from the Iowa District Court for Marshall County, Timothy J.
Howell appeals her judgment and sentence following a guilty
Christopher A. Clausen of Clausen Law Office, Ames, and
Darrell G. Meyer (until withdrawal) of Law Offices of
Attorney Darrell G. Meyer, Inc., Marshalltown, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
VAITHESWARAN, Presiding Judge.
State charged Amy Howell with several crimes arising from her
employer's loss of funds over a twenty-one month period.
Howell agreed to plead guilty to (1) ongoing criminal
conduct, in violation of Iowa Code sections 706A.2(4),
706A.1(5), and 706A.4 (2016), and (2) unauthorized use of a
credit card, in violation of sections 715A.6(1)(a)(3) and
715A.6(2)(c). In exchange, the State agreed to dismiss
fourteen forgery charges and recommend a suspended
twenty-five-year sentence with five years of probation on the
first count and a seven-day jail sentence on the second
count. At sentencing, the district court declined to suspend
any portion of the sentences. The court ordered Howell to
serve concurrent prison terms not exceeding twenty-five years
on the first count and two years on the second count.
appeal, Howell contends (1) her plea attorney was ineffective
in failing to object to a claimed breach of the plea
agreement by the prosecutor; (2) the district court abused
its discretion in rejecting the sentencing recommendation;
and (3) her plea attorney was ineffective in failing to
advise her to speak in mitigation of punishment.
Claimed Breach of Plea Agreement-Ineffective
prosecutor has an obligation "to scrupulously comply
with the letter and spirit of plea agreements."
State v. Lopez, 872 N.W.2d 159, 173 (Iowa 2015). The
obligation requires "more than simply recit[ing] the
agreed recommended sentence." Id. The
prosecutor must "commend or otherwise indicate to the
court that the recommended sentence is supported by the
state." Id. If a prosecutor honors the
agreement, a defense attorney has "no duty to
object." Id. at 169.
if a prosecutor breaches the plea agreement, the defense
attorney is "duty-bound to object." Id.
"[Prejudice is presumed when defense counsel fails to
object to the state's breach of a plea agreement at the
sentencing hearing." Id. at 170; see also
Strickland v. Washington, 466 U.S. 668, 687 (1984)
(stating ineffective-assistance-of-counsel claim requires
proof of deficient performance and prejudice).
the record adequate to address Howell's
ineffective-assistance-of-counsel claim relating to a breach
of the plea agreement. See Lopez, 872 N.W.2d at 169.
Our de novo review reveals the following statements made at
the sentencing hearing.
with the first count, the prosecutor stated, "[W]e would
ask the Court to impose the twenty-five year sentence in this
case and suspend that sentence." The prosecutor went on
to resist any request for the lesser sanction of a deferred
judgment on the ground the ongoing criminal conduct offense
"occurred over the course of a two-year period" and
involved "more than fifty transactions" that
"damaged the victims in this case." She reiterated,
"So we would ask the Court to suspend the sentence and
impose judgment on [the ongoing criminal conduct]
charge." She pointed out it would be in victims'
interest to have defendants in this type of case forgo prison
"with the idea that if they are out and they are
working, they are able to pay restitution to the
victims." On the second count, the prosecutor
recommended a one-week jail sentence "to give the
Defendant an opportunity . . . to consider the damage that
she's done to the victims, and to impress upon her the
importance of paying restitution in this case."
concedes the prosecutor correctly informed the district court
of the plea agreement but argues the prosecutor's
discussion of a deferred judgment was essentially a ruse to
inject negative facts into the sentencing record and to
highlight the damage she inflicted on the community. In her
words, "[N]o one was seeking a deferred judgment,"
yet the prosecutor "gratuitously and vigorously argued
against a ...