IN THE COURT OF APPEALS OF IOWA
No. 20-0518 Filed June 16, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
RUSTY SHANE ROGERS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Winnebago County, DeDra L.
Schroeder, Judge.
Rusty Rogers appeals from the sentences imposed following his guilty
pleas. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Mullins and May, JJ. 2
DOYLE, Presiding Judge.
Rusty Rogers appeals from the sentences imposed following his guilty
pleas. He alleges the prosecutor breached the plea agreement. Finding Rogers
failed to establish a breach of the plea agreement, we affirm.
I. Facts and Procedural history.
In January 2020, Rogers pled guilty in two cases. In the drug case, he pled
guilty to one count of possession with intent to deliver methamphetamine in
violation of Iowa Code section 124.401(1)(c)(6) (2019), a class “C” felony. In the
domestic abuse case, he pled guilty to two counts of domestic abuse assault:
(1) impeding blood or airflow in violation of section 708.2A(5), a class “D” felony,
and (2) third or subsequent offense in violation of section 708.2A(4), a class “D”
felony. In exchange for his pleas, the State agreed to recommend an
indeterminate prison sentence not to exceed ten years on the drug charge with a
suspended fine. Rogers was free to make his own sentencing recommendation.
The State agreed to recommend indeterminate prison sentences not to exceed
five years for each domestic abuse charge with suspended fines. The State
agreed to recommend the domestic abuse sentences run concurrently with the
drug and other sentences. The State agreed to dismiss other charges. The court
accepted Rogers’s pleas and set sentencing for a later date. At sentencing, the
State recommended the terms of plea agreement. Rogers was sentenced to serve
ten years in prison on the drug charge, fined $1000, and assessed various
surcharges. The fine and surcharges were suspended. The sentence was
ordered to be served consecutively with the domestic abuse sentences. He was
sentenced to five years in prison on each of the domestic abuse counts, each to 3
be served consecutively with the other and the drug sentence. He was fined $750
on each domestic abuse count and assessed various surcharges. The fines and
surcharges were suspended on one of the counts.
Rogers appeals contending the prosecutor breached the parties’ plea
agreement by not commending the recommended sentence and in highlighting
Rogers’s extensive criminal history, lack of accountability, and the victim’s impact
statement.
II. Standard of Review.
A defendant’s allegation of prosecutorial breach is reviewed for the
corrections of errors at law. State v. Jordan, ___ N.W.2d ___, ___, 2021 WL
1932703, at *3 (Iowa 2021).
III. Analysis
Rogers asserts the State breached the plea agreement.1 At the sentencing
hearing, the prosecutor recommended all the terms of the plea agreement,
including that the sentences run concurrently. She then added:
1 Rogers also asserts his plea counsel was ineffective in failing to object to the alleged breach of the plea agreement. Recently enacted statutory provisions— Iowa Code sections 814.6 and 814.7 (2020)—limit the ability of a defendant to appeal as a matter of right from a conviction following a guilty plea and require that claims of ineffective assistance of counsel be presented and resolved in the first instance in postconviction-relief (PCR) proceedings rather than on direct appeal. See State v. Treptow, ___ N.W.2d ___, ___, 2021 WL 2172073, at *1 (Iowa 2021). Rogers challenges the constitutionality of these enactments. The same challenges were raised and rejected in Treptow, which was handed down after briefing was completed, so we need not discuss them here. Id. at ___, 2021 WL 2172073, at *2–7. Alternatively, Rogers asks us to adopt the plain error rule to review his claim on appeal. But our supreme court has repeatedly declined to adopt the plain error rule. See, e.g., id. at ___, 2021 WL 2172073, at *8; State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016) (noting the supreme court has “repeatedly declined ‘to abandon our preservation of error rules in favor of a discretionary plain error rule’” (citation omitted)). As an intermediate appellate court, we cannot adopt a doctrine 4
I would note that the defendant has a significant criminal history, which is seen or outlined in the [presentence investigation report (PSI)]. I do think it’s important to point out the lack of accountability that’s obvious in the defendant’s PSI with respect to both of these cases, but particularly with respect to the domestic assault charges. His version is not supported by the evidence and is contrary to his plea of guilty to two separate dates. And as the court has already indicated, there is a victim impact statement on file with the court regarding the domestic charges.
The sentencing court noted all the factors it considered in sentencing Rogers to
prison, including his “significant” criminal history, time spent in jail and prison in the
past, his unsuccessful probation, and victim impact statement. In imposing
consecutive sentences, the court explained,
All three of these sentences in this case will run consecutive to each other. I make that decision based on the fact that these sentences are going to run consecutive because they’re all separate and distinct offenses. They occurred on separate and distinct days. They’re significant and different from each other in that respect and need to be treated in that way. You’ve had multiple, multiple opportunities in the past to try and rectify or—or fix the path you’ve been going down. And to protect the community and to best provide for your rehabilitation, it’s important that these offense be treated separately and that those goals for sentencing are—are met in doing it in this fashion.
On appeal, Rogers claims:
In this case, the prosecutor did not actually commend the recommended sentence to the sentencing court, thereby indicating it was worthy of the court’s acceptance. Other than one brief mention that the State was recommending concurrent sentences, the prosecutor never again spoke about that particular recommendation. Rather, the prosecutor highlighted Rogers’s lengthy criminal history, Rogers’s lack of accountability with respect to the domestic abuse charges, and the victim impact statement that was on file for the domestic charges.
repeatedly rejected by our supreme court. See State v. Beck, 845 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not at liberty to overrule controlling supreme court precedent.”). So we have no jurisdiction to decide Rogers’s ineffective-assistance- of-counsel claim. 5
(Internal citations omitted.)
Because Rogers challenges the sentencing hearing rather than his guilty
plea, he has established good cause to pursue this direct appeal as a matter of
right. State v. Boldon, 954 N.W.2d 62, 69 (Iowa 2021).2
“While some forms of sentencing error require a timely objection or
challenge to preserve an issue for appellate review, an allegation the prosecutor
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IN THE COURT OF APPEALS OF IOWA
No. 20-0518 Filed June 16, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
RUSTY SHANE ROGERS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Winnebago County, DeDra L.
Schroeder, Judge.
Rusty Rogers appeals from the sentences imposed following his guilty
pleas. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Mullins and May, JJ. 2
DOYLE, Presiding Judge.
Rusty Rogers appeals from the sentences imposed following his guilty
pleas. He alleges the prosecutor breached the plea agreement. Finding Rogers
failed to establish a breach of the plea agreement, we affirm.
I. Facts and Procedural history.
In January 2020, Rogers pled guilty in two cases. In the drug case, he pled
guilty to one count of possession with intent to deliver methamphetamine in
violation of Iowa Code section 124.401(1)(c)(6) (2019), a class “C” felony. In the
domestic abuse case, he pled guilty to two counts of domestic abuse assault:
(1) impeding blood or airflow in violation of section 708.2A(5), a class “D” felony,
and (2) third or subsequent offense in violation of section 708.2A(4), a class “D”
felony. In exchange for his pleas, the State agreed to recommend an
indeterminate prison sentence not to exceed ten years on the drug charge with a
suspended fine. Rogers was free to make his own sentencing recommendation.
The State agreed to recommend indeterminate prison sentences not to exceed
five years for each domestic abuse charge with suspended fines. The State
agreed to recommend the domestic abuse sentences run concurrently with the
drug and other sentences. The State agreed to dismiss other charges. The court
accepted Rogers’s pleas and set sentencing for a later date. At sentencing, the
State recommended the terms of plea agreement. Rogers was sentenced to serve
ten years in prison on the drug charge, fined $1000, and assessed various
surcharges. The fine and surcharges were suspended. The sentence was
ordered to be served consecutively with the domestic abuse sentences. He was
sentenced to five years in prison on each of the domestic abuse counts, each to 3
be served consecutively with the other and the drug sentence. He was fined $750
on each domestic abuse count and assessed various surcharges. The fines and
surcharges were suspended on one of the counts.
Rogers appeals contending the prosecutor breached the parties’ plea
agreement by not commending the recommended sentence and in highlighting
Rogers’s extensive criminal history, lack of accountability, and the victim’s impact
statement.
II. Standard of Review.
A defendant’s allegation of prosecutorial breach is reviewed for the
corrections of errors at law. State v. Jordan, ___ N.W.2d ___, ___, 2021 WL
1932703, at *3 (Iowa 2021).
III. Analysis
Rogers asserts the State breached the plea agreement.1 At the sentencing
hearing, the prosecutor recommended all the terms of the plea agreement,
including that the sentences run concurrently. She then added:
1 Rogers also asserts his plea counsel was ineffective in failing to object to the alleged breach of the plea agreement. Recently enacted statutory provisions— Iowa Code sections 814.6 and 814.7 (2020)—limit the ability of a defendant to appeal as a matter of right from a conviction following a guilty plea and require that claims of ineffective assistance of counsel be presented and resolved in the first instance in postconviction-relief (PCR) proceedings rather than on direct appeal. See State v. Treptow, ___ N.W.2d ___, ___, 2021 WL 2172073, at *1 (Iowa 2021). Rogers challenges the constitutionality of these enactments. The same challenges were raised and rejected in Treptow, which was handed down after briefing was completed, so we need not discuss them here. Id. at ___, 2021 WL 2172073, at *2–7. Alternatively, Rogers asks us to adopt the plain error rule to review his claim on appeal. But our supreme court has repeatedly declined to adopt the plain error rule. See, e.g., id. at ___, 2021 WL 2172073, at *8; State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016) (noting the supreme court has “repeatedly declined ‘to abandon our preservation of error rules in favor of a discretionary plain error rule’” (citation omitted)). As an intermediate appellate court, we cannot adopt a doctrine 4
I would note that the defendant has a significant criminal history, which is seen or outlined in the [presentence investigation report (PSI)]. I do think it’s important to point out the lack of accountability that’s obvious in the defendant’s PSI with respect to both of these cases, but particularly with respect to the domestic assault charges. His version is not supported by the evidence and is contrary to his plea of guilty to two separate dates. And as the court has already indicated, there is a victim impact statement on file with the court regarding the domestic charges.
The sentencing court noted all the factors it considered in sentencing Rogers to
prison, including his “significant” criminal history, time spent in jail and prison in the
past, his unsuccessful probation, and victim impact statement. In imposing
consecutive sentences, the court explained,
All three of these sentences in this case will run consecutive to each other. I make that decision based on the fact that these sentences are going to run consecutive because they’re all separate and distinct offenses. They occurred on separate and distinct days. They’re significant and different from each other in that respect and need to be treated in that way. You’ve had multiple, multiple opportunities in the past to try and rectify or—or fix the path you’ve been going down. And to protect the community and to best provide for your rehabilitation, it’s important that these offense be treated separately and that those goals for sentencing are—are met in doing it in this fashion.
On appeal, Rogers claims:
In this case, the prosecutor did not actually commend the recommended sentence to the sentencing court, thereby indicating it was worthy of the court’s acceptance. Other than one brief mention that the State was recommending concurrent sentences, the prosecutor never again spoke about that particular recommendation. Rather, the prosecutor highlighted Rogers’s lengthy criminal history, Rogers’s lack of accountability with respect to the domestic abuse charges, and the victim impact statement that was on file for the domestic charges.
repeatedly rejected by our supreme court. See State v. Beck, 845 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not at liberty to overrule controlling supreme court precedent.”). So we have no jurisdiction to decide Rogers’s ineffective-assistance- of-counsel claim. 5
(Internal citations omitted.)
Because Rogers challenges the sentencing hearing rather than his guilty
plea, he has established good cause to pursue this direct appeal as a matter of
right. State v. Boldon, 954 N.W.2d 62, 69 (Iowa 2021).2
“While some forms of sentencing error require a timely objection or
challenge to preserve an issue for appellate review, an allegation the prosecutor
breached the plea agreement at the time of sentencing is a species of sentencing
error to which the traditional rules of error preservation are inapplicable.” Id. at 70.
So “a claim of breach is reviewable on direct appeal even in the absence of
contemporaneous objection.” Id. at 71.
“A prosecutor’s failure to abide by the terms of a plea agreement taints the
sentencing proceeding.” Id. at 70. The taint is inherently prejudicial and requires
the appellate court to vacate the sentence and remand the case for a new
sentencing hearing in front of a different judge. Id.
“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.” Id. at 71 (citation
omitted). Rogers has failed to establish the prosecutor acted contrary to the
common purpose of the plea agreement and thereby effectively deprived him of
2 “Iowa Code section 814.6(1)(a)(3) provides a defendant may appeal as a matter of right from a conviction entered upon a guilty plea only when the conviction is for a class ‘A’ felony or the defendant establishes good cause.” Boldon, 954 N.W.2d at 68. “[G]ood cause exists to appeal from a conviction following a guilty plea when the defendant challenges his or her sentence rather than the guilty plea.” State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020). 6
the benefit of the bargain. Here, the prosecutor did indeed recommend concurrent
sentences in accord with the parties’ plea agreement. The prosecutor stated,
“pursuant to the plea agreement, the State is recommending those [domestic
abuse] sentences be run concurrent,” and “The State recommends that that [drug]
sentence run concurrent with [the domestic abuse sentences] and also [the
sentence for another offense], which the defendant has already been sentenced
on.” The prosecutor then discussed those factors that justified incarceration as
she was allowed to do. See State v. Frencher, 873 N.W.2d 281, 285 (Iowa Ct.
App. 2015) (finding that the prosecutor discussed the defendant’s criminal history
and negative information in the presentence investigation report “only to provide
context to the sentencing recommendation”). At no time during the sentencing
proceeding did the prosecutor suggest consecutive sentences would be more
appropriate than concurrent sentences. At no time did the prosecutor express or
imply any material reservation about the plea agreement or recommended
sentence. The parties agreed the State would recommend terms of incarceration
to be run concurrently while Rogers would be free make his own recommendation.
That is what occurred. Although the sentencing court imposed consecutive terms
of incarceration, that was not at the suggestion—either explicit or implicit—of the
prosecutor. We conclude the prosecutor did not deprive Rogers of the benefit of
the bargain.
The prosecutor complied with the letter and spirit of the plea agreement.
Rogers failed to establish a breach of the agreement. We affirm Rogers’s
sentences imposed following his pleas of guilty.
AFFIRMED.