                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1793
                              Filed January 9, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS WAYNE BURGESS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, Mark E. Kruse

(plea) and Michael J. Schilling (sentencing), Judges.




      Nicholas Burgess appeals from the sentence imposed upon his conviction

for delivery of a schedule II controlled substance. AFFIRMED.



      William Monroe of Law Office of William Monroe, Burlington, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.




      Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.

       Nicholas Burgess appeals from the sentence imposed upon his conviction

for delivery of a schedule II controlled substance (morphine), in violation of Iowa

Code section 124.401(1)(c)(8) (2017), a class “C” felony, contending the

prosecutor breached the plea agreement to recommend a suspended sentence

and his defense counsel was ineffective in not objecting.1 We disagree and

therefore affirm.

       On May 14, 2018, Burgess entered a plea of guilty to delivery of morphine.

The court’s order regarding the guilty plea described the plea agreement:

       The defendant will plead guilty to the charge in the Trial Information
       without the enhancement. At sentencing the State will recommend
       the defendant receive a suspended sentence and the minimum fine.
       Defendant agrees to pay restitution to the Lee County Narcotics Task
       Force in the amount of $50.00.

At the plea hearing, the court asked Burgess:       “Do you understand that any

agreements made are not binding on the court and the court alone will decide at a

later time what the exact sentence will be?” Burgess responded, “Yes, sir.”

       A sentencing hearing was held on August 6. A presentence investigation

(PSI) report enumerated Burgess’s fifteen-year adult criminal history, his episodic

employment history, various incarcerations, and numerous experiences with

substance-abuse treatment. The PSI report preparer recommended incarceration.

       The prosecutor made the following statement:



1 The State asserts Burgess has no right to appeal from a plea of guilty here due
to recent amendments to Iowa Code 814.6(1). Our supreme court decided 2019
amendments to Iowa Code section 814.6, limiting direct appeals from guilty pleas
apply only prospectively and do not apply to cases, like this one, pending on July
1, 2019. See State v. Macke, 933 N.W.2d. 226, 235 (Iowa 2019).
                                          3


      Your Honor, if my memory serves me correctly here, shortly after
      these charges were filed, I believe Mr. Burgess was sentenced to
      incarceration on another matter so he remained incarcerated for a
      significant period of time, I believe, while these charges were
      pending.
              Once he was released from custody, he came into court and
      entered a guilty plea in this matter. And pursuant to a plea
      agreement and based on the time he had served, the State agreed
      at that point in time that at the time of sentencing to recommend a
      suspended sentence with formal probation for Mr. Burgess.
              . . . Obviously, in looking at the PSI, the defendant has a
      terrible criminal history and not a favorable work history either. The
      State does recommend to the court today a suspended sentence
      notwithstanding the recommendation of the Department of
      Correctional Services.
              . . . Well, first of all, on the plea agreement, secondly, on the
      fact that he just did prison time prior to pleading guilty to this offense
      here and I believe after the charge was incurred.
              While on pretrial, it looks like Mr. Burgess has tested positive
      for meth on two occasions and, again, does not appear to have
      steady employment at this time. According to the PSI, it appears he
      does have a stable residence. The State is willing to stand by the
      plea agreement and recommend a suspended sentence in this
      matter.
              I would note that the defendant apparently has obtained a
      substance abuse evaluation with the recommendation—reported
      recommendation—for inpatient treatment. I have not seen this
      document; but I think if that is the case, the court could and probably
      should make a requirement of his probation to obtain a substance
      abuse evaluation and follow through with the recommended
      treatment. Inpatient would probably benefit the defendant at this
      point in time.

      The defense argued for a suspended sentence:

      We would request that the court suspend the sentence in this matter,
      place Mr. Burgess on formal probation for many of the reasons [the
      prosecutor] just spoke of. I agree that Mr. Burgess does have a
      lengthy criminal history.
             He’s still relatively young, though. He’s in his thirties, I
      believe. He does have a long life in front of him. It appears he has
      a pretty substantial drug issue that . . . he’s been dealing with.

      Defense counsel noted the length of time Burgess had been reporting to

pretrial supervision, he had “no further violations of the law,” and he had attended
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required appointments.    Burgess had also been involved in substance-abuse

treatment and was awaiting placement in inpatient treatment. Counsel noted

Burgess was not working because he first needed to attend inpatient treatment.

Because Burgess was “moving in the right direction of trying to comply with what’s

needed, trying to address the use of methamphetamine,” he requested a

suspended sentence.

      The court imposed a term of confinement not to exceed ten years. The

court explained:

              Number one, you’re not a youthful offender; you’re [thirty-four]
      years of age. Number two, your criminal record is lengthy. By my
      calculation, you’ve been convicted of five thefts, three burglaries, five
      drug-related charges and six assault or assault-related charges. And
      the court can’t overlook that criminal record. The third factor is that
      you have refused repeatedly to take advantage of both community-
      based services offered to you including but not limited to substance
      abuse treatment and resources offered to you in the Department of
      Corrections. Next, the Department of Corrections recommends
      confinement. And I agree in this case that confinement is
      appropriate.
              A suggestion has been made that you should be able to use
      the resources in the community. Ordinarily, I would agree with that,
      Mr. Burgess; but when you look at the number of times you’ve been
      offered services in the community and have refused or failed to take
      advantage of those, the only fair and reasonable conclusion is that
      it’s not likely that you're going to do so now. There’s nothing that’s
      happened that I can see in the record that would suggest that you’ve
      turned a new leaf and you’re going to become a law-abiding citizen.
              It’s important to remember that this crime occurred while you
      were on parole. And the reason why you served an extensive period
      of time before you were placed on pre-trial release is that your parole
      was violated and you went to prison for another offense that you
      committed.
              It’s important to note that the fact that you served an extensive
      prison sentence before committing this crime did not deter you from
      committing this crime. So I’m not persuaded that the amount of time
      you served either before you pled guilty or since you’ve pled guilty
      should subtract from the history, extensive history going back over
      [ten] years of criminal behavior of the type that I have already
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       mentioned. It’s necessary for the protection of the community that
       you be confined in this court’s opinion.

       Burgess appeals, contending his plea counsel was ineffective. He argues

the prosecutor’s comment that Burgess had “a terrible criminal history and not a

favorable work history either” violated the spirit of the plea agreement and his

counsel was ineffective in failing to object to the prosecutor’s breach.

       Our review of a claim of ineffective assistance of counsel is de novo. State

v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

       “To prevail on a claim of ineffective assistance of counsel, the defendant

must prove that his counsel failed to perform an essential duty and that the

defendant suffered prejudice as a result of this failure.” State v. Horness, 600

N.W.2d 294, 298 (Iowa 1999). While claims of ineffective assistance of counsel

are typically reserved for postconviction-relief proceedings, we consider the claim

on direct appeal because the record is adequate. See State v. Bearse, 748 N.W.2d

211, 214 (Iowa 2008).

       Here, the plea agreement required the State “recommend the defendant

receive a suspended sentence and minimum fine.” To “recommend”

       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.

Horness, 600 N.W.2d at 299. The prosecutor must do more than merely inform

the court of the promise made by the State. Id. “[T]he State must comply with the

spirit of the agreement as well.” Id. at 296.

       In Horness, the court found defense counsel had a duty to object because,

although the prosecution set forth the plea recommendation, it also twice
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referenced the “alternative recommendation” in the presentence investigation,

which contained a “more severe” sentencing proposal, and did not put forth the

plea agreement “with some degree of advocacy.” Id. at 299-300.

      In State v. Lopez, the supreme court concluded the “prosecutor failed to

indicate [the promised recommendation of] probation was worthy of the court’s

acceptance.” 872 N.W.2d 159, 179–80 (Iowa 2015). Rather, the prosecutor

breached that duty by gratuitously introducing photos of the child victim’s injuries

not otherwise before the court and using those photos on cross-examination to

signal the defendant deserved incarceration rather than probation. Id. at 180.

      In Bearse, the court held defense counsel violated a duty to object to the

prosecutor’s breach of a plea agreement—the prosecutor had promised to

recommend against incarceration. 748 N.W.2d at 216. However, the court noted

the prosecutor

      [i]nstead . . . merely indicated the State would “abide by the
      agreement,” but only after first telling the court it was “not bound by
      the plea agreement,” followed by a reminder that the court had “the
      presentence investigation report.” We have said “[t]he State’s
      promise to make a sentencing recommendation . . . [carries] with it
      the implicit obligation to refrain from suggesting more severe
      sentencing alternatives.” Horness, 600 N.W.2d at 299 (recognizing
      the plea agreement “is of little value to the defendant” if the State is
      allowed to recommend alternative sentences); see also State v.
      Birge, 638 N.W.2d 529, 536 (Neb. 2002) (finding breach of a plea
      agreement cannot be cured by prosecutor’s offer to withdraw
      improper remarks, even in case where district court affirmatively
      stated it was not influenced by the improper comments). Not only
      did the State in this case mistakenly recommend incarceration at the
      outset, but it clearly suggested incarceration should be imposed by
      referring to the presentence investigation report (which
      recommended incarceration) and reminding the court that it was not
      bound by the plea agreement. The State clearly breached the plea
      agreement by suggesting more severe punishment than it was
      obligated to recommend.
                                            7

Id. at 216.

       Here, “[t]he 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). Yet, if “the State technically

complied with the agreement by explicitly recommending the agreed-upon

sentence but expressed material reservations regarding the plea agreement or

sentencing recommendation, it can be fairly said the State deprived the defendant

of the benefit of the bargain and breached the plea agreement.” Id.

       In Frencher, this court explained:

       The expression of a material reservation regarding the plea
       agreement or sentencing recommendation can be explicit or implicit.
       For example, the prosecutor may explicitly express regret for
       entering into the plea agreement. See, e.g., State v. Hickman,
       No. 14–0269, 2014 WL 5251116, at *2–3 (Iowa Ct. App. Oct. 15,
       2014) (holding the prosecutor breached the plea agreement when he
       stated he had difficulty making the agreed upon sentencing
       recommendation). The prosecutor may also implicitly express
       material reservation to the plea agreement or recommended
       sentence in a number of ways. For example: by proposing
       alternative sentences; by requesting “an appropriate sentence”
       rather than the agreed-upon sentence; by making a recommendation
       and then reminding the court it is not bound by the plea agreement;
       or by emphasizing a more severe punishment recommended by the
       presentence investigation author. See, e.g., Bearse, 748 N.W.2d at
       216 (holding the prosecutor breached the plea agreement by
       suggesting greater punishment was warranted); Horness, 600
       N.W.2d at 300 (holding the prosecutor breached the plea agreement
       by informing the court of alternative recommendation and breached
       the plea agreement by requesting “an appropriate sentence”); Chest
       v. State, No. 13–0069, 2014 WL 1494900, at *5 (Iowa Ct. App.
       Apr. 16, 2014) (holding State breached plea agreement where
       prosecutor expressed it was “hard to stand before the court” and give
       the recommendation and emphasized facts of the case); State v.
       Dudley, No. 09–1772, 2010 WL 3157757, at *1–2 (Iowa Ct. App.
                                       8


       Aug. 11, 2010) (holding State breached plea agreement where
       prosecutor made agreed upon recommendation but called [PSI]
       writer as witness to “clarify” position on recommending a more
       severe sentence).

Id. at 285.

       On the other hand, where the prosecutor referenced a defendant’s criminal

history “to provide context for the sentencing recommendation while at the same

time making a strong recommendation for a suspended sentence,” this court has

found no breach by defense counsel. See State v. McDowell, No. 17-0679, 2017

WL 6034123, at *1 (Iowa Ct. App. Dec. 6, 2017); see also State v. Schlachter, 884

N.W.2d 782, 786 (Iowa Ct. App. 2016) (“The correct recitation of Schlachter’s

criminal record was not a distraction from the prosecutor’s recommendation, but

strengthened it by alerting the court the prosecutor was aware of Schlachter’s

criminal record and was making the recommendation with that knowledge.”);

Frencher, 873 N.W.2d at 285 (concluding there was no breach where the

prosecutor discussed criminal history “only to provide context to the sentencing

recommendation”).

       In Burgess’s case, the prosecutor did not propose alternative sentences,

request a more appropriate sentence rather than the agreed-upon suspended

sentence, make a recommendation and then remind the court it is not bound by

the plea agreement, or emphasize the more severe punishment recommended by

the PSI author.     Given the favorable plea agreement offered by the State,

Burgess’s extensive criminal history, and the PSI recommendation, it was

reasonable for the prosecutor to acknowledge the defendant’s criminal history to

explain the State’s recommendation for a suspended sentence. We conclude the
                                        9


statements about Burgess’s criminal history were more by way of explanation to

the court than of an underhanded or misleading nature. Consequently, defense

counsel had no duty to object to the prosecutor’s sentencing statements and

Burgess’s ineffective-assistance-of-counsel claim fails. We affirm.

      AFFIRMED.
