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State v. Pennington

Court of Appeals of Iowa

October 9, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
TIFFANY MARIE PENNINGTON, Defendant-Appellant.

          Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judge.

         A defendant appeals her sentence following a guilty plea.

          Shawn C. McCullough of Powell and McCullough, PLC, Coralville, for appellant.

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

          Considered by Vaitheswaran, P.J., and Tabor and May, JJ.

          TABOR, JUDGE.

         Tiffany Pennington claims her plea counsel provided subpar representation by failing to object to the prosecutor's less-than-wholehearted sentencing recommendation as a violation of their plea agreement. Finding the State injected "material reservations" about Pennington's prospects for success on probation, we find counsel breached a duty in not objecting. Thus, we vacate the prison sentence and remand for resentencing.

         The State charged Pennington with possession with intent to deliver more than five grams of methamphetamine (a class "B" felony), a drug-tax-stamp violation, child endangerment, and possession of marijuana. After bargaining with the State, she agreed to plead guilty to possession of less than five grams of methamphetamine with intent to deliver (a class "C" felony). In exchange, the prosecution agreed to dismiss the remaining counts and recommend a suspended sentence with supervised probation.[1]

         At sentencing the State initially voiced the promised recommendation:

Your Honor, the State is recommending a suspended sentence in this matter largely-primarily based on the defendant's lack of prior history, specifically lack of felonies, and I think there are only a couple misdemeanors on here.
I would note the Department of Correctional Services' recommendation is consistent with that.

         But in the next breath, the State hedged its recommendation:

The State does have some significant concerns that Ms. Pennington, I think, will need to address if she's to be successful while on probation. She comes to court today and says that she has now obtained a substance-abuse evaluation and is now in treatment. The State has no basis to dispute that, nor is that confirmed with the State or the court today, so we're going to have to take Ms. Pennington's word for it.
I note that so far supervision has not gone very well for Ms. Pennington in that she only recently obtained her substance abuse evaluation, and she has already ...

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