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State v. Andrews

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
NICHOLAS ANDREWS, Defendant-Appellant.

          Appeal from the Iowa District Court for Webster County, Bethany J. Currie (guilty plea) and Kurt L. Wilke (sentencing), Judges.

         A defendant appeals his conviction and sentence for illegally possessing a firearm as a domestic-abuse offender.

          Agnes G. Warutere, Clive, for appellant.

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

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

          TABOR, Presiding Judge.

         Nicholas 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.

         The 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 postconviction-relief proceedings.

         This 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.

         "We 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 question."[1] Id.

         This 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.

         In 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 sentencing court:

[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 ...


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