               IN THE SUPREME COURT OF IOWA
                           No. 132 / 06-0840

                         Filed October 26, 2007


STATE OF IOWA,

      Appellee,

vs.

PHILIP BRIAN COOPER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Clarke County, Gregory A.

Hulse and David L. Christensen, Judges.



      Defendant appeals from sentence imposed on his conviction of

operating while intoxicated, third offense, contending his trial counsel

rendered ineffective assistance of counsel.   DECISION OF COURT OF

APPEALS VACATED; SENTENCE VACATED; AND CASE REMANDED

FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, and Elisabeth S. Reynoldson, County Attorney, for

appellee.
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PER CURIAM.

      The defendant, Philip Brian Cooper, appealed from the sentence

imposed upon his conviction of operating while intoxicated, third offense,

in violation of Iowa Code section 321J.2 (2005). He contended his trial

counsel rendered ineffective assistance by failing to object to the State’s

breach of the parties’ plea agreement.     The court of appeals affirmed

Cooper’s conviction and preserved his ineffectiveness claim for a possible

postconviction-relief action. We granted Cooper’s application for further

review.     Because we conclude Cooper’s counsel rendered ineffective

assistance, we vacate the decision of the court of appeals, vacate the

sentence imposed on Cooper’s conviction, and remand for resentencing.

      I. Background Facts and Proceedings.

      The State charged Cooper with operating while intoxicated, third

offense. Cooper pled guilty to the charge pursuant to a plea agreement.

At the plea hearing, the prosecutor read the plea agreement into the

record:

      [T]he State’s agreement is that the State will recommend that
      the defendant be sentenced to an indeterminate term not to
      exceed five years, that that term be suspended, all but 30
      days be suspended, and the defendant be placed on formal
      and supervised probation, that the defendant pay the
      mandatory minimum fine of $2500 plus applicable
      surcharges, court costs, and court-appointed attorney fees.
      In addition . . . it is the State’s agreement that should the
      defendant complete inpatient substance abuse treatment,
      that the State will recommend that the defendant receive
      credit towards the mandatory 30-day jail time for the
      inpatient treatment.

Defense counsel indicated the plea agreement was stated correctly. The

court advised Cooper that the sentencing recommendations were not

binding upon the court and accepted Cooper’s guilty plea after a

colloquy.
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      At the sentencing hearing before a different judge, the prosecutor

gave the following recommendation:

      Your Honor, it should be noted that at the time of the guilty
      plea, the State’s agreement with respect to sentencing was
      that the State would agree to recommend an indeterminate
      term of incarceration not to exceed five years, that that term
      would be suspended – all but 30 days of that term would be
      suspended and the defendant would be given credit for
      inpatient treatment for that 30 days. That agreement was
      conditioned upon the defendant successfully completing that
      inpatient treatment program.
      The State has been informed by the defendant’s counsel that
      the defendant did not successfully complete that inpatient
      treatment program. Therefore, the State is requesting the
      Court sentence the defendant to – pursuant to the PSI, to an
      indeterminate term not to exceed five years and the
      defendant to be placed in the OWI continuum program when
      the space becomes available and that the defendant be
      sentenced to the minimum fine of $2500.

Defense counsel said he did not resist the State’s recommendation. The

court sentenced Cooper to an indeterminate term of five years with

placement in the OWI continuum program, a $2500 fine, and applicable

surcharges.

      Cooper appealed, contending his trial counsel rendered ineffective

assistance by failing to object to the State’s breach of the plea agreement.

He asked that his sentence be vacated and the case be remanded for

resentencing.   The court of appeals affirmed, but preserved Cooper’s

ineffective-assistance-of-counsel claim for a possible postconviction relief

action.

     II. General     Principles   Governing     Ineffective-Assistance-of-
Counsel Claims.

      Because Cooper's trial counsel did not object to the prosecutor's

comments at the sentencing hearing, error was not preserved. See State

v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). Consequently, to reach the

merits of this issue on appeal, Cooper must establish that his trial
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counsel rendered ineffective assistance. See State v. Carrillo, 597 N.W.2d

497, 499 (Iowa 1999). We review this constitutional claim de novo. See

Ceaser, 585 N.W.2d at 195.

      III. Analysis.

      We conclude the State breached its duty under the plea agreement

by using Cooper’s failure to successfully complete inpatient treatment as

a basis to rescind its promise to recommend a suspended sentence.

Under the parties’ plea agreement, Cooper's completion of inpatient

treatment would only affect the State's recommendation regarding a

credit towards the portion of the sentence that would not be suspended.

We conclude Cooper's counsel breached an essential duty by not

objecting to the State’s failure to make the promised recommendation.

      We can discern no proper basis for counsel’s failure to object given

the State’s switch from recommending a suspended sentence to its

recommendation of imposition of a five-year prison term.          Counsel’s

failure to alert the trial court to this clear breach deprived that court of

the opportunity to remedy the error, resulting in prejudice to Cooper.

See State v. Horness, 600 N.W.2d 294, 301 (Iowa 1999).         Cooper has

therefore demonstrated his counsel rendered ineffective assistance, and

there is no need to preserve the issue for a possible postconviction relief

proceeding.

      IV. Conclusion.

      Because Cooper’s counsel rendered ineffective assistance in failing

to object to the State’s breach, we vacate the court of appeals decision,

vacate the sentence imposed upon Cooper’s guilty plea, and remand the

case for resentencing. The State shall abide by the plea agreement at

resentencing.
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    DECISION OF COURT OF APPEALS VACATED; SENTENCE

VACATED; AND CASE REMANDED FOR RESENTENCING.

    All justices concur except Streit, J., who takes no part.

    This is not a published opinion.
