State v. Fannon

• Decision Date: 20 May 2011
• Docket Number: No. 09–1492.,09–1492.
• Citation: 799 N.W.2d 515
• Parties: STATE of Iowa, Appellee,v.Richard Warren FANNON, Appellant.
• Court: Iowa Supreme Court

799 N.W.2d 515

STATE of Iowa, Appellee,

v.Richard Warren FANNON, Appellant.

No. 09–1492.

Supreme Court of Iowa.

May 20, 2011.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Harold L. Denton, County Attorney, and Gerald A. Vander Sanden and Jennifer P. Clinton, Assistant County Attorneys, for appellee.APPEL, Justice.

In this case, we consider whether a criminal defendant receives ineffective assistance of counsel when the defendant's attorney fails to object after the State allegedly breaches its plea agreement with the defendant during the sentencing hearing. For the reasons expressed below, we answer in the affirmative. As a result, we vacate the defendant's sentences and remand the case for resentencing before a different judge.

I. Factual and Procedural Background.

The State charged by trial information the defendant, Richard Fannon, with two counts of sexual abuse in the second degree against a minor child. Prior to trial, Fannon and the State reached a plea agreement. The agreement provided that, in exchange for Fannon's guilty pleas, the State would reduce both counts to sexual abuse in the third degree and make no sentencing recommendation during the sentencing hearing. The State subsequently amended the trial information in accordance with the agreement, and Fannon entered a plea of guilty on both counts.

A different prosecutor represented the State at the sentencing hearing. The following discussion took place during the hearing:

The Court: State have a recommendation, Mr. Vander Sanden? A. Yes, your Honor. Thank you.

With regard to Counts I and II, the State requests the Court sentence the Defendant to an indeterminate term not to exceed ten years on both counts and order that both those terms run consecutive to each other for a total of twenty years, along with the mandatory minimum fines that apply on both counts and the other terms and conditions of the sentence that would be typical for a Class C felony offense, court costs, attorney fees, and, of course, the requirement for lifetime parole and registry with the sex offender registry once he is released from his incarceration.

I believe that there are compelling reasons to run the two sentences consecutive to one another.

Mr. Sissel [defense counsel]: Your Honor, can we approach real quick?

The Court: You may.

(A discussion was held off the record at the bench between the Court and counsel.)

Mr. Vander Sanden: Your Honor, if I can start again, I understand that based upon the conversation we've had up at the bench, the plea agreement was that Mr. Fannon would plead guilty to both counts of Sexual Abuse in the Third Degree, and we would leave the matter of consecutive versus concurrent up to the Court and that the defense would be free to argue for concurrent sentences.

Defense counsel did not request to withdraw Fannon's guilty pleas, nor did counsel request specific performance of the agreement before a different sentencing judge. Also, the record shows defense counsel did not consult with Fannon before electing to proceed with the hearing.

The court, citing the presentence investigation report and Fannon's criminal history, subsequently ordered that each sentence be served consecutively. Fannon appealed.

On appeal, Fannon claimed that his state and federal constitutional rights to the effective assistance of counsel were violated. Specifically, Fannon argued that his trial counsel failed to perform an essential duty by failing to object after the State breached the plea agreement during sentencing. Relying on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), Fannon argued he was prejudiced by his counsel's failure because the breach “tainted” the sentencing hearing.

In response, the State argued there was no breach and that the prosecutor's recommendation for consecutive sentences was a “misstatement” and a “mistake.” The State argued that defense counsel provided effective assistance because counsel “was aware of the mistake, addressed it with counsel and the court, and chose to proceed with sentencing.” According to the State, the prosecutor's “quick and complete acknowledgement of the error” and the decision of Fannon's counsel to proceed with sentencing satisfied the requirements of the Sixth Amendment and article I, section 10 of the Iowa Constitution. In the alternative, the State asserted that the record was inadequate for the court to consider the ineffective-assistance-of-counsel claim on direct review.

The court of appeals affirmed. The court first noted that, although ineffective-assistance-of-counsel claims are typically reserved for collateral review, the record was adequate to decide the case on direct review. Addressing the merits, the court reasoned that Fannon failed to show that the State breached the plea agreement or that Fannon suffered prejudice. The court noted that defense counsel did not fail to perform an essential duty because counsel “immediately brought the misstatement of the prosecutor to the court's attention, therefore fulfilling his duty.” The court also explained that Fannon failed to establish prejudice because the sentencing court relied on the presentence investigation report, not the prosecutor's statements, in ordering consecutive sentences. Fannon applied for further review, which we granted.

II. Discussion.

The Sixth Amendment of the United States Constitution and article I, section 10 of the Iowa Constitution guarantee to each criminal defendant not only the right to the assistance of counsel, but the effective assistance of counsel.¹ Simmons v. State Pub. Defender, 791 N.W.2d 69, 75 (Iowa 2010). Ineffective-assistance-of-counsel claims are generally preserved for postconviction relief proceedings, but “ ‘we will consider such claims on direct appeal where the record is adequate.’ ” State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008) (quoting State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999)); see also Iowa Code § 814.7(3) (2007). To prevail on a claim of ineffective assistance of counsel, the defendant must show: “ ‘(1) counsel failed to perform an essential duty and (2) prejudice resulted.’ ” State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006) (quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

A. Adequacy of the Record. A defendant requesting the court to decide an ineffective-assistance-of-counsel claim on direct appeal must establish “an adequate record to allow the appellate court to address the issue.” State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). “[I]t is for the court to determine whether the record is adequate and, if so, to resolve the claim.” Id.; see also Iowa Code § 814.7. In this case, the record reflects the terms of the plea agreement, the State's conduct that is alleged to have breached the plea agreement, and defense counsel's response to the alleged breach. Further, the record shows defense counsel did not consult with Fannon before allowing the hearing to continue. Therefore, we are satisfied that the record is adequate to decide this case on direct review. See Bearse, 748 N.W.2d at 214 (concluding that the record was adequate to decide the matter on direct review because it reflected “the written plea agreement and the circumstances giving rise to [the defendant's] claim that the prosecutor breached the plea agreement, as well as defense counsel's response”); Horness, 600 N.W.2d at 297–98 (holding the record was adequate to consider ineffective-assistance claim on direct review because the record provided the terms of the plea agreement). We decide the issue de novo. Bearse, 748 N.W.2d at 214.

B. Failure to Perform an Essential Duty. A defense attorney fails to perform an essential duty when his or her performance falls below the “ ‘normal range of competence.’ ” State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998) (quoting State v. Spurgeon, 533 N.W.2d 218, 219 (Iowa 1995)). Counsel is presumed to have performed within the normal range of competence. Horness, 600 N.W.2d at 298. This presumption may be overcome by a showing that counsel failed to raise a valid objection. See Bearse, 748 N.W.2d at 215, 217. However, “[t]rial counsel is not ineffective in failing to urge an issue that has no merit.” McPhillips, 580 N.W.2d at 754. We, therefore, first consider whether the State breached the plea agreement during the sentencing hearing. See Bearse, 748 N.W.2d at 215–17. If so, we must then address whether defense counsel adequately responded to the State's breach. See id. at 217.

“[A] guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of ... fundamental rights....” Santobello, 404 U.S. at 264, 92 S.Ct. at 500, 30 L.Ed.2d at 434 (Douglas, J., concurring). Although the use of plea agreements is an “essential component of the administration of justice,” ² the validity of the plea-bargaining process “presuppose[s] fairness in securing agreement between an accused and a prosecutor.” Id. at 260–61, 92 S.Ct. at 498, 30 L.Ed.2d at 432; see also State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). “ ‘[V]iolations of either the terms or the spirit of the agreement’ require reversal of the conviction or vacation of the sentence,” Horness, 600 N.W.2d at 298 (quoting Stubbs v. State, 114 Nev. 1412, 972 P.2d 843, 845 (1998)), regardless of whether the violation is intentional or accidental, Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433; Bearse, 748 N.W.2d at 215.

The parties agree that the sentencing prosecutor initially violated the express terms of the plea agreement by recommending consecutive sentences. The fighting issue in this case is whether the prosecution's attempt to cure its improper remarks salvaged an otherwise broken promise....