                       IN THE COURT OF APPEALS OF IOWA

                                       No. 17-1854
                                Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AUSTIN L. KELLER,
     Defendant-Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Scott County, Nancy S. Tabor (guilty

plea) and Mark J. Smith (sentencing), Judges.



         Austin Keller appeals from his conviction for theft in the second degree.

AFFIRMED.



         Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

         Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



         Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.* Tabor, J.,

takes no part.




*
    Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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VAITHESWARAN, Presiding Judge.

      This appeal requires us to determine whether a defendant was entitled to

withdraw his plea.    Iowa Rule of Criminal Procedure 2.10, governing plea

agreements, speaks to the issue. The rule begins by identifying the options

available when a plea agreement is conditioned on the district court’s concurrence:

“[I]f the agreement is conditioned upon concurrence of the court in the charging or

sentencing concession made by the prosecuting attorney, the court may accept or

reject the agreement, or may defer its decision as to acceptance or rejection until

receipt of a presentence report.” Iowa R. Crim. P. 2.10(2).

      The rule proceeds to identify the circumstances under which a defendant

may withdraw a plea conditioned on the court’s concurrence:

      If, at the time the plea of guilty is tendered, the court refuses to be
      bound by or rejects the plea agreement, the court shall inform the
      parties of this fact, afford the defendant the opportunity to then
      withdraw defendant’s plea, and advise the defendant that if
      persistence in a guilty plea continues, the disposition of the case may
      be less favorable to the defendant than that contemplated by the plea
      agreement.

Iowa R. Crim. P. 2.10(4); State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981).

      Austin Keller pled guilty to second-degree theft after agreeing he stole tools

from a place of business. His memorandum of plea agreement stated the plea

was “open” and the prosecutor would “recommend supervised probation,

recognizing the defendant is eligible for a deferred judgment.” The memorandum

simultaneously stated, “Concurrence of the court to this agreement is a condition

to the acceptance of the plea.”

      At a plea hearing, the district court informed Keller of the options facing a

defendant when a plea is conditioned on the court’s concurrence. The court
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stated, “[I]f the sentencing judge decides to . . . not accept the plea, . . . you would

have an opportunity to withdraw your guilty plea.” After informing Keller of the

rights he would relinquish by pleading guilty, the court “defer[red] acceptance or

rejection of the plea agreement until such time as a presentence investigation

report [was] prepared and filed with the court.”

       At sentencing, a different district court judge asked the prosecutor and

defense attorney whether the plea agreement was binding on the court. Relying

on the “open plea” language of the agreement, both stated the agreement did not

bind the court. The court sentenced Keller to prison but suspended the sentence

and placed Keller on probation with conditions, including completion of “the

Residential Corrections Facility program.”

       On appeal, Keller contends the district court imposed “a greater sentence

than agreed to in the plea agreement without giving [him] the opportunity to

withdraw the plea.” He specifically challenges the court’s decision to place him at

a residential corrections facility instead of allowing him to serve his probation at

home, a decision he characterizes as a rejection of the plea agreement. Because

his attorney did not object to the claimed breach of the plea agreement, Keller

alternatively raises the issue under an ineffective-assistance-of-counsel rubric.

       To determine whether the court rejected the agreement, we must first

determine whether the plea agreement was conditioned on the district court’s

concurrence. The State concedes the memorandum of plea agreement and on-

the-record discussion confuse the issue. In light of the confusion, the State further

concedes it will “treat[] the agreement as a Rule 2.10 agreement that was binding

on the district court.”
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        With this concession in hand, we turn to whether the district court rejected

the plea agreement, triggering Keller’s right to withdraw the plea. Iowa Code

section 907.3(3) (2015), governing suspended sentences, answers the question.

In pertinent part, the provision allows a court to suspend a sentence “and place the

defendant on probation upon such terms and conditions as it may require including

commitment to an alternate jail facility or a community correctional residential

treatment facility.” Iowa Code § 907.3(3). Section 907.3(3) authorizes the precise

type of supervised probation Keller received.

        In sum, the plea agreement called for supervised probation and the district

court ordered supervised probation, to be served at a location authorized by

statute. Nothing in the court’s sentencing order could be construed as a rejection

of the plea agreement. As the State accurately concludes, “[T]he district court

complied with the parties’ agreement that Keller would be given supervised

probation and the district court was not required to offer Keller a chance to

withdraw his plea.” We discern no error in the district court’s application of rule

2.10.

        Having concluded Keller was not entitled to withdraw his plea, we further

conclude his attorney was not ineffective in failing to object on this ground. We

affirm Keller’s judgment and sentence.

        AFFIRMED.
