                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1592
                            Filed November 23, 2016


ANTONIO RAY MOORE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      Applicant appeals from the district court order denying his application for

postconviction relief. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Antonio Moore appeals from the district court order denying his application

for postconviction relief (PCR). He claims his trial counsel was ineffective for

failing to object to the prosecutor’s breach of the plea agreement and for failing to

correct errors in the presentence investigation (PSI) report. He also challenges

the standard of review applied by the district court and requests we find his PCR

counsel ineffective if any of his claims were not properly preserved.        For the

reasons stated herein, we affirm the judgment of the district court.

   I. Background Facts & Proceedings

       On April 4, 2013, Moore was charged with theft in the second degree, in

violation of Iowa Code sections 714.1(1) and 714.2(2) (2011), and third-degree

burglary, in violation of section 713.6A(2). In June 2013, Moore was charged

with possession of a firearm by a person previously convicted of domestic abuse,

in violation of section 724.26(2), and an additional charge of second-degree theft.

In August, Moore pled guilty to two counts of second-degree theft and one count

of possession of a firearm by a person previously convicted of domestic abuse.

As part of the plea agreement, the State agreed to recommend the sentence put

forth in Moore’s PSI report and agreed to recommend that any prison sentences

recommended by the PSI be served concurrently. Moore was allowed to argue

for other outcomes, including probation, at sentencing.

       The PSI was completed prior to sentencing. Moore contends the PSI

contained two charges, under the heading “Arrest History Comments,” that were

not his. Those two charges are a fifth-degree-theft charge from September 27,

2002, with the listed disposition “transfer of venue,” and an assault charge from
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March 21, 2003, with the disposition “adjudicated.”         The PSI did indeed

recommend incarceration. Sentencing commenced September 24, 2013. During

the sentencing hearing, the following colloquy took place between the court and

the prosecutor:

             THE COURT: Mr. Ward, what is the State’s sentencing
      recommendation?
             MR. WARD: Due to the defendant’s record and the fact that
      he committed several crimes in this case, the State recommends
      prison. And that is consistent with the PSI recommendation.
             THE COURT: Does the State have a recommendation as to
      whether these sentences should run concurrent or consecutive?
             MR. WARD: The State would be satisfied with concurrent
      sentences, Judge.

The court sentenced Moore to three, five-year sentences, to be served

consecutively.    The court noted it had considered Moore’s “prior record of

convictions,” among other factors.

      Moore subsequently filed this PCR application, alleging ineffective

assistance of counsel. The district court denied his application. On appeal, he

claims the district court applied an incorrect standard of review to his claims on

the merits, which he also renews before us.

   II. Standard of Review

      We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

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

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
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   III. Discussion

          A. Breach of Plea Agreement

      Moore asserts the prosecutor breached the plea agreement by failing to

commend it to the sentencing court, and his trial counsel offered ineffective

assistance by failing to object to the prosecutor’s breach. Counsel does not

render ineffective assistance by failing to make a meritless objection—for

example, if the prosecutor has not breached the plea agreement—so we begin

by examining whether the agreement was breached. See State v. Horness, 600

N.W.2d 294, 298 (Iowa 1999).

      A prosecutor must present the recommended sentences with approval,

commend     those    sentences   to   the       court,   and   otherwise   indicate   the

recommended sentences are supported by the State and worthy of the court’s

acceptance. See id. at 299. “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).     If the State expresses material reservations regarding the

agreement or recommendation, it can be fairly said the State deprived the

defendant of the benefit of the bargain. See id.

      Here, Moore takes issue with the prosecutor’s statement the State would

be “satisfied with concurrent sentences.” We do not think this language deprived

Moore of the benefit of the bargain.            The language expresses no explicit

reservations—to “satisfy” may mean to meet someone’s expectations, fulfill one’s
                                         5


desires or needs, or adequately meet or comply with conditions or demands.

See             Satisfy,           Oxford              Living           Dictionaries,

https://en.oxforddictionaries.com/definition/satisfy (last visited Nov. 7, 2016). We

do not require “enthusiastic” commendation of the agreement.           See State v.

Risius, No. 15-1365, 2016 WL 4543787, at *3 (Iowa Ct. App. Aug. 31, 2016).

Recommendation of the agreement is often enough. See, e.g., State v. Brocato,

No. 14-0655, 2014 WL 7343462, at *1 (Iowa Ct. App. Dec. 24, 2014) (finding no

breach where prosecutor “recommend[ed]” verbatim terms of plea agreement

and said nothing more); Robinson v. State, No. 09-1712, 2010 WL 2925909, at

*3 (Iowa Ct. App. July 28, 2010) (finding no breach where court asked prosecutor

if State had recommendations beyond those contained in plea agreement and

prosecutor responded in the negative). In other cases, prosecutors have called

PSI recommendations “reasonable” or stated they would “stand by” the plea

agreement; those were not found to be breaches. See State v. Hermen, No. 13-

1060, 2014 WL 1495136, at *1 (Iowa Ct. App. Apr. 16, 2014) (“[T]his

recommendation seems reasonable and we ask the Court to adopt it.”); State v.

Van Gundy, No. 00-0199, 2000 WL 1825451, at *2 (Iowa Ct. App. Dec. 13, 2000)

(“I stand by our agreement that the State’s recommendation is that the sentences

should run concurrent.”). In short, the “satisfied” language satisfies us.

       Nor were there any of the typical implicit methods of expressing

reservations,   such   as   proposing    alternative   sentences,   requesting   “an

appropriate sentence” rather than the agreed-upon sentence, making a

recommendation and then reminding the court it is not bound by the plea

agreement, or emphasizing a more severe punishment recommended by the PSI
                                         6

author. See Frencher, 873 N.W.2d at 285 (collecting cases). We find no breach

of the plea agreement by the prosecutor. Therefore, Moore’s counsel’s failure to

object does not constitute a breach of an essential duty.

       Because we find no breach of an essential duty, we do not address the

prejudice prong. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If

we conclude a claimant has failed to establish either of these elements, we need

not address the remaining element.”).

          B. PSI Errors

       Moore asserts the two errors in his PSI influenced the sentencing decision

and that his trial counsel’s failure to object to the errors constitutes ineffective

assistance. A criminal record is a required part of any PSI. See Iowa Code

§ 901.2. The court here stated it considered Moore’s “prior criminal record” in

sentencing him.    The report contains several prior convictions.      There is no

evidence the court relied on the two charges Moore contests.          See State v.

Dewitt, No. 06-1789, 2008 WL 2746585, at *1 (Iowa Ct. App. July 16, 2008). Nor

did the court rely only on the criminal history, as it cited several other factors

contributing to its sentencing decision, including Moore’s statements at the

sentencing hearing, his age, and his history of substance abuse. See State v.

Williams, No. 08-2032, 2009 WL 2951549, at *1 (Iowa Ct. App. Sept. 2, 2009).

Moreover, the two allegedly offending charges are removed in time—ten years

distant at the time of sentencing—and neither’s statement of disposition (the

inconclusive “transfer of venue” and the juvenile-specific “adjudicated”) provides

a sentencing court with cause for imposing a harsher sentence. There has been

no showing these two charges affected the sentencing decision. Moreover, the
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court stated it was considering Moore’s “prior record of convictions,” and the theft

charge only referenced “transfer of venue” and the assault charge referenced

“adjudicated.” Neither disposition constitutes a conviction. As a result, we

conclude Moore cannot show he has been prejudiced by the inclusion of these

charges.    See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008) (“[T]he

defendant must simply show that the outcome of the sentencing proceeding

would have been different.”); State v. Jespersen, No. 01-2026, 2002 WL

31018421, at *2 (Iowa Ct. App. Sept. 11, 2002). This claim fails.

           C. Incorrect Standard

       Moore claims the district court applied the incorrect standard in ruling on

the prejudice prong of his PCR application. Because our review of his claims is

de novo and we independently find Moore’s claims fail, we need not address how

the district court arrived at its conclusions.

           D. PCR Counsel

       If we find any of Moore’s other claims are not properly preserved, he asks

us to find his PCR counsel ineffective for failing to preserve the claims. Because

we find his claims were preserved, we need not address this claim. See State v.

Phillips, 610 N.W.2d 840, 844 (Iowa 2000) (“Because we have rejected all of

Phillips’ arguments on their merits, we need not address the claim of ineffective

assistance of counsel she has raised to excuse her trial counsel’s failure to

preserve error in the district court.”).

       AFFIRMED.
