Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
A defendant claims his counsel was ineffective for failing to object to the State's breach of the plea agreement.
Christopher Kragnes of Kragnes & Associates, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant Attorney General, John Sarcone, County Attorney, and Celene Gogerty, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Facing two felony counts, Roy Coleman entered an Alford plea to a charge of dependant adult abuse, and in return the State dismissed a first-degree theft charge. On appeal, he asks us to find his counsel ineffective for not objecting to an alleged breach of the plea agreement. Because we conclude Coleman's counsel failed to perform an essential duty when he did not challenge the State's recommendation of incarceration rather than probation, we reverse the sentence and remand for resentencing in compliance with the plea agreement.
I. Backgrounds Facts and Proceedings
On February 10, 2012, the State charged Roy Coleman with theft in the first degree, in violation of Iowa Code sections 714.1 and 714.2(1) (2011), and dependant adult abuse, in violation of sections 235B.2(5)(a)(1)(c) and 235B.20(5). The State alleged Coleman took advantage of an elderly woman with dementia while acting as her caretaker by writing checks for amounts of more than $16, 000 not benefitting the woman, making $23, 000 in unauthorized charges on her credit card, and using her debit card on several occasions to withdraw money at a casino.
Coleman reached a plea agreement with the State. Coleman entered an Alford plea for dependant adult abuse in exchange for the dismissal of the theft charge. The prosecutor appearing at the July 5, 2012 plea hearing said "the agreement is for both parties to argue for probation." The prosecutor did not mention any contingency between Coleman's post-plea behavior and the sentencing recommendation. No written plea appears in the record.
The district court questioned Coleman and determined he was voluntarily and intelligently entering his guilty plea and understood the consequences. The judge made the only mention of Coleman's behavior:
Mr. Coleman, I want to let you know what you do between now and the time set for sentencing will have an impact upon what my ultimate decision is. What I mean by that is if you get in further trouble or do things you shouldn't be doing, that will not look good for you at the time of sentencing.
On the other hand, if you stay out of trouble, do what you're supposed to be doing, following the order that I entered today, that will look good for ...