from the Iowa District Court for Linn County, Russell G.
Keast, District Associate Judge.
defendant challenges his conviction and sentence.
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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
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
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
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.
Danilson, C.J., concurs; Tabor, J., dissents.
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 ...