State v. McDowell

• Court: Court of Appeals of Iowa
• Decided: December 6, 2017
• Docket: 17-0679
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0679 Filed December 6, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

ALAN TROY MCDOWELL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse,

Judge.

A defendant challenges his conviction and sentence. AFFIRMED.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Thomas A. Bakke, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2

MCDONALD, Judge.

Pursuant to a plea agreement, Alan McDowell pleaded guilty to possession

of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d)

(2016). In exchange for his guilty plea, the State agreed to dismiss a second count

and recommend a suspended sentence and probation. The district court rejected

the joint recommendation and sentenced McDowell to a term of incarceration not

to exceed five years. McDowell timely filed this appeal.

McDowell challenges his conviction, contending it should be vacated

because the prosecutor breached the parties’ plea agreement. McDowell

contends the prosecutor breached the parties’ plea agreement when the

prosecutor referenced McDowell’s criminal history at the time of sentencing and

contends his plea counsel was ineffective in not objecting to the breach. On de

novo review, see State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct. App. 2015),

we conclude the argument is without merit. Plea counsel had no duty to object to

counsel’s statement because no breach of the plea agreement occurred. The

prosecutor referenced the defendant’s criminal history to provide context for the

sentencing recommendation while at the same time making a strong

recommendation for a suspended sentence. See id. at 285 (concluding there was

no breach where the prosecutor discussed criminal history “only to provide context

to the sentencing recommendation”); see also State v. Schlachter, 884 N.W.2d

782, 786 (Iowa Ct. App. 2016) (“The correct recitation of Schlachter’s criminal

record was not a distraction from the prosecutor's recommendation, but

strengthened it by alerting the court the prosecutor was aware of Schlachter’s

criminal record and was making the recommendation with that knowledge.”). 3

Indeed, given the defendant’s extensive criminal history, which the district court

described as “one of the longest criminal records [it had] ever seen going back 30

years,” it was necessary for the parties, including the prosecutor, to acknowledge

the defendant’s criminal history to explain the sentencing recommendation for a

suspended sentence.

McDowell also contends the district court abused its discretion in imposing

sentence. We review sentences within statutory limits for abuse of discretion. See

State v. Boltz, 542 N.W.2d 9, 10 (Iowa Ct. App. 1995). Here the court considered

only relevant statutory factors and no impermissible factors in imposing sentence.

See Iowa Code § 907.5. The court imposed a sentence within the statutory limits.

Other than mere disagreement with the sentence, McDowell identifies no abuse of

discretion, and we find none. We reject McDowell’s challenge to his sentence.

We affirm the defendant’s conviction and sentences without further opinion.

See Iowa Ct. R. 21.26.

AFFIRMED.