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State v. DeWitt

Court of Appeals of Iowa

December 18, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ROY DEAN DEWITT, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

         Roy DeWitt appeals his sentence following a guilty plea to eight counts of invasion of privacy.

          Kent A. Simmons, Bettendorf, for appellant.

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

          Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.

          VAITHESWARAN, JUDGE

         Davenport 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 part:

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[1] a condition to the acceptance of the plea.

         DeWitt 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.[2]

         On 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.

         Under 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 ...

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