                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0532
                                  Filed April 4, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MASON DAVIS VANG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      Mason Vang appeals after pleading guilty to assault with intent to commit

sexual abuse. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.

       Mason Vang appeals after pleading guilty to assault with intent to commit

sexual abuse. See Iowa Code § 709.11(3) (2015). On appeal, he asserts the plea

court failed to substantially comply with the Iowa Rule of Criminal Procedure

2.8(2)(b)(4) colloquy requirements regarding his right to confrontation. We find the

plea court substantially complied with the rule. Vang also asserts his trial counsel

was ineffective in failing to object to the prosecutor’s alleged breach of the plea

agreement. We find the prosecutor did not breach the plea agreement, and

therefore Vang’s counsel had no duty to object. We affirm the district court.

       I. Plea Colloquy.

       Vang claims the plea court’s rule 2.8(2)(b) colloquy was deficient. Relevant

to this appeal, the rule provides that, unless the procedure is waived under certain

circumstances, before accepting a guilty plea, the court must address the

defendant personally in open court and inform the defendant that the defendant

has the right to be tried by a jury and has the right to confront and cross-examine

witnesses against the defendant.      Iowa R. Crim. P. 2.8(2)(b).      “We review

challenges to plea proceedings for correction of errors at law.” State v. Weitzel,

905 N.W.2d 397, 401 (Iowa 2017).

       During the plea colloquy, the plea court addressed Vang’s constitutional

rights to a jury trial and explained to him, “At the trial, your lawyer could cross-

examine anyone who accuses you. If you wanted witnesses to come to the trial to

testify and they would not do so voluntarily, the court would use its power to bring

them to the courtroom to testify.” Vang indicated he understood.
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       On appeal, Vang acknowledges the court advised him of his right to cross-

examine witnesses against him and of the compulsory process but argues the

court failed to advise him of his right to confront witnesses against him. The crux

of Vang’s argument is that the right of confrontation and the right to cross-examine

are not the same thing—the right to confrontation is more expansive than the right

to cross-examine. Although the right to confrontation includes the right to effective

cross-examination, Vang notes the right to confrontation also encompasses the

right to testimony under oath and the right to have a jury observe a witness’s

demeanor. See State v. Shearon, 660 N.W.2d 52, 55 (Iowa 2003) (“Three main

rights may be claimed under the Confrontation Clause: (1) testimony under oath,

(2) cross-examination by his counsel, and (3) the right to have the jury observe the

witness’s demeanor.”); see also State v. Newell, 710 N.W.2d 6, 24 (Iowa 2006)

(“Two important policies underlie the Confrontation Clause: ‘a preference for face-

to-face confrontation at trial and the right of cross-examination.’” (citation omitted)).

       We believe testimony under oath and observation of a witness’s demeanor

by a jury are implicit in cross-examination by defense counsel at a jury trial, but

even if they are not, we conclude there was no violation of rule 2.8(2)(b)(4).

Although strict or actual compliance with the rule is preferred, substantial

compliance is acceptable. See Weitzel, 905 N.W.2d at 406. So, we ask whether

the record establishes the plea court conveyed the required information to Vang

such that it could be said he understood the information. See State v. Meron, 675

N.W.2d 537, 544 (Iowa 2004) (“Substantial compliance requires that the essence

of each requirement of the rule be expressed to allow the court to perform its

important role in each case.”). Although the plea court’s statement does not parrot
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the rule 2.8(2)(b)(4) requirement that a defendant be informed of “the right to

confront,” the court’s advisory substantially complies with the rule. See State v.

Myers, 653 N.W.2d 574, 578 (Iowa 2002) (“Under the substantial-compliance

standard, a trial court is not required to advise a defendant of his rights using the

precise language of the rule; it is sufficient that the defendant be informed of his

rights in such a way that he is made aware of them.”); see, e.g., State v. Aherns,

No. 13-1026, 2016 WL 351235, at *3 (Iowa Ct. App. Jan. 27, 2016) (holding that

telling a defendant he “could cross-examine the State’s witness” met the

substantial compliance standard concerning rights to cross-examine and

confrontation); State v. Taylor, No. 14-1688, 2015 WL 2089711, at *1 (Iowa Ct.

App. May 6, 2015) (finding statement that “I have a right to hear the evidence

against me from the witnesses and subject them to cross-examination”

substantially complied with the rule regarding the right to confront and cross-

examine witnesses); State v. Hayes, No. 04-0043, 2004 WL 2002596, at *5 (Iowa

Ct. App. Sept. 9, 2004) (holding statement that the defendant was giving up his

“right to have the opportunity to ask questions of the State’s witnesses” sufficiently

informed the defendant of his right to confront witnesses against him and, thus,

substantially complied with the rule’s requirement).

       We conclude the plea court sufficiently informed Vang of his right to confront

witnesses against him.

       II. Ineffective Assistance of Counsel.

       Vang also contends his counsel provided constitutionally deficient

representation in failing to object to the alleged breach of the plea agreement by

the prosecutor.    We review ineffective-assistance-of-counsel claims de novo.
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State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017). To establish his counsel

provided ineffective assistance, Vang must establish his counsel failed to perform

an essential duty and this failure resulted in prejudice. See State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006). If the State breaches the plea agreement, defense

counsel breaches an essential duty by failing to object to the breach or otherwise

take remedial action. See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008).

Prejudice is presumed under the circumstances because had counsel objected,

the defendant would have been entitled to withdraw the guilty plea or be

resentenced in an untainted proceeding. See State v. Frencher, 873 N.W.2d 281,

284 (Iowa Ct. App. 2015).

       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). When the State has promised to recommend a

sentence, we have required “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.” Bearse, 748 N.W.2d at 216

(alterations in original) (citations omitted). The ultimate inquiry in determining

whether the prosecutor complied with the letter and spirit of 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.” Frencher, 873 N.W.2d at

284. The prosecutor can act contrary to the plea agreement and deprive the

defendant of the benefit of the plea bargain implicitly. See id. at 285. Typically,
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implicit action contrary to the plea agreement involves the prosecutor’s expression

of material reservation regarding the plea agreement while still in technical

compliance with the plea agreement. See id. The prosecutor could do this in a

number of ways.       For example, the prosecutor could propose alternative

sentences, request an “an appropriate sentence” rather than the agreed-upon

sentence, remind the court it is not bound by the plea agreement, or emphasize a

more severe punishment recommended by the presentence investigation author.

See id.

      At the plea hearing, the prosecutor stated the plea agreement as follows:

      The plea agreement is that I’m going to reduce this from a Class “C”
      felony to an aggravated misdemeanor. At the time of sentencing, I’m
      going to recommend probation for this defendant, a suspended
      sentence. I’m going to ask that this probation run consecutive to the
      probation he’s currently on.
             I told the defendant and his defense counsel that there will be
      a victim impact statement from the family that’s involved, the victim
      and her parents. They may ask the court for incarceration. The
      defendant knows that you’re the final arbiter of his sentence.
             There will be, regardless of what the punishment is, other
      ramifications: The lifetime registration with the Sex Offender
      Registry, a special sentence. I’m not going to ask for a fine. He
      needs to make payments on court costs, probation fees, restitution.
      And paramount is a no-contact order with the victim and her family.

Vang and his counsel acknowledged this was the plea agreement.

      At the sentencing hearing, the victim read her victim impact statement and

her mother also gave a statement. Vang’s allocution followed, and then the court

asked for the State recommendation for sentencing. The prosecutor responded:

              Thank you, Judge. You know, by case law, I’m not allowed
      to, in a jury trial, talk about emotion or show emotion, but this was an
      excellent victim impact statement, Judge. It encapsulates everything
      about this crime and about how whenever we look at a sexual assault
      case, there’s a real person who has benefited and also been hurt by
      the crime, and that’s . . . the very young girl in this case. And over
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       the course of the time that I have known her she’s grown up because
       of this crime.
               The defendant, when you read his PSI, has had in the past a
       life that is out of control, reckless, no supervision. I’m not sure where
       he lived during the period of time that he was involved in Polk County
       in crime, but he was unsupervised and out of control. And his
       behavior impacted other people. He committed a crime against this
       victim, which maybe now in hindsight was really—well, there’s no
       explanation for it. You can’t get somebody drunk and then sexually
       assault them. You just can’t. And you learn that from a very early
       age, so it’s not about mistakes of youth.
               But I do think because of his youth and the fact that he has
       had no supervision, no parents that have paid attention to him and
       that he was allowed to just wander recklessly, that that should be
       taken into account. I told [defense counsel] at the start of these plea
       negotiations, and I will continue to say it today, he’s a person who
       should be on probation but not get a deferred. There are
       ramifications for this kind of behavior. He should be on probation to
       be afforded all the opportunities that he could have for mental health
       care, job development, education, pay restitution, and benefit from
       the services that are available through sex offender treatment for a
       person who needs to wise up and learn about the consequences.
               I do not think that the law about deferred judgments was ever
       written for this kind of behavior. I just can’t imagine that the
       legislature anticipated that this kind of behavior should ultimately be
       washed away. He will be on the sex offender registry by virtue of the
       crime he pled guilty to for life, and that is a suitable albatross, but it
       is one that he has earned.
               However, I think that the consequences of his behavior
       require not a prison sentence where he could just sit like a lump in
       the penitentiary. I think he needs to be in a community-based setting
       where someone monitors him and makes him do things, school,
       work, go to counseling, which is not available until the very ending of
       a penitentiary stay.
               So it’s the State’s position that he should have a probation and
       that it should run consecutive to a probation he’s currently serving
       out of Polk County in, I believe, Hamilton County where he resides.

The court then discussed with the prosecutor issues concerning victim restitution,

fines and surcharges, and DNA sampling. The prosecutor noted all penalty options

were open to the judge but concluded, “You should just know I’m not asking for

prison, but I’m not agreeing to a deferred either.”
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       Vang’s counsel agreed with the prosecutor that the victim’s statement was

“probably today the best and most poignant victim impact statement that I have

ever heard in a criminal case. Certainly this young lady is very well-educated, very

well-spoken, and has a very strong voice. There is no question about that.”

Counsel followed with an impassioned argument for a deferred judgment.

       The court acknowledged defense counsel’s “good arguments” but

disagreed that a deferred judgment was appropriate.          The court detailed its

response to the victim impact statement and counsels’ arguments. In the end, the

court sentenced Vang to 364 days in jail.

       On appeal, Vang accuses the prosecutor of failing to comply with the spirit

of the plea agreement. He specifically argues, “While paying lip service to the plea

agreement, the prosecutor also emphasized the victim impact statement, which

requested a year of incarceration, and argued to the court how horrible was Vang’s

PSI and that he was out of control and reckless.”

       Vang’s extrapolation of the victim impact statement is mistaken. Although

the victim stated her life had been put “on hold over a year,” that Vang did not

deserve “a mitigating sentence,” and that she hoped that Vang’s “life can be on

hold for some time too,” we do not read the statement as a request for a year of

incarceration. The prosecutor’s remarks that the victim’s impact statement was

“excellent,” merely expressed an observation patently obvious to anyone in the

court room—and to anyone reading the transcript.

       The prosecutor’s commentary that the presentence investigation (PSI)

report indicated that in the past Vang had a life “out of control, reckless, [and] no

supervision” may be a bit of a stretch, but Vang’s counsel fully responded to the
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comment and the sentencing court put no stock in it. The court stated, “I do not

agree at all with the proposition that this incident occurred simply because you

were unsupervised, you were uncontrolled, and somehow your parents failed you.”

The PSI does indicate that Vang was serving a two-year deferred judgment

probation for assault and harassment at the time.

      We disagree with Vang’s characterization of the prosecutor’s remarks. As

we read them, the prosecutor was making a reasoned and forceful argument

against a deferred judgment, not for incarceration. She did not cross the line to

undermine the plea agreement.

      On de novo review, we disagree with the contention that the prosecutor

breached the plea agreement.      Vang’s counsel had no duty to object to the

prosecutor’s statements because no breach of the plea agreement occurred. See

Frencher, 873 N.W.2d at 286. Accordingly, Vang has failed to establish his claim

that counsel provided constitutionally deficient representation. See id.

      We affirm Vang’s conviction and sentence.

      AFFIRMED.
