IN THE COURT OF APPEALS OF IOWA
_______________
No. 25-1102
Filed September 2, 2026
_______________
State of Iowa, Plaintiff–Appellee,
v.
Michael Thomas O’Mara,
Defendant–Appellant.
_______________
Appeal from the Iowa District Court for Dubuque County, The Honorable Robert J. Richter, Judge.
_______________
AFFIRMED
_______________
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, attorneys for appellant.
Brenna Bird, Attorney General, and Adam Kenworthy, Assistant Attorney General, attorneys for appellee.
_______________
Considered without oral argument by Greer, P.J., and Buller and Langholz, JJ.
Opinion Per Curiam.
2
PER CURIAM.
Michael O’Mara pled guilty to operating while intoxicated (OWI)—
second offense, an aggravated misdemeanor in violation of Iowa Code section 321J.2 (2025). On appeal, he asserts the State breached the plea agreement, the sentencing court considered improper factors when rendering sentence, and the sentencing order varied from the oral pronouncement. After considering each of these issues, and assuming the agreement obligated the county attorney to make a recommendation, we discern no reversible error and affirm.
The facts of the offense are not particularly pertinent to the issues on appeal. O’Mara’s vehicle struck a parked car, and he fled the scene on foot. When police found him, he had a bloody nose and told police he didn’t know why. O’Mara refused chemical testing, and the county attorney charged him with second-offense OWI based on a 2023 OWI conviction in Wisconsin.
O’Mara agreed to plead guilty and be sentenced to one year in jail, all but twenty days suspended, with the sentence consecutive to other pending cases if his probation was revoked. He also agreed to pay restitution if a claim was filed. The State agreed to dismiss other pending charges.
The agreement was conditioned on the court’s acceptance of the sentencing agreement pursuant to Iowa Rule of Criminal Procedure 2.10. But, after the written plea was filed, the district court informed O’Mara it did not agree to be bound at sentencing. As required by the rules, the court gave O’Mara the opportunity to withdraw his plea. O’Mara declined and requested to proceed with sentencing.
At the sentencing hearing, the court asked the parties to specifically address O’Mara’s criminal history and why the court should follow the
3
parties’ recommendation. As part of this instruction, the court recited some facts and the procedural posture from O’Mara’s prior convictions. The assistant county attorney told the court “I can’t disagree with” the court’s recitation of O’Mara’s criminal history and instead emphasized that O’Mara’s acceptance of responsibility, agreement to pay restitution, and his commitment to and compliance with substance-abuse treatment supported the agreement for twenty days in jail. O’Mara’s attorney, who represented O’Mara on the charges the court cited, offered some additional (arguably mitigating) context regarding those convictions. She also emphasized O’Mara’s acceptance of responsibility and treatment progress—as well as his family circumstances, employment and likelihood of success on probation— as reasons for following the plea agreement. O’Mara personally addressed the court and emphasized many of the same mitigating factors.
The sentencing court ultimately did not follow the parties’
recommendations. It expressly cited O’Mara’s age, employment status, family situation, the impact of the offense on others, the nature of the charge, O’Mara’s criminal history and that he committed the offense while on probation, “positive” compliance reports and O’Mara’s progress in treatment, and the court’s need to balance deterrence and rehabilitation. As part of the written judgment, not mentioned in the oral pronouncement, the sentencing court incorporated a term requested by the parties that any jail sentence imposed if probation was revoked will be consecutive to the other cases. The court imposed a sentence of 360 days in jail with all but 90 days suspended.
O’Mara appeals, asserting three issues: breach of the plea agreement, consideration of improper factors, and a sentencing term that O’Mara variously describes as either illegal or inconsistent between oral and written
4
pronouncements. The parties both suggest we review an alleged breach of the plea agreement for correction of errors at law, and we elect to follow that suggestion.1 We review the sentence imposed for abuse of discretion, and we review the sentencing procedure for correction of legal error. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
We recognize there are some questions about what if anything the State was obligated to recommend at sentencing after the court rejected the agreement; in our analysis that follows, we assume without deciding the county attorney agreed to recommend the agreed-upon sentence.
I. Did the State breach any agreement?
Assuming there was an agreement for a recommendation, our review would focus on “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.” Davis, 971 N.W.2d at 556 (cleaned up).
O’Mara’s appellate argument is a little unclear on where he feels the State fell short in recommending the agreement, though he seems to take issue with the State not mentioning or recommending the work-release condition or the fine in its oral remarks at sentencing. But O’Mara cites no authority, and we are aware of none, that requires the State to elucidate every
1 The parties cite State v. Patten, 981 N.W.2d 126, 130 (Iowa 2022), where the supreme court recited a general sentencing standard of review without considering whether the breach-of-plea-agreement issue warranted something different. Historically, the standard was de novo—less deferential. State v. Davis, 971 N.W.2d 546, 553 (Iowa 2022) (recognizing that breach-of-agreement claims, then framed through ineffective assistance of counsel, were reviewed de novo). We are not at liberty to depart from the supreme court’s decisions, so we apply Patten as written.
5
term of a written plea agreement orally once it encourages acceptance of everything reduced to writing.
This is not a case where a prosecutor “paid cryptic lip service” to an agreement. Id. at 557. And any rule that requires a prosecutor to read aloud a written sentencing agreement verbatim is not practical considering the wide scope of penal considerations for sentencing in this state (in this case alone there is incarceration, work-release permissions, fines, surcharges, and more). The sentencing transcript makes clear the assistant county attorney was in fact advocating the court impose the sentence set forth in the agreement; even the court’s opening remarks invited the prosecutor to explain “why [the court] should follow the plea” agreement despite the court’s refusal to be bound, and the assistant county attorney explained why he thought the sentence in the plea agreement was appropriate. To the extent the issue is properly before us, our review confirms the State did not breach the plea agreement.
II. Did the sentencing court consider improper factors?
O’Mara contends the sentencing court considered improper factors when it recited his criminal history and prior offenses.2 As a preliminary matter, “a sentencing court has a right to know a defendant’s criminal record prior to sentencing.” State v. Schlachter, 884 N.W.2d 782, 786 (Iowa Ct. App. 2016); see Iowa Code §§ 907.5(1)(b) (requiring the sentencing court to consider criminal history), 901.2(1) (“[T]he court shall receive from the state . . . any information which may be offered which is relevant to the question of
We elect to bypass any error-preservation concerns. But see State v. Polkinghorn, 2
No. 23-1649, 2024 WL 3290374, at *1 (Iowa Ct. App. July 3, 2024) (“[W]e hold that a criminal defendant must advance an objection below to preserve error on a complaint about how his criminal history was presented to the sentencing court.”).
6
sentencing.”). Our cases generally recognize that, when a matter does not involve a pre-sentence investigation report, the court may be informed of criminal history orally or in writing. Polkinghorn, 2024 WL 3290374, at *2 (collecting cases). A prosecutor is permitted to recite criminal history, and when the defendant does not contest it, the court may consider it. See id. at *1–2. Here, the assistant county attorney said he couldn’t disagree with the court’s recitation and defense counsel didn’t contest the convictions3— defense counsel just offered additional context.
Under our case law, O’Mara bears the burden to disturb the presumption of regularity, overcome the “strong presumption” in the sentencing court’s favor, and “affirmatively demonstrat[e] the court relied on an improper factor.” Formaro, 638 N.W.2d at 724; State v. Damme, 944 N.W.2d 98, 106 (Iowa 2020). The burden is “heavy.” State v. Schooley, 13 N.W.3d 608, 619 (Iowa 2024). And we conclude O’Mara has not carried it here.
Independent of a traditional improper-factors analysis, we have also considered the parties’ briefing on waiver and acquiescence. Although we think the improper-factors analysis is dispositive given the heavy burden
3 To the extent O’Mara attempts in his reply brief to contest his criminal history for the first time on appeal by citing documents from his other criminal cases, we do not consider them and decline to take judicial notice. Electronic dockets are not an excuse to cite anything and everything filed in an Iowa courtroom. See Iowa R. App. P. 6.801 (defining the record on appeal); State v. Lloyd, No. 25-0280, 2026 WL 2110744, at *6 (Iowa Ct. App. July 22, 2026) (collecting cases); State v. Gale, 21 N.W.3d 151, 156 (Iowa 2025) (requiring both parties’ consent for judicial notice). And even if we were to consider these documents, they largely support—rather than undermine—the district court’s comments. If we did consider them, we would conclude any divergence in the sentencing court’s recitation of the facts was “imprecise shorthand” rather than reversible error. See State v. Reynolds, No. 24-1024, 2025 WL 1074903, at *2 (Iowa Ct. App. Apr. 9, 2025).
7
allocated to the defendant, the case law also tends to support that statements at sentencing, uncorrected by defense counsel when afforded the opportunity, “amount[] to an admission by acquiescence to the facts.” State v. Fetner, 959 N.W.2d 129, 135 (Iowa 2021). This independently supports affirming on this issue.
III. Did the sentencing court err by imposing a term of the written plea agreement in its sentencing order, when the oral pronouncement was less precise?
Last, O’Mara asserts the sentencing court erred by incorporating a sentencing provision the parties agreed the court could impose under the rule 2.10 plea—that O’Mara’s new sentence would run consecutively to the sentence on his earlier convictions, if probation was revoked and incarceration imposed on those earlier convictions.4 This provision appears in the written sentencing order, while the oral pronouncement was somewhat vaguer, noting its reasons applied to “any portion of [the sentence that] may be consecutive.” So the written ruling is not inconsistent with the oral ruling, but it is more specific.
We conclude there was no legal error for four interrelated reasons.
First, we do not see a “discrepancy” between the written and oral records that requires correction; the two can be harmonized. See State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995). Second, we do not find the sentencing term illegal, though we can agree it could have been phrased better. See State v. Kirklin, 357 N.W.2d 310, 312–13 (Iowa 1984) (interpreting inartful sentencing language and finding it permissible to order a sentence to be consecutive to
O’Mara’s opening brief calls this sentencing provision “an illegal condition.” 4
O’Mara’s reply brief shifts the argument a bit, arguing that the term called for by the plea agreement was lawful but the district court’s inartful phrasing was not.
8
other sentences already entered if probation is later revoked). Third, because the sentencing term is lawful and O’Mara attempted to bind the court to it, we are skeptical O’Mara can now cry foul on appeal. Cf. Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (discussing invited error and finding waiver). Last, we note this case is distinct from the supreme court’s recent decision in State v. Cole, 23 N.W.3d 231, 242 (Iowa 2025), which addressed future revocation and consecutive sentences in the same case—one court potentially binding a future court—as distinct from a term relating to convictions in another case (as here). See 23 N.W.3d at 242 n.11 (distinguishing this procedural posture). These considerations all point in the same direction, which is that there is no reversible error on this record.
AFFIRMED.
Buller, J., specially concurs.
9
BULLER, Judge (specially concurring).
I join the court’s opinion in full, given the briefing on appeal. But I am concerned that both parties’ briefs walk past the logical threshold question on the first issue: Was there a plea agreement after the court refused to be bound? I am skeptical. And a breach-of-the-plea-agreement claim fails out of the gate if there was no agreement to breach. See State v. Kopish, No. 25-1245, 2026 WL 1162578, at *1 (Iowa Ct. App. Apr. 29, 2026) (“You cannot breach a promise you never made.”).
In a unique combination of circumstances, the plea here was conditioned on court acceptance pursuant to Iowa Rule of Criminal Procedure 2.10, and all of the phrasing in the plea agreement is written from O’Mara’s first-person perspective. I doubt the State was obligated to recommend a particular sentence on this record, for a few reasons.
First, “[a] plea bargain . . . may be regarded as a contract,” Rhoades v.
State, 880 N.W.2d 431, 449 (Iowa 2016), and fundamentals of contract law dictate how courts view conditions precedent. “[T]he general rule in Iowa” is that “where a condition precedent cannot be met to satisfy the terms of the contract, the contract will be void.” Gildea v. Kapenis, 402 N.W.2d 457, 460 (Iowa Ct. App. 1987); cf. United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (“[N]either the defendant nor the government is bound by a plea agreement until it is approved by the court.”). The court’s approval of the agreed-upon sentence was a textbook condition precedent in the plea agreement here (as bolded in the original):
Plea agreement conditioned on court approval. This written guilty plea is entered pursuant to Iowa Rule of Criminal Procedure 2.10 based upon an agreement with the State concerning the charge(s) against me and my sentence. If, at the time of sentencing, the court does not accept the plea agreement, I may withdraw my plea of guilty.
10
Once the court rejects an agreement conditioned on court acceptance, there is no agreement. The failure of that condition precedent voided O’Mara and the State’s bargain, at least with respect to sentencing. See Gildea, 402 N.W.2d at 460.
Federal courts construing the broadly analogous Federal Rule of Criminal Procedure 11 draw a line between bargained-for sentences and bargained-for recommendations. The federal courts treat agreements for a particular sentence—unlike a promise to make a sentencing recommendation—as inoperative unless and until the court approves it. See United States v. Torres-Giles, 80 F.4th 934, 938–39 (9th Cir. 2023); see also Hughes v. United States, 584 U.S. 675, 686–87 (2018). This is why “neither the defendant nor the government is bound” by an agreement until the court approves it. Savage, 978 F.2d at 1138; accord United States v. Hyde, 520 U.S. 670, 676 (1997) (holding the federal rule “implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction”). I agree with the logic of those cases. It does not make sense to allow a criminal defendant to asymmetrically withdraw from a plea while still obligating the State to make a recommendation the court has already declined. Once the court rejects an agreement conditioned on court acceptance, there is no agreement.
As to the agreement itself, the first-person language of the agreement—“I will receive 365 days in jail with 345 days suspended,” “I will be on formal probation to the Department of Corrections for 2 years,” “I am authorized to participate in work release,” etc.—does not impose any
11
obligation on the State by its plain language.5 Most plea agreements are written to obligate the State to “recommend” a particular sentence, and Iowa courts “hold prosecutors and courts to the most meticulous standards of both promise and performance.” State v. Beres, 943 N.W.2d 575, 582 (Iowa 2020) (citation omitted). But no such “recommend” language appears in the agreement as written here. Instead, the assistant county attorney checked the box to “certify as prosecuting attorney that the agreement as stated . . . is the agreement of the parties.” Without language binding the State to a recommendation in exchange for the guilty plea, there is no contractual obligation for the State to make a particular recommendation under the plea agreement.
For these reasons, I would find there was no agreement requiring the county attorney to recommend a particular sentence on this record. But because the court’s opinion finds the county attorney made an adequate recommendation anyway, I specially concur.
5 I recognize portions of the supreme court’s new guilty-plea form are written in the first-person. See Iowa R. Crim. P. 2.37—Form 12. Writing a plea agreement—or really any contract—in the first person is a departure from historical practice.