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State v. McConnelee

Court of Appeals of Iowa

October 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
BRIAN McCONNELEE, Defendant-Appellant.

          Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar (plea) and David P. Odekirk (sentencing), Judges.

         Brian McConnelee appeals his sentences for multiple convictions, claiming his counsel provided ineffective assistance by failing to object to the prosecutor's breach of the parties' plea agreement.

          John J. Bishop, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          BOWER, JUDGE.

         Brian McConnelee appeals his sentences for three counts of possession of marijuana, third or subsequent offense; one count of possession of methamphetamine, third or subsequent offense; one count of possession of alprazolam, third or subsequent offense; and two counts of operating while intoxicated, first offense. McConnelee claims his counsel provided constitutionally ineffective representation by failing to object to the prosecutor's breach of the parties' plea agreement. We determine defense counsel failed to perform an essential duty by failing to timely object to the prosecutor's breach of the plea agreement. We presume McConnelee was prejudiced by defense counsel's failure. We vacate McConnelee's sentences and remand for resentencing before a different judge.

         I. Background Facts & Proceedings

         On June 19, 2016, McConnelee was arrested after he was found asleep behind the wheel of a running vehicle parked in the middle of the road. Controlled substances were found in the vehicle, McConnelee failed field sobriety tests, and lab testing revealed intoxicating substances in his urine. He was charged in case FECR081081 with possession of marijuana with intent to deliver, second or subsequent offense, in violation of Iowa Code section 124.401(1)(d) and 124.411 (2016); possession of methamphetamine, third or subsequent offense, in violation of section 124.401(5); and operating while intoxicated, first offense, in violation of section 321J.2. He was released on bond.

         On September 13, McConnelee was stopped while driving without a valid license. McConnelee admitted to the officer there might be marijuana in the car and the subsequent search revealed marijuana and controlled medications not prescribed to McConnelee. In case FECR081232, McConnelee was charged with possession of marijuana with intent to deliver, in violation of section 124.401(1)(d), and possession of alprazolam, third or subsequent offense, in violation of section 124.401(5). He was again released on bond.

         On September 16, police pulled McConnelee over in a traffic stop for driving erratically and found marijuana and paraphernalia in the car. McConnelee refused to provide a urine sample under the implied consent procedure. McConnelee was charged in case FECR081239 with possession of marijuana with intent to deliver, in violation of section 124.401(1)(d), and operating while intoxicated first offense, in violation of section 321J.2.

         McConnelee entered into a plea agreement with the State. The State lowered each count of possession of marijuana with intent to deliver, a class "D" felony, to possession of marijuana, third or subsequent offense, an aggravated misdemeanor. McConnelee entered an Alford plea[1] to possession of marijuana, third or subsequent offense; possession of methamphetamine, third or subsequent offense; and operating while intoxicated, first offense, in case FECR081081. He entered an Alford plea to possession of marijuana, third or subsequent offense, and possession of alprazolam, third or subsequent offense, in case FECR081232. Finally, he entered an Alford plea to possession of marijuana, third or subsequent offense, and operating while intoxicated, first offense, in case FECR081239. The district court accepted McConnelee's guilty pleas at a hearing on September 7, 2017.

         An email dated September 5 from the county attorney to McConnelee's counsel set forth the plea agreement: "Each party free to argue any/all aspects of sentencing." But when the county attorney recited the plea agreement to the court at the plea hearing on September 7, he characterized the State's sentencing recommendation as "State is agreeing to ask for-well, essentially the State is going to ask for at least a five-year sentence imposed-prison sentence imposed. However, the [presentence investigation (PSI) report] recommends any consecutive sentences or anything higher than the 5 years, the State will follow the recommendations of the PSI." The email version of the plea agreement was not provided to the court at the plea hearing.

         The sentencing hearing was held on October 24. The PSI report recommended prison for each count, with the sentences for each case to be run consecutive to each other. McConnelee asked for a suspended sentence and probation. The State recommended prison for each count, with every count and every case to run consecutively. The court sentenced McConnelee to prison for each count and ordered fines for each count, with the fines on the drug counts suspended. The court ordered ...


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