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State v. Keller

Court of Appeals of Iowa

November 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
AUSTIN L. KELLER, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Nancy S. Tabor (guilty plea) and Mark J. Smith (sentencing), Judges.

         Austin Keller appeals from his conviction for theft in the second degree.

          Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

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

          Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J. [*] Tabor, J., takes no part.

          VAITHESWARAN, Presiding Judge.

         This appeal requires us to determine whether a defendant was entitled to withdraw his plea. Iowa Rule of Criminal Procedure 2.10, governing plea agreements, speaks to the issue. The rule begins by identifying the options available when a plea agreement is conditioned on the district court's concurrence: "[I]f the agreement is conditioned upon concurrence of the court in the charging or sentencing concession made by the prosecuting attorney, the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a presentence report." Iowa R. Crim. P. 2.10(2).

         The rule proceeds to identify the circumstances under which a defendant may withdraw a plea conditioned on the court's concurrence:

If, at the time the plea of guilty is tendered, the court refuses to be bound by or rejects the plea agreement, the court shall inform the parties of this fact, afford the defendant the opportunity to then withdraw defendant's plea, and advise the defendant that if persistence in a guilty plea continues, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

Iowa R. Crim. P. 2.10(4); State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981).

         Austin Keller pled guilty to second-degree theft after agreeing he stole tools from a place of business. His memorandum of plea agreement stated the plea was "open" and the prosecutor would "recommend supervised probation, recognizing the defendant is eligible for a deferred judgment." The memorandum simultaneously stated, "Concurrence of the court to this agreement is a condition to the acceptance of the plea."

         At a plea hearing, the district court informed Keller of the options facing a defendant when a plea is conditioned on the court's concurrence. The court stated, "[I]f the sentencing judge decides to . . . not accept the plea, . . . you would have an opportunity to withdraw your guilty plea." After informing Keller of the rights he would relinquish by pleading guilty, the court "defer[red] acceptance or rejection of the plea agreement until such time as a presentence investigation report [was] prepared and filed with the court."

         At sentencing, a different district court judge asked the prosecutor and defense attorney whether the plea agreement was binding on the court. Relying on the "open plea" language of the agreement, both stated the agreement did not bind the court. The court sentenced Keller to prison but suspended the sentence and placed Keller on probation with conditions, including completion of "the Residential Corrections Facility program."

         On appeal, Keller contends the district court imposed "a greater sentence than agreed to in the plea agreement without giving [him] the opportunity to withdraw the plea." He specifically challenges the court's decision to place him at a residential corrections facility instead of allowing him to serve his probation at home, a decision he characterizes as a rejection of the plea agreement. Because his attorney did not object to the claimed ...


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