IN THE COURT OF APPEALS OF IOWA
No. 15-1175 Filed March 23, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
DERIK ASHLEY OTERO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
The defendant challenges his sentences. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
Pursuant to a plea agreement, Derik Otero pleaded guilty to and was
convicted of burglary in the third degree, theft in the first degree, criminal
mischief in the fifth degree, and possession of a controlled substance, third or
subsequent offense. In exchange for his guilty pleas, the State agreed to dismiss
numerous other charges filed against Otero. The plea agreement also provided
that the State would recommend the sentences be served concurrent with each
other but that the parties were otherwise free to argue. At sentencing, the State
argued for incarceration and recommended the sentences “run concurrently with
one another.” The court sentenced Otero to an indeterminate term of
incarceration not to exceed ten years for the theft conviction with all other
sentences to be served concurrent with the same. Otero challenges his
sentences on appeal.
Otero first argues the district court considered impermissible factors in
imposing sentence. Specifically, Otero argues the district court considered
dismissed charges in imposing sentence. A sentencing decision will not be
reversed absent a showing of an abuse of discretion or some defect in the
sentencing proceeding. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). An
abuse of discretion will be found only when a sentencing court acts on grounds
clearly untenable or to an extent clearly unreasonable. Id. In exercising its
discretion, the district court should weigh all pertinent matters in determining a
proper sentence, including the nature of the offense, the attendant
circumstances, the defendant’s age, character, and propensities or chances of
reform. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). A court may not 3
consider an unproven or unprosecuted offense when sentencing a defendant
unless the facts before the court show the accused committed the offense, or the
defendant admits it. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). When
a challenge is made to a criminal sentence on the basis the court improperly
considered unproven criminal activity, the issue presented is simply one of the
sufficiency of the record to establish the matters relied upon. State v. Longo, 608
N.W.2d 471, 474 (Iowa 2000).
Otero contends the district court explicitly stated that it looked at the
defendant’s “charges” when imposing sentence.
Mr. Otero, I looked at your presentence investigation, as well as the charges in this matter. The earliest charge is November of 2013. It appears that you’ve scrambled in the last couple of months to try to indicate that you’re turning your life around, but you haven’t done anything prior to that, which would indicate to the Court that you hadn’t done anything seriously to rehabilitate your issues. I’m glad you’re going to AA. It appears you do have a substance abuse problem. But as they say in that program, actions speak a lot louder than words, and your actions -- especially your criminal history, as well as the facts and circumstances surrounding these events – I’m only considering the convictions in your criminal history, not the arrests or dismissals -- indicate otherwise.
....
You have a real issue with committing criminal acts, whether you’re under the influence of alcohol or drugs or both, and that is a harm to the community. Had you started doing this from day one in November of 2013 when you first had that felony charge, I guess I would have been more impressed, but you only tried to turn things around the last couple of months knowing you were going to be sentenced in May, which was then continued. Based on your criminal history and, again, the facts and circumstances surrounding each event, the Court feels a period of incarceration is warranted.
We conclude the district court did not consider impermissible factors. A
district court’s sentencing decision enjoys a strong presumption in its favor. 4
State v. Peters, 525 N.W.2d 854, 859 (Iowa 1994). To overcome the
presumption, a defendant must affirmatively show the district court relied on
improper evidence, such as unproven offenses. State v. Sailer, 587 N.W.2d 756,
762 (Iowa 1998). “We will not draw an inference of improper sentencing
considerations which are not apparent from the record.” Formaro, 638 N.W.2d at
725. Otero wrenches the remark from context. The sentencing court referenced
the defendant’s charges only to note Otero was charged more than one and one-
half years prior to the sentencing hearing but had only recently started making
any effort at rehabilitation. The district court explicitly stated it considered only
Otero’s convictions. The record reflects the district court did not consider an
improper factor in imposing sentence. The claim fails.
Otero next claims his plea counsel was ineffective in failing to object to the
prosecutor’s alleged breach of the parties’ plea agreement. “We review de novo
claims of ineffective assistance of counsel arising from the failure to object to the
alleged breach of a plea agreement.” State v. Lopez, 872 N.W.2d 159, 168
(Iowa 2015). To prevail on his claim, Otero must demonstrate: (1) counsel failed
to perform an essential duty, and (2) the breach of duty resulted in prejudice.
See id. at 169. “Counsel does not fail to perform an essential duty by failing to
raise a meritless objection. However, defense counsel has a duty to object to a
breach of a plea agreement.” Id. “[P]rejudice is presumed when defense
counsel fails to object to the state’s breach of a plea agreement at the sentencing
hearing.” Id. at 170. “Although claims of ineffective assistance of counsel are
generally preserved for postconviction relief hearings, we will consider such
claims on direct appeal where the record is adequate.” State v. Horness, 600 5
N.W.2d 294, 297 (Iowa 1999). We conclude the record is adequate to resolve
this claim on direct appeal.
Otero contends the prosecutor failed to truly recommend the agreed-upon
sentence because the prosecutor reminded the district court of the numerous
dismissed charges at the time of sentencing. The State’s promise to recommend
specific sentences to the court “requires the prosecutor to present the
recommended sentences with his or her approval, to commend these sentences
to the court, and to otherwise indicate to the court that the recommended
sentences are supported by the State and worthy of the court’s acceptance.” Id.
at 299.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1175 Filed March 23, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
DERIK ASHLEY OTERO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
The defendant challenges his sentences. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
Pursuant to a plea agreement, Derik Otero pleaded guilty to and was
convicted of burglary in the third degree, theft in the first degree, criminal
mischief in the fifth degree, and possession of a controlled substance, third or
subsequent offense. In exchange for his guilty pleas, the State agreed to dismiss
numerous other charges filed against Otero. The plea agreement also provided
that the State would recommend the sentences be served concurrent with each
other but that the parties were otherwise free to argue. At sentencing, the State
argued for incarceration and recommended the sentences “run concurrently with
one another.” The court sentenced Otero to an indeterminate term of
incarceration not to exceed ten years for the theft conviction with all other
sentences to be served concurrent with the same. Otero challenges his
sentences on appeal.
Otero first argues the district court considered impermissible factors in
imposing sentence. Specifically, Otero argues the district court considered
dismissed charges in imposing sentence. A sentencing decision will not be
reversed absent a showing of an abuse of discretion or some defect in the
sentencing proceeding. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). An
abuse of discretion will be found only when a sentencing court acts on grounds
clearly untenable or to an extent clearly unreasonable. Id. In exercising its
discretion, the district court should weigh all pertinent matters in determining a
proper sentence, including the nature of the offense, the attendant
circumstances, the defendant’s age, character, and propensities or chances of
reform. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). A court may not 3
consider an unproven or unprosecuted offense when sentencing a defendant
unless the facts before the court show the accused committed the offense, or the
defendant admits it. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). When
a challenge is made to a criminal sentence on the basis the court improperly
considered unproven criminal activity, the issue presented is simply one of the
sufficiency of the record to establish the matters relied upon. State v. Longo, 608
N.W.2d 471, 474 (Iowa 2000).
Otero contends the district court explicitly stated that it looked at the
defendant’s “charges” when imposing sentence.
Mr. Otero, I looked at your presentence investigation, as well as the charges in this matter. The earliest charge is November of 2013. It appears that you’ve scrambled in the last couple of months to try to indicate that you’re turning your life around, but you haven’t done anything prior to that, which would indicate to the Court that you hadn’t done anything seriously to rehabilitate your issues. I’m glad you’re going to AA. It appears you do have a substance abuse problem. But as they say in that program, actions speak a lot louder than words, and your actions -- especially your criminal history, as well as the facts and circumstances surrounding these events – I’m only considering the convictions in your criminal history, not the arrests or dismissals -- indicate otherwise.
....
You have a real issue with committing criminal acts, whether you’re under the influence of alcohol or drugs or both, and that is a harm to the community. Had you started doing this from day one in November of 2013 when you first had that felony charge, I guess I would have been more impressed, but you only tried to turn things around the last couple of months knowing you were going to be sentenced in May, which was then continued. Based on your criminal history and, again, the facts and circumstances surrounding each event, the Court feels a period of incarceration is warranted.
We conclude the district court did not consider impermissible factors. A
district court’s sentencing decision enjoys a strong presumption in its favor. 4
State v. Peters, 525 N.W.2d 854, 859 (Iowa 1994). To overcome the
presumption, a defendant must affirmatively show the district court relied on
improper evidence, such as unproven offenses. State v. Sailer, 587 N.W.2d 756,
762 (Iowa 1998). “We will not draw an inference of improper sentencing
considerations which are not apparent from the record.” Formaro, 638 N.W.2d at
725. Otero wrenches the remark from context. The sentencing court referenced
the defendant’s charges only to note Otero was charged more than one and one-
half years prior to the sentencing hearing but had only recently started making
any effort at rehabilitation. The district court explicitly stated it considered only
Otero’s convictions. The record reflects the district court did not consider an
improper factor in imposing sentence. The claim fails.
Otero next claims his plea counsel was ineffective in failing to object to the
prosecutor’s alleged breach of the parties’ plea agreement. “We review de novo
claims of ineffective assistance of counsel arising from the failure to object to the
alleged breach of a plea agreement.” State v. Lopez, 872 N.W.2d 159, 168
(Iowa 2015). To prevail on his claim, Otero must demonstrate: (1) counsel failed
to perform an essential duty, and (2) the breach of duty resulted in prejudice.
See id. at 169. “Counsel does not fail to perform an essential duty by failing to
raise a meritless objection. However, defense counsel has a duty to object to a
breach of a plea agreement.” Id. “[P]rejudice is presumed when defense
counsel fails to object to the state’s breach of a plea agreement at the sentencing
hearing.” Id. at 170. “Although claims of ineffective assistance of counsel are
generally preserved for postconviction relief hearings, we will consider such
claims on direct appeal where the record is adequate.” State v. Horness, 600 5
N.W.2d 294, 297 (Iowa 1999). We conclude the record is adequate to resolve
this claim on direct appeal.
Otero contends the prosecutor failed to truly recommend the agreed-upon
sentence because the prosecutor reminded the district court of the numerous
dismissed charges at the time of sentencing. The State’s promise to recommend
specific sentences to the court “requires the prosecutor to present the
recommended sentences with his or her approval, to commend these sentences
to the court, and to otherwise indicate to the court that the recommended
sentences are supported by the State and worthy of the court’s acceptance.” Id.
at 299. The State may not invite the sentencing court to consider improper
factors in its sentencing decision with “a wink and a nod.” See State v. Bearse,
748 N.W.2d 211, 218 (Iowa 2008). “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). “Where the State technically complied with the agreement by
explicitly recommending the agreed-upon sentence but expressed material
reservations regarding the plea agreement or sentencing recommendation, it can
be fairly said the State deprived the defendant of the benefit of the bargain and
breached the plea agreement.” Id.
The expression of a material reservation regarding the plea agreement or sentencing recommendation can be explicit or implicit. For example, the prosecutor may explicitly express regret for entering into the plea agreement. The prosecutor may also implicitly express material reservation to the plea agreement or 6
recommended sentence in a number of ways. For example: by proposing alternative sentences; by requesting “an appropriate sentence” rather than the agreed-upon sentence; by making a recommendation and then reminding the court it is not bound by the plea agreement; or by emphasizing a more severe punishment recommended by the presentence investigation author.
Id. at 285.
We conclude the defendant has failed to establish a breach of the plea
agreement requiring an objection by the defendant’s plea counsel. While the
prosecutor referenced the dismissed charges at the time of sentencing, it was
only to alert the court the parties had reached an agreement with respect to the
assessment of costs regarding certain dismissed counts. The State never tied
the argument to its sentencing recommendation or otherwise acted contrary to
the common purpose of the plea agreement and the justified expectations of the
defendant. Otero’s argument thus fails.
The defendant’s sentences are affirmed.
AFFIRMED.