                IN THE SUPREME COURT OF IOWA
                              No. 19–0369

                           Filed May 15, 2020


STATE OF IOWA,

      Appellee,

vs.

CHANCE RYAN BERES,

      Appellant.

      Appeal from the Iowa District Court for Poweshiek County, Joel D.

Yates, Judge.



      A defendant seeks interlocutory review of the denial of his motion to

dismiss, arguing that an earlier plea agreement bars the State from

bringing the present charges. DISTRICT COURT ORDER REVERSED

AND CASE REMANDED.



      Vidhya K. Reddy, Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, and Bart K. Klaver, County Attorney, for appellee.
                                    2

MANSFIELD, Justice.

      I. Introduction.

      This case gives us the opportunity to reaffirm once more that plea

agreements are contracts, and accordingly, they are subject to general

principles of contract law.

      The plea agreement here provided that the defendant would plead

guilty to his pending charge of second-degree arson, that he would

cooperate in an interview regarding some other suspicious fires that had

occurred, and that the State would not bring charges regarding those other

fires. After the defendant pled guilty, the State changed its mind and

decided it did not need or want the interview. It advised the defendant

before sentencing he would be charged with other arsons and gave him an

opportunity to withdraw from the plea agreement. The defendant declined

to withdraw.    Nonetheless, the State brought four additional arson

charges. The defendant moved to dismiss them as a breach of the plea

agreement.     The district court denied the motion, and we granted

interlocutory review.

      Consistent with the law of contracts, we now hold that the State

could not unilaterally withdraw from the plea agreement either by

declining to conduct the interview or by making an offer of rescission that

the defendant did not accept. Because the State remains bound by its

plea agreement under these circumstances, we reverse the order denying

the defendant’s motion to dismiss and remand with directions to grant

that motion.

      II. Facts and Procedural Background.

      A. Criminal Acts and Precharge Investigation. Between January

and May 2018, a number of unexplained fires occurred in and around

Poweshiek County. These included a January 26 fire involving a pole barn
                                     3

containing hay bales in Grinnell, an April 12 grass fire on private property

in Grinnell, an April 29 grass and shed fire at the county-owned Fox Forest

Wildlife Area, an April 29 nighttime grass fire in Montezuma, an April 30

early morning fire involving an abandoned two-story farmhouse at the

same location, and a May 27 fire at an abandoned barn in Montezuma.

      Twenty-year-old Chance Beres, a Montezuma firefighter and

Grinnell paramedic, seemed to be a common denominator in these fires.

Either he had reported the fire, responded to the fire, been prepared to

respond to the fire, or had a combination of these types of involvement.

      On or about February 20, investigator Lucas Ossman of the State

Fire Marshall’s Office and Deputy Steve Kivi of the Poweshiek County

Sheriff’s Office opened an arson investigation into the initial January 26

fire. By early April, Ossman believed some fires were being intentionally

set by a firefighter. Eventually, suspicion focused specifically on Beres.

Beres had recently joined the Montezuma Fire Department on April 25.

He had also been working as a paramedic for Midwest Ambulance Service

in Grinnell since July 2017.

      On April 29 at approximately 9:41 p.m., the Montezuma Fire

Department was called to a grass fire. Beres responded initially on his

own and then returned with other firefighters in a different truck. A few

hours later, early in the morning of April 30, Beres both reported and then

responded with the Montezuma Fire Department to an abandoned

farmhouse fire at the same location. Fire personnel indicated Beres had

been ready to respond to the April 30 fire before everyone else and that he

had made “odd comments” at the scene while responding to both the

April 29 nighttime grass fire and the April 30 farmhouse fire. That same

day, Kivi conducted a plain-view examination of Beres’s truck and noticed

accelerants and possible fire-starting materials inside.
                                      4

      A search warrant was obtained allowing the placement of a GPS

tracker on Beres’s truck.    The warrant application stated a belief that

Beres “has committed and is committing” arsons. It referred specifically

to the April 29 and April 30 fires. The warrant application was approved,

and the GPS tracker was attached to Beres’s vehicle the same day.

      Also on April 30, Ossman and Kivi were made aware of the earlier

April 12 grass fire which had occurred in Grinnell, as well as the earlier

April 29 grass and shed fire which had occurred at the county-owned Fox

Forest Wildlife Area. These two fires had not initially been regarded as

suspicious but were now reclassified as such. The dispatch record from

the April 12 fire indicated the reporting party had seen a vehicle that could

have been a match for Beres’s truck.

      Investigators contacted other area fire authorities, inquiring into

Beres. By May 2, investigators learned that Beres had a history of “being

associated with” fires, fire departments, and calls for service since the time

he was approximately seventeen years old. They learned that Beres had

expressed interest in working for the Malvern Fire Department but had not

been accepted because of his odd behavior regarding fires and fire calls for

service.

      On May 11, investigators obtained a search warrant for records

relating to Beres’s cell phone calls and cell tower locations for January

through April 2018. The search warrant application referred to a number

of the fires and stated,

             Law enforcement believes Beres was involved in starting
      these fires, and believes that obtaining his cell phone records
      for these dates will show Beres was in the area of these fires
      near the time they would have been lit, and/or to become
      familiar with the area before lighting the fires, and/or to re-
      visit the scene.
                                         5

The requested cell phone and locational records were received by

investigators on May 16.

        On May 27, emergency responders were called to a barn fire in

Montezuma. Investigators examined the GPS tracking record for Beres’s

vehicle and determined Beres had been at the scene before the fire was

reported. Later that evening, Beres was arrested for starting that fire.

        Beres   submitted   to    an    hour-and-a-half   recorded   postarrest

interview with Ossman and Kivi.           Beres admitted he had started the

May 27 Montezuma barn fire and the April 12 grass fire. He stated that

he had tried but failed to set fire to the wildlife conservation area the day

before the April 29 fire occurred at that location. He said he might have

“accidentally” started the April 29 nighttime grass fire in Montezuma by

flicking a lit cigarette. Additionally, while he denied starting the April 30

fire at the same location, he admitted he saw and reported it, claiming this

was “a fluke.” Beres also admitted he was at the scene of the January 26

fire and had parked there about ten to fifteen minutes and reported that

fire, even though he denied setting it. Beres also admitted to starting a

number of other fires, including one in Boone County.

        On June 1, Beres’s time card records were subpoenaed from

Midwest Ambulance Service. The time card records, produced on July 1,

appeared to indicate Beres had responded with Midwest Ambulance to

several of the fires, including the January 26 and the April 12 fires.

        B. Charge     and        Plea    in    Poweshiek      County      Case

No. FECR010796—the May 27 Montezuma Barn Fire. On June 5, the

State charged Beres by trial information in Poweshiek County Case No.

FECR010796 with arson in the second degree, a class “C” felony. See Iowa

Code § 712.3 (2018). The charge related to the May 27 Montezuma barn

fire.
                                     6

      On June 29, the parties notified the court that they had reached a

plea agreement.   A plea hearing was held before the district court on

July 9. As required by Iowa Rules of Criminal Procedure 2.8 and 2.10, the

parties’ plea agreement was put on the record and was confirmed by

defense counsel, the defendant, and the prosecutor as follows:

            THE COURT: What is the plea agreement in the case?

             MR.    STIEFEL: The      plea   agreement     to    my
      understanding, Your Honor, is in exchange for Mr. Beres’[s]
      guilty plea today, at the sentencing hearing, both parties will
      have the option of arguing for whatever sentence they think is
      appropriate.

            And at least on Mr. Beres’[s] behalf, that would include
      the ability to argue for a deferred judgment.

            It’s a further provision of the plea agreement that if
      Mr. Beres successful[ly] enters his guilty plea today, that the
      State and the defendant would both request that he be
      released from jail under the pretrial supervision of the 8th
      Judicial District Department of Correctional Services.

            And it is the further provision of the plea agreement that
      Mr. Beres agrees to cooperate with an interview with the
      Poweshiek County Sheriff’s Office regarding the incident and
      other potential incidents that led to his current criminal
      charges, and that if Mr. Beres cooperates with the interview
      and is truthful to the satisfaction of the sheriff’s department
      in the interview, that the State will file no further charges
      against Mr. Beres for any alleged incidents that may have
      occurred prior to his date of incarceration in this case.

            THE COURT: Mr. Beres, is that your understanding of
      the plea agreement?

            MR. BERES: Yes, Your Honor.

            THE COURT: Mr. Klaver, is that your understanding of
      the plea agreement?

            MR. KLAVER: It is, Your Honor.

            THE COURT: And, Mr. Beres, you understand that the
      sentencing judge, whoever that may be, will ultimately decide
      what your sentence is?

            MR. BERES: Yes, Your Honor.
                                     7
            THE COURT: Have any threats or promises, other than
      the plea agreement, been made to get you to plead guilty?

            MR. BERES: No, Your Honor.

      The district court accepted Beres’s plea of guilty to arson in the

second degree for the May 27 fire. As contemplated in the plea agreement,

Beres was immediately released under supervision, pending sentencing,

which was scheduled for October 1 at 10:30 a.m.

      Between June 29 and October 1, no representative of the State or

the sheriff’s office contacted Beres or his attorney to arrange an interview.

Having not heard anything from the State, defense counsel called and left

voicemails for Kivi on September 24 and September 28 inquiring into the

interview scheduling. The calls went unanswered.

      After receiving defense counsel’s voicemails, Kivi informed the

county attorney’s office “that the investigations into the suspicious fires

had been concluded and that an interview of the defendant would not serve

any purpose.” At 8:53 a.m. on October 1, about an hour-and-a-half prior

to the sentencing hearing, the county attorney sent an email to defense

counsel stating as follows:

             I wanted to let you know in advance of the hearing that
      Chance Beres is likely going to be getting additional charges.
      I spoke with [Kivi] Friday and then we are scheduled to meet
      Tuesday along with the fire marshal (Kivi is off today). I didn’t
      want to spring this on you because it is late in the process,
      however, the entire purpose of the “plea bargain” if it can even
      be called that, was to aid in the investigation. It would appear
      that the investigation is concluded and so there is nothing
      Mr. Beres[’s] interview would do to assist at this point.

      In informal discussions just before the sentencing hearing, the

county attorney reiterated to defense counsel that “additional charges

against the defendant would likely be filed” and that “he was considering

filing additional charges.” At the same time, the county attorney suggested

that if Beres then wanted to withdraw his prior guilty plea, the State would
                                          8

not object and would, in fact, support such a withdrawal. Beres declined

to withdraw his guilty plea, indicating that he remained willing to

participate in an interview regarding the uncharged arsons.

      The matter proceeded to sentencing. Neither party raised a possible

breach   or   modification    of    the   plea    agreement.   A   presentence

investigation (PSI) report had been completed and was available to the

court and the parties at sentencing. The PSI report discussed Beres’s

alleged involvement in setting other fires.

      Defense counsel objected to the court’s consideration of unproved

allegations relating to other fires, and the county attorney agreed they

should not be considered.          The district court indicated it would not

consider the allegations, treating them as deleted from the PSI report. The

court then inquired into the parties’ recommendations for Beres’s

sentence. Beres and his attorney argued for a deferred judgment, while

the State argued for imposition of a ten-year prison sentence.            The

sentencing court ultimately sided with Beres, entered a deferred judgment,

and placed Beres on five years of probation.

      C. Subsequent          Charges      in      Poweshiek    County    Case

No. FECR010833—Earlier Fires. On November 9, about a month after

Beres was sentenced on his plea to the May 27 fire in Case

No. FECR010796, the State charged Beres in Poweshiek County Case

No. FECR010833 with four additional counts of arson. This is the case in

which the present appeal is taken.               The four counts involved the

January 26 pole barn fire (count I), the April 30 abandoned farmhouse fire

(count II), the April 29 fire at the county-owned Fox Forest Wildlife Area

(count III), and the April 12 grass fire on private property (count IV). Three

of the counts were for arson in the second degree, a class “C” felony, see
                                       9

Iowa Code § 712.3; the remaining count was for arson in the third degree,

an aggravated misdemeanor, see id. § 712.4.

      On December 29, Beres moved to dismiss these charges, arguing

that the State’s bringing charges for pre-May 27 conduct violated the

earlier plea agreement. The State resisted, urging the motion to dismiss

should be denied because

      [t]he State did not breach any plea agreement, specifically the
      agreement to refrain from filing any new charges against the
      defendant was contingent upon the defendant providing an
      interview to the investigators’ satisfaction. The condition
      precedent . . . never occurred, and therefore, the State was not
      bound under the agreement to refrain from filing new charges.

      An evidentiary hearing on the motion to dismiss was held on

February 4, 2019. Beres testified that he had never refused to cooperate

in an interview, had never been contacted by any State representative

regarding an interview, had never done anything to hinder the State in

conducting an interview, and was still willing at the time of the hearing to

provide an interview. Beres did, however, admit that he knew at the time

of his sentencing in Case No. FECR010796 about the State’s potential plan

to file charges relating to other fires.

      Kivi testified on behalf of the State, acknowledging that he had never

attempted to contact Beres following the July 9, 2018 plea hearing and

that he also never responded to the voice messages left by Beres’s counsel

on September 24 and September 28, 2018. Kivi explained that the State

“decided to forego the interview” with Beres because

      we -- in mid-September -- Well, for one thing, we received
      some information that was, quite frankly, very damning to
      Mr. Beres as a suspect in these other fires.

            We thought if -- at that point, if we do interview him and
      we didn’t charge him with the fires -- Basically, we got new
      information that we thought was strong enough to -- that we
                                       10
        didn’t need to interview him anymore that we didn’t have
        earlier.

              Not to mention that he had quite, I don’t know, a few
        months, I guess, or quite -- quite some time to -- to approach
        us, and we wanted to interview him before his sentencing
        hearing. I was contacted a couple days or a few days before,
        which would have left us not nearly enough time to verify
        whatever he would tell us, corroborate anything he would say.

This “damning” evidence was not specified. Kivi also emphasized that the

sheriff’s office had been tied up with the unrelated investigation into a

notorious case involving a University of Iowa student who had disappeared
in July 2018 and was later found to have been killed.

        Later that same day, the district court issued a written ruling

denying Beres’s motion to dismiss. The court’s ruling stated, in pertinent

part,

              On or about July 9, 2018, this Defendant tendered a
        plea of guilty in companion case number FECR010796. On
        that date, sentencing was set for October 1, 2018. The State
        and Defendant discussed the possibility of the Defendant
        being interviewed prior to sentencing about his involvement
        in other potential crimes. The interview never happened.

               The State says they obtained additional, new
        information linking this Defendant to additional crimes,
        therefore negating the need for the interview. The Defendant
        claims he reached out to the State regarding the interview, but
        acknowledges that it was close to the sentencing date.
        Regardless, the Defendant and Defendant’s counsel were
        notified of potential new charges prior to the sentencing date.

              Despite the awareness of additional charges, the
        Defendant voluntarily went fo[r]ward with the sentencing
        hearing. The Defendant did not seek a continuance or
        withdrawal of his plea of guilty, nor did the Defendant lodge
        any type of objection.

              For all of the reasons set forth in the State’s Resistance,
        the Court finds the Defendant’s Motion to Dismiss should be
        and is hereby DENIED.

        D. This Appeal. On March 6, 2019, Beres filed an application for

interlocutory appeal, challenging the district court’s denial of his motion
                                     11

to dismiss. On March 21, we issued an order granting Beres’s application

and staying further district court proceedings.

      We retained the appeal.

      III. Standard of Review.

            When faced with a motion to dismiss as a sanction for
      the State’s alleged repudiation of a plea agreement, the district
      court has the same limited discretion it has “when ruling on
      a motion to dismiss for failure to provide a speedy trial under
      Iowa Rule of Criminal Procedure [2.33(2)].”

State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014) (alteration in original)

(quoting State v. Hovind, 431 N.W.2d 366, 368 (Iowa 1988)). “If the district

court abused its limited discretion by finding the State did not repudiate

the plea agreement, we will reverse its finding.” Id.

      IV. Analysis.

      A. The    Legal   Framework      Underlying Plea      Bargains. “Plea

bargains are akin to contracts.” State v. Macke, 933 N.W.2d 226, 238

(Iowa 2019) (Mansfield, J., concurring in part and dissenting in part); see

also Rhoades v. State, 880 N.W.2d 431, 449 (Iowa 2016) (“A plea bargain

also may be regarded as a contract where both sides ordinarily obtain a

benefit.”). “[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration [for the plea], such promise must be fulfilled.”

State v. Lopez, 872 N.W.2d 159, 170 (Iowa 2015) (second alteration in

original) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495,

499 (1971)). A “prosecutor’s obligation to scrupulously comply with the

letter and spirit of the agreements” means that even technical compliance

will not suffice if the prosecutor otherwise “undercut[s] the plea

agreement.” Id. at 173.
                                    12

      We have “recogniz[ed] the important role plea agreements play in our

scheme of justice and the concomitant need for strict compliance with

those agreements.” State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008).

For this reason, Iowa courts “are compelled to hold prosecutors and courts

to the most meticulous standards of both promise and performance.” Id.

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

“ ‘violations of either the terms or the spirit of the agreement’ require

reversal of the conviction or vacation of the sentence.”      Id. (quoting

Horness, 600 N.W.2d at 298).

      Here the plea agreement incorporated a promise of immunity: Beres

would not be charged with other arsons if he cooperated in an interview

with the State. The State does not dispute that it did charge Beres with

additional arsons.   However, it claims that it did not breach the plea

agreement because the interview never happened. It also argues it could

withdraw from the agreement because additional damaging information

about Beres came to light after it had entered into the agreement. Lastly,

it maintains that it did not breach because it gave Beres the opportunity

to rescind the plea agreement and go back to square one. We will address

these contentions in order.

      B. Did Beres’s Failure to Be Interviewed Mean that the Plea

Agreement Was No Longer Binding? Conceding that the plea agreement

is a contract, the State argues that its obligation not to bring additional

arson charges was conditioned on Beres’s participation in an interview.

Because Beres was not interviewed, its covenant not to bring other charges

went away.

      We disagree.     Restatement (Second) of Contracts section 245

provides, “Where a party’s breach by non-performance contributes

materially to the non-occurrence of a condition of one of his duties, the
                                    13

non-occurrence is excused.” Restatement (Second) of Contracts § 245, at

258 (Am. Law Inst. 1981). Comment a to section 245 elaborates,

      Where a duty of one party is subject to the occurrence of a
      condition, the additional duty of good faith and fair dealing
      imposed on him under § 205 may require some cooperation
      on his part, either by refraining from conduct that will prevent
      or hinder the occurrence of that condition or by taking
      affirmative steps to cause its occurrence. Under § 235(2),
      non-performance of that duty when performance is due is a
      breach. See Illustration 3 to § 235. Under this Section it has
      the further effect of excusing the non-occurrence of the
      condition itself, so that performance of the duty that was
      originally subject to its occurrence can become due in spite of
      its non-occurrence.

Id. cmt. a.   Corbin on Contracts puts it succinctly, “One who unjustly

prevents the performance or the happening of a condition of promissory

duty thereby eliminates it as a condition.” 8 Catherine M.A. McCauliff,

Corbin on Contracts § 40.17, at 580 (Joseph M. Perillo ed., rev. ed. 1999).

      An interview takes two to tango. Having refused to cooperate in the

scheduling or taking of an interview of Beres—indeed, the State frankly

stated that it “didn’t need to interview him anymore”—the State can’t use

the lack of an interview as grounds for backing out of the agreement. As

the late Chief Justice Cady noted when he was serving on the court of

appeals, “[I]f one party to a contract prevents the other from performing a

condition or fails to cooperate to allow the condition to be satisfied, the

other party is excused from showing compliance with the condition.” Emp.

Benefits Plus, Inc. v. Des Moines Gen. Hosp., 535 N.W.2d 149, 155 (Iowa

Ct. App. 1995).

      The interview was for the benefit of the State. See Rhoades, 880

N.W.2d at 449 (“A plea bargain also may be regarded as a contract where

both sides ordinarily obtain a benefit.”). The record makes clear that the

State was no longer interested in the interview. It never sought to arrange
                                      14

the interview, even when Beres’s counsel reminded the prosecutor in a

voicemail message a week before sentencing. In fact, at the motion to

dismiss hearing, Kivi acknowledged discussing counsel’s voicemail with

the county attorney and “decid[ing] to forego the interview.” The State

cannot use the failure of the interview to occur as a reason to withdraw

from the plea agreement.

      C. Did the State Discover New Evidence that Relieved It of Its

Obligation to Perform the Plea Agreement? The State maintains that

the sheriff’s department gained additional incriminating evidence after the

guilty plea hearing tying Beres to the prior arsons. The State therefore

asserts it could avoid the plea agreement under standard contract

principles. It is noteworthy that the State did not identify this additional

evidence at the hearing below.

      On appeal, the State tries to fill that gap with one item. It argues

that cell phone tracking data placing Beres in the wildlife conservation

area on April 29 had not been “analyzed” as of July 9, 2018—the date of

the guilty plea hearing. Giving the State every benefit of the doubt, it is

possible to read the record as indicating that although the State had the

data, it did not realize by July 9 that the data placed Beres in the vicinity

of the wildlife conservation area at the time of that fire.

      This seems like a very fine point. Beres had already admitted to

intentionally setting a fire in the wildlife conservation area—merely

claiming he had done it the day before it actually occurred (i.e., April 28).

Even assuming the State lacked one piece to the puzzle—or more

accurately, hadn’t noticed that piece—the State concedes it had all the

other pertinent evidence of Beres’s involvement in the fires as of Beres’s

plea hearing on July 9. In reality, the State learned little new before it

decided to back out of the plea agreement shortly before the October 1
                                      15

sentencing. The State’s protests that it only “assembled” the information

into a “narrative” later on ring hollow. The summary of Beres’s May 27

postarrest interview demonstrates that the State already had put together

a narrative by then.

      In contract law terms, the State is trying to argue frustration of

purpose. The Restatement (Second) of Contracts provides guidance as

follows:

      Where, after a contract is made, a party’s principal purpose is
      substantially frustrated without his fault by the occurrence of
      an event the non-occurrence of which was a basic assumption
      on which the contract was made, his remaining duties to
      render performance are discharged, unless the language or
      the circumstances indicate the contrary.

Restatement (Second) of Contracts § 265, at 334–35. The classic case is

Krell v. Henry, where a renter’s obligation to rent a flat for two days to view

the King’s coronation was discharged because the King developed

appendicitis and the coronation was postponed. Krell v. Henry [1903] 2

KB 740 (Eng.).

      Under this framework, the State’s contractual obligation is

discharged only if three requirements are met:

      First, the purpose that is frustrated must have been a
      principal purpose of that party in making the contract. It is
      not enough that he had in mind some specific object without
      which he would not have made the contract. The object must
      be so completely the basis of the contract that, as both parties
      understand, without it the transaction would make little
      sense. Second, the frustration must be substantial. It is not
      enough that the transaction has become less profitable for the
      affected party or even that he will sustain a loss. The
      frustration must be so severe that it is not fairly to be regarded
      as within the risks that he assumed under the contract.
      Third, the non-occurrence of the frustrating event must have
      been a basic assumption on which the contract was made. . . .
      The foreseeability of the event is . . . a factor in that
      determination, but the mere fact that the event was
      foreseeable does not compel the conclusion that its non-
      occurrence was not such a basic assumption.
                                    16

Restatement (Second) of Contracts § 265 cmt. a, at 335. We have indicated

that the new event must render the agreement virtually worthless to the

party seeking to withdraw. See Mel Frank Tool & Supply, Inc. v. Di–Chem

Co., 580 N.W.2d 802, 806 (Iowa 1998) (“The rule deals with the problem

that arises when a change in circumstances makes one party’s

performance virtually worthless to the other, frustrating the purpose in

making the contract.”).

      Other courts have applied frustration-of-purpose analysis in

determining whether withdrawal from a plea agreement is permissible

based on an intervening development. In United States v. Frownfelter, 626

F.3d 549, 554 (10th Cir. 2010), the United States Court of Appeals for the

Tenth Circuit refused to invalidate a plea agreement based on frustration

of purpose when the defendant unexpectedly was able to reduce the felony

charge to which he had pled guilty to a misdemeanor.             The court

acknowledged that a plea agreement could be invalidated if the three-part

Restatement test had been met. Id. Yet it found that the test had not been

satisfied for several reasons. Id. Among other things, the court observed,

“If the United States considered the felony/misdemeanor distinction so

material, it is unclear why it did not exercise greater care in drafting the

indictment and plea agreement.” Id. at 555. The court added that the

intervening event had been “a risk assumed by the government,” and the

court could not declare that the agreement made “little sense” with only a

misdemeanor conviction. Id.

      Here the State cannot point to a new event that altered the

landscape. In fact, the State had the bulk—if not all—of its incriminating

evidence concerning Beres at the time it entered into the plea deal. To the

extent the State was still waiting for cell phone data to be analyzed, it

would have known what it didn’t yet know. All of the charged arson counts
                                     17

in this case involved crimes that Beres was already suspected of—and as

to which there was considerable incriminating evidence—at the time of the

July 9 plea hearing.

      In other words, the State had basically the same “damning” evidence

on July 9 that it had on October 1. See Lopez, 872 N.W.2d at 180 (“If the

prosecutor believes incarceration is appropriate, the State should not

enter into a plea agreement to recommend probation.”). Furthermore, if

the State wanted to protect itself, it could have reserved the right to

withdraw from the agreement if additional adverse information came to

light before sentencing, something it did not do. We find that frustration

of purpose does not apply here.

      D. Did Beres Ratify the State’s Modification of the Plea

Agreement by Refusing the State’s Offer of Rescission? Lastly, the

State maintains that Beres ratified its unilateral modification of the plea

agreement by refusing the State’s offer to withdraw from the agreement

and start over. We disagree with the State here as well.

      In the first place, the State’s modification left Beres with a deal that

was no deal at all. In the State’s world, Beres would be pleading to the

trial information in Case No. FECR010796 while receiving nothing in

return. Beres would be getting no concession on charging, sentencing, or

sentencing recommendation.

      Second, it is a basic precept of contract law that one side is not free

to unilaterally withdraw and go back to the beginning just because it wants

to do so. “[T]he State may withdraw from a plea bargain at any time prior

to, but not after, actual entry of the guilty plea by defendant . . . .” State

v. Weig, 285 N.W.2d 19, 21 (Iowa 1979) (quoting State v. Edwards, 279

N.W.2d 9, 11 (Iowa 1979)); see also State v. King, 576 N.W.2d 369, 370

(Iowa 1998) (en banc) (per curiam) (“This court has recognized that a
                                    18

prosecutor may not withdraw from a plea bargain after a defendant has

entered a guilty plea or has detrimentally relied upon the agreement.”).

      Nor do we agree that Beres ratified anything. True, in an email

shortly before sentencing, the prosecutor indicated that Beres was “likely

going to be getting additional charges.” In addition, Beres was told he

could move to withdraw from the plea agreement and the State would not

oppose his motion.

      But Beres’s failure to respond to the State’s offer to rescind the plea

agreement does not amount to a ratification of the State’s breach of that

agreement.    At that point, the State had not actually breached the

agreement by filing more charges. When it did, Beres moved to dismiss

them. See Berryhill v. Hatt, 428 N.W.2d 647, 655 (Iowa 1988) (“With an

anticipatory breach, the nonbreaching party may consider the contract

breached and sue immediately, or await the time of performance and then

upon failure of performance hold the breaching party responsible for the

consequences of nonperformance.”); Glass v. Minn. Protective Life Ins., 314

N.W.2d 393, 396–97 (Iowa 1982) (“A renunciation authorizes but does not

require the nondefaulting party to treat the contract as broken.”).

      Moreover, the October 1 sentencing proceeding that followed the

informal exchange between the county attorney and Beres’s counsel was

totally silent as to the possibility that the existing plea agreement was

being changed. That plea agreement had been memorialized in an in-court

colloquy on July 9. Just as the original plea agreement had to be put on

the record, so too with any revised agreement.          See Iowa R. Crim.

P. 2.8(2)(c); id. r. 2.10(2). “The record of the proceedings in open court

controls our analysis, not any off-the-record side deals.”      Macke, 933

N.W.2d at 237 (majority opinion). Yet the State said nothing on the subject

at sentencing.
                                    19

      Although the circumstances are somewhat different, this case calls

to mind another case where we barred the State from bringing a charge it

had agreed not to bring:

      Apparently the county attorney entered into the instantly
      involved plea bargain and attendant agreement in all good
      faith but for some reason changed his mind while en route to
      the court house. In any event the bargain made was breached
      by the State. Under existing circumstances such is nothing
      less than an intolerable violation of our time-honored fair play
      norm, and accepted professional standards.

State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974).
      When the State breaches the plea agreement, the defendant who

requests such a remedy is generally entitled to specific performance. See

Macke, 933 N.W.2d at 228; State v. Fannon, 799 N.W.2d 515, 524 (Iowa

2011); Bearse, 748 N.W.2d at 218; State v. Carrillo, 597 N.W.2d 497, 500–

01 (Iowa 1999) (per curiam). “If the district court determines that [the

defendant] did not breach the cooperation agreement, fundamental

fairness requires the government to uphold its part of the agreement and

the district court may enforce the agreement by dismissing the

indictment.” United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986).

Accordingly, we grant specific performance here and reverse the denial of

Beres’s motion to dismiss.       We remand for dismissal of the trial

information in this case.

      V. Conclusion.

      For the foregoing reasons, we reverse the district court’s order and

remand with directions to grant Beres’s motion to dismiss.

      DISTRICT COURT ORDER REVERSED AND CASE REMANDED.

      All justices concur, and Appel, J., files a separate concurring

opinion.
                                     20

                                                    #19–0369, State v. Beres

APPEL, Justice (concurring specially).

      I join the majority opinion, as I concur in the result in this case and

in much of the reasoning of the majority opinion. In my view, however,

there are additional points that should be made.

      First, although contract analysis is often helpful in the context of

plea bargaining, particularly in analyzing whether a breach has occurred,

it is not the be-all and end-all within the context of a plea bargain. Unlike

a private commercial transaction, the plea-bargaining process invokes

criminal justice sanctions and obviously has procedural and substantive

due process implications.

      Thus, a plea bargain is not a mere contract but is a constitutional

contract.   While defendants are at least entitled to the protection of

ordinary contracts, they may be entitled additional protections not

afforded by contract law. As noted by Justice Brennan,

             This Court has yet to address in any comprehensive way
      the rules of construction appropriate for disputes involving
      plea agreements. Nevertheless, it seems clear that the law of
      commercial contract may in some cases prove useful as an
      analogy or point of departure in construing a plea agreement,
      or in framing the terms of the debate. It is also clear, however,
      that commercial contract law can do no more than this,
      because plea agreements are constitutional contracts. The
      values that underlie commercial contract law, and that govern
      the relations between economic actors, are not coextensive
      with those that underlie the Due Process Clause, and that
      govern relations between criminal defendants and the State.
      Unlike some commercial contracts, plea agreements must be
      construed in light of the rights and obligations created by the
      Constitution.

Ricketts v. Adamson, 483 U.S. 1, 16, 107 S. Ct. 2680, 2689 (1987)

(Brennan,   J.,   dissenting)   (citation   omitted).   Justice   Brennan’s
                                    21

observations apply with equal force to rights and obligations created by

the Iowa Constitution.

      By way of example, due process concerns surround the plea-

bargaining waiver process, including the requirement that waiver be

knowing and voluntary. See, e.g., Santobello v. New York, 404 U.S. 257,

261, 92 S. Ct. 495, 498 (1971); Brady v. United States, 397 U.S. 742, 748,

90 S. Ct. 1463, 1468–69 (1970). See generally Russell D. Covey, Plea-

Bargaining Law After Lafler and Frye, 51 Duq. L. Rev. 595 (2013) (exploring

broadly the procedural protections around the plea-bargaining process for

defendants). And, as shortcomings in our criminal justice system and the

plea-bargaining process are revealed by DNA exonerations and other

showings of actual innocence, the due process concept of actual innocence

has taken hold.

      The concept that actual innocence matters where a defendant has

pled guilty is rooted in the law of due process under the Iowa Constitution,

and not the law of contract. See Schmidt v. State, 909 N.W.2d 778, 793–

95 (Iowa 2018) (finding that “the Iowa Constitution permits freestanding

post-conviction claims of actual innocence” under article I, sections 9 and

17). Further, there is substantial authority for the proposition that due

process is violated when the prosecution negotiates a plea bargain without

disclosure of Brady material. See Daniel Conte, Note, Swept Under the

Rug: The Brady Disclosure Obligation in a Pre-Plea Context, 17 Suffolk J.

Trial & App. Advoc. 74, 80–82 (2012) (discussing the ethical duties of

prosecutors under ABA Model Rule of Processional Conduct 3.8(d) in

discovery). See generally Colin Miller, The Right to Evidence of Innocence

Before Pleading Guilty, 53 U.C. Davis L. Rev. 271 (2019) (surveying caselaw

leading to the evidentiary disclosure requirements in Brady, as well as

developments in federal disclosure requirements post-Brady).
                                     22

      While ordinary contract analysis can be useful in the plea-

bargaining context, and is often dispositive, it is not necessarily

determinative in every case involving a plea bargain. See generally Colin

Miller, Plea Agreements as Constitutional Contracts, 97 N.C. L. Rev. 31

(2018) [hereinafter Miller, Plea Agreements] (examining plea agreements

under the framework of constitutional contracts, arguing that plea

bargains have all the protections of contract law, and suggesting reforms

to bolster protections for defendants within the plea-bargaining context).

      In addition, there is caselaw suggesting that due process requires

more than ordinary contract law in other plea-bargaining contexts. See,

e.g., United States v. Newbert, 504 F.3d 180, 187 (1st Cir. 2007) (“[T]he

analogy between plea agreements and commercial contracts is not exact,

and the parties do not necessarily bear equal obligations.”); In re Grand

Jury Witness Altro, 180 F.3d 372, 375 (2d Cir. 1999) (“Our concern for

fairness is rooted in an appreciation of the fact that, unlike ordinary

contracts, plea agreements call for defendants to waive fundamental

constitutional rights, and in an awareness that the Government generally

drafts the agreement and enjoys significant advantages in bargaining

power.”); Plaster v. United States, 720 F.2d 340, 352 (4th Cir. 1983)

(“[P]rinciples of contract law, which implicate entirely different concerns of

economic efficiency in a situation involving equally strong parties, may not

properly be applicable to the prosecutor-defendant agreement context.

Indeed,   we   note[]   that   fundamental    fairness   under . . .   specific

circumstances . . . require[] enforcement of the [plea] agreement despite its

not having been accepted under principles of contract law.” (Footnote

omitted.)); State v. Rivest, 316 N.W.2d 395, 407 (Wis. 1982) (noting that

plea agreements consider not just contract law, but also include

“considerations of due process” and “considerations of the sound and
                                     23

effective administration of the criminal justice system”); see also Miller,

Plea Agreements, 97 N.C. L. Rev. at 42–43 (noting that “courts have mostly

treated criminal defendants the same as or better than parties to normal

contracts” and noting also that “[l]ower courts have also, in some cases,

refused to import specific commercial contract law doctrines into plea

bargaining”).

      Further, an emerging rule of interpretation dictates that plea

bargains should be construed against the government, with ambiguities in

the plea agreement to be construed against the state. See, e.g., United

States v. Gebbie, 294 F.3d 540, 551–52 (3d Cir. 2002) (“When we interpret

ambiguous plea agreements and extrinsic evidence does not resolve the

ambiguity, then we construe the ambiguity against the drafter. Because

of the Government’s advantage in bargaining power, we, and numerous

other courts of appeals, construe ambiguities in plea agreements against

the Government.”); United States v. Harvey, 791 F.2d 294, 303 (4th Cir.

1986) (“Having concluded that the disputed provision was ambiguous in

the respect found dispositive by the district court, we further conclude that

under the plea bargaining principles above stated the provision must be

read against the Government.”); State v. Bisson, 130 P.3d 820, 825 (Wash.

2006) (en banc) (affirming that in cases of illegal plea terms, or lack of

informed consent by defendant to terms of plea, defendant may decide

whether to enforce or withdraw the plea bargain); see also Guilty Pleas, 33

Geo. L.J. Ann. Rev. Crim. Proc. 363, 379 n.1313 (2004) (cataloguing

federal cases in which ambiguities in plea agreements are construed

against the state). To the extent the prosecution seeks to creatively exploit

ambiguous terms in the plea bargain, it has no prospect of success under

the prevailing caselaw.
                                     24

      Finally, plea bargains are generally thought to be subject to a duty

of good faith and fair dealing. See, e.g., Cole v. State, 922 A.2d 354, 359

(Del. 2005) (“[I]n Delaware, a covenant of good faith and fair dealing applies

to plea bargains as well as to any agreement between a criminal defendant

and the State.”); State v. Williams, 11 P.3d 878, 880 (Wash. Ct. App. 2000)

(“Plea agreements are contracts, and the law imposes upon the State an

implied promise to act in good faith.”); State v. Scott, 602 N.W.2d 296, 302

(Wis. Ct. App. 1999) (“[T]he State was obliged to act in good faith and

adhere to the bargain it had struck with [the defendant]. After the contract

had been negotiated and [the defendant’s] no contest pleas entered,

neither party had the right to renege on the agreement.”); see also Miller,

Plea Agreements, 97 N.C. L. Rev. at 49–89 (outlining thoroughly in section

III of the article the implied covenant of good faith and fair dealing within

the context of plea agreements, and citing supporting caselaw throughout).

Among other things, good faith and fair dealing mean that the state cannot

take action that prevents the defendant from performing under a plea

bargain, and that is exactly what happened in this case. The majority

rightly refuses to permit the prosecution in this case from preventing the

defendant’s performance.      I understand that nothing in the majority

opinion is inconsistent with the above propositions, and I therefore concur

in the majority opinion.
