from the Iowa District Court for Scott County, Marlita A.
DeWitt appeals his sentence following a guilty plea to eight
counts of invasion of privacy.
A. Simmons, Bettendorf, for appellant.
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
city employee Roy DeWitt secretly recorded people using a
restroom at work. He was charged with and pled guilty to
eight counts of invasion of privacy, an aggravated
misdemeanor. See Iowa Code § 709.21(1) (2017).
DeWitt waived his right to an in-court plea colloquy and a
reported hearing. The district court accepted DeWitt's
plea "subject to confirmation of the plea agreement at
the time of sentencing." The plea agreement stated in
This is an open plea. The State may make any recommendation
at the time of sentencing.
However, if the defendant accepts the plea agreement by
8/31/18, the State agrees not to file additional charges for
all videos discovered on the recording device and on the
defendant's phone. In addition, if the defendant accepts
the plea agreement by the deadline, the State will also agree
to cap any recommendation of incarceration to 6 years, if
incarceration is recommended. . . . .
Concurrence of the Court to this Agreement
is/is not a
condition to the acceptance of the plea.
accepted the plea by the deadline. At sentencing, the
district court declined to limit incarceration to six years,
as indicated in the plea agreement. The court sentenced
DeWitt to prison terms not exceeding two years on each count
and required the sentences to be served consecutively. The
court denied DeWitt's motion to reconsider.
appeal, DeWitt argues (1) the prosecutor breached the plea
agreement, the plea agreement was conditioned on the
court's concurrence, and he was not given an opportunity
to withdraw his plea as required by rule, rendering the
sentence "procedurally defective"; (2) his plea
attorney was ineffective in failing to object to the
prosecutor's breach of the plea agreement; and (3) the
district court abused its discretion in "employ[ing] an
impermissible factor in the decision to run all sentences
consecutively." We find the first issue dispositive,
specifically, DeWitt's challenge based on the nature of
the plea agreement.
Iowa Rule of Criminal Procedure 2.10, "a plea may or may
not be conditioned on the district court's
concurrence." State v. Schultz, No.
18-0818, 2019 WL 156657, at *1 (Iowa Ct. App. Jan. 9, 2019).
The rule states:
If a plea agreement has been reached by the parties the court
shall require the disclosure of the agreement in open court
at the time the plea is offered. Thereupon, if the agreement
is conditioned upon concurrence of the court in the charging
or sentencing concession made by the prosecuting attorney,
the court may accept or reject the agreement, or may ...