from the Iowa District Court for Webster County, Bethany J.
Currie (guilty plea) and Kurt L. Wilke (sentencing), Judges.
defendant appeals his conviction and sentence for illegally
possessing a firearm as a domestic-abuse offender.
G. Warutere, Clive, for appellant.
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
Andrews claims the State breached its plea agreement with him
and his attorney should have objected. The State charged
Andrews with illegal possession of a firearm and driving
while barred. Under their bargain, Andrews agreed to plead
guilty to firearm possession, and the State agreed to
recommend probation and to dismiss the other count.
court held a hearing to accept Andrews's plea and granted
him pretrial release. But before sentencing, Andrews was
charged with committing additional crimes. At sentencing, the
State recommended Andrews reside at a community corrections
facility. The district court imposed an indeterminate
five-year prison term. On appeal, the State denies any
breach, claiming it reached an amended plea agreement with
Andrews after he picked up the new charges. Because we cannot
tell from this record if Andrews received effective
assistance of counsel, we preserve his claim for possible
case started as a traffic stop. A Fort Dodge police officer
pulled Andrews over, reasonably suspecting he was driving
while his license was barred. During the investigation, the
officer found a loaded .22 caliber revolver inside the car.
Andrews admitted possessing the firearm despite having a
prior conviction for assaulting his ex-wife. On appeal,
Andrews challenges the performance of his trial counsel in
addressing these and later charges.
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. Macke, 933 N.W.2d
226, 230 (Iowa 2019) (quoting State v. Lopez, 872
N.W.2d 159, 168 (Iowa 2015)). We hold prosecutors to the
letter and spirit of their plea agreements because
fundamental rights are at stake for the defendants. State
v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008). If the
State's sentencing recommendation breached the
parties' plea agreement, Andrews's counsel was
ineffective for failing to object. See Macke, 933
N.W.2d at 236. In that event, we presume prejudice.
Id. His remedy is for the prosecutor to honor the
agreement at resentencing before a different judge. See
id. But "[o]ur threshold question is whether the
record in this direct appeal is sufficient to resolve that
record is inadequate to decide counsel's effectiveness.
The parties filed their original plea agreement in June 2018.
Andrews agreed to plead guilty to possession of a firearm by
a domestic abuse offender in violation of Iowa Code section
724.26(2)(a) (2018). The agreement contemplated both parties
would recommend a suspended five-year sentence and two years
of probation. The State agreed to dismiss all remaining
counts. The parties also agreed to Andrews's
"release with supervision pending plea,
sentencing." The court accepted the guilty plea on July
2, 2018. The next day, police again arrested Andrews for
driving while barred. One week later, police arrested him for
eluding, interference with official acts, and other traffic
offenses. In mid-July, the State moved to revoke
Andrews's bond because he faced those new charges.
August 2018, Andrews appeared for sentencing on the firearm
possession count. The county attorney explained that Andrews
pleaded guilty to the new driving-while-barred charge the
week before in front of a different judge. The State told the
[W]e originally had a plea agreement with the defendant. . .
. That was for probation with an entirely suspended sentence.
However, he picked up a driving while barred charge while out
on release, so we amended the plea agreement in this case to
have him have probation with the requirement that he attend
the Residential correctional facility.
The court responded: "I'm not interested in
that." The State added: "That's the amended
plea agreement and that's what he was ordered to do in
the AGCR ...