IN THE SUPREME COURT OF IOWA
No. 116 / 06–0916
Filed April 18, 2008
STATE OF IOWA,
Appellee,
vs.
GREAGORY ALLEN BEARSE,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, J. Hobart
Darbyshire and Charles H. Pelton, Judges.
Appellant seeks further review of court of appeals decision
affirming the district court judgment and sentence following a guilty plea
to third-degree sexual abuse. DECISION OF COURT OF APPEALS
VACATED; SENTENCE VACATED; CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant
Attorney General, William E. Davis, County Attorney, and Joseph A.
Grubisich and Robert Weinberg, Assistant County Attorneys, for
appellee. 2
CADY, Justice.
In this appeal from a guilty plea and sentencing for third-degree
sexual abuse, we must decide whether trial counsel was ineffective in
failing to object to an alleged breach of a plea agreement by the
prosecutor. We conclude the prosecutor breached the plea agreement
and counsel was ineffective in failing to object. We preserve the claim
that defense counsel was ineffective for failing to file a motion in arrest of
judgment to challenge the alleged involuntariness of the plea. We affirm
the conviction, but vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings.
Greagory Bearse was charged by trial information with the crime of
sexual abuse in the third degree in violation of Iowa Code section
709.4(2)(c)(4) (2005). The State claimed Bearse engaged in a long-term
sexual relationship with a fourteen-year-old girl. Bearse was thirty-seven
years old at the time. The relationship was revealed after the girl became
pregnant. Bearse’s attorney eventually negotiated a plea agreement with
the State prior to trial. The agreement required Bearse to enter a plea of
guilty to the charge and required the State to recommend against
incarceration at the time of sentencing, “recognizing that the court may
grant a deferred judgment or place the defendant on probation.” The
plea agreement was formalized in writing. Bearse subsequently entered a plea of guilty to sexual abuse in the
third degree at a hearing before the district court. The district court was
informed of the plea agreement at the hearing, and the plea colloquy
revealed the sentencing court was not bound to follow the State’s
sentencing recommendation. Following the hearing, the department of
correctional services conducted a presentence investigation. The 3
presentence investigation report ultimately recommended Bearse be
incarcerated.
Bearse appeared for sentencing in district court with his attorney.
The prosecuting attorney who appeared for the State was not the same
prosecutor who had negotiated the plea agreement and had appeared for
the State at the guilty-plea hearing.
During the course of the sentencing hearing, the court asked the
State to make a sentencing recommendation. In response, the
prosecutor stated “[t]he State concurs in the recommendation of the
presentence investigation report, your honor, for incarceration.” The
court immediately informed the prosecutor that the recommendation by
the State was inconsistent with the plea agreement. The prosecutor
acknowledged the existence of some confusion based on the contents of
his file. Yet, after the correct terms of the plea agreement were identified,
the prosecutor merely said: “Your Honor, the court is not bound by the
plea agreement. The State is, so we’ll . . . abide by the plea agreement.
The court has the presentence investigation report.” Counsel for Bearse
did not object to the comments by the prosecutor.
At the conclusion of the sentencing hearing, the court sentenced
Bearse to an indeterminate term of incarceration not to exceed ten years.
The court detailed its reasons for imposing incarceration, which included the age difference between Bearse and the victim and an absence of
remorse on the part of Bearse. The court did not mention the
prosecutor’s recommendation as a sentencing factor. Additionally,
Bearse was not sentenced to the special life sentence provided for in Iowa 4
Code section 903B.1, and no mention of the special life sentence appears
in the record.1 Bearse appeals and asserts two claims of error. First, he makes a
two-part argument that the prosecutor breached the plea agreement by
failing to recommend against incarceration, and his trial counsel was
ineffective by failing to object to the breach. Second, Bearse argues his
trial counsel was ineffective for failing to file a motion in arrest of
judgment after the court failed to inform him at the guilty-plea hearing of
the special life sentence applicable to his case. Even though the district
court failed to impose the special sentence, Bearse points out the
provisions would be applicable to him in the event resentencing is
required.
We transferred the case to the court of appeals. The court of
appeals affirmed the judgment and sentence of the district court. It
determined defense counsel was not ineffective because the prosecutor
did not breach the plea agreement. The court of appeals found the
record inadequate for consideration of Bearse’s second ineffective-
assistance-of-counsel claim and preserved the issue for postconviction
proceedings. We granted further review.
II. Standard of Review.
We review ineffective-assistance-of-counsel claims de novo. State
v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).
1Iowa Code section 903B.1 requires that a person convicted of an offense under
chapter 709 shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person’s life, with eligibility for parole as provided in chapter 906. 5
III. Discussion.
A. Breach of Plea Agreement.
1. Error preservation. Bearse concedes his trial attorney did not
object during the sentencing hearing when the prosecutor allegedly
breached the plea agreement. Consequently, he claims the failure to
object amounts to ineffective assistance of counsel. We consider this
claim on appeal. See State v. Bergmann, 600 N.W.2d 311, 313 (Iowa
1999).
2. Adequacy of record for review. Bearse argues his counsel was
ineffective for failing to object to the prosecutor’s breach of the plea
agreement. “If an ineffective assistance of counsel claim is raised on
direct appeal from the criminal proceedings, the court may decide the
record is adequate to decide the claim or may choose to preserve the
claim for determination under chapter 822 [postconviction proceedings].”
Iowa Code § 814.7(3). “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.” Horness, 600 N.W.2d at 297. The record in this case clearly reflects the
written plea agreement and the circumstances giving rise to Bearse’s claim that the prosecutor breached the agreement, as well as defense
counsel’s response. As such, we find the record adequate to review
Bearse’s first ineffective-assistance-of-counsel claim on direct appeal.
3. Failure to perform essential duty. A successful ineffective-
assistance-of-counsel claim requires proof by a preponderance of the
evidence that (1) counsel failed to perform an essential duty, and (2)
prejudice resulted. Id. at 298. In analyzing the first prong of the test, we
presume counsel acted competently. Id. Counsel cannot fail to perform
an essential duty by merely failing to make a meritless objection. Id. at 6
297. Consequently, to determine whether counsel failed to perform an
essential duty in failing to object to the prosecutor’s recommendation, we
must first determine whether the State breached the plea agreement. Id.
If the State did not breach the plea agreement, defense counsel could not
have been ineffective.
We begin our consideration of this question by recognizing the
important role plea agreements play in our scheme of justice and the
concomitant need for strict compliance with those agreements.
The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30
L. Ed. 2d 427, 432 (1971).
While proper use of plea agreements is essential to the efficient
administration of justice, improper use of the agreements threatens the
liberty of the criminally accused as well as “the honor of the government”
and “public confidence in the fair administration of justice.” State v.
Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). Violations of plea
agreements “adversely impact the integrity of the prosecutorial office and
the entire judicial system.” State v. King, 576 N.W.2d 369, 370 (Iowa
1998). Further, “ ‘[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.’ ” Horness, 600 N.W.2d at 298 (quoting State ex rel. Brewer
v. Starcher, 465 S.E.2d 185, 192 (W. Va. 1995)). For all those reasons,
“ ‘violations of either the terms or the spirit of the agreement’ require 7
reversal of the conviction or vacation of the sentence.” Id. (quoting Stubbs
v. State, 972 P.2d 843, 844 (Nev. 1998)).
In this case, the prosecutor initially breached the plea agreement
as the result of confusion or perhaps inattention. A prosecutor must
take care to properly carry out all obligations and promises of the state in
good faith. This duty requires each prosecutor who enters a courtroom
on behalf of the state in every case to understand the state’s obligations
under a plea bargain and to strictly comply with those obligations. “The
staff lawyers in a prosecutor’s office have the burden of ‘letting the left
hand know what the right hand is doing’ or has done.” Santobello, 404
U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433. The prosecutor is not
merely the representative of an ordinary party in a private controversy,
“but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all.” United States v. Shanahan,
574 F.2d 1228, 1231 (5th Cir. 1978) (describing the role of the United
States Attorney). As such, “our time-honored fair play norm and
accepted professional standards” require strict compliance.
Kuchenreuther, 218 N.W.2d at 624. Thus, inadvertence by a prosecutor
will not excuse noncompliance.
A fundamental component of plea bargaining is the prosecutor’s
obligation to comply with a promise to make a sentencing recommendation by doing more than “simply inform[ing] the court of the
promise the State has made to the defendant with respect to sentencing.”
Horness, 600 N.W.2d at 299. The State must actually fulfill the promise.
Where the State has promised to “recommend” a particular sentence, we
have looked to the common definition of the word “recommend” and
required 8 the prosecutor to present the recommended sentence[] with his or her approval, to commend the sentence[] to the court, and to otherwise indicate to the court that the recommended sentence[] [is] supported by the State and worthy of the court’s acceptance.
Id. (citing Webster’s Third New International Dictionary 1897 (unabr. ed.
1993) (defining “recommend” to mean (1) “to mention or introduce as
being worthy of acceptance, use, or trial,” (2) “to make a commendatory
statement about as being fit or worthy,” (3) “to bring forward as being fit
or worthy,” (4) “present with approval,” (5) “indicate as being one’s choice
for something or as otherwise having one’s approval or support,” (6) “offer
or suggest as favored by oneself”)); see also United States v. Brown, 500
F.2d 375, 377 (4th Cir. 1974) (requiring the prosecutor’s
recommendation be “expressed with some degree of advocacy”).
The record in this case not only demonstrates noncompliance with
the express terms of the plea agreement, but also with the spirit of the
plea agreement. Despite the prosecutor’s initial confusion about the terms of the plea agreement, the applicable plea agreement clearly
required the State to recommend against incarceration. Yet, even after
the initial confusion was resolved and the prosecutor understood the
terms of the agreement, he failed to comply with the obligation of the State to recommend that Bearse not be incarcerated. Instead, he merely
indicated the State would “abide by the agreement,” but only after first
telling the court it was “not bound by the plea agreement,” followed by a
reminder that the court had “the presentence investigation report.” We
have said “[t]he State’s promise to make a sentencing recommendation
. . . [carries] with it the implicit obligation to refrain from suggesting more
severe sentencing alternatives.” Horness, 600 N.W.2d at 299 (recognizing
the plea agreement “is of little value to the defendant” if the State is
allowed to recommend alternative sentences); see also State v. Birge, 638 9
N.W.2d 529, 536 (Neb. 2002) (finding breach of a plea agreement cannot
be cured by prosecutor’s offer to withdraw improper remarks, even in
case where district court affirmatively stated it was not influenced by the
improper comments). Not only did the State in this case mistakenly
recommend incarceration at the outset, but it clearly suggested
incarceration should be imposed by referring to the presentence
investigation report (which recommended incarceration) and reminding
the court that it was not bound by the plea agreement. The State clearly
breached the plea agreement by suggesting more severe punishment
than it was obligated to recommend.
The argument by the State that it ultimately complied with the plea
agreement ignores our previous jurisprudence requiring the prosecutor
to do more than merely inform the court of the promise made by the
State. Horness, 600 N.W.2d at 299. The agreement in this case required
a recommendation against incarceration. The State’s initial
recommendation of incarceration and subsequent agreement to “abide by
the plea agreement” do not amount to a recommendation against
incarceration. The prosecutor did not present the recommended
sentence with his approval or commend a sentence to the court other
than incarceration, such as probation. Consequently, the State failed to
fulfill the promise under the plea agreement to recommend against incarceration.
Having found a breach of the plea agreement, we must next
consider whether defense counsel failed to perform an essential duty by
failing to object to the breach. We have previously held defense counsel
has a duty to object to the breach of a plea agreement:
When the State breached the plea agreement, the defendant’s trial counsel clearly had a duty to object; only by objecting could counsel ensure that the defendant received 10 the benefit of the agreement. Moreover, no possible advantage could flow to the defendant from counsel’s failure to point out the State’s noncompliance. Defense counsel’s failure in this regard simply cannot be attributed to improvident trial strategy or misguided tactics.
Id. at 300 (citations omitted). As such, defense counsel failed to perform
an essential duty. 4. Prejudice. The ineffective-assistance-of-counsel claim by Bearse
also requires that he demonstrate prejudice. In determining prejudice,
we have rejected the standard that, “but for his counsel’s failure to
object, he would have received a different sentence.” Id. (citing State v.
Carrillo, 597 N.W.2d 497, 500 (Iowa 1999)). Instead, “the defendant
must simply show that the outcome of the [sentencing] proceeding would
have been different.” Id. at 300–01 (citing Carrillo, 597 N.W.2d at 500).
In Horness, we said:
The proper objection by the defendant’s attorney would have alerted the sentencing court to the prosecutor’s breach of the plea agreement. In that circumstance, the court would have allowed the defendant to withdraw his guilty plea[], or would have scheduled a new sentencing hearing at which time the prosecutor could make the promised recommendations. The outcome of the defendant’s sentencing proceeding was different, however, because defense counsel did not make the necessary objection. Consequently, the defendant was sentenced by the court at a hearing tainted by the prosecutor’s improper comments.
Id. at 300 (citations omitted).
The State asserts that the absence of an objection in this case did
not result in prejudice at sentencing because the sentencing judge knew
the State was obligated to recommend against incarceration, and the
tactics employed by the prosecutor to imply the State nevertheless
actually wanted the court to impose a sentence of incarceration had no
impact on the sentencing decision of the court. The State points out the
sentencing judge enumerated the factors upon which the ten-year 11
indeterminate sentence was based, and the State’s recommendation of
incarceration was not one of those. In Carrillo, we noted that
we have no way of knowing what sentence this judge would have imposed had the State [performed its obligation under the plea agreement], and we certainly will not speculate about the sentence a different judge would have imposed had [defendant’s] counsel objected and the case been set for resentencing.
597 N.W.2d at 501. We likewise refuse to engage in such speculation in
this case. See Santobello, 404 U.S. at 262–63, 92 S. Ct. at 499, 30
L. Ed. 2d at 433 (finding error and remanding even though sentencing court stated it would have given the same sentence had prosecutor
fulfilled plea bargain); Birge, 638 N.W.2d at 536 (same). Moreover, the
ability of the sentencing court to stand above the fray and overlook the
conduct of the prosecutor cannot be used by the State to minimize the
prejudice component of the analysis. Our system of justice requires
more and does not allow prosecutors to make sentencing
recommendations with a wink and a nod. The concept of justice has a
far greater meaning.
Additionally, as in Horness, an objection by defense counsel leads
to a procedure that alerts the court to correct the taint by allowing the
defendant to withdraw the plea or by scheduling a new sentencing
hearing with a prosecutor who will make the promised recommendation. 600 N.W.2d at 301. Thus, the outcome of the sentencing proceeding in
this case would have been different if defense counsel would have
objected. The sentencing hearing would have been rescheduled, or the
plea of guilty would have been withdrawn. Consequently, Bearse has
shown his counsel was ineffective.
5. Remedy. Having determined counsel was ineffective, we must
decide what remedy is appropriate. Bearse asks us to vacate the 12
conviction and allow him to plead anew. When the district court
erroneously fails to remedy a prosecutor’s breach of the plea agreement,
we will “determine the appropriate remedy necessary to ensure the
interests of justice are served—either withdrawal of the guilty plea or
resentencing before another judge.” See King, 576 N.W.2d at 371
(determining defendant was entitled to specific enforcement of the
bargained-for plea agreement and remanding for resentencing). The
interests of justice are adequately served in this case by remanding for
resentencing. Bearse can still receive the benefit of his bargain under
the plea agreement if the State carries out its obligation at resentencing.
Consequently, there is no need to expend the added prosecutorial and
judicial resources that would be required by vacating the conviction and
allowing the process to start anew. Therefore, we affirm the conviction,
but vacate the decision of the court of appeals, vacate Bearse’s sentence,
and remand the case for resentencing.
B. Special Life Sentence. Iowa Code section 903B.1 requires
that a person convicted of an offense under chapter 709
shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person’s life, with eligibility for parole as provided in chapter 906.
This provision essentially requires sex-abuse offenders to remain on
parole or probation for life. The word “shall” in the statute indicates the
legislature intended the special life sentence to be mandatory. See Iowa
Code § 4.1(36)(a) (requiring that unless otherwise specifically provided by
the legislature, “[t]he word ‘shall’ imposes a duty”); State v. Tenny, 493
N.W.2d 824, 826 (Iowa 1992) (stating “ ‘shall’ indicates mandatory intent
unless the context indicates otherwise”). 13
Bearse argues the district court failed to advise him of the special
life sentence prior to accepting his plea of guilty, which rendered his
guilty plea involuntary and unintelligent. In order to challenge a guilty-
plea proceeding on appeal, a defendant must file a motion in arrest of
judgment. Iowa R. Crim. P. 2.24(3)(a); State v. Kress, 636 N.W.2d 12, 19
(Iowa 2001). Counsel for Bearse failed to file the required motion.
“However, this failure does not bar a challenge to a guilty plea if the
failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)
(citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)).
The State argues defense counsel could not have been ineffective
for failing to raise the special life sentence by filing a motion in arrest of
judgment because Bearse was not sentenced under the special provision.
Yet, on remand, Bearse will face resentencing under all applicable
provisions, and he will be subject to the special sentencing provision.
Thus, even if Bearse failed to preserve his claim by filing a motion in
arrest of judgment, we can consider whether the failure to file a motion
in arrest of judgment resulted from ineffective assistance of counsel.
In considering a claim of ineffective assistance of counsel on direct
appeal, Iowa Code section 814.7(3) allows us to evaluate the record
surrounding an ineffective-assistance-of-counsel claim and choose whether we will decide the claim on direct appeal or preserve it for
postconviction proceedings. As mentioned earlier, we apply the well-
settled, two-prong test to analyze Bearse’s ineffective-assistance-of-
counsel claim. Bearse “must demonstrate (1) his trial counsel failed to
perform an essential duty, and (2) this failure resulted in prejudice.” Id.
Even assuming defense counsel failed to perform an essential duty
by failing to file a motion in arrest of judgment, Bearse cannot meet his 14
burden to prove he was prejudiced by the failure on this record. As we
clarified in Straw, a defendant who relies on an ineffective-assistance-of-
counsel claim to challenge the adequacy of a guilty plea has the burden
to prove “there is a reasonable probability that, but for counsel’s errors,
he or she would not have pleaded guilty and would have insisted on
going to trial.”2 Id. at 138. In Straw, we explained:
Under the “reasonable probability” standard, it is abundantly clear that most claims of ineffective assistance of counsel in the context of a guilty plea will require a record more substantial than the one now before us. . . . [T]here is nothing in this record to indicate whether or not Straw’s trial counsel told him about the possibility of consecutive sentences. Such evidence could be a significant part of our prejudice analysis. This case exemplifies why claims of ineffective assistance of counsel should normally be raised through an application for postconviction relief. In only rare cases will the defendant be able to muster enough evidence to prove prejudice without a postconviction relief hearing.
Id. As in Straw, the record before us on this direct appeal is devoid of
evidence indicating Bearse would not have pleaded guilty, but would
have insisted on going to trial. In the absence of such evidence, we must
preserve the claim for postconviction proceedings. To do otherwise,
would be to adopt a per se rule of prejudice and shift the burden to the
State. See id. at 137 (refusing to adopt a per se rule of prejudice). We
refused to do so in Straw, and we again refuse to do so here. This record
makes it impossible for Bearse to muster sufficient evidence to satisfy his
burden of demonstrating prejudice. His claim should be preserved for
postconviction proceedings.
2In Straw, the defendant appealed from judgments and sentences entered following guilty pleas. Id. at 130. As in this case, the defendant complained that “his counsel rendered ineffective assistance by failing to file a motion in arrest of judgment after the district court did not inform him of the maximum punishment he could face by pleading guilty.” Id. 15
IV. Conclusion.
We vacate the decision of the court of appeals and sentence of the
district court and remand for resentencing before a new district court
judge.
DECISION OF COURT OF APPEALS VACATED; SENTENCE
VACATED; CASE REMANDED.
All justices concur except Wiggins, J., who concurs in part and
dissents in part.