                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1013
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD P. FINN,
     Defendant-Appellant.
______________________________________________________________

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



      Defendant appeals his conviction for possession of a controlled substance

(methamphetamine) with intent to deliver. AFFIRMED.




      Thomas A. Hurd of Glazebrook & Hurd, L.L.P., Des Moines, for appellant.

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

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Chad Finn appeals his conviction for possession of a controlled substance

(methamphetamine) with intent to deliver. We find Finn has not shown he received

ineffective assistance of counsel. The evidence does not show the State breached

the terms of the plea agreement and, therefore, defense counsel did not have an

obligation to object. We affirm Finn’s conviction.

       I.     Background Facts & Proceedings

       Finn   was    charged    with   possession    of   a   controlled   substance

(methamphetamine) with intent to deliver, in violation of Iowa Code section

124.401(1)(c) (2016), a class “C” felony. He signed a written plea agreement in

which he agreed to plead guilty to the charge and “[t]he State will recommend

supervised probation, recognizing the Court may grant a deferred judgment.” The

district court accepted Finn’s guilty plea.

       At the sentencing hearing, held on June 8, 2017, the following exchange

occurred:

              THE COURT: What is the State's recommendation?
              PROSECUTOR: Your Honor, the State recommends that the
       Court sentence Mr. Finn to 10 years of incarceration at the
       Department of Corrections; that that sentence be suspended; that he
       be placed on 3 years of probation; that his driver’s license be
       suspended for 180 days; that he provide a DNA sample; and the
       State has no objection to the Court declining to impose any minimum
       under 124.413.
              THE COURT: In other words, deferring that decision,
       counsel?
              PROSECUTOR: No.
              THE COURT: I am not sure I understand what you are
       recommending.
              PROSECUTOR: I am saying that the Court need not—that
       there are sufficient extenuating circumstances to not impose a
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      124.413 minimum. And on July 1st, even if you did impose it, it would
      vanish into nothing.
            THE COURT: Now I understand what you are telling me.
      Thank you.

      Defense counsel also initially requested supervised probation. The court

sentenced Finn to a term of imprisonment not to exceed ten years, suspended the

sentence, and placed him on probation for two years. The court stated:

             The reasons for the Court’s sentence are first of all, it
      incorporates and adopts the plea agreement of the parties, which the
      Court finds to be fair and reasonable under the circumstances, and
      the Court determines that the sentence imposed will provide properly
      for the reform and rehabilitation of Mr. Finn and for the protection of
      the community.

      At the close of the hearing, defense counsel stated Finn was also requesting

a deferred judgment. The court stated it would consider the request and asked the

parties to address it.   The prosecutor stated, “The State abides by its plea

agreement and—where we were not objecting to it.” The following then occurred:

             THE COURT: What position does the State take on the merits
      in regards to the defendant's request for a deferred judgment?
             PROSECUTOR: The State believes that if—it appears the
      Defendant is eligible.
             THE COURT: Does the State resist or join in the request for a
      deferred judgment?
             PROSECUTOR: The State recognizes that it is within the
      Court’s power to grant it here today.
             THE COURT: All right.

The court denied the request for a deferred judgment, noting Finn’s lengthy

criminal history. Finn now appeals, claiming he received ineffective assistance of

counsel.
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      II.    Standard of Review

      We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. A defendant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. State

v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

      III.   Ineffective Assistance

      Finn claims he received ineffective assistance because defense counsel did

not object when the prosecutor responded, “No,” to the court’s question, “In other

words, deferring that decision, counsel?” Finn states the prosecutor’s response

was contrary to the terms of the plea agreement, which provided the State would

“recommend supervised probation, recognizing the Court may grant a deferred

judgment.”   Finn claims the State’s negative response breached the plea

agreement by indicating the State was opposed to Finn receiving a deferred

judgment.

      Finn’s argument misapprehends the gist of the exchange between the court

and the prosecutor. At the end of his recommendation, the prosecutor indicated

the State would not object if the court declined to impose a mandatory minimum

sentence under section 124.413. The court then asked if “that decision” should be

deferred, and the prosecutor said, “No.” The court asked for further clarification

and the prosecutor again stated a mandatory minimum sentence did not need to
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be imposed.1 Based on the prosecutor’s statements after the court stated, “I am

not sure I understand what you are recommending,” we find the prosecutor was

not indicating whether Finn should receive a deferred judgment but was making a

recommendation about whether a mandatory minimum sentence should be given.

       Furthermore, when the issue of whether Finn should receive a deferred

judgment was explicitly raised, the prosecutor’s response followed the terms of the

plea agreement. The prosecutor stated, “the State abides by its plea agreement

and—where we were not objecting to it.” Also, when asked if the State resisted or

joined in the request for a deferred judgment, the prosecutor stated, “The State

recognizes that it is within the Court’s power to grant it here today,” which follows

the plea agreement providing the State would “recogniz[e] the Court may grant a

deferred judgment.”

       We find Finn has not shown he received ineffective assistance of counsel.

The evidence does not show the State breached the terms of the plea agreement

and, therefore, defense counsel did not have an obligation to object. We affirm

Finn’s conviction.

       AFFIRMED.




1
  The prosecutor noted even if a mandatory minimum sentence were imposed, on July 1,
2017, “it would vanish into nothing.” This is because at the time of the hearing, on June 8,
2017, section 124.413 had been amended, to be effective on July 1, 2017, to eliminate
the requirement of a mandatory minimum sentence for those convicted under section
124.401(1)(c), as was Finn. See 2017 Iowa Acts ch. 122, § 10.
