January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
JOHN JOSEPH HAUERSPERGER, Defendant-Appellant.
from the Iowa District Court for Hardin County, Paul B.
Ahlers, District Associate Judge.
appellant appeals his guilty plea and sentence, asserting his
trial counsel was ineffective and the sentencing court abused
its discretion. AFFIRMED.
Kimberly A. Voss-Orr of Law Office of Kimberly A. Voss-Orr,
Ames, for appellant.
J. Miller, Attorney General, and Kelli Huser, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Bower, J., and Blane, S.J.
Joseph Hauersperger appeals his guilty plea and sentence
claiming: (1) his trial attorney was ineffective in failing
to object to the county attorney's breach of the plea
agreement, and (2) the trial court abused its discretion in
imposing sentence. After reviewing the record, we find trial
counsel was not ineffective and the sentencing court did not
abuse its discretion; we affirm.
March 27, 2015, Hauersperger was charged by trial information
with driving while barred in violation of Iowa Code section
321.256 (2015). In August, Hauersperger, while represented by
counsel, signed and filed a written guilty plea to the
charge. The guilty plea contained the plea
agreement, which was filed of record. The agreement provided
Hauersperger would plead guilty as charged and the county
attorney would recommend to the court at sentencing a
one-year sentence with all but ninety days suspended, two
years' probation, the statutory minimum fine, and
dismissal of an unrelated charge and any other charges
related to this matter. Hauersperger could request a lesser
jail term and the ability to make payments towards fines and
fees. By order on August 25, 2015, the court accepted the
guilty plea and set sentencing.
later date, Hauersperger appeared with his counsel before the
court for sentencing. The court inquired as to the plea
agreement and the prosecutor set it forth exactly as
contained in Hauersperger's written guilty plea, without
extraneous comment, and also described Hauersperger's
criminal record.Hauersperger's trial counsel did not
lodge an objection to the State's recitation of the
agreement. Hauersperger's attorney then presented his own
sentencing recommendation, which was for one year in jail
with all but twelve days suspended and credit for time
served-meaning Hauersperger would spend no further time in
custody, as he had already served twelve days.
court then allowed Hauersperger to exercise his right of
allocution. Following Hauersperger's statement, the court
imposed sentence, rejecting the plea agreement and sentencing
him to two years of imprisonment. The court stated on the
record the reasons for imposing the prison sentence.
Following sentencing, Hauersperger filed this timely appeal.
II. Ineffective Assistance of Counsel.
Standard of Review.
claims are reviewed de novo as they involve a constitutional
issue of the right to effective counsel. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006).
succeed on a claim of ineffective assistance of counsel, a
claimant must establish by a preponderance of the evidence
(1) his trial counsel failed to perform an essential duty,
and (2) this failure resulted in prejudice. State v.
Tompkins, 859 N.W.2d 631, 637-38 (Iowa 2015) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
While claims of ineffective assistance of counsel are
typically reserved for postconviction-relief proceedings,
such claims can be considered on direct appeal where the
record is adequate. State v. Bearse, 748 N.W.2d 211,
214 (Iowa 2008). Since the plea agreement was in writing and
the sentencing was reported, we find the record here adequate
to address Hauersperger's ineffective assistance claim on
this direct appeal. See Iowa Code § 814.7(2);
State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
claims his trial attorney was duty-bound here to object to
the prosecutor's statements to the court outlining the
plea agreement. He specifically relies on State v.
Horness, 600 N.W.2d 294 (Iowa 1999) and State v.
Lopez, 872 N.W.2d 159 (Iowa 2015). He argues that under
these cases, although the prosecution correctly informed the
court of the plea agreement, it did not fulfill the
"spirit" of the agreement, and his trial counsel
was obligated to object. A review of these cases in light of
the record shows the prosecution did not breach the
"spirit" of the plea agreement; thus, defense
counsel had no basis to object and was not ineffective.
As the supreme court stated in Horness:
Our task, then, is to determine whether [appellant] has
demonstrated that a reasonably competent attorney would have
objected to the prosecutor's statements as a breach of
the negotiated plea agreement. We have stated on previous
occasions that defense counsel has not failed to perform an
essential duty when counsel fails to raise a claim or make an
objection that has no merit. Accordingly, the defendant's
counsel here cannot be faulted for failing to object to the
prosecutor's statements as being a breach of the plea
agreement if, in fact, they were not contrary to the
600 N.W.2d at 298 (citations omitted). The court found that
although the prosecution set forth the plea recommendation,
it also twice referenced the "alternative
recommendation" in the presentence investigation, which
contained a "more severe" sentencing proposal, and
did not put forth the plea agreement "with some degree
of advocacy." Id. at 299-300.
State v. Lopez, the supreme court restated the
obligation of prosecutors to abide by plea agreements. In
that case, it found the prosecutor breached that duty by
gratuitously introducing photos of the child victim's
injuries not otherwise before the court and using those
photos on cross-examination to signal the defendant deserved
incarceration rather than probation, as provided by the plea
agreement. Lopez, 872 N.W.2d at 180.
supreme court has addressed this issue in two other cases:
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008) and
State v. Fannon, 799 N.W.2d 515, 523 (Iowa 2011). In
Bearse, the plea agreement committed the State to
recommend against incarceration. 748 N.W.2d at 213. At
sentencing, a different prosecutor recommended a prison
sentence based upon the recommendation in the presentence
investigation report (PSI)-a clear departure from the plea
agreement. Id. In Fannon, the parties
reached a plea agreement under which the defendant pled
guilty to two counts of sexual abuse in the third degree and
the State was to make no sentencing recommendation at the
sentencing hearing. 799 N.W.2d at 517. A different prosecutor
attended the sentencing hearing and urged the court to impose
two consecutive ten-year prison sentences. Id.
Again, this was a clear breach of the plea agreement that
imposed on defense counsel an obligation to object.
Id. at 522. In Hauersperger's case, we do not
have a similar situation as found in these four supreme court
court has more recently addressed two cases that raised the
same contention of ineffective assistance of counsel
regarding enforcement of plea agreements: State v.
Frencher, 873 N.W.2d 281 (Iowa Ct. App. 2015) and
State v. Schlachter, 884 N.W.2d 782 (Iowa Ct. App.
2016). Both analyzed the four earlier supreme court cases
cited above. "While a prosecutor normally need not
present promised recommendations to the court with any
particular degree of enthusiasm, it is improper for the
prosecutor to inject material reservations about the
agreement to which the government has committed itself."
Schlachter, 884 N.W.2d at 785 (quoting United
States v. Cachucha, 484 F.3d 1266, 1270-71 (10th Cir.
2007)). "The relevant inquiry in determining whether the
prosecutor breached the plea agreement is whether the
prosecutor acted contrary to the common purpose of the plea
agreement . . . ." Frencher, 873 N.W.2d at 284.
Thus, "[w]here the State technically complied with the
agreement by explicitly recommending the agreed-upon sentence
but expressed material reservations regarding the plea
agreement or sentencing recommendation, it can fairly be said
the State deprived the defendant of the benefit of the
bargain and breached the plea agreement." Id.
(citing Cachucha, 484 F.3d at 1270-71). During
Hauersperger's plea, the prosecution did not inject any
material reservations about the plea agreement.
the sentencing the prosecutor, in addition to setting forth
the plea agreement, advised the judge of Hauersperger's
prior convictions. Whether this would constitute a breach of
the plea agreement by the prosecution was discussed in
Schlacter and rejected. 884 N.W.2d at 786
("Furthermore, we consider it inappropriate and
unacceptable that any plea agreement prohibit the court from
being advised of a defendant's criminal record at the
time of sentencing.").
the State did not breach the plea agreement,
Hauersperger's counsel had no duty to lodge an objection
to the prosecutor's statements. See Bearse, 748
N.W.2d at 214-15. Thus, Hauersperger's claim of
ineffective assistance of counsel fails.
Abuse of Discretion in Sentencing.
Standard of Review.
defendant's sentence is within the statutory limits, the
appellate court reviews the district court's decision for
abuse of discretion. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). The district court has broad discretion to
act within legal parameters. State v. Formaro, 638
N.W.2d 720, 725 (Iowa 2002). The district court necessarily
has latitude to act "according to the dictates of a
judge's own conscience, uncontrolled by the judgment of
others" for sentencing decisions. Id. The
appellate court's review is limited to deciding if the
district court's decision "was unreasonable or based
on untenable grounds." Id.
sentencing court must craft a sentence that both addresses
rehabilitation of the defendant and protects the community.
See Iowa Code § 901.5. In creating this
sentence, the sentencing court should
[w]eigh and consider all pertinent matters in determining
proper sentence, including the nature of the offense, the
attending circumstances, defendant's age, character and
propensities and chances of his reform. The courts owe a duty
to the public as much as to defendant in determining a proper
sentence. The punishment should fit both the crime and the
State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006)
(alteration in original) (quoting State v. August,
589 N.W.2d 740, 744 (Iowa 1999)).
case, the district court weighed the appropriate factors in
sentencing Hauersperger. In sentencing him, the court stated,
in pertinent part:
In terms of sentencing, my goals are to provide for your
rehabilitation and the protection of the community. I
understand [defense attorney's] comments that this is a
status-related offense, meaning your status is barred. I
disagree with his assessment that you don't pose a
danger. The driving regulations are put in place for a
reason. Whether you agree with it or not, it's been
determined that certain people should not have driver's
licenses because of their past lack of responsibility with
their driver's license, and you have lost your driving
privileges through your own criminal behavior. The
legislature has deemed it appropriate to set this offense at
the aggravated misdemeanor level to impress upon folks the
serious nature of the offense. And I believe you are aware,
Mr. Hauersperger, of the serious nature of the offense, given
the fact that you have been sent to prison before because of
your repeated commission of this crime.
With the goals of rehabilitation and protection of the
community in mind, in trying to achieve those goals, to the
extent these details have been made known to me, I have taken
into account your age; your employment circumstances; your
family circumstances and obligations; the nature of the
offense and facts and circumstances surrounding it; the
recommendations of the parties; the information presented
here today; and your criminal history, which includes the
fact by my count that this is your eighth Driving While
Barred offense since 2002. You made the comment that sending
you to a term of incarceration isn't going to do any
good. That begs the question to me, Mr. Hauersperger, of what
is going to do any good, since it doesn't seem like
anything stops you from repeatedly committing this crime.
Even sending you to prison the last time you did it
apparently didn't deter you because you got out, and you
have done it again. So I'm out of ideas as to what can be
done to fix the problem, but what I do know is that whatever
has happened in the past is just not deterring you, so I
guess we will keep doing this until something does deter you.
record shows, the court considered Hauersperger's age,
employment, family circumstances and obligations, the nature
of the offense, the recommendations of the parties, and his
criminal history. The district court determined that
Hauersperger was a danger to the community. It noted that he
had committed eight driving-while-barred offenses since 2002.
Hauersperger argues in his brief that the sentencing factors
required the court to grant him probation and failing to do
so was an abuse of discretion.
the sentencing court considered appropriate factors, set them
out on the record, and imposed a sentence that meets
statutory and constitutional requirements. It is not for this
court on appeal to substitute our judgment as to what might
have been the appropriate sentence. The sentence was neither
unreasonable nor based on untenable grounds. Therefore, there
was no abuse of discretion.
find trial counsel was not ineffective and the sentencing
court did not abuse its discretion, we affirm.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2017).
 See Iowa R. Crim. P.
 The plea was not conditioned upon the
court's acceptance of the plea agreement. See
Iowa R. Crim. P. 2.10(3).
 Specifically, the prosecutor
The State has no evidence to present today. The plea
agreement between the defense and the State begins by
including dismissal of case ending 164 as part of the
defendant's agreement to plea to Case 063. Additionally,
the State agreed to recommend one year in jail with all but
90 days of that suspended, the statutory minimum fine, and
request the defendant be placed on probation for a period of
two years. Additionally, the State agreed that the defense is
free at sentencing to request a differing sentence from this
recommendation of the State.
With regard to the defendant's criminal history,
Your Honor, his records indicate a 2000 conviction for
Operating While Intoxicated, First Offense; a 2000 conviction
for Driving While Suspended; 2002 conviction for Driving
While Barred; 2002 conviction for Possession of a Controlled
Substance; 2003 conviction of Driving While Barred as a
Habitual Offender, 2007 conviction for Driving While Barred
as a Habitual Offender; 2008 conviction for Driving While
Barred as a Habitual Offender; 2009 conviction for Operating
While Intoxicated, Second Offense; 2009 conviction for
Possession of a Controlled Substance; 2010 conviction for
Driving While Barred as a Habitual Offender; 2012 conviction
for Possession of Marijuana; 2012 conviction for Driving
While Barred as a Habitual Offender; 2013 conviction for
Driving While Barred as a Habitual Offender.