STATE v. WROBLEWSKI, 695 N.W.2d 507 (Iowa App. 2005)

No. 5-118 / 04-1150Court of Appeals of Iowa.
Filed February 24, 2005

Appeal from the Iowa District Court for Floyd County, Peter B. Newell, Judge.

Jeremiah Wroblewski appeals his sentence imposed by the district court upon his guilty plea. REVERSED, SENTENCE VACATED,AND REMANDED.

Todd Prichard of Elwood, O’Donohoe, Stochl, Braun, Churbuck, Charles City, for appellant.

Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Marilyn Dettmere, County Attorney, and Kimberly Birch, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.

VAITHESWARAN, J.

Jeremiah Wroblewski pled guilty to domestic abuse assault and simple assault. At the combined plea and sentencing hearing, the district court acknowledged a written plea agreement signed earlier,[1] engaged Wroblewski in a colloquy about the agreement, and accepted the pleas. The court then stated it was not bound by the sentencing recommendations contained in the agreement and could “impose any sentence, including the maximum possible penalty.” The court proceeded to impose a more stringent sentence than was set forth in the agreement, notwithstanding the parties’ oral reaffirmation of the more lenient recommendation.

On appeal, Wroblewski raises a single issue: Whether he should have been given the opportunity to withdraw his plea once it became apparent that the court did not intend to adopt the sentencing recommendations in the written plea agreement. Our review is for errors of law. State v. Barker, 476 N.W.2d 624, 625 (Iowa Ct.App. 1991).

Iowa Rule of Criminal Procedure 2.10(4) (2004) states in pertinent part:

If, at the time the plea of guilty is tendered, the court refuses to be bound by or rejects the plea agreement, the court shall inform the parties of this fact, afford the defendant the opportunity to then withdraw defendant’s plea, and advise the defendant that if persistence in a guilty plea continues the disposition of the case may be less favorable to the defendant then that contemplated by the plea agreement.

This language is controlling.

The State attempts to circumvent the rule by arguing that the parties did not agree “the proffered plea agreement was conditioned on the court’s complete acceptance” under related rule 2.10(2). We are not persuaded by this argument. Rule 2.10(2) states that the court may accept, reject, or defer decision on the plea agreement “if the agreement is conditioned upon concurrence of the court in the charging or sentencing concession made by the prosecuting attorney.”

The written plea agreement tracks this language and the language of rule 2.10(4), stating:

This guilty plea is conditioned upon the Court’s concurrence with the plea agreement as stated herein. The judge will inform me whether the Court accepts the agreement or rejects it before accepting my guilty plea. I understand that if the court rejects the agreement (sic) I have the right to persist in my not guilty plea.

This language unequivocally establishes that the plea was conditioned on the court’s acceptance of the agreement.

The State also points out that the written plea agreement was not signed by the prosecutor. However, the agreement states, “the county attorneys (sic) office endorses this plea agreement and joins in requesting the Court to sentence me accordingly.” Moreover, the prosecutor’s sentencing recommendation during the hearing did not deviate from the language contained in the agreement. Based on the plain language of the agreement and the plain language of rules 2.10 (2) and (4), we conclude Wroblewski was entitled to withdraw his plea once the court decided to reject the agreement’s sentencing recommendations. We find it unnecessary to address Wroblewski’s due process argument.

We vacate the sentence and remand for further proceedings consistent with this opinion. Barker, 476 N.W.2d at 629.

REVERSED, SENTENCE VACATED, AND REMANDED.