because you ended up
      committing a much more serious criminal offense after having
      completed your prior probation.
              When I look at this case . . . I have some real concerns
      about the safety of our community if you are released into the
      community. I have some real concerns about your ability to be able
      to control your temper and not do this again. You have to
      understand here . . . that your actions now have affected probably
      forever the lives of a lot of people. Obviously they have affected
      the life of the victim, and his family, to a lesser degree. You have
      affected the lives of your family and yourself.
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             When I look at the sentencing options available here . . . I
      don’t think probation at this point in your life is appropriate.
      Probation didn’t work before. You committed a very serious assault
      offense against a 2-year-old and you . . . cannot be trusted in the
      community on street probation or even a residential facility. You
      are going to prison, and I think that is the only appropriate sentence
      here.

      The court clearly made its own assessment of the appropriate sentence to

impose, and the record does not demonstrate the State breached the plea

agreement.    The State’s introduction of permissible evidence—including the

photographs and victim impact statements—does not amount to a breach of the

plea agreement. See generally Iowa Code §§ 901.2, .5 (stating the court may

receive into evidence “any information . . . which is relevant to the question of

sentencing” and that the court must then examine said evidence before

considering sentencing options); id. § 915.21 (governing victim impact

statements without the express limitation that the court only receives one

statement). The State otherwise complied with the plea agreement by reciting

the agreement to the district court and indicating its support of the recommended

sentence.    See United States v. Benchimol, 471 U.S. 453, 455–56 (1985)

(holding the prosecutor is not obligated to “enthusiastically” recommend the

sentence set forth in the agreement); Bearse, 748 N.W.2d at 216 (holding the

State breached the plea agreement when it recommended a different sentence at

the hearing than what was memorialized in the plea agreement); State v.

Horness, 600 N.W.2d 294, 298–99 (Iowa 1999) (holding counsel was ineffective

for failing to object to the prosecutor’s statements regarding the fact the

presentence investigation report recommended a different sentence than the
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plea agreement, recited the danger the defendant imposed upon her children by

driving drunk, and stating “we had an alternative recommendation”).

      Here, the court adamantly rejected the plea agreement, detailing its

reasons for imposing the sentence it determined was more fitting.        Because

counsel has no duty to present a meritless objection, Lopez’s trial counsel was

not ineffective for failing to object to the State’s conduct during the sentencing

hearing.   See State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999) (noting

counsel is not ineffective for failing to pursue a meritless objection).

Consequently, we affirm Lopez’s conviction and sentence.

      AFFIRMED.
