                    IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0748
                                  Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC MICHAEL COLE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Mary E. Chicchelly,

Judge.



      Eric Cole appeals after pleading guilty to willful injury resulting in bodily

injury and domestic abuse assault causing bodily injury. SENTENCE VACATED

AND CASE REMANDED WITH DIRECTIONS.



      Peter Stiefel, Victor, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., Greer, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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CARR, Senior Judge.

      Eric Cole pled guilty to willful injury resulting in bodily injury and domestic

abuse assault causing bodily injury in exchange for the State’s agreement to

recommend concurrent sentences. But during sentencing, the State remained

silent on concurrent sentences.     The district court sentenced Cole to serve

consecutive sentences based on the nature of the offense. Cole contends his

counsel was ineffective by failing to object to the State’s breach of the plea

agreement.1

      We review ineffective-assistance claims de novo. See Lamasters v. State,

821 N.W.2d 856, 862 (Iowa 2012). To succeed, Cole must show counsel breached

a duty and prejudice resulted. See State v. Graves, 668 N.W.2d 860, 869 (Iowa

2003). Prejudice occurs when the outcome of the proceeding would have been

different had counsel performed effectively. State v. Frencher, 873 N.W.2d 281,

284 (Iowa Ct. App. 2015). If the prosecutor breached the plea agreement, Cole

would have been entitled to withdraw his plea or to a resentencing hearing in an

untainted proceeding, which satisfies the required showing of prejudice. See id.

      “[T]o determine whether counsel failed to perform an essential duty in failing

to object to the prosecutor’s recommendation, we must first determine whether the

State breached the plea agreement.” State v. Bearse, 748 N.W.2d 211, 215 (Iowa

2008). Technical compliance is not enough. Frencher, 873 N.W.2d at 284. The

question is “whether the prosecutor acted contrary to the common purpose of the



1 Because recent amendments to Iowa Code chapter 814 that limit a defendant’s
right to appeal do not apply to cases pending on July 1, 2019, see State v. Macke,
933 N.W.2d 226, 235 (Iowa 2019), we may consider Cole’s claim on direct appeal.
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plea agreement and the justified expectations of the defendant and thereby

effectively deprived the defendant of the benefit of the bargain.” Id. For instance,

a prosecutor breaches a plea agreement by giving the agreed-upon

recommendation while expressing “material reservations.” Id. A prosecutor may

imply material reservation in many ways: “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 (citing cases).

       At sentencing, the prosecutor asked the court to “follow the plea agreement

in this case,” asking that Cole “serve an indeterminate term not to exceed 5 years

in the custody of the Director of the Iowa Department of Corrections.” But the

prosecutor never recommended concurrent sentences. And in stating the reasons

for the recommendation, the prosecutor highlighted the violent nature of the

offense and its effect on the victim, as well as Cole’s prior criminal history—all of

which the court relied on in ordering Cole to serve the sentences consecutively.

The prosecutor breached the plea agreement. If Cole’s counsel had objected,

Cole would have been entitled to resentencing. Cole has thereby established his

ineffective-assistance claim. We vacate his sentence and remand to the district

court for resentencing before a different district court judge. See Bearse, 748

N.W.2d at 218. As a result, we need not address Cole’s claim the district court

abused its discretion in ordering his sentences to run consecutively.

       SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS.
