Appeal from the Iowa District Court for Warren County, Peter A. Keller (plea) and Martha L. Mertz (sentencing), Judges.
The opinion of the court was delivered by: Danilson, J.
Morgan Shields appeals the conviction following his guilty plea. SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
Morgan Shields appeals the conviction entered following his guilty plea. He asserts a claim of ineffective assistance, alleging prejudice resulted after his counsel failed to object to the prosecutor's breach of a plea agreement.*fn1
Because Shields suffered prejudice as a result of his counsel's failure, we vacate his sentence and remand for resentencing.
I. Background Facts and Proceedings.
On May 2, 2012, Shields entered a guilty plea to the charge of burglary in the second degree, in violation of Iowa Code section 713.5 (2011). His plea was entered pursuant to an agreement with the State, which called for the prosecutor to recommend a suspended sentence and probation. The district court conducted a full colloquy and accepted Shields' plea.
A sentencing hearing was held on June 18, 2012. The prosecutor recited the terms of the plea agreement, but contrary to the agreement, the prosecutor made no affirmative recommendation to the court. Shields' counsel did not object. The court made no specific request for recommendations, declined to follow the plea agreement and sentenced Shields to an indeterminate term of imprisonment not to exceed ten years.
On appeal, Shield alleges ineffective assistance of counsel and seeks remand for a new sentencing hearing to require the prosecutor to fulfill the terms of the plea agreement.
We review ineffective-assistance-of-counsel claims de novo. State v. Maxwell, 743 N.W.2d 185, 189 (Iowa 2008); see also State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) ("Ineffective-assistance-of-counsel claims are an exception to the traditional error-preservation rules."). We generally preserve ineffective-assistance-of-counsel claims for post-conviction relief proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011). However, when the record is adequate, we consider ineffective-assistance claims on direct appeal. State v. Fannon, 799 N.W.2d 515, 519-20 (Iowa 2011); see also Iowa Code § 814.7(3) (2011).*fn2
To prevail on a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) the attorney failed to perform an essential duty and (2) prejudice resulted from the failure. Strickland v. Washington, 466 U.S. 668, 687 (1984); Fountain, 786 N.W.2d at 265--66. The claim fails if either element is lacking. Strickland, 466 U.S. at 700; Fountain, 786 N.W.2d at 266. Here, the State concedes Shields' counsel breached an essential duty; thus, we look directly to the prejudice element to resolve his claim.
To establish prejudice, a defendant must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; accord Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). A "reasonable probability is a probability sufficient to undermine confidence in the ...