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State of Iowa v. Aurr B. Deng

January 9, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
AURR B. DENG, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

Defendant appeals her convictions arguing her trial counsel was ineffective. AFFIRMED.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

Aurr Deng appeals from her convictions and sentences for assault causing bodily injury and third-degree criminal mischief. Deng argues her attorney rendered ineffective assistance of counsel by failing to object to the State's breach of the plea agreement. We affirm.

I. Background Facts and Proceedings.

On July 7, 2011, Deng entered a joint written plea of guilty in two cases- assault causing bodily injury (SR245849) and third-degree criminal mischief (AG245850). The district court granted deferred judgments, assessed civil penalties, and placed Deng on probation for two years.

On October 12, 2011, a probation violation was reported-Deng was arrested for operating while intoxicated, first offense, on October 10. A November 17, 2011 hearing was continued, and the court ordered Deng to submit to drug testing the next morning. A second probation violation was reported on November 18 when Deng's breathalyzer test showed a blood alcohol concentration of .070.

At a December 13 hearing, the prosecutor asked the court to revoke Deng's deferred judgments and impose prison sentences. No resolution occurred because the hearing was continued in order for an Arabic interpreter to be present to assist Deng.

At a December 27 hearing, defense counsel stated Deng agreed to stipulate to the reports of violation and, in return, the State agreed to join Deng's recommendation to continue the deferred judgments or, alternatively, if the deferred judgments were revoked, a ninety-day concurrent jail sentence with credit for time served. Deng, through an interpreter, stipulated she violated the terms of her probation by using alcohol in October and November 2011, and the court accepted her stipulation. The prosecutor informed the court:

[T]he State had agreed with counsel's recommendation that [Deng] basically receive contempt time. She's been in since November 17, 2011, and . . . should remain on probation . . . . That was the agreement that the defense and I had . . . .

I know I'm bound by the agreement we entered into, but I do want to note that, for what it's worth, my only concern now is she may either have to do another evaluation and at least advise whoever is doing the evaluation of what the true issues are so they can afford her the necessary help needed to combat this issue.

While the common theme at least in those two charges is alcohol, and so when you're telling your evaluator or whoever is doing the substance abuse evaluation that you don't have an issue, I am concerned about that aspect.

I want to maintain, so the record is clear, I am bound by the agreement I entered into with counsel, and I'm sticking by that agreement. In addition to that, though, any substance abuse evaluation has to be properly addressed with the necessary information given to whoever does the evaluation so they can properly determine if there [is] going to be additional treatment, for what that [is] worth.

Defense counsel argued Deng has no criminal history and she is planning to go to DMACC in the fall. Counsel volunteered Deng is willing to be put on a SCRAM bracelet at the court's ...


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