State v. Bearse

• Decision Date: 18 April 2008
• Docket Number: No. 06-0916.,06-0916.
• Citation: 748 N.W.2d 211
• Parties: STATE of Iowa, Appellee, v. Greagory Allen BEARSE, Appellant.
• Court: Iowa Supreme Court

748 N.W.2d 211

STATE of Iowa, Appellee, v. Greagory Allen BEARSE, Appellant.

No. 06-0916.

Supreme Court of Iowa.

April 18, 2008.

Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William E. Davis, County Attorney, and Joseph A. Grubisich and Robert Weinberg, Assistant County Attorneys, for appellee.

CADY, Justice.

In this appeal from a guilty plea and sentencing for third-degree sexual abuse, we must decide whether trial counsel was ineffective in failing to object to an alleged breach of a plea agreement by the prosecutor. We conclude the prosecutor breached the plea agreement and counsel was ineffective in failing to object. We preserve the claim that defense counsel was ineffective for failing to file a motion in arrest of judgment to challenge the alleged involuntariness of the plea. We affirm the conviction, but vacate the sentence and remand for resentencing.

I. Background Facts and Proceedings.

Greagory Bearse was charged by trial information with the crime of sexual abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4) (2005). The State claimed Bearse engaged in a long-term sexual relationship with a fourteen-year-old girl. Bearse was thirty-seven years old at the time. The relationship was revealed after the girl became pregnant. Bearse's attorney eventually negotiated a plea agreement with the State prior to trial. The agreement required Bearse to enter a plea of guilty to the charge and required the State to recommend against incarceration at the time of sentencing, "recognizing that the court may grant a deferred judgment or place the defendant on probation." The plea agreement was formalized in writing.

Bearse subsequently entered a plea of guilty to sexual abuse in the third degree at a hearing before the district court. The district court was informed of the plea agreement at the hearing, and the plea colloquy revealed the sentencing court was not bound to follow the State's sentencing recommendation. Following the hearing, the department of correctional services conducted a presentence investigation. The presentence investigation report ultimately recommended Bearse be incarcerated.

Bearse appeared for sentencing in district court with his attorney. The prosecuting attorney who appeared for the State was not the same prosecutor who had negotiated the plea agreement and had appeared for the State at the guilty-plea hearing.

During the course of the sentencing hearing, the court asked the State to make a sentencing recommendation. In response, the prosecutor stated "[t]he State concurs in the recommendation of the presentence investigation report, your honor, for incarceration." The court immediately informed the prosecutor that the recommendation by the State was inconsistent with the plea agreement. The prosecutor acknowledged the existence of some confusion based on the contents of his file. Yet, after the correct terms of the plea agreement were identified, the prosecutor merely said: "Your Honor, the court is not bound by the plea agreement. The State is, so we'll ... abide by the plea agreement. The court has the presentence investigation report." Counsel for Bearse did not object to the comments by the prosecutor.

At the conclusion of the sentencing hearing, the court sentenced Bearse to an indeterminate term of incarceration not to exceed ten years. The court detailed its reasons for imposing incarceration, which included the age difference between Bearse and the victim and an absence of remorse on the part of Bearse. The court did not mention the prosecutor's recommendation as a sentencing factor. Additionally, Bearse was not sentenced to the special life sentence provided for in Iowa Code section 903B.1, and no mention of the special life sentence appears in the record.¹

Bearse appeals and asserts two claims of error. First, he makes a two-part argument that the prosecutor breached the plea agreement by failing to recommend against incarceration, and his trial counsel was ineffective by failing to object to the breach. Second, Bearse argues his trial counsel was ineffective for failing to file a motion in arrest of judgment after the court failed to inform him at the guilty-plea hearing of the special life sentence applicable to his case. Even though the district court failed to impose the special sentence, Bearse points out the provisions would be applicable to him in the event resentencing is required.

We transferred the case to the court of appeals. The court of appeals affirmed the judgment and sentence of the district court. It determined defense counsel was not ineffective because the prosecutor did not breach the plea agreement. The court of appeals found the record inadequate for consideration of Bearse's second ineffective assistance-of-counsel claim and preserved the issue for postconviction proceedings. We granted further review.

II. Standard of Review.

We review ineffective assistance of counsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).

III. Discussion.

A. Breach of Plea Agreement.

1. Error preservation. Bearse concedes his trial attorney did not object during the sentencing hearing when the prosecutor allegedly breached the plea agreement. Consequently, he claims the failure to object amounts to ineffective assistance of counsel. We consider this claim on appeal. See State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).

2. Adequacy of record for review. Bearse argues his counsel was ineffective for failing to object to the prosecutor's breach of the plea agreement. "If an ineffective assistance of counsel claim is raised on direct appeal from the criminal proceedings, the court may decide the record is adequate to decide the claim or may choose to preserve the claim for determination under chapter 822 [postconviction proceedings]." Iowa Code § 814.7(3). "Although claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings, we will consider such claims on direct appeal where the record is adequate." Horness, 600 N.W.2d at 297. The record in this case clearly reflects the written plea agreement and the circumstances giving rise to Bearse's claim that the prosecutor breached the agreement, as well as defense counsel's response. As such, we find the record adequate to review Bearse's first ineffective assistance of counsel claim on direct appeal.

3. Failure to perform essential duty. A successful ineffective assistance of counsel claim requires proof by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. at 298. In analyzing the first prong of the test, we presume counsel acted competently. Id. Counsel cannot fail to perform an essential duty by merely failing to make a meritless objection. Id. at 297. Consequently, to 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. Id. If the State did not breach the plea agreement, defense counsel could not have been ineffective.

We begin our consideration of this question by recognizing the important role plea agreements play in our scheme of justice and the concomitant need for strict compliance with those agreements.

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971).

While proper use of plea agreements is essential to the efficient administration of justice, improper use of the agreements threatens the liberty of the criminally accused as well as "the honor of the government" and "public confidence in the fair administration of justice." State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). Violations of plea agreements "adversely impact the integrity of the prosecutorial office and the entire judicial system." State v. King, 576 N.W.2d 369, 370 (Iowa 1998). Further, "`[b]ecause a plea agreement requires a defendant to waive fundamental rights, we are compelled to hold prosecutors and courts to the most meticulous standards of both promise and performance.'" Horness, 600 N.W.2d at 298 (quoting State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185, 192 (1995)). For all those reasons, "`violations of either the terms or the spirit of the agreement' require reversal of the conviction or vacation of the sentence." Id. (quoting Stubbs v. State, 114 Nev. 1412, 972 P.2d 843, 844 (1998)).

In this case, the prosecutor initially breached the plea agreement as the result of confusion or perhaps inattention. A prosecutor must take care to properly carry out all obligations and promises of the state in good faith. This duty requires each prosecutor who enters a courtroom on behalf of the state in every case to understand the state's obligations under a plea bargain and to strictly comply with those obligations. "The staff lawyers in a prosecutor's office have the burden of `letting the left hand know what the right hand is doing' or has done." Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. The prosecutor is not merely the representative of an ordinary party in a private controversy, "but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir.1978) (describing the role of the United States...