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State v. Brown

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DENNIS BROWN JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.

         The defendant challenges his conviction and sentence. AFFIRMED.

          John J. Bishop, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          MCDONALD, Judge.

         Dennis Brown Jr. was charged with three counts of domestic abuse assault. The State and Brown reached a plea agreement pursuant to which Brown agreed to plead guilty to one count of domestic abuse assault (strangulation), in violation of Iowa Code sections 708.2A(1) and 708.2A(2)(d) (2016), and the State agreed to dismiss the remaining counts and further agreed not to resist Brown's request for a deferred judgment. The district court did not grant Brown's request for a deferred judgment. The district court sentenced Brown to ninety-two days in jail with all but two days of the sentence suspended.

         On appeal, Brown challenges his conviction and sentence, contending the prosecutor failed to abide by the terms of the plea agreement. Specifically, Brown contends the prosecutor violated the plea agreement when the prosecutor asked the court to take judicial notice Brown had a prior deferred judgment. Brown requests his conviction be vacated and he be allowed to plead anew. Our review is for correction of errors at law. See State v. King, 576 N.W.2d 369, 370 (Iowa 1998).

         When the State enters into a plea agreement, the prosecutor must comply with both the letter and spirit of the plea agreement. See State v. Horness, 600 N.W.2d 294, 296 (Iowa 1999). "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 and the justified expectations of the defendant and thereby effectively deprived the defendant of the benefit of the bargain." State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct. App. 2015). The prosecutor can act contrary to the plea agreement by explicitly violating the terms of the plea agreement. See id. The prosecutor can also act contrary to the plea agreement by expressing material reservation regarding the plea agreement while still acting in technical compliance with the agreement. See id.

         Brown has failed to establish the prosecutor breached the terms of the plea agreement. Here, the State agreed not to resist Brown's request for a deferred judgment. At the time of sentencing, the prosecutor asked only for the court to take judicial notice of Brown's prior deferred judgment. The court, in response, asked if the State "agreed not to resist the request for deferred judgment, " to which the State responded in the affirmative. The prosecutor did not express any material reservation regarding the plea agreement or otherwise undercut the agreement with a wink and a nod. See State v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008); Horness, 600 N.W.2d at 299. The prosecutor informed the court of the defendant's criminal history, a permissible sentencing consideration, and, upon inquiry from the district court, stated the State did not resist the request for deferred judgment. See Iowa Code § 901.5 (authorizing sentencing court to review presentence investigation report containing criminal history in rendering sentence). The prosecutor did not emphasize the prior deferred judgment or in any way intimate the district court should not grant a deferred judgment because of the prior deferred judgment. In short, under the circumstances, the prosecutor's recitation of the defendant's criminal history did not constitute resistance to the defendant's request for a deferred judgment and did not deprive the defendant of the benefit of his plea bargain. See Frencher, 873 N.W.2d at 284.

         AFFIRMED.

          Danilson, C.J., concurs; Tabor, J., dissents.

          TABOR, Judge (dissenting)

         I respectfully dissent. By urging the sentencing court to take judicial notice of a prior false-imprisonment offense committed by Brown, the prosecutor did not strictly comply with the terms and spirit of the plea agreement as required under State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999), State v. Bearse, 74 ...


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