IN THE COURT OF APPEALS OF IOWA
No. 13-1574 Filed July 16, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD RYAN TANNAHILL, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
Chad Ryan Tannahill appeals his judgment and sentence for several
crimes entered in two separate cases. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Carlyle Dalen, County Attorney, and Nichole Benes and Steve Tynan,
Assistant County Attorneys, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
VAITHESWARAN, P.J.
Chad Ryan Tannahill appeals his judgment and sentence for several
crimes entered in two separate cases. Tannahill contends (A) his attorney was
ineffective in failing to object to the State’s sentencing recommendation in one of
the cases, (B) the district court abused its discretion in sentencing him, and
(C) the district court improperly failed to consider his ability to reimburse the
State for legal assistance.
I. Background Proceedings
In one of two cases,1 the State charged Tannahill with second-degree
criminal mischief in connection with damage to a vehicle. In the same case, the
State also charged Tannahill with second-degree kidnapping and domestic
abuse assault impeding normal breathing, following an altercation with his
girlfriend. Tannahill entered a written guilty plea to second-degree criminal
mischief, a class “D” felony, and domestic abuse assault impeding normal
breathing, an aggravated misdemeanor.2 Under the terms of the plea
agreement, the prosecutor was to “recommend a sentence of up to 5 years in
prison, fully suspended, to run concurrently with the sentence of two years for the
aggravated misdemeanor, fully suspended, and a suspended minimum fine.”
At the guilty plea proceeding, the prosecutor characterized the agreement
on the aggravated misdemeanor charge as follows:
Count Ill, domestic assault impeding normal breathing, one year in jail with all but 30 days suspended, credit for time already served, placed on probation for two years with placement at Beje Clark. As a condition of probation, complete a substance abuse evaluation,
1 The merits of the second case are not at issue in this appeal. 2 The charge of second-degree kidnapping was dismissed. 3
complete Batterer’s Education Program, a suspended fine, pay restitution, if any, to the victim, and the recommendations for that sentence to run concurrent with Count II in that case.
(Emphasis added.) The prosecutor’s characterization was inconsistent with the
written plea agreement, which stated the recommended sentence on the
aggravated misdemeanor count was “two years . . . fully suspended.”
At the sentencing hearing, a different prosecutor again characterized the
sentence on the aggravated misdemeanor count as “one year, slash, 30.” The
prosecutor sought confirmation from Tannahill’s attorney about what this
language meant. Meanwhile, the district court noted that the written plea referred
to “two years, all suspended, to run concurrently.” Tannahill’s attorney agreed
with the court’s statement. At this point, the prosecutor stated:
As that is the plea agreement outlined in paragraph 12 [of the written plea agreement] and because the [placement at a residential center] would basically make the 30 days moot anyway, the State follows our understanding of the plea agreement of two years, fully suspended, with two years probation and the condition of [residential placement], substance abuse evaluation and follow- through, the batterers education program, again, with the suspended mandatory minimum fine, which I believe is $625 for that charge.
After listening to the prosecutor’s statement, the district court imposed
sentence. The court declined to suspend either of the sentences and ordered
Tannahill to serve prison terms not exceeding five years on the criminal-mischief
count and two years on the aggravated-misdemeanor count, with the sentences
to be served concurrently. The court also ordered the sentences served
consecutively to prison terms imposed in the second case. This appeal followed. 4
II. Analysis
A. Whether counsel was ineffective in failing to object to the State’s
sentencing recommendations.
Tannahill first argues his attorney was ineffective in failing to object to the
prosecutor’s affirmation of the sentence recommended in the written plea
(suspended indeterminate two year prison term), as opposed to the sentence
recommended by the prosecutor at the plea proceeding (one year jail term with
all but thirty days suspended). Implicit in his argument is a belief that the
sentencing recommendation at the plea proceeding was more favorable than the
sentencing recommendation in the written plea. The State counters that the
record is inadequate to determine the nature of the plea agreement. The State
asks us to preserve this ineffective-assistance-of-counsel claim for postconviction
relief.
The State is correct that ineffective-assistance claims are generally
preserved for postconviction relief unless the record is adequate to address the
claims on direct appeal. State v. Horness, 600 N.W.2d 294, 297-98 (Iowa 1999).
In the breach-of-plea-agreement context, the record has been deemed adequate
where it clearly reveals the agreement reached by a defendant. Id.; see also
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
Tannahill’s plea agreement is not clear. First, the written plea agreement
sets forth a different sentencing recommendation than the prosecutor articulated
at the plea proceeding. Second, Tannahill’s attorney did not object to the
prosecutor’s oral rendition, even though it called for some jail time. Third, during 5
the sentencing proceeding, Tannahill’s attorney affirmed the sentencing
recommendation contained in the written plea agreement.
If the prosecutor’s oral rendition was more favorable to Tannahill than the
written plea notwithstanding the thirty days of recommended jail time, Tannahill’s
trial attorney may have strategically decided not to object. But if that were the
case, it is unclear why the attorney changed course at sentencing and opted to
affirm the sentencing recommendation in the written plea rather than the
prosecutor’s oral rendition at the plea proceeding.
Counsel should have an opportunity to explain what he believed to be the
plea agreement on the aggravated misdemeanor count, whether that agreement
was modified during the plea proceeding, and whether the prosecutor breached
the modified agreement by reverting to the recommendation in the written plea.
See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998) (preserving
ineffective-assistance-of-counsel claim for postconviction relief to allow counsel
an opportunity to testify). We preserve this ineffective-assistance-of-counsel
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IN THE COURT OF APPEALS OF IOWA
No. 13-1574 Filed July 16, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD RYAN TANNAHILL, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
Chad Ryan Tannahill appeals his judgment and sentence for several
crimes entered in two separate cases. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Carlyle Dalen, County Attorney, and Nichole Benes and Steve Tynan,
Assistant County Attorneys, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
VAITHESWARAN, P.J.
Chad Ryan Tannahill appeals his judgment and sentence for several
crimes entered in two separate cases. Tannahill contends (A) his attorney was
ineffective in failing to object to the State’s sentencing recommendation in one of
the cases, (B) the district court abused its discretion in sentencing him, and
(C) the district court improperly failed to consider his ability to reimburse the
State for legal assistance.
I. Background Proceedings
In one of two cases,1 the State charged Tannahill with second-degree
criminal mischief in connection with damage to a vehicle. In the same case, the
State also charged Tannahill with second-degree kidnapping and domestic
abuse assault impeding normal breathing, following an altercation with his
girlfriend. Tannahill entered a written guilty plea to second-degree criminal
mischief, a class “D” felony, and domestic abuse assault impeding normal
breathing, an aggravated misdemeanor.2 Under the terms of the plea
agreement, the prosecutor was to “recommend a sentence of up to 5 years in
prison, fully suspended, to run concurrently with the sentence of two years for the
aggravated misdemeanor, fully suspended, and a suspended minimum fine.”
At the guilty plea proceeding, the prosecutor characterized the agreement
on the aggravated misdemeanor charge as follows:
Count Ill, domestic assault impeding normal breathing, one year in jail with all but 30 days suspended, credit for time already served, placed on probation for two years with placement at Beje Clark. As a condition of probation, complete a substance abuse evaluation,
1 The merits of the second case are not at issue in this appeal. 2 The charge of second-degree kidnapping was dismissed. 3
complete Batterer’s Education Program, a suspended fine, pay restitution, if any, to the victim, and the recommendations for that sentence to run concurrent with Count II in that case.
(Emphasis added.) The prosecutor’s characterization was inconsistent with the
written plea agreement, which stated the recommended sentence on the
aggravated misdemeanor count was “two years . . . fully suspended.”
At the sentencing hearing, a different prosecutor again characterized the
sentence on the aggravated misdemeanor count as “one year, slash, 30.” The
prosecutor sought confirmation from Tannahill’s attorney about what this
language meant. Meanwhile, the district court noted that the written plea referred
to “two years, all suspended, to run concurrently.” Tannahill’s attorney agreed
with the court’s statement. At this point, the prosecutor stated:
As that is the plea agreement outlined in paragraph 12 [of the written plea agreement] and because the [placement at a residential center] would basically make the 30 days moot anyway, the State follows our understanding of the plea agreement of two years, fully suspended, with two years probation and the condition of [residential placement], substance abuse evaluation and follow- through, the batterers education program, again, with the suspended mandatory minimum fine, which I believe is $625 for that charge.
After listening to the prosecutor’s statement, the district court imposed
sentence. The court declined to suspend either of the sentences and ordered
Tannahill to serve prison terms not exceeding five years on the criminal-mischief
count and two years on the aggravated-misdemeanor count, with the sentences
to be served concurrently. The court also ordered the sentences served
consecutively to prison terms imposed in the second case. This appeal followed. 4
II. Analysis
A. Whether counsel was ineffective in failing to object to the State’s
sentencing recommendations.
Tannahill first argues his attorney was ineffective in failing to object to the
prosecutor’s affirmation of the sentence recommended in the written plea
(suspended indeterminate two year prison term), as opposed to the sentence
recommended by the prosecutor at the plea proceeding (one year jail term with
all but thirty days suspended). Implicit in his argument is a belief that the
sentencing recommendation at the plea proceeding was more favorable than the
sentencing recommendation in the written plea. The State counters that the
record is inadequate to determine the nature of the plea agreement. The State
asks us to preserve this ineffective-assistance-of-counsel claim for postconviction
relief.
The State is correct that ineffective-assistance claims are generally
preserved for postconviction relief unless the record is adequate to address the
claims on direct appeal. State v. Horness, 600 N.W.2d 294, 297-98 (Iowa 1999).
In the breach-of-plea-agreement context, the record has been deemed adequate
where it clearly reveals the agreement reached by a defendant. Id.; see also
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
Tannahill’s plea agreement is not clear. First, the written plea agreement
sets forth a different sentencing recommendation than the prosecutor articulated
at the plea proceeding. Second, Tannahill’s attorney did not object to the
prosecutor’s oral rendition, even though it called for some jail time. Third, during 5
the sentencing proceeding, Tannahill’s attorney affirmed the sentencing
recommendation contained in the written plea agreement.
If the prosecutor’s oral rendition was more favorable to Tannahill than the
written plea notwithstanding the thirty days of recommended jail time, Tannahill’s
trial attorney may have strategically decided not to object. But if that were the
case, it is unclear why the attorney changed course at sentencing and opted to
affirm the sentencing recommendation in the written plea rather than the
prosecutor’s oral rendition at the plea proceeding.
Counsel should have an opportunity to explain what he believed to be the
plea agreement on the aggravated misdemeanor count, whether that agreement
was modified during the plea proceeding, and whether the prosecutor breached
the modified agreement by reverting to the recommendation in the written plea.
See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998) (preserving
ineffective-assistance-of-counsel claim for postconviction relief to allow counsel
an opportunity to testify). We preserve this ineffective-assistance-of-counsel
claim for postconviction-relief proceedings to afford the attorney that opportunity.
Tannahill also claims the State breached the plea agreement in
addressing his request for a deferred judgment. He asserts counsel was
ineffective in failing to object to the breach. We preserve this related claim for
postconviction relief.
B. Whether the district court abused its discretion in sentencing.
Tannahill claims the district court applied a fixed policy in declining to
grant him a deferred judgment. A fixed policy is one that creates a rule based
upon one factor to the exclusion of other relevant factors. State v. Hildebrand, 6
280 N.W.2d 393, 397 (Iowa 1979); State v. Kelley, 357 N.W.2d 638, 639 (Iowa
Ct. App. 1984). Application of a fixed policy is impermissible. Hildebrand, 280
N.W.2d at 396.
We are not convinced the court applied a fixed policy in sentencing
Tannahill. The court found a deferred judgment “appropriate” for people “who
have very few, if any, prior criminal history in their record.” The court went on to
cite Tannahill’s criminal history, the nature of his offenses, and other pertinent
factors. The court properly exercised its discretion in sentencing Tannahill, and
we discern no abuse of discretion. State v. McKeever, 276 N.W.2d 385, 387
(Iowa 1979).
Tannahill further contends the court failed to state reasons for imposing
consecutive sentences. We conclude the court’s reasons are apparent from its
overall sentencing plan. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa
2010).
C. Whether the district court abused its discretion in ordering payment of
attorney fees.
At sentencing, Tannahill’s attorney advised the court of the attorney fees
he had incurred. The district court ordered Tannahill to pay approximately ten
percent of the fees, citing his limited ability to earn wages in prison. On appeal,
Tannahill contends the court improperly failed to consider his ability to pay the
“[A] defendant who seeks to upset an order for restitution of court costs
and attorney fees has the burden to demonstrate a failure of the trial court to
exercise discretion or abuse of discretion.” State v. Storrs, 351 N.W.2d 520, 522 7
(Iowa 1984). Tannahill cannot show a failure to exercise discretion because the
district court explicitly considered his restricted earning capacity and reduced his
payment obligation by ninety percent. Accordingly, we affirm the attorney-fee
restitution order.
III. Disposition
We affirm Tannahill’s judgment and sentences.
AFFIRMED.