State v. Horness

• Decision Date: 09 September 1999
• Docket Number: No. 98-981.,98-981.
• Citation: 600 N.W.2d 294
• Parties: STATE of Iowa, Appellee, v. Robert HORNESS, Appellant.
• Court: Iowa Supreme Court

600 N.W.2d 294

STATE of Iowa, Appellee, v. Robert HORNESS, Appellant.

No. 98-981.

Supreme Court of Iowa.

September 9, 1999.

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, and Rick Dunn, County Attorney, for appellee.

Considered by LARSON, P.J., and CARTER, TERNUS, CADY, and HARRIS,¹ JJ.

TERNUS, Justice.

This case requires the court to decide the extent of the obligation assumed by the State when the prosecutor promises to make a certain sentencing recommendation as part of a plea agreement with the defendant. We hold that mere technical compliance is inadequate; the State must comply with the spirit of the agreement as well. Consequently, we vacate the contrary decision of the court of appeals, vacate the defendant's sentences, and remand for resentencing.

I. Background Facts and Proceedings.

The defendant, Robert Horness, was charged with three offenses: (1) operating a motor vehicle while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(1)(a), (b) (1997); (2) operating a motor vehicle while under suspension, in violation of Iowa Code section 321.218(1); and (3) child endangerment, in violation of Iowa Code section 726.6(1)(a). Horness and the State reached a plea agreement. The defendant pled guilty to OWI, second offense, and to child endangerment in exchange for the following concessions by the State, as set forth in the written plea agreement:

The State will dismiss the Driving Under Suspension. The State will recommend 7 days in jail and a $1,500 fine on the OWI 2nd and 48 hours and a $500 fine on the Child Endangerment as well as surcharge, court costs and attorney fees.

This agreement was confirmed by the district court at the time the court accepted the defendant's guilty pleas.

Subsequently, the same district court judge presided at the defendant's sentencing hearing. The court asked the county attorney at that time what the State's recommendation was. The county attorney replied:

Your Honor, the State had indicated to the Defendant's prior counsel that we would recommend, with a plea of guilty to the Child Endangerment, seven days, $750 fine-excuse me—

On the OWI, 2nd charge, seven days in jail, $750; and a $500 fine, 48 hours in jail on the Child Endangerment charge.

However, we had an alternative recommendation, if you go along with the recommendation of the PSI. The Defendant's understanding is set forth in her [sic] guilty plea; State dismissing the Driving Under Suspension charge, which we do at this time. The State will recommend seven days in jail and $1,500 on the OWI, 2nd; 48 hours and $500 fine. We believe that is correct.

We would note for the Court that the recommendation of the PSI is different than that, based on the Defendant's long history with criminal offenses, but we do believe that we are abiding by our plea agreement.

There was not any injury here. I think the facts speak for itself [sic]. Driving drunk, you have kids in the car and they're not buckled up, that you are putting those children in danger, and fortunately there was not an accident. But the law is clear that if you drive drunk and you have kids in the car and you don't have them buckled up—apparently he was speeding in addition to drinking and driving—so he was a risk on the road and he was a risk to himself, to other drivers, and to these small, helpless children.

So we would ask the Court to issue the appropriate sentence.

(Emphasis added.)² After this statement by the county attorney, the defendant's counsel expressed confusion as to the State's precise recommendation. The court then asked the county attorney, "What is the State's recommendation?" The county attorney replied:

Your Honor, the State has set forth its recommendation....

The State set forth in a letter dated February 27th what the recommendation was. The recommendation of the State then noted what the Defendant's understanding was. The State will dismiss the Driving Under Suspension, which we did. The State will recommend seven days in jail and a $1,500 fine on the OWI, 2nd, and a $500 fine on the Child Endangerment, and that is what we have done. I think the State is well within its right for the—for the State to tell the Court to issue an appropriate sentence.

We have made our recommendation. The Court has the PSI. And the Defendant will make a recommendation and the Court will issue an appropriate sentence. We do believe that we have complied with our plea agreement.

The court sentenced the defendant to concurrent, indeterminate terms of two years for each conviction. In addition, the defendant was fined and ordered to participate in a treatment program when space became available.

Horness appealed, claiming his trial counsel was ineffective in failing to object to the prosecutor's breach of the plea agreement. The appeal was transferred to the court of appeals. The court of appeals held the prosecutor's comments "did not directly violate the plea agreement, although [they] could be construed as being somewhat contrary to the spirit of the plea agreement ... [and] are to be discouraged." Upon the defendant's application, this court granted further review.

II. General Principles Governing Ineffective-Assistance-of-Counsel Claims.

Because the defendant's trial counsel did not object to the prosecutor's comments at the sentencing hearing, error was not preserved. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). Consequently, to reach the merits of this issue on appeal, the defendant must establish that his trial counsel rendered ineffective assistance. See State v. Carrillo, 597 N.W.2d 497, 499 (Iowa 1999). We review this constitutional claim de novo. See Ceaser, 585 N.W.2d at 195.

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. See id. The State suggests that this is not such a case, arguing that "the record is not entirely clear about defense counsel's beliefs about the plea agreement, nor is it clear what agreement was reached with previous defense counsel." The record is clear, however, as to the plea agreement reached with the defendant; that agreement was reduced to writing and its terms are not disputed. Therefore, we think the record before us is sufficient to address the defendant's claim that his counsel rendered ineffective assistance in failing to object to the county attorney's alleged breach of the plea agreement. Accordingly, we will address the defendant's ineffective-assistance-of-counsel claim in this appeal.

To prevail on a claim of ineffective assistance of counsel, the defendant must prove that his counsel failed to perform an essential duty and that the defendant suffered prejudice as a result of this failure. See id. We address each aspect of the defendant's claim separately.

III. Did the Defendant's Trial Counsel Breach an Essential Duty?

In evaluating defense counsel's performance, we presume counsel is competent. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). To overcome this presumption, the defendant must prove that counsel's performance fell below the normal range of competency. See Ceaser, 585 N.W.2d at 195. Our task, then, is to determine whether Horness has demonstrated that a reasonably competent attorney would have objected to the prosecutor's statements as a breach of the negotiated plea agreement. We have stated on previous occasions that defense counsel has not failed to perform an essential duty when counsel fails to raise a claim or make an objection that has no merit. See id.; McPhillips, 580 N.W.2d at 754. Accordingly, the defendant's counsel here cannot be faulted for failing to object to the prosecutor's statements as being a breach of the plea agreement if, in fact, they were not contrary to the State's agreement. Therefore, we first consider whether the State breached the plea agreement.

A. Did the county attorney's comments constitute a breach of the State's plea agreement with the defendant? It is well established that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration [for the plea], such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971); accord State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). See generally ABA Standards for Criminal Justice 3-4.2(c) (2d ed.1980) (stating "[i]t is unprofessional conduct for a prosecutor to fail to comply with a plea agreement"). As our court has observed, "`[t]here is more at stake than just the liberty of [the] defendant. At stake is the honor of the government[,] public confidence in the fair administration of justice, and the efficient administration of justice....'" Kuchenreuther, 218 N.W.2d at 624 (quoting United States v. Carter, 454 F.2d 426, 428 (4th Cir.1972)); accord State v. King, 576 N.W.2d 369, 370 (Iowa 1998) (holding that violations of plea agreements "are intolerable and adversely impact the integrity of the prosecutorial office and the entire judicial system"). We also agree with the statement made by the West Virginia Supreme Court that "[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." State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185, 192 (1995). Therefore, "violations of either the terms or the spirit of the agreement" require reversal of the conviction or vacation of the sentence. Stubbs v. State, 114 Nev. 1412, 972 P.2d 843, 844 (1998).

We turn now to the facts before us. The State argues that the county attorney did not breach the plea agreement for...