                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2051
                            Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENNIS BROWN JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Russell G. Keast,

District Associate Judge.



      The defendant challenges his conviction and sentence. AFFIRMED.



      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

      Dennis Brown Jr. was charged with three counts of domestic abuse

assault. The State and Brown reached a plea agreement pursuant to which

Brown agreed to plead guilty to one count of domestic abuse assault

(strangulation), in violation of Iowa Code sections 708.2A(1) and 708.2A(2)(d)

(2016), and the State agreed to dismiss the remaining counts and further agreed

not to resist Brown’s request for a deferred judgment. The district court did not

grant Brown’s request for a deferred judgment.      The district court sentenced

Brown to ninety-two days in jail with all but two days of the sentence suspended.

      On appeal, Brown challenges his conviction and sentence, contending the

prosecutor failed to abide by the terms of the plea agreement.        Specifically,

Brown contends the prosecutor violated the plea agreement when the prosecutor

asked the court to take judicial notice Brown had a prior deferred judgment.

Brown requests his conviction be vacated and he be allowed to plead anew. Our

review is for correction of errors at law. See State v. King, 576 N.W.2d 369, 370

(Iowa 1998).

      When the State enters into a plea agreement, the prosecutor must comply

with both the letter and spirit of the plea agreement. See State v. Horness, 600

N.W.2d 294, 296 (Iowa 1999). “The relevant inquiry in determining whether the

prosecutor breached the plea agreement is whether the prosecutor acted

contrary to the common purpose of the plea agreement and the justified

expectations of the defendant and thereby effectively deprived the defendant of

the benefit of the bargain.” State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct.

App. 2015). The prosecutor can act contrary to the plea agreement by explicitly
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violating the terms of the plea agreement. See id. The prosecutor can also act

contrary to the plea agreement by expressing material reservation regarding the

plea agreement while still acting in technical compliance with the agreement.

See id.

      Brown has failed to establish the prosecutor breached the terms of the

plea agreement. Here, the State agreed not to resist Brown’s request for a

deferred judgment. At the time of sentencing, the prosecutor asked only for the

court to take judicial notice of Brown’s prior deferred judgment. The court, in

response, asked if the State “agreed not to resist the request for deferred

judgment,” to which the State responded in the affirmative. The prosecutor did

not express any material reservation regarding the plea agreement or otherwise

undercut the agreement with a wink and a nod.         See State v. Bearse, 748

N.W.2d 211, 218 (Iowa 2008); Horness, 600 N.W.2d at 299. The prosecutor

informed the court of the defendant’s criminal history, a permissible sentencing

consideration, and, upon inquiry from the district court, stated the State did not

resist the request for deferred judgment. See Iowa Code § 901.5 (authorizing

sentencing court to review presentence investigation report containing criminal

history in rendering sentence).   The prosecutor did not emphasize the prior

deferred judgment or in any way intimate the district court should not grant a

deferred judgment because of the prior deferred judgment. In short, under the

circumstances, the prosecutor’s recitation of the defendant’s criminal history did

not constitute resistance to the defendant’s request for a deferred judgment and
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did not deprive the defendant of the benefit of his plea bargain. See Frencher,

873 N.W.2d at 284.

      AFFIRMED.

      Danilson, C.J., concurs; Tabor, J., dissents.
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TABOR, Judge (dissenting)

         I respectfully dissent. By urging the sentencing court to take judicial notice

of a prior false-imprisonment offense committed by Brown, the prosecutor did not

strictly comply with the terms and spirit of the plea agreement as required under

State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999), State v. Bearse, 748

N.W.2d 211, 215 (Iowa 2008), and State v. Fannon, 799 N.W.2d 515, 522 (Iowa

2011).

         The sentencing hearing began with a lengthy victim impact statement.

The victim asked the court to “take into consideration Dennis has a history of

violence, anger and domestic violence.” The victim concluded by saying: “[H]is

actions were serious and should have serious consequences. Sometimes it only

takes one time and there might not be a second chance for an innocent victim.”

         Immediately following the victim impact statement,1 the court asked if the

State had “any additional record.”        The assistant county attorney responded:

“Your Honor, in making your sentencing recommendation or your sentencing

order, the State would also ask the Court take judicial notice the deferred

judgment the defendant received out of Johnson County for false imprisonment

in—I don’t have the year, Your Honor. False imprisonment, a different victim.”

         In response to the State’s request that it take judicial notice of the prior

false-imprisonment case, the sentencing court asked for clarification: “The plea



1
  I do not suggest the assistant county attorney violated the plea agreement by
facilitating the victim’s oral presentation of her impact statement. See Iowa Code §
915.21(1)(b) (2016). But the assistant county attorney did attempt to capitalize on the
content of the victim impact statement by asking the sentencing court to take judicial
notice of the prior false-imprisonment incident and specifically mentioning that it involved
another victim.
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agreement in this matter states that the State agreed not to resist the request for

deferred judgment; is that correct?”

       Despite the fact this same assistant county attorney appears to have

signed the written guilty plea form, she asked the court: “Is that what was written

in the plea agreement?” The court confirmed: “It is what’s written in the plea

form.” The assistant county attorney then said: “Yes, Your Honor.” The court

further clarified: “As well as dismissing Counts II and III is that correct?” And the

assistant county attorney replied: “Correct.” The assistant county attorney said

nothing more about the plea agreement or sentencing recommendation.

       The question whether the State reneged on its plea agreement often

arises as a claim of ineffective assistance of counsel on appeal because no

objection was lodged at the sentencing hearing.         But here, defense counsel

contemporaneously objected to the prosecutor’s improper remarks about

Brown’s previous offense of false imprisonment with a different victim, arguing:

       Your Honor, at this point in time based on the statements made by
       the State, informing the Court about the false imprisonment with a
       different victim in Johnson County, I do believe that is against the
       plea agreement in regards that—according to case law when there
       is an agreement made by the parties, the State is not allowed to
       make any statements that could affect the agreement and in this
       case the agreement was the State was not to resist a deferred
       judgment.


       The sentencing court rejected the defense argument, couching its

conclusion as a double negative: “I don’t believe the agreement’s been not

upheld.” The court reasoned: “The State agreed that they made the agreement

not to resist the deferred judgment, and . . . taking into consideration prior record,

including prior deferred judgments, is appropriate for the Court.”
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      On appeal, the State echoes that rationale, arguing the sentencing court

must be allowed to consider the defendant’s prior deferred judgment to decipher

whether a deferred judgment was authorized under Iowa Code sections 901.5

and 907.3. The sentencing court and the State both skirt the real issue. The

assistant county attorney was not giving the sentencing court a heads up that

Brown was eligible for a deferred judgment because he had only one prior

deferred judgment and it was not for a felony offense. Rather, the assistant

county attorney had apparently forgotten what she promised as part of the plea

agreement.    See Bearse, 748 N.W.2d at 215 (advising “inadvertence by a

prosecutor will not excuse noncompliance”). The State concedes: “One way to

read the transcript would allow that the prosecutor was unaware of the obligation

not to resist a deferred judgment.”

      The State’s concession puts us in Fannon territory.         In Fannon, the

prosecutor’s initial recommendation violated the express terms of the plea

agreement, and the prosecutor’s attempt to cure by withdrawing the improper

remarks was unavailing. 799 N.W.2d at 521. The Fannon court held: “Although

the sentencing prosecutor attempted to ‘start again’ following the breach, his

conduct, whether intentional or inadvertent, revealed that, but for the agreement,

the State would recommend consecutive sentences.”            Id. at 522 (footnote

omitted). The prosecutor’s attempt to cure was even less potent here. Although

the sentencing court pulled the assistant county attorney back to the terms of the

plea agreement, her initial foray into the substance of the prior deferred

judgement for false imprisonment with a different victim (right on the heels of the

victim impact statement emphasizing Brown’s proclivity to violence and risk to
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other victims) indicated, but for the agreement, the State would have

recommended the imposition of judgment. The prosecutor’s request for the court

to take judicial notice of a prior incident that underscored Brown’s dangerous

nature would lead a reasonable person to assume her intent was to convince the

court not to defer judgment. See State v. Lopez, 872 N.W.2d 159, 179 (Iowa

2015). Her subsequent terse recognition of the State’s agreement memorialized

in the written plea form fell short of “the most meticulous standards of both

promise and performance” to which we hold prosecutors. See id. at 180 (quoting

Bearse, 748 N.W.2d at 215).

       The majority relies on State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct.

App. 2015), for the proposition that reciting a defendant’s criminal history will not

always count as expressing a material reservation regarding the sentencing

recommendation. But in Frencher, “[t]he prosecutor strongly advocated for the

recommended sentence, stating that Frencher should be given the opportunity

for probation and could be successful on probation despite Frencher’s criminal

history.”   873 N.W.2d at 285.      Here, the assistant county attorney did not

affirmatively advance the State’s promised non-resistance to Brown’s request for

a deferred judgment. At best, the record shows the assistant county attorney

answered “yes” when asked if the written plea form correctly reflected the State’s

agreement not to resist the request for deferred judgment. The plea agreement

did not provide for the State to stand silent; in return for his plea of guilty, Brown

expected the prosecutor to say the State had no objection to the deferred

judgment.    The prosecutor did not live up to that expectation.         In fact, the
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prosecutor sabotaged the promised recommendation by mentioning Brown’s

prior false-imprisonment offense.

       I would vacate Brown’s sentence and remand for resentencing by a

different judge.
