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State v. Howell

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
AMY LEE HOWELL, Defendant-Appellant.

          Appeal from the Iowa District Court for Marshall County, Timothy J. Finn, Judge.

         Amy Howell appeals her judgment and sentence following a guilty plea.

          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.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          VAITHESWARAN, Presiding Judge.

         The 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.

         On 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.

         I. Claimed Breach of Plea Agreement-Ineffective Assistance

         A 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.

         Conversely, 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).

         We find 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.

         Beginning 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."

         Howell 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 ...


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