No. 4-368 / 03-1939.Court of Appeals of Iowa.
July 14, 2004.
Appeal from the Iowa District Court for Scott County, Mark J. Smith and Bobbi M. Alpers, Judges.
Defendant appeals from the judgment and sentence following his conviction for possession of marijuana with intent to deliver and failure to affix a drug tax stamp. AFFIRMED.
J.E. Tobey, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William Davis, County Attorney, and Robert Weinberg and Julie Walton, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
EISENHAUER, J.
Thomas Loflin appeals from the judgment and sentence following his conviction for possession of marijuana with intent to deliver and failure to affix a drug tax stamp. He contends his counsel provided ineffective assistance in failing to object to the State’s recommendation at sentencing as a violation of the plea agreement, and in failing to move for sentencing to be continued before a different judge. We review his claim de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001).
Paragraph three of the memorandum of plea agreement states in pertinent part:
The State will recommend probation and will not resist a deferred judgment and sentence. The State will recommend the following conditions of probation: 1) the Defendant must successfully complete any substance-abuse treatment required after an evaluation; 2) the Defendant must successfully complete the program and the Residential Corrections Facility.
During sentencing, the prosecutor recommended Loflin be placed on probation with the special condition he complete substance abuse treatment required after the evaluation. The prosecutor also recommended the Residential Corrections Facility program be completed. The following exchange then occurred:
MR. GIESE: I’d like to add to the County Attorney’s words; she didn’t have the “also not resisting deferred judgment” language in the plea agreement.
MS. WALTON: It’s the standard recommendation against incarceration.
MR. GIESE: No, I don’t think so. That’s what I’d like to suggest to the Court, that at least in my discussion with Mr. Weinberg — what he puts in, about the deferred judgment, sends an important signal, is what he tells me. I don’t know whether it’s a general rule of the County Attorney’s Office or just his, but he says he at least never will recommend specifically a deferred judgment, leaves it up to the Court, but the way he expressed it to me was that this language that he uses here, not resisting a deferred judgment and sentence, is the way he sends the signal — that would be the strongest possible position in favor of a deferred judgment — to the Court. I don’t know if that’s the Court’s experience with Mr. Weinberg or not, I don’t know if that’s an office-wide policy, but at least that’s the way he explained things to me, and that is what we are asking the Court to do now.
MS. WALTON: I do not have notation here on the presentence investigation —
MR. GIESE: Well, are you sure that’s not the second one, because we had — we went back and forth to —
MS. WALTON: This is dated October 27, 2003.
MR. GIESE: What does it say?
MS. WALTON: No recommendation on deferred or concurrent.
Loflin’s counsel then urged the district court to defer judgment. The court suspended Loflin’s sentence and placed him on probation in lieu of granting his request for a deferred judgment. The court stated a deferred judgment would not be appropriate given Loflin’s juvenile record in two states, and because his needs could be better met in a residential correctional facility.
Loflin contends his counsel was ineffective in failing to object to the State’s recommendation at sentencing as a violation of the plea agreement, and in failing to move for sentencing to be continued before a different judge. To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
We conclude counsel had no duty to object to the State’s recommendation at sentencing because its recommendation did not violate the plea agreement. Paragraph three of the memorandum of plea agreement simply says. “The State will recommend probation and will not resist a deferred judgment and sentence.” The State did not resist a deferred judgment and sentence. Failure of the prosecutor to articulate the State was not resisting deferred judgment and sentence does not equal a violation of the plea agreement.
AFFIRMED.