from the Iowa District Court for Wright County, Paul B.
Ahlers, District Associate Judge.
Hanna appeals his conviction, following a guilty plea, of
operating while intoxicated.
L. Bixenman of Murphy, Collins, Bixenman & McGill,
P.L.C., Le Mars, for appellant.
J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
to a plea agreement, Travis Hanna pled guilty to operating
while intoxicated (OWI). A pretrial-conference report stated
the terms of the agreement included the State recommending a
"suspended sentence" with "miniumum 7 days in
jail," probation, and other matters. Hanna's written
plea of guilty recited:
My attorney has engaged in plea bargaining discussions with
the prosecutor regarding the disposition of this case. The
terms of the agreement reached are as follows: joint
recommendation of 180 day jail sentence with all but 7
suspended, serve by January 15 2018, minimum fine
surcharge, $10 DARE surcharge, costs and fees, probation . .
. for 2 years. I understand that the recommendations of the
prosecuting attorney are not binding on the Court.
and his attorney signed the plea.
court accepted the plea of guilty and scheduled a sentencing
hearing, requiring Hanna and counsel to personally appear. At
the hearing, the State recommended two years in prison with
all but seven days of the sentence suspended, two years of
probation, and other provisions. When asked if the State had
"lived up to its end of the plea agreement,"
defense counsel said, "Yes it has, Your Honor."
Defense counsel later asked the court to "go along with
the joint recommendation of the 2-year suspended sentence,
probation . . . for 2 years, and a 7-day jail sentence."
The court sentenced Hanna to a prison term not to exceed two
years but denied the joint request to suspend that sentence.
appeals, raising three issues: (1) the State breached the
plea agreement with its sentencing recommendation; (2)
defense counsel was ineffective in joining the State's
recommendation; and (3) the court failed to inform him in
advance that it refused to be bound by the agreement and
failed to tell him he had a right to withdraw his guilty
consider the first two issues together. "[T]he remedy
for the State's breach of a plea agreement as to a
sentencing recommendation is to remand the case for
resentencing by a different judge, with the prosecutor
obligated to honor the plea agreement and sentencing
recommendation." State v. Lopez, 872 N.W.2d
159, 181 (Iowa 2015). The remedy is the same when defense
counsel fails to object to such a breach by the State.
See State v. Fannon, 799 N.W.2d 515, 523-24 (Iowa
2011); State v. Bergmann, 600 N.W.2d 311, 315 (Iowa
1999). Ineffective-assistance-of-counsel claims are not
subject to ordinary error-preservation rules. Nguyen v.
State, 878 N.W.2d 744, 750 (Iowa 2016). Our review of
such claims is de novo. See State v. Harris, 919
N.W.2d 753, 754 (Iowa 2018). In order to prevail on his
ineffective-assistance-of-counsel claim, Hanna must show by a
preponderance of the evidence that (1) counsel failed to
perform an essential duty and (2) prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
pretrial-conference report-signed by Hanna, defense counsel,
and the prosecutor-only called for the State's
recommendation of a "suspended sentence" with
"miniumum 7 days in jail." The written guilty plea,
signed by Hanna and his attorney, recited the plea agreement
to include a joint recommendation of a 180-day jail sentence
with all but seven days suspended. At the sentencing hearing,
the State and Hanna's attorney recited the agreement as
two years of incarceration with all but seven days suspended.
The record is inadequate to determine precisely what the plea
agreement was, or what the source of the confusion was.
Without such a record, we cannot determine whether the State
breached the plea agreement, whether counsel was ineffective
in joining the State's recommendation and not objecting
to the State's recitation, or whether the written guilty
plea prepared by counsel was a correct statement of the
agreement. We preserve the first two issues for possible
postconviction-relief proceedings. See Harris, 919
N.W.2d at 754; State v. Johnson, 784 N.W.2d 192, 198
Hanna argues the court abused its discretion when it failed
to inform him in advance that it refused to be bound by the
plea agreement, and failed to tell him he had a right to
withdraw his guilty plea. He asserts Iowa Rule of Criminal
Procedure 2.10 requires such an advance notice. When a plea
of guilty is tendered on the basis of a plea agreement, the
agreement must be disclosed to the plea-taking court. Iowa R.
Crim. P. 2.10(2). Rule 2.10(3) requires a notice to a
defendant "when the plea agreement is conditioned upon
the court's concurrence, and the court accepts the plea