                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1175
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DERIK ASHLEY OTERO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      The defendant challenges his sentences. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

         Pursuant to a plea agreement, Derik Otero pleaded guilty to and was

convicted of burglary in the third degree, theft in the first degree, criminal

mischief in the fifth degree, and possession of a controlled substance, third or

subsequent offense. In exchange for his guilty pleas, the State agreed to dismiss

numerous other charges filed against Otero. The plea agreement also provided

that the State would recommend the sentences be served concurrent with each

other but that the parties were otherwise free to argue. At sentencing, the State

argued for incarceration and recommended the sentences “run concurrently with

one another.”       The court sentenced Otero to an indeterminate term of

incarceration not to exceed ten years for the theft conviction with all other

sentences to be served concurrent with the same.               Otero challenges his

sentences on appeal.

         Otero first argues the district court considered impermissible factors in

imposing sentence.      Specifically, Otero argues the district court considered

dismissed charges in imposing sentence.           A sentencing decision will not be

reversed absent a showing of an abuse of discretion or some defect in the

sentencing proceeding. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). An

abuse of discretion will be found only when a sentencing court acts on grounds

clearly untenable or to an extent clearly unreasonable.         Id.     In exercising its

discretion, the district court should weigh all pertinent matters in determining a

proper     sentence,   including   the   nature   of   the   offense,    the   attendant

circumstances, the defendant’s age, character, and propensities or chances of

reform. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). A court may not
                                         3


consider an unproven or unprosecuted offense when sentencing a defendant

unless the facts before the court show the accused committed the offense, or the

defendant admits it. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). When

a challenge is made to a criminal sentence on the basis the court improperly

considered unproven criminal activity, the issue presented is simply one of the

sufficiency of the record to establish the matters relied upon. State v. Longo, 608

N.W.2d 471, 474 (Iowa 2000).

      Otero contends the district court explicitly stated that it looked at the

defendant’s “charges” when imposing sentence.

              Mr. Otero, I looked at your presentence investigation, as well
      as the charges in this matter. The earliest charge is November of
      2013. It appears that you’ve scrambled in the last couple of months
      to try to indicate that you’re turning your life around, but you haven’t
      done anything prior to that, which would indicate to the Court that
      you hadn’t done anything seriously to rehabilitate your issues. I’m
      glad you’re going to AA. It appears you do have a substance abuse
      problem. But as they say in that program, actions speak a lot louder
      than words, and your actions -- especially your criminal history, as
      well as the facts and circumstances surrounding these events – I’m
      only considering the convictions in your criminal history, not the
      arrests or dismissals -- indicate otherwise.

             ....

             You have a real issue with committing criminal acts, whether
      you’re under the influence of alcohol or drugs or both, and that is a
      harm to the community. Had you started doing this from day one in
      November of 2013 when you first had that felony charge, I guess I
      would have been more impressed, but you only tried to turn things
      around the last couple of months knowing you were going to be
      sentenced in May, which was then continued. Based on your
      criminal history and, again, the facts and circumstances
      surrounding each event, the Court feels a period of incarceration is
      warranted.

      We conclude the district court did not consider impermissible factors. A

district court’s sentencing decision enjoys a strong presumption in its favor.
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State v. Peters, 525 N.W.2d 854, 859 (Iowa 1994).                To overcome the

presumption, a defendant must affirmatively show the district court relied on

improper evidence, such as unproven offenses. State v. Sailer, 587 N.W.2d 756,

762 (Iowa 1998).      “We will not draw an inference of improper sentencing

considerations which are not apparent from the record.” Formaro, 638 N.W.2d at

725. Otero wrenches the remark from context. The sentencing court referenced

the defendant’s charges only to note Otero was charged more than one and one-

half years prior to the sentencing hearing but had only recently started making

any effort at rehabilitation. The district court explicitly stated it considered only

Otero’s convictions. The record reflects the district court did not consider an

improper factor in imposing sentence. The claim fails.

       Otero next claims his plea counsel was ineffective in failing to object to the

prosecutor’s alleged breach of the parties’ plea agreement. “We review de novo

claims of ineffective assistance of counsel arising from the failure to object to the

alleged breach of a plea agreement.” State v. Lopez, 872 N.W.2d 159, 168

(Iowa 2015). To prevail on his claim, Otero must demonstrate: (1) counsel failed

to perform an essential duty, and (2) the breach of duty resulted in prejudice.

See id. at 169. “Counsel does not fail to perform an essential duty by failing to

raise a meritless objection. However, defense counsel has a duty to object to a

breach of a plea agreement.”       Id.   “[P]rejudice is presumed when defense

counsel fails to object to the state’s breach of a plea agreement at the sentencing

hearing.” Id. at 170. “Although claims of ineffective assistance of counsel are

generally preserved for postconviction relief hearings, we will consider such

claims on direct appeal where the record is adequate.” State v. Horness, 600
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N.W.2d 294, 297 (Iowa 1999). We conclude the record is adequate to resolve

this claim on direct appeal.

       Otero contends the prosecutor failed to truly recommend the agreed-upon

sentence because the prosecutor reminded the district court of the numerous

dismissed charges at the time of sentencing. The State’s promise to recommend

specific sentences to the court “requires the prosecutor to present the

recommended sentences with his or her approval, to commend these sentences

to the court, and to otherwise indicate to the court that the recommended

sentences are supported by the State and worthy of the court’s acceptance.” Id.

at 299.   The State may not invite the sentencing court to consider improper

factors in its sentencing decision with “a wink and a nod.” See State v. Bearse,

748 N.W.2d 211, 218 (Iowa 2008). “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 defendant of

the benefit of the bargain.” State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct.

App. 2015).    “Where the State technically complied with the agreement by

explicitly recommending the agreed-upon sentence but expressed material

reservations regarding the plea agreement or sentencing recommendation, it can

be fairly said the State deprived the defendant of the benefit of the bargain and

breached the plea agreement.” Id.

       The expression of a material reservation regarding the plea
       agreement or sentencing recommendation can be explicit or
       implicit. For example, the prosecutor may explicitly express regret
       for entering into the plea agreement. The prosecutor may also
       implicitly express material reservation to the plea agreement or
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       recommended sentence in a number of ways. For example: by
       proposing alternative sentences; by requesting “an appropriate
       sentence” rather than the agreed-upon sentence; by making a
       recommendation and then reminding the court it is not bound by the
       plea agreement; or by emphasizing a more severe punishment
       recommended by the presentence investigation author.

Id. at 285.

       We conclude the defendant has failed to establish a breach of the plea

agreement requiring an objection by the defendant’s plea counsel. While the

prosecutor referenced the dismissed charges at the time of sentencing, it was

only to alert the court the parties had reached an agreement with respect to the

assessment of costs regarding certain dismissed counts. The State never tied

the argument to its sentencing recommendation or otherwise acted contrary to

the common purpose of the plea agreement and the justified expectations of the

defendant. Otero’s argument thus fails.

       The defendant’s sentences are affirmed.

       AFFIRMED.
