from the Iowa District Court for Sioux County, Tod J. Deck,
criminal defendant appeals his sentence after pleading guilty
to four counts of child endangerment. SENTENCES
VACATED AND REMANDED FOR RESENTENCING.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
DANILSON, CHIEF JUDGE.
Spaans appeals his sentence after pleading guilty to four
counts of child endangerment. He contends he received
ineffective assistance of counsel when his plea counsel
failed to object to the State's alleged breach of the
plea agreement. He also contends the district court
considered improper factors during sentencing. Spaans lastly
challenges a portion of the sentencing order related to
appellate attorney fees. We conclude an improper sentencing
factor was considered, and accordingly, we vacate the
defendant's sentences and remand for resentencing.
Background Facts and Proceedings.
February 27, 2017, Spaans was charged with seven counts of
child endangerment and seven counts of assault causing bodily
injury or mental illness. The State amended the trial
information multiple times, and the number and nature of
charges against Spaans increased. Ultimately, Spaans reached
an agreement to plead guilty to four counts of child
endangerment, in violation of Iowa Code sections 726.6(1)(a),
(c) and 726.6(7) (2017). Section 726.6(1)(b) was also cited
in the trial information, but there were no averments in the
trial information supporting a violation of this alternative.
February 20, 2018, Spaans filed a written guilty plea, and
the parties filed a written plea agreement. The written
guilty plea did not list the code provisions to which Spaans
was pleading guilty, nor did it go into detail of the factual
basis for his guilty plea. However, the written plea
agreement did recite the language used in code provisions.
The written plea agreement simply stated, "As a parent,
guardian, or person having custody or control over a child
under the age of [fourteen], I did knowingly act in a manner
that created a substantial risk to a child's physical,
mental, or emotional health or safety."
written guilty plea, Spaans agreed "that the court may
review and rely upon the minutes of testimony as additional
factual support for my guilty plea." However, during the
plea colloquy, the court inquired concerning the use of the
minutes of testimony, and Spaans's counsel clarified the
court could not consider the allegations in the minutes of
testimony concerning any physical injuries to the children,
as the pleas did not encompass that element.
parties agreed each would make their own sentencing
recommendations. The State would recommend "a total
indeterminate term not to exceed four (4) years; or in the
alternative, a jail term to be determined by the court"
and a suspended fine. Prior to sentencing, the State filed a
sentencing memorandum, which included the facts the State
thought supported the guilty plea and included photographs
showing the children victims' injuries. Both children
filed victim impact statements.
April 2, 2018 sentencing hearing, the court asked the State
to summarize the parties' agreement. Spaans and his
counsel agreed they had the same understanding of the
parties' plea agreement as the State's summary. The
terms recited were consistent with the written plea
agreement. Spaans was asked whether he objected to the
State's most recent amendment to the trial
information-which was made to match the ...