                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0300
                            Filed September 12, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAM CHESTER THOMAS II,
     Defendant-Appellant.
________________________________________________________________


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

District Associate Judge.



      Sam Thomas appeals his convictions for operating a motor vehicle while

intoxicated, third offense, and driving while barred. AFFIRMED.



      Adam R. Junaid of Frerichs Law Office, PC, Waterloo, for appellant.

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

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Sam Thomas entered an Alford plea1 to operating a motor vehicle while

intoxicated, third offense, and driving while barred.            See Iowa Code

§§ 321J.2(2)(c), 321.555, 321.561 (2015).       The sentencing court declined to

accept the State’s sentencing recommendation to suspend all but 120 days of the

indeterminate five-year prison term on the first charge and fully suspend the

indeterminate two-year prison term on the second charge. The court imposed both

prison terms, reasoning in part that this was Thomas’ “sixth operating while

intoxicated offense here in the state of Iowa” and prison time might serve as a

deterrent.

       On appeal, Thomas contends the district court abused its discretion “by

failing to abide by the terms of the plea agreement without giving [him] the

opportunity to withdraw his plea.” He relies on Iowa Rule of Criminal Procedure

2.10(4), which states:

       If, at the time the plea of guilty is tendered, the court refuses to be
       bound by or rejects the plea agreement, the court shall inform the
       parties of this fact, afford the defendant the opportunity to then
       withdraw defendant’s plea, and advise the defendant that if
       persistence in a guilty plea continues, the disposition of the case may
       be less favorable to the defendant than that contemplated by the plea
       agreement.

But the rule is triggered only if the plea is conditioned on the court’s concurrence.

See State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981) (setting forth three options

provided by rule). Nothing in Thomas’ plea stated the plea was conditioned on the




1
  An Alford plea is a variation of a guilty plea where the defendant does not admit
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
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court’s concurrence. To the contrary, the written plea referred to the State’s

sentencing “recommend[ation].” See State v. Thompson, 856 N.W.2d 915, 922

(Iowa 2014) (“Here the plea agreement was that the State would recommend a

certain sentence upon Thompson’s plea of guilty. Nowhere in the plea agreement

did it state the agreement required the district court’s concurrence.”). Similarly, the

transcript of the plea colloquy contains no express statement that the court would

be bound by the State’s sentencing recommendation.

       Thomas concedes the absence of express language binding the court to

the recommendation. He argues the court “impliedly informed [him] that the court

would abide by” the agreement when the court engaged in the following exchange:

             COURT: Has anybody promised you exactly what the
       sentence will be—
             DEFENDANT: No.
             COURT: —other than the plea agreement that was stated?
             DEFENDANT: No, Your Honor.

Alternatively, he argues the exchange bound the court by default.

       Thomas reads too much into the words “other than.” In context, it is clear

the court was simply trying to comply with its rule 2.8(2)(b) obligation to ensure the

plea was “made voluntarily and intelligently.” The court did not agree to be bound

by the sentencing recommendation, and we discern no abuse of discretion in the

district court’s decision to impose terms of incarceration.

       We affirm Thomas’ conviction and sentence.

       AFFIRMED.
