review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Carol S. Egly,
District Associate Judge.
alleging State breached plea agreement seeks further review
of court of appeals decision affirming her conviction and
sentence for child endangerment.
L. Campbell of Dickey & Campbell Law Firm, PLC, Des
Moines, for appellant.
J. Miller, Attorney General, Thomas J. Ogden, Assistant
Attorney General, John P. Sarcone, County Attorney, and Nan
Horvat, Assistant County Attorney, for appellee.
case is among dozens of pending appeals presenting the
question whether amendments to Iowa Code sections 814.6 and
814.7 enacted in Senate File 589 (the Omnibus Crime Bill)
govern our review of an appeal from a final judgment and
sentence entered before the new statute's effective date
of July 1, 2019. Amended section 814.6 limits direct appeals
from guilty pleas, and amended section 814.7 requires
ineffective-assistance claims to be brought in postconviction
proceedings rather than by direct appeal.
2018, defendant, Erin Macke, entered an Alford plea
to four counts of child endangerment pursuant to an alleged
plea agreement she contends obligated the State to jointly
recommend a deferred judgment. At the sentencing hearing, the
State instead recommended, and the court imposed, a two-year
suspended prison sentence without objection from defense
counsel. The defendant appealed with new counsel, claiming
the State had breached the plea agreement and her defense
counsel was ineffective for failing to object. On March 20,
2019, the court of appeals affirmed her conviction and
sentence while preserving her ineffective-assistance claim
for postconviction proceedings. Senate File 589 subsequently
was signed into law and became effective July 1 of this year.
We granted Macke's application for further review and
directed the parties to file supplemental briefs on whether
the new law applies. The State argues Senate File 589
forecloses relief in this direct appeal while Macke argues
the amendments are inapplicable.
review, we hold Iowa Code sections 814.6 and 814.7, as
amended, do not apply to a direct appeal from a judgment and
sentence entered before July 1, 2019. We have long held that
"unless the legislature clearly indicates otherwise,
'statutes controlling appeals are those that were in
effect at the time the judgment or order appealed from was
rendered.'" James v. State, 479 N.W.2d 287,
290 (Iowa 1991) (quoting Ontjes v. McNider, 224 Iowa
115, 118, 275 N.W. 328, 330 (1937)). Senate File 589 lacks
language indicating the legislature intended the amendments
to sections 814.6 or 814.7 to apply to appeals from judgments
entered before its effective date. We decline the State's
invitation to overrule James or follow arguably
contrary federal authority. On the merits, we determine the
State breached the plea agreement and Macke's original
counsel was ineffective for failing to object. We vacate her
sentence and remand the case for the State's specific
performance of the plea agreement and resentencing by a
Background Facts and Proceedings.
2017, Erin Macke, age thirty-one, lived with her four
children, ages six, seven, and twelve (twins), in their
Johnston apartment. On September 20, Macke departed for
Germany. Macke had arranged for her building's
maintenance technician to check on the children at bedtime.
The next day, Matt McQuary, Erin's ex-husband and father
of the twins, called Johnston police from his home in Texas
and requested a welfare check, reporting to the dispatcher
that the children "were left alone by their mother with
an unsecured firearm in the residence" after she left
for Germany without arranging for adult supervision. The
responding police officer found the four children alone in
the apartment that evening. They said their mother was in
Germany, and when asked about guns, the oldest boy led the
officer "to his mother's bedroom and pointed to a
pink pistol case sitting on a shelf" containing an
unloaded Glock pistol next to two magazines holding "9
mm Speer hollow point bullets." A department of human
services child protective assessment worker placed the
children in temporary custody with nearby relatives and later
with their respective fathers.
October 31, the State charged Erin Macke by trial information
with four counts of child endangerment in violation of Iowa
Code section 726.6(1)(a) (2018) and one count of
violating section 724.22(2) (transfer of pistol to a minor).
On February 26, 2018, Macke's defense attorney filed a
"Petition to Plead Guilty (Alford)," which recited
a plea agreement with the State as follows: "Alford
plea to Counts 1-4 of TI; joint Recommendation of Deferred
Judgment and Probation. State will dismiss Ct. 5."
The document was signed by Macke and her counsel but lacked a
signature line for the State and was not signed by the
prosecutor. The district court conducted a plea hearing the
same morning. Defense counsel stated on the record that the
plea agreement included dismissal of "the gun charge, in
this case, as well as the recommendation-joint recommendation
of a deferred judgment to the charges" of child
endangerment. The State did not object to that description of
the plea agreement or assert different terms. The court did
not ask the State to confirm the terms of the plea agreement
recited by defense counsel. The court on the record accepted
Macke's Alford plea to the four counts of child
endangerment and ordered a PSI (presentence investigation).
Within minutes, the court entered a written order accepting
the Alford plea, which set forth an inconsistent
Barring any new criminal activity or violation of this order,
at sentencing the parties will recommend: The Defendant
will ask for a deferred judgement and probation. The State
reserves its recommendations until it has an opportunity to
review the PSI. The State will recommend dismissal of
Count V. On any new criminal charge or violation of
this order, established by a preponderance of evidence, the
State is not bound by this agreement.
order, on a form apparently provided by the Polk County
Attorney's Office, was not read aloud in court, nor was
Macke questioned about its terms during the plea hearing.
Macke's counsel filed no objection.
department of correctional services completed the PSI on
April 10 and included a sentencing recommendation of
"supervised probation." The same judge who accepted
Macke's Alford plea conducted the sentencing
hearing on April 19. Macke attended with her counsel, and the
same prosecutor represented the State. Macke's counsel
requested a deferred judgment. When the court asked for the
State's sentencing recommendation, the prosecutor
responded by criticizing Macke's conduct and recommending
a suspended sentence and probation, not a deferred judgment.
As you recall, this is the case where four children were left
alone for a period of time while the defendant left the
country and went to Germany. And although there was a
superintendent of the building where the children lived asked
by the defendant to check on them, at the end of the day,
they really had no supervision. They were required to make
meals, get on the school bus, get dressed, and take care of
The hazard to the children is immense. Aside from the fact
that it's a dangerous world, there was no adult living in
the house that could have been available should there have
been a medical emergency, a fire, or the possibility of an
injury. It's just a dangerous situation for children.
The children have been removed from the defendant. They have
dads who are protective. Two went to live in Texas. Two have
lived in Cedar Rapids. And their dads are very protective of
them. And it's the State's position that those
children are in settings where their best interests will be
watched, because of how precious they are, Your Honor.
Our position is that the defendant should receive a suspended
sentence and probation, that as a condition of probation, and
in accordance with what the PSI sets out, she should have
whatever therapy and/or counseling is available to her
through the Department of Corrections, and that she'd
agree to do - at least with the children in Cedar Rapids,
that she and her ex-husband in Cedar Rapids have agreed to
counseling for these children in a setting that would be best
for them. But I think she needs counseling too. Her behavior
was immature and reckless.
The State has agreed to dismiss Count V.
So, Your Honor, we're asking that she receive a suspended
sentence and probation. I'm not arguing for consecutive
sentences, Your Honor. I think it's okay for these counts
to run concurrently. But to do something less than place her
on probation and give a suspended sentence, I think, would
diminish the nature of this crime.
counsel asked to "take a break for a moment" to
step into the hallway before the court resumed the hearing
with a victim-impact statement. Macke's defense counsel
never objected to the State's sentencing recommendation.
The sentencing judge stated, "I will follow the
State's recommendation in this circumstance" and
sentenced Macke to two-year concurrent suspended sentences
and two years' probation. The sentencing order and
judgment of conviction was entered April 19, 2018, over a
year before Senate File 589 was enacted.
through new counsel, filed this direct appeal on May 14,
2018. Her appellate counsel argued that the State breached
the plea agreement by recommending a suspended sentence
instead of a deferred judgment and that Macke's prior
counsel was ineffective in failing to object to the
State's breach of the plea agreement. We transferred the
case to the court of appeals. On March 20, 2019, a
three-judge panel of the court of appeals affirmed
Macke's convictions and sentences but preserved her
ineffective-assistance claims for postconviction relief. The
court of appeals determined the record was insufficient to
resolve the ineffective-assistance claims on direct appeal.
The legislature subsequently enacted Senate File 589, which
the Governor signed into law on May 16, 2019. The law went
into effect on July 1, 2019. We granted Macke's
application for further review and ordered the parties to
file supplemental briefs on whether the new legislation
governed this appeal.
Standard of Review.
review de novo claims of ineffective assistance of counsel
arising from the failure to object to the alleged breach of a
plea agreement." State v. Lopez, 872 N.W.2d
159, 168 (Iowa 2015).
Do the Amendments to Iowa Code Sections 814.6 and 814.7 in
Senate File 589 Apply to This Direct Appeal from a Judgment
and Sentence Entered Before July 1, 2019?
decide whether the 2019 statutory amendments to Iowa Code
sections 814.6 and 814.7 enacted in Senate File 589 govern
our review of Macke's direct appeal from her 2018
judgment and sentence. The parties agree that the effective
date of Senate File 589 is July 1, 2019, but they disagree
whether its amendments circumscribe our subsequent review of
Macke's appeal pending on that date. This is a question
of statutory interpretation.
relying on James, argues that her appeal is governed
by the statutes in effect at the time of the district court
judgment at issue. 479 N.W.2d at 290. The State responds that
James should be overruled. The State, relying on
federal authority, argues the amendments to those Code
provisions are "jurisdiction stripping" and,
therefore, govern pending appeals decided after July 1. We
begin with the statutory text.
Code section 814.6, as amended this year, limits appeals from
1. Right of appeal is granted the defendant from:
a. A final judgment of sentence, except case of in the following cases:
. . . .
(3) A conviction where the defendant has pled guilty.
This subparagraph does not apply to a guilty plea for a class
"A" felony or in a case where the defendant
establishes good cause.
2019 Iowa Acts ch. 140, § 28 (to be codified at Iowa
Code § 814.6(1)(a) (2020)).
814.7 as amended in Senate File 589 eliminates the ability to