from the Iowa District Court for Scott County, Nancy S. Tabor
(guilty plea) and Mark J. Smith (sentencing), Judges.
Keller appeals from his conviction for theft in the second
D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.
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.
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).
rule proceeds to identify the circumstances under which a
defendant may withdraw a plea conditioned on the court's
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
Iowa R. Crim. P. 2.10(4); State v. Wenzel, 306
N.W.2d 769, 771 (Iowa 1981).
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."
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."
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."
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 ...