Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
The opinion of the court was delivered by: Doyle, J.
David Pappas appeals following his guilty plea to delivery of a controlled substance, contending the State breached its agreement to recommend a lesser sentence. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
David Pappas appeals following his guilty plea to delivery of a controlled substance, contending the State breached its agreement to recommend a lesser sentence. We affirm his conviction and preserve the claim of ineffective assistance of counsel for possible post-conviction proceedings.
I. Background Facts and Proceedings.
According to a preliminary complaint filed in October 2011, David Pappas delivered approximately two grams of methamphetamine to a confidential informant on September 9, 2010. Shortly thereafter, Pappas agreed to work with law enforcement. To that end, Pappas, Urbandale Detective Matt Flattery, and Polk County assistant prosecutor Stephanie Cox entered into a cooperation agreement entitled "Memorandum of Understanding" ("the agreement"). The agreement states, in relevant parts:
4. The Defendant agrees to cooperate with law enforcement officials in a manner specified above for the period of time beginning this date, December 3, 2010 until February 3, 2011, renewable by a specific written agreement by the parties." Additionally, the agreement provides:
6. The Defendant shall execute a written admission of criminal activity concerning the charges encompassed in the above-captioned criminal numbers. At the conclusion of the period of cooperation, the Defendant shall enter a plea of guilty to the charge of Delivery of a Controlled Substance, a Class C felony, in violation of Iowa Code section 124.401(1)(c)(6) [(2009)].
7. Should the Defendant fully and satisfactorily comply with the terms and conditions of this agreement, as determined by the Polk County Attorney in connection with the participating law enforcement officers, and if the County Attorney determines that the Defendant has provided substantial assistance in the investigation or prosecution of one or more targeted individuals who have committed criminal offenses, the Polk County Attorney's Office, in its sole discretion, and the defendant will agree, will recommend a ten year prison sentence with a mandatory one-third, $1000 fine plus 35% surcharge and court costs, $10 DARE fee, $125 law enforcement fee, 180 day driver's license revocation.
8. If, at the conclusion of the above-named period of cooperation, the Defendant has provided no information or has made no action resulting in a prosecuteable case(s), as defined in this agreement,[*fn1 ] the Defendant will receive no benefit from the State. Unsuccessful attempts by the Defendant to assist law enforcement officers will not result in leniency from the State. In other words, if the Defendant does his/her best and tries to help in investigations, but is unsuccessful, he/she will not get credit for his failed attempts.
. . . . 10. It is agreed and understood between the parties that if it becomes apparent for whatever reason or from whatever source, that the Defendant has not fully cooperated as required by this agreement, the agreement shall become null and void and there shall be no leniency granted regarding any pending charge or criminal investigation involving the Defendant. The State shall immediately file all possible criminal charges against the Defendant involving violations of all State and/or Federal laws. In addition, if applicable, the State promises to prosecute the Defendant for perjury
12. It is further agreed and understood between the parties that there are no additional conditions to this agreement beyond those listed in this document. (Emphasis added.)
In November 2011, the State filed its trial information charging Pappas with delivery of a controlled substance, in violation of section 124.401(1)(c)(6) (2011) as a class "C" felony. The minutes of testimony attached thereto stated Detective Flattery would testify Pappas agreed to cooperate with law enforcement and had entered into the agreement. Further, he would testify that on October 13, 2011, he requested an arrest warrant for Pappas "who had not been in contact with him for approximately the last four weeks." Additionally, he would testify he was unable to locate Pappas and Pappas "was in breach of his agreement." A copy of the agreement was attached to the minutes.
On March 26, 2012, Pappas entered a guilty plea to delivery of a controlled substance as a class "C" felony, and he admitted that he was a second or subsequent offender within the meaning of Iowa Code section 124.411. At the plea hearing, the prosecutor advised the court that Pappas was pleading guilty to that charge. The prosecutor further stated: "At the time of sentencing the parties are free to argue," and she requested the ...