                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0659
                             Filed January 10, 2018
STATE OF IOWA,
   Plaintiff-Appellee,

vs.

JORDAN PIERCE,
   Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark D. Cleve

(sentencing) and Joel W. Barrows (probation revocation), Judges.



      A defendant sentenced to prison for theft and assault challenges the

revocation of his deferred judgment, the sentencing process, and his counsel’s

performance. AFFIRMED.



      Mark C. Smith, Appellate Defender, and Stephan J. Japuntich, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.

       After pleading guilty plea to theft in the first degree and assault resulting in

bodily injury, Jordan Pierce received a deferred judgment.          Pierce repeatedly

violated the terms of his probation, eventually resulting in the revocation of his

deferred judgment and the imposition of a prison sentence. Pierce now contests

his convictions and sentences, claiming the district court failed to give proper

reasons for revoking probation and imposing a prison term, failed to consider

mitigating circumstances, and denied Pierce’s right to allocution. Pierce also

claims his counsel was remiss in not challenging the State’s alleged breach of the

plea agreement.

       Because we find no error in the district court’s handling of the probation

revocation and sentencing hearing and no deficiency in defense counsel’s

performance, we affirm.

       I.     Facts and Prior Proceedings

       In September 2014, Pierce confronted a pedestrian on a Davenport street,

assaulted him, and took his cell phone and Bluetooth headset. The victim told

police Pierce was displaying a knife during the encounter. The State charged

Pierce with four counts: robbery in the first degree, theft in the first degree, assault

while displaying a weapon, and assault resulting in injury. Pierce’s plea bargain

allowed him to plead guilty to first-degree theft, in violation of Iowa Code section

714.2(1) (2014), and assault resulting in injury, in violation of Iowa Code section

708.2(2), while the State agreed to dismiss the robbery and assault-while-

displaying-a-weapon counts. The State agreed to make no recommendation as to

sentencing.
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       At an April 24, 2015 sentencing hearing, the court granted Pierce a deferred

judgment and placed him on probation at a residential correctional facility. Just

four months later, the judicial department of correctional services filed a probation

violation report against Pierce involving problems with his assigned employer. The

district court found Pierce in contempt but did not revoke his probation. Then in

April 2016, the State applied to revoke Pierce’s probation after he engaged in a

series of disruptive activities at the residential facility. In June 2016, the district

court declined to revoke Pierce’s deferred judgment but again held him in

contempt.

       In January 2017, Pierce’s probation officer filed another report of violations,

alleging Pierce had not secured full-time employment, made only one monthly $10

fine payment, used Xanax without a prescription, tested positive for THC after

consuming a marijuana brownie at a party, and pleaded guilty to disorderly

conduct. At an April 6, 2017 hearing, Pierce stipulated to violating those terms of

probation. Noting Pierce had already been held in contempt twice and had already

been placed at the residential correctional facility, the court commented, “No one

wanted to get to this point, but here we are.” The court revoked Pierce’s deferred

judgment and imposed judgment and sentence. The court sentenced Pierce to an

indeterminate ten-year term for the theft offense and a 364-day term for the assault

to run concurrently. Pierce appeals the judgment and sentences.

       II.    Scope and Standards of Review

       We review the revocation of probation for an abuse of discretion. State v.

Kirby, 622 N.W.2d 506, 508 (Iowa 2001). We review sentencing proceedings for

the correction of legal error. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
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But “[w]e will not reverse the decision of the district court absent an abuse of

discretion or some defect in the sentencing procedure.” Id.

       Because Pierce’s ineffective-assistance-of-counsel claim is grounded in the

Sixth Amendment, our review is de novo. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).

       III.    Probation Revocation and Sentencing

       A. Reasons for Revocation and Prison Term

       After Pierce stipulated to his probation violation, the district court had a

choice whether to continue probation or revoke the deferred judgment and impose

sentence. See Iowa Code § 908.11(4). When a court decides to impose sentence,

it must “state on the record its reason for selecting the particular sentence.” Iowa

R. Crim. P. 2.23(3)(d). Pierce contends the court failed to consider options other

than incarceration and failed to give “appropriate reasons” for either the revocation

or the sentence.

       When the district court uses its power to revoke a deferred judgment, it must

“demonstrate an exercise of discretion in using that power or give a reason for

choosing among sentencing options.” State v. Lillibridge, 519 N.W.2d 82, 83 (Iowa

1994). In Lillibridge, the supreme court remanded for a new hearing because the

district court did not indicate what the probation violations were or “how these

violations influenced the court to select the sentence it did.” Id.

       This case differs from Lillibridge. Here, the court gave its rationale for

imposing a prison term: “Obviously, the primary reason for the sentence and the

reason we’re here is because of numerous previous failures on supervision. Again,

it’s unfortunate, but you’ve got the track record you created yourself, Mr. Pierce.”
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Although succinct, the court’s reasoning was sound. See State v. Johnson, 445

N.W.2d 337, 343 (Iowa 1989) (holding terse statement of reasons may be sufficient

as long as brevity does not prevent us from reviewing the exercise of sentencing

discretion), overruled on other grounds by State v. Hill, 878 N.W.2d 269 (Iowa

2016).

         On two earlier occasions, Pierce received contempt sanctions rather than

revocation of his deferred judgment. Pierce did not take advantage of his second

and third chances. His repeated inability to comply with the terms of his probation

while in a residential correctional facility left the court with few good options—the

court could give Pierce a fourth chance at leniency or could hold him accountable

for his theft and assault offenses by imposing judgment and sentence. We cannot

find the court abused its discretion by opting to send Pierce to prison. See State

v. Liddell, 672 N.W.2d 805, 816 (Iowa 2003) (“When Liddell failed meet one of the

conditions of the court’s order, he proved himself an unsuitable candidate for a

deferred.”).

         Pierce further intimates the sentencing court considered unproven

violations in deciding to revoke the deferred judgment and impose the prison term.

The record does not support that intimation. Pierce stipulated to certain probation

violations recited by his attorney; the court did not suggest it was considering any

grounds for revocation beyond those that were specified in the stipulation.
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       B. Consideration of Mitigating Circumstances

       Sentencing courts must consider any mitigating circumstances related to

the defendant. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). Pierce

contends the district court failed to take into account factors that weighed against

revoking his deferred judgment and imposing a prison sentence. For example,

Pierce highlights his openness with his probation officer about the disorderly

conduct charge, his aspirations to be a surgical technician, and his inspiration to

reform his behavior based on the upcoming birth of his child.

       The district court heard the defense argument on these factors but believed

Pierce’s proven difficulty with meeting the expectations of supervision in the

community was the top concern. See State v. Thomas, 547 N.W.2d 223, 226

(Iowa 1996) (clarifying sentencing court is not required to note presence or

absence of mitigating circumstances). We find the district court properly exercised

its discretion.

       C. Right to Allocution

       Before rendering judgment, a sentencing court must allow defense counsel

and the defendant to speak in mitigation of punishment.           Iowa R. Crim. P.

2.23(3)(d). This right to allocution need not be invited with any particular language.

State v. Nosa, 738 N.W.2d 658, 660 (Iowa Ct. App. 2007). Substantial compliance

with the rule will suffice. Id.

       The following exchange occurred at the probation-revocation and

sentencing hearing:

              THE COURT: Mr. Pierce, anything you want to tell me before
       I impose sentence?
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              THE DEFENDANT: I know I’ve did some wrong things, I know
              I didn’t follow my probation to the extent that was set upon for
              me to. First time I was in RCF I did mess up, I know that, I
              accept that.

       Pierce then explained to the court the circumstances of his disorderly

conduct charge that led to his probation violation, saying “I acted wrong, and I know

that. I accept that, and I do apologize to the Court for that.”

       Pierce went on to say:

       [T]hat was all before I found out that I had a kid on the way, and that
       changed some matters, it changed some thought processes, and my
       aspirations are greater now that I found out what my life’s going to
       come to, depending on the matters resting in this court.

       Pierce understood he could have his deferred judgment revoked because

of his probation violations but told the court: “I just want to be able to have a chance

to try again with my family.” At the prompting of his defense attorney, Pierce

explained his educational plans and his goal to be a surgical technician. Finally,

Pierce told the court he had been on probation on and off through his teen years

but asserted: “I’m done being a kid and I want to be a man.”

       Citing State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999), Pierce argues

that although the district court allowed him to speak on the issue of revocation, he

was not allowed to speak in mitigation of punishment. We are not persuaded by

this argument. Pierce’s case is a far cry from Duckworth. Duckworth testified at

his revocation hearing, but the court “made no effort to provide Duckworth with an

opportunity to volunteer any information in mitigation of his sentence.” 597 N.W.2d

at 801. By contrast, the court here referenced imposition of sentence in asking for
                                         8


Pierce’s input and Pierce offered mitigating information.      We find substantial

compliance with the allocution rule.

       IV.    Ineffective Assistance of Counsel

       In his final assignment of error, Pierce argues his attorney was ineffective

for not objecting when the State advocated for a prison term at the revocation

hearing because the plea agreement specified the State would offer no

recommendation as to sentencing. At the original sentencing hearing in April 2015,

the prosecutor told the court: “Pursuant to the plea agreement, we have no

recommendation regarding sentencing.” At the probation revocation hearing in

April 2017, the prosecutor told the court: “It’s our recommendation at this time that

the deferred judgment be revoked and that he be sentenced to prison.” Defense

counsel did not object to the State’s recommendation for revocation and

incarceration.

       To prevail on his ineffective-assistance-of-counsel claim, Pierce must show

counsel failed to perform an essential duty and counsel’s omission resulted in

prejudice. See State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (explaining

modification of prejudice prong when counsel fails to object to breach of plea

agreement). Counsel has a duty to object when the State reneges on a plea

agreement. Id. Therefore, the outcome of Pierce’s appeal “turns on whether the

prosecutor breached the plea agreement.”        See id.    “The 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
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defendant of the benefit of the bargain.” State v. Frencher, 873 N.W.2d 281, 284

(Iowa Ct. App. 2015).

       On appeal, the State contends the county attorney kept her promise by

refraining from a making a recommendation at the original sentencing hearing,

paving the way for the district court to grant Pierce a deferred judgment. The State

argues the original sentencing hearing marked “the end of the defendant’s justified

expectations.” In the State’s estimation, the prosecution did not agree to remain

silent at all future probation revocation proceedings.

       We conclude the scope of the plea agreement was limited to the original

sentencing hearing, and therefore, the State did not breach the agreement by

offering its view at the revocation hearing. See State v. Windom, 485 N.W.2d 832,

835 (Wis. Ct. App. 1992) (“To treat the sentencing after probation revocation as an

integral part of the original sentence would bind the State to that plea agreement

ad infinitum in all subsequent sentence hearings arising out of the original crime.”);

see also People v. Jones, 180 Cal. Rptr. 228, 233 (Cal. Ct. App. 1982) (“A

consummated plea bargain does not insulate a defendant from the consequences

of his future misconduct. A defendant gets the benefit of his bargain only once.

Like time, a plea bargain once spent is gone forever.”); State v. Richmond, 896

P.2d 1112, 1116 (Kan. Ct. App. 1995) (finding change in circumstances sufficient

to relieve the State of its duty to adhere to the plea agreement upon revocation of

the suspended sentence). Because the State did not breach the plea agreement,

counsel was not ineffective.
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      Finding no error by the district court or defense counsel, we affirm Pierce’s

convictions and sentences.

      AFFIRMED.
