State of Iowa v. Chance Ryan Beres ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 19–0369
Filed May 15, 2020
STATE OF IOWA,
Appellee,
vs.
CHANCE RYAN BERES,
Appellant.
Appeal from the Iowa District Court for Poweshiek County, Joel D.
Yates, Judge.
A defendant seeks interlocutory review of the denial of his motion to
dismiss, arguing that an earlier plea agreement bars the State from
bringing the present charges. DISTRICT COURT ORDER REVERSED
AND CASE REMANDED.
Vidhya K. Reddy, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, and Bart K. Klaver, County Attorney, for appellee.
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MANSFIELD, Justice.
I. Introduction.
This case gives us the opportunity to reaffirm once more that plea
agreements are contracts, and accordingly, they are subject to general
principles of contract law.
The plea agreement here provided that the defendant would plead
guilty to his pending charge of second-degree arson, that he would
cooperate in an interview regarding some other suspicious fires that had
occurred, and that the State would not bring charges regarding those other
fires. After the defendant pled guilty, the State changed its mind and
decided it did not need or want the interview. It advised the defendant
before sentencing he would be charged with other arsons and gave him an
opportunity to withdraw from the plea agreement. The defendant declined
to withdraw. Nonetheless, the State brought four additional arson
charges. The defendant moved to dismiss them as a breach of the plea
agreement. The district court denied the motion, and we granted
interlocutory review.
Consistent with the law of contracts, we now hold that the State
could not unilaterally withdraw from the plea agreement either by
declining to conduct the interview or by making an offer of rescission that
the defendant did not accept. Because the State remains bound by its
plea agreement under these circumstances, we reverse the order denying
the defendant’s motion to dismiss and remand with directions to grant
that motion.
II. Facts and Procedural Background.
A. Criminal Acts and Precharge Investigation. Between January
and May 2018, a number of unexplained fires occurred in and around
Poweshiek County. These included a January 26 fire involving a pole barn
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containing hay bales in Grinnell, an April 12 grass fire on private property
in Grinnell, an April 29 grass and shed fire at the county-owned Fox Forest
Wildlife Area, an April 29 nighttime grass fire in Montezuma, an April 30
early morning fire involving an abandoned two-story farmhouse at the
same location, and a May 27 fire at an abandoned barn in Montezuma.
Twenty-year-old Chance Beres, a Montezuma firefighter and
Grinnell paramedic, seemed to be a common denominator in these fires.
Either he had reported the fire, responded to the fire, been prepared to
respond to the fire, or had a combination of these types of involvement.
On or about February 20, investigator Lucas Ossman of the State
Fire Marshall’s Office and Deputy Steve Kivi of the Poweshiek County
Sheriff’s Office opened an arson investigation into the initial January 26
fire. By early April, Ossman believed some fires were being intentionally
set by a firefighter. Eventually, suspicion focused specifically on Beres.
Beres had recently joined the Montezuma Fire Department on April 25.
He had also been working as a paramedic for Midwest Ambulance Service
in Grinnell since July 2017.
On April 29 at approximately 9:41 p.m., the Montezuma Fire
Department was called to a grass fire. Beres responded initially on his
own and then returned with other firefighters in a different truck. A few
hours later, early in the morning of April 30, Beres both reported and then
responded with the Montezuma Fire Department to an abandoned
farmhouse fire at the same location. Fire personnel indicated Beres had
been ready to respond to the April 30 fire before everyone else and that he
had made “odd comments” at the scene while responding to both the
April 29 nighttime grass fire and the April 30 farmhouse fire. That same
day, Kivi conducted a plain-view examination of Beres’s truck and noticed
accelerants and possible fire-starting materials inside.
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A search warrant was obtained allowing the placement of a GPS
tracker on Beres’s truck. The warrant application stated a belief that
Beres “has committed and is committing” arsons. It referred specifically
to the April 29 and April 30 fires. The warrant application was approved,
and the GPS tracker was attached to Beres’s vehicle the same day.
Also on April 30, Ossman and Kivi were made aware of the earlier
April 12 grass fire which had occurred in Grinnell, as well as the earlier
April 29 grass and shed fire which had occurred at the county-owned Fox
Forest Wildlife Area. These two fires had not initially been regarded as
suspicious but were now reclassified as such. The dispatch record from
the April 12 fire indicated the reporting party had seen a vehicle that could
have been a match for Beres’s truck.
Investigators contacted other area fire authorities, inquiring into
Beres. By May 2, investigators learned that Beres had a history of “being
associated with” fires, fire departments, and calls for service since the time
he was approximately seventeen years old. They learned that Beres had
expressed interest in working for the Malvern Fire Department but had not
been accepted because of his odd behavior regarding fires and fire calls for
service.
On May 11, investigators obtained a search warrant for records
relating to Beres’s cell phone calls and cell tower locations for January
through April 2018. The search warrant application referred to a number
of the fires and stated,
Law enforcement believes Beres was involved in starting
these fires, and believes that obtaining his cell phone records
for these dates will show Beres was in the area of these fires
near the time they would have been lit, and/or to become
familiar with the area before lighting the fires, and/or to re-
visit the scene.
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The requested cell phone and locational records were received by
investigators on May 16.
On May 27, emergency responders were called to a barn fire in
Montezuma. Investigators examined the GPS tracking record for Beres’s
vehicle and determined Beres had been at the scene before the fire was
reported. Later that evening, Beres was arrested for starting that fire.
Beres submitted to an hour-and-a-half recorded postarrest
interview with Ossman and Kivi. Beres admitted he had started the
May 27 Montezuma barn fire and the April 12 grass fire. He stated that
he had tried but failed to set fire to the wildlife conservation area the day
before the April 29 fire occurred at that location. He said he might have
“accidentally” started the April 29 nighttime grass fire in Montezuma by
flicking a lit cigarette. Additionally, while he denied starting the April 30
fire at the same location, he admitted he saw and reported it, claiming this
was “a fluke.” Beres also admitted he was at the scene of the January 26
fire and had parked there about ten to fifteen minutes and reported that
fire, even though he denied setting it. Beres also admitted to starting a
number of other fires, including one in Boone County.
On June 1, Beres’s time card records were subpoenaed from
Midwest Ambulance Service. The time card records, produced on July 1,
appeared to indicate Beres had responded with Midwest Ambulance to
several of the fires, including the January 26 and the April 12 fires.
B. Charge and Plea in Poweshiek County Case
No. FECR010796—the May 27 Montezuma Barn Fire. On June 5, the
State charged Beres by trial information in Poweshiek County Case No.
FECR010796 with arson in the second degree, a class “C” felony. See Iowa
Code § 712.3 (2018). The charge related to the May 27 Montezuma barn
fire.
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On June 29, the parties notified the court that they had reached a
plea agreement. A plea hearing was held before the district court on
July 9. As required by Iowa Rules of Criminal Procedure 2.8 and 2.10, the
parties’ plea agreement was put on the record and was confirmed by
defense counsel, the defendant, and the prosecutor as follows:
THE COURT: What is the plea agreement in the case?
MR. STIEFEL: The plea agreement to my
understanding, Your Honor, is in exchange for Mr. Beres’[s]
guilty plea today, at the sentencing hearing, both parties will
have the option of arguing for whatever sentence they think is
appropriate.
And at least on Mr. Beres’[s] behalf, that would include
the ability to argue for a deferred judgment.
It’s a further provision of the plea agreement that if
Mr. Beres successful[ly] enters his guilty plea today, that the
State and the defendant would both request that he be
released from jail under the pretrial supervision of the 8th
Judicial District Department of Correctional Services.
And it is the further provision of the plea agreement that
Mr. Beres agrees to cooperate with an interview with the
Poweshiek County Sheriff’s Office regarding the incident and
other potential incidents that led to his current criminal
charges, and that if Mr. Beres cooperates with the interview
and is truthful to the satisfaction of the sheriff’s department
in the interview, that the State will file no further charges
against Mr. Beres for any alleged incidents that may have
occurred prior to his date of incarceration in this case.
THE COURT: Mr. Beres, is that your understanding of
the plea agreement?
MR. BERES: Yes, Your Honor.
THE COURT: Mr. Klaver, is that your understanding of
the plea agreement?
MR. KLAVER: It is, Your Honor.
THE COURT: And, Mr. Beres, you understand that the
sentencing judge, whoever that may be, will ultimately decide
what your sentence is?
MR. BERES: Yes, Your Honor.
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THE COURT: Have any threats or promises, other than
the plea agreement, been made to get you to plead guilty?
MR. BERES: No, Your Honor.
The district court accepted Beres’s plea of guilty to arson in the
second degree for the May 27 fire. As contemplated in the plea agreement,
Beres was immediately released under supervision, pending sentencing,
which was scheduled for October 1 at 10:30 a.m.
Between June 29 and October 1, no representative of the State or
the sheriff’s office contacted Beres or his attorney to arrange an interview.
Having not heard anything from the State, defense counsel called and left
voicemails for Kivi on September 24 and September 28 inquiring into the
interview scheduling. The calls went unanswered.
After receiving defense counsel’s voicemails, Kivi informed the
county attorney’s office “that the investigations into the suspicious fires
had been concluded and that an interview of the defendant would not serve
any purpose.” At 8:53 a.m. on October 1, about an hour-and-a-half prior
to the sentencing hearing, the county attorney sent an email to defense
counsel stating as follows:
I wanted to let you know in advance of the hearing that
Chance Beres is likely going to be getting additional charges.
I spoke with [Kivi] Friday and then we are scheduled to meet
Tuesday along with the fire marshal (Kivi is off today). I didn’t
want to spring this on you because it is late in the process,
however, the entire purpose of the “plea bargain” if it can even
be called that, was to aid in the investigation. It would appear
that the investigation is concluded and so there is nothing
Mr. Beres[’s] interview would do to assist at this point.
In informal discussions just before the sentencing hearing, the
county attorney reiterated to defense counsel that “additional charges
against the defendant would likely be filed” and that “he was considering
filing additional charges.” At the same time, the county attorney suggested
that if Beres then wanted to withdraw his prior guilty plea, the State would
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not object and would, in fact, support such a withdrawal. Beres declined
to withdraw his guilty plea, indicating that he remained willing to
participate in an interview regarding the uncharged arsons.
The matter proceeded to sentencing. Neither party raised a possible
breach or modification of the plea agreement. A presentence
investigation (PSI) report had been completed and was available to the
court and the parties at sentencing. The PSI report discussed Beres’s
alleged involvement in setting other fires.
Defense counsel objected to the court’s consideration of unproved
allegations relating to other fires, and the county attorney agreed they
should not be considered. The district court indicated it would not
consider the allegations, treating them as deleted from the PSI report. The
court then inquired into the parties’ recommendations for Beres’s
sentence. Beres and his attorney argued for a deferred judgment, while
the State argued for imposition of a ten-year prison sentence. The
sentencing court ultimately sided with Beres, entered a deferred judgment,
and placed Beres on five years of probation.
C. Subsequent Charges in Poweshiek County Case
No. FECR010833—Earlier Fires. On November 9, about a month after
Beres was sentenced on his plea to the May 27 fire in Case
No. FECR010796, the State charged Beres in Poweshiek County Case
No. FECR010833 with four additional counts of arson. This is the case in
which the present appeal is taken. The four counts involved the
January 26 pole barn fire (count I), the April 30 abandoned farmhouse fire
(count II), the April 29 fire at the county-owned Fox Forest Wildlife Area
(count III), and the April 12 grass fire on private property (count IV). Three
of the counts were for arson in the second degree, a class “C” felony, see
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Iowa Code § 712.3; the remaining count was for arson in the third degree,
an aggravated misdemeanor, see id. § 712.4.
On December 29, Beres moved to dismiss these charges, arguing
that the State’s bringing charges for pre-May 27 conduct violated the
earlier plea agreement. The State resisted, urging the motion to dismiss
should be denied because
[t]he State did not breach any plea agreement, specifically the
agreement to refrain from filing any new charges against the
defendant was contingent upon the defendant providing an
interview to the investigators’ satisfaction. The condition
precedent . . . never occurred, and therefore, the State was not
bound under the agreement to refrain from filing new charges.
An evidentiary hearing on the motion to dismiss was held on
February 4, 2019. Beres testified that he had never refused to cooperate
in an interview, had never been contacted by any State representative
regarding an interview, had never done anything to hinder the State in
conducting an interview, and was still willing at the time of the hearing to
provide an interview. Beres did, however, admit that he knew at the time
of his sentencing in Case No. FECR010796 about the State’s potential plan
to file charges relating to other fires.
Kivi testified on behalf of the State, acknowledging that he had never
attempted to contact Beres following the July 9, 2018 plea hearing and
that he also never responded to the voice messages left by Beres’s counsel
on September 24 and September 28, 2018. Kivi explained that the State
“decided to forego the interview” with Beres because
we -- in mid-September -- Well, for one thing, we received
some information that was, quite frankly, very damning to
Mr. Beres as a suspect in these other fires.
We thought if -- at that point, if we do interview him and
we didn’t charge him with the fires -- Basically, we got new
information that we thought was strong enough to -- that we
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didn’t need to interview him anymore that we didn’t have
earlier.
Not to mention that he had quite, I don’t know, a few
months, I guess, or quite -- quite some time to -- to approach
us, and we wanted to interview him before his sentencing
hearing. I was contacted a couple days or a few days before,
which would have left us not nearly enough time to verify
whatever he would tell us, corroborate anything he would say.
This “damning” evidence was not specified. Kivi also emphasized that the
sheriff’s office had been tied up with the unrelated investigation into a
notorious case involving a University of Iowa student who had disappeared
in July 2018 and was later found to have been killed.
Later that same day, the district court issued a written ruling
denying Beres’s motion to dismiss. The court’s ruling stated, in pertinent
part,
On or about July 9, 2018, this Defendant tendered a
plea of guilty in companion case number FECR010796. On
that date, sentencing was set for October 1, 2018. The State
and Defendant discussed the possibility of the Defendant
being interviewed prior to sentencing about his involvement
in other potential crimes. The interview never happened.
The State says they obtained additional, new
information linking this Defendant to additional crimes,
therefore negating the need for the interview. The Defendant
claims he reached out to the State regarding the interview, but
acknowledges that it was close to the sentencing date.
Regardless, the Defendant and Defendant’s counsel were
notified of potential new charges prior to the sentencing date.
Despite the awareness of additional charges, the
Defendant voluntarily went fo[r]ward with the sentencing
hearing. The Defendant did not seek a continuance or
withdrawal of his plea of guilty, nor did the Defendant lodge
any type of objection.
For all of the reasons set forth in the State’s Resistance,
the Court finds the Defendant’s Motion to Dismiss should be
and is hereby DENIED.
D. This Appeal. On March 6, 2019, Beres filed an application for
interlocutory appeal, challenging the district court’s denial of his motion
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to dismiss. On March 21, we issued an order granting Beres’s application
and staying further district court proceedings.
We retained the appeal.
III. Standard of Review.
When faced with a motion to dismiss as a sanction for
the State’s alleged repudiation of a plea agreement, the district
court has the same limited discretion it has “when ruling on
a motion to dismiss for failure to provide a speedy trial under
Iowa Rule of Criminal Procedure [2.33(2)].”
State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014) (alteration in original)
(quoting State v. Hovind, 431 N.W.2d 366, 368 (Iowa 1988)). “If the district
court abused its limited discretion by finding the State did not repudiate
the plea agreement, we will reverse its finding.” Id.
IV. Analysis.
A. The Legal Framework Underlying Plea Bargains. “Plea
bargains are akin to contracts.” State v. Macke, 933 N.W.2d 226, 238
(Iowa 2019) (Mansfield, J., concurring in part and dissenting in part); see
also Rhoades v. State, 880 N.W.2d 431, 449 (Iowa 2016) (“A plea bargain
also may be regarded as a contract where both sides ordinarily obtain a
benefit.”). “[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration [for the plea], such promise must be fulfilled.”
State v. Lopez, 872 N.W.2d 159, 170 (Iowa 2015) (second alteration in
original) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495,
499 (1971)). A “prosecutor’s obligation to scrupulously comply with the
letter and spirit of the agreements” means that even technical compliance
will not suffice if the prosecutor otherwise “undercut[s] the plea
agreement.” Id. at 173.
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We have “recogniz[ed] the important role plea agreements play in our
scheme of justice and the concomitant need for strict compliance with
those agreements.” State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008).
For this reason, Iowa courts “are compelled to hold prosecutors and courts
to the most meticulous standards of both promise and performance.” Id.
(quoting State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999)). Accordingly,
“ ‘violations of either the terms or the spirit of the agreement’ require
reversal of the conviction or vacation of the sentence.” Id. (quoting
Horness, 600 N.W.2d at 298).
Here the plea agreement incorporated a promise of immunity: Beres
would not be charged with other arsons if he cooperated in an interview
with the State. The State does not dispute that it did charge Beres with
additional arsons. However, it claims that it did not breach the plea
agreement because the interview never happened. It also argues it could
withdraw from the agreement because additional damaging information
about Beres came to light after it had entered into the agreement. Lastly,
it maintains that it did not breach because it gave Beres the opportunity
to rescind the plea agreement and go back to square one. We will address
these contentions in order.
B. Did Beres’s Failure to Be Interviewed Mean that the Plea
Agreement Was No Longer Binding? Conceding that the plea agreement
is a contract, the State argues that its obligation not to bring additional
arson charges was conditioned on Beres’s participation in an interview.
Because Beres was not interviewed, its covenant not to bring other charges
went away.
We disagree. Restatement (Second) of Contracts section 245
provides, “Where a party’s breach by non-performance contributes
materially to the non-occurrence of a condition of one of his duties, the
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non-occurrence is excused.” Restatement (Second) of Contracts § 245, at
258 (Am. Law Inst. 1981). Comment a to section 245 elaborates,
Where a duty of one party is subject to the occurrence of a
condition, the additional duty of good faith and fair dealing
imposed on him under § 205 may require some cooperation
on his part, either by refraining from conduct that will prevent
or hinder the occurrence of that condition or by taking
affirmative steps to cause its occurrence. Under § 235(2),
non-performance of that duty when performance is due is a
breach. See Illustration 3 to § 235. Under this Section it has
the further effect of excusing the non-occurrence of the
condition itself, so that performance of the duty that was
originally subject to its occurrence can become due in spite of
its non-occurrence.
Id. cmt. a. Corbin on Contracts puts it succinctly, “One who unjustly
prevents the performance or the happening of a condition of promissory
duty thereby eliminates it as a condition.” 8 Catherine M.A. McCauliff,
Corbin on Contracts § 40.17, at 580 (Joseph M. Perillo ed., rev. ed. 1999).
An interview takes two to tango. Having refused to cooperate in the
scheduling or taking of an interview of Beres—indeed, the State frankly
stated that it “didn’t need to interview him anymore”—the State can’t use
the lack of an interview as grounds for backing out of the agreement. As
the late Chief Justice Cady noted when he was serving on the court of
appeals, “[I]f one party to a contract prevents the other from performing a
condition or fails to cooperate to allow the condition to be satisfied, the
other party is excused from showing compliance with the condition.” Emp.
Benefits Plus, Inc. v. Des Moines Gen. Hosp., 535 N.W.2d 149, 155 (Iowa
Ct. App. 1995).
The interview was for the benefit of the State. See Rhoades, 880
N.W.2d at 449 (“A plea bargain also may be regarded as a contract where
both sides ordinarily obtain a benefit.”). The record makes clear that the
State was no longer interested in the interview. It never sought to arrange
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the interview, even when Beres’s counsel reminded the prosecutor in a
voicemail message a week before sentencing. In fact, at the motion to
dismiss hearing, Kivi acknowledged discussing counsel’s voicemail with
the county attorney and “decid[ing] to forego the interview.” The State
cannot use the failure of the interview to occur as a reason to withdraw
from the plea agreement.
C. Did the State Discover New Evidence that Relieved It of Its
Obligation to Perform the Plea Agreement? The State maintains that
the sheriff’s department gained additional incriminating evidence after the
guilty plea hearing tying Beres to the prior arsons. The State therefore
asserts it could avoid the plea agreement under standard contract
principles. It is noteworthy that the State did not identify this additional
evidence at the hearing below.
On appeal, the State tries to fill that gap with one item. It argues
that cell phone tracking data placing Beres in the wildlife conservation
area on April 29 had not been “analyzed” as of July 9, 2018—the date of
the guilty plea hearing. Giving the State every benefit of the doubt, it is
possible to read the record as indicating that although the State had the
data, it did not realize by July 9 that the data placed Beres in the vicinity
of the wildlife conservation area at the time of that fire.
This seems like a very fine point. Beres had already admitted to
intentionally setting a fire in the wildlife conservation area—merely
claiming he had done it the day before it actually occurred (i.e., April 28).
Even assuming the State lacked one piece to the puzzle—or more
accurately, hadn’t noticed that piece—the State concedes it had all the
other pertinent evidence of Beres’s involvement in the fires as of Beres’s
plea hearing on July 9. In reality, the State learned little new before it
decided to back out of the plea agreement shortly before the October 1
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sentencing. The State’s protests that it only “assembled” the information
into a “narrative” later on ring hollow. The summary of Beres’s May 27
postarrest interview demonstrates that the State already had put together
a narrative by then.
In contract law terms, the State is trying to argue frustration of
purpose. The Restatement (Second) of Contracts provides guidance as
follows:
Where, after a contract is made, a party’s principal purpose is
substantially frustrated without his fault by the occurrence of
an event the non-occurrence of which was a basic assumption
on which the contract was made, his remaining duties to
render performance are discharged, unless the language or
the circumstances indicate the contrary.
Restatement (Second) of Contracts § 265, at 334–35. The classic case is
Krell v. Henry, where a renter’s obligation to rent a flat for two days to view
the King’s coronation was discharged because the King developed
appendicitis and the coronation was postponed. Krell v. Henry [1903] 2
KB 740 (Eng.).
Under this framework, the State’s contractual obligation is
discharged only if three requirements are met:
First, the purpose that is frustrated must have been a
principal purpose of that party in making the contract. It is
not enough that he had in mind some specific object without
which he would not have made the contract. The object must
be so completely the basis of the contract that, as both parties
understand, without it the transaction would make little
sense. Second, the frustration must be substantial. It is not
enough that the transaction has become less profitable for the
affected party or even that he will sustain a loss. The
frustration must be so severe that it is not fairly to be regarded
as within the risks that he assumed under the contract.
Third, the non-occurrence of the frustrating event must have
been a basic assumption on which the contract was made. . . .
The foreseeability of the event is . . . a factor in that
determination, but the mere fact that the event was
foreseeable does not compel the conclusion that its non-
occurrence was not such a basic assumption.
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Restatement (Second) of Contracts § 265 cmt. a, at 335. We have indicated
that the new event must render the agreement virtually worthless to the
party seeking to withdraw. See Mel Frank Tool & Supply, Inc. v. Di–Chem
Co., 580 N.W.2d 802, 806 (Iowa 1998) (“The rule deals with the problem
that arises when a change in circumstances makes one party’s
performance virtually worthless to the other, frustrating the purpose in
making the contract.”).
Other courts have applied frustration-of-purpose analysis in
determining whether withdrawal from a plea agreement is permissible
based on an intervening development. In United States v. Frownfelter, 626
F.3d 549, 554 (10th Cir. 2010), the United States Court of Appeals for the
Tenth Circuit refused to invalidate a plea agreement based on frustration
of purpose when the defendant unexpectedly was able to reduce the felony
charge to which he had pled guilty to a misdemeanor. The court
acknowledged that a plea agreement could be invalidated if the three-part
Restatement test had been met. Id. Yet it found that the test had not been
satisfied for several reasons. Id. Among other things, the court observed,
“If the United States considered the felony/misdemeanor distinction so
material, it is unclear why it did not exercise greater care in drafting the
indictment and plea agreement.” Id. at 555. The court added that the
intervening event had been “a risk assumed by the government,” and the
court could not declare that the agreement made “little sense” with only a
misdemeanor conviction. Id.
Here the State cannot point to a new event that altered the
landscape. In fact, the State had the bulk—if not all—of its incriminating
evidence concerning Beres at the time it entered into the plea deal. To the
extent the State was still waiting for cell phone data to be analyzed, it
would have known what it didn’t yet know. All of the charged arson counts
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in this case involved crimes that Beres was already suspected of—and as
to which there was considerable incriminating evidence—at the time of the
July 9 plea hearing.
In other words, the State had basically the same “damning” evidence
on July 9 that it had on October 1. See Lopez, 872 N.W.2d at 180 (“If the
prosecutor believes incarceration is appropriate, the State should not
enter into a plea agreement to recommend probation.”). Furthermore, if
the State wanted to protect itself, it could have reserved the right to
withdraw from the agreement if additional adverse information came to
light before sentencing, something it did not do. We find that frustration
of purpose does not apply here.
D. Did Beres Ratify the State’s Modification of the Plea
Agreement by Refusing the State’s Offer of Rescission? Lastly, the
State maintains that Beres ratified its unilateral modification of the plea
agreement by refusing the State’s offer to withdraw from the agreement
and start over. We disagree with the State here as well.
In the first place, the State’s modification left Beres with a deal that
was no deal at all. In the State’s world, Beres would be pleading to the
trial information in Case No. FECR010796 while receiving nothing in
return. Beres would be getting no concession on charging, sentencing, or
sentencing recommendation.
Second, it is a basic precept of contract law that one side is not free
to unilaterally withdraw and go back to the beginning just because it wants
to do so. “[T]he State may withdraw from a plea bargain at any time prior
to, but not after, actual entry of the guilty plea by defendant . . . .” State
v. Weig, 285 N.W.2d 19, 21 (Iowa 1979) (quoting State v. Edwards, 279
N.W.2d 9, 11 (Iowa 1979)); see also State v. King, 576 N.W.2d 369, 370
(Iowa 1998) (en banc) (per curiam) (“This court has recognized that a
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prosecutor may not withdraw from a plea bargain after a defendant has
entered a guilty plea or has detrimentally relied upon the agreement.”).
Nor do we agree that Beres ratified anything. True, in an email
shortly before sentencing, the prosecutor indicated that Beres was “likely
going to be getting additional charges.” In addition, Beres was told he
could move to withdraw from the plea agreement and the State would not
oppose his motion.
But Beres’s failure to respond to the State’s offer to rescind the plea
agreement does not amount to a ratification of the State’s breach of that
agreement. At that point, the State had not actually breached the
agreement by filing more charges. When it did, Beres moved to dismiss
them. See Berryhill v. Hatt, 428 N.W.2d 647, 655 (Iowa 1988) (“With an
anticipatory breach, the nonbreaching party may consider the contract
breached and sue immediately, or await the time of performance and then
upon failure of performance hold the breaching party responsible for the
consequences of nonperformance.”); Glass v. Minn. Protective Life Ins., 314
N.W.2d 393, 396–97 (Iowa 1982) (“A renunciation authorizes but does not
require the nondefaulting party to treat the contract as broken.”).
Moreover, the October 1 sentencing proceeding that followed the
informal exchange between the county attorney and Beres’s counsel was
totally silent as to the possibility that the existing plea agreement was
being changed. That plea agreement had been memorialized in an in-court
colloquy on July 9. Just as the original plea agreement had to be put on
the record, so too with any revised agreement. See Iowa R. Crim.
P. 2.8(2)(c); id. r. 2.10(2). “The record of the proceedings in open court
controls our analysis, not any off-the-record side deals.” Macke, 933
N.W.2d at 237 (majority opinion). Yet the State said nothing on the subject
at sentencing.
19
Although the circumstances are somewhat different, this case calls
to mind another case where we barred the State from bringing a charge it
had agreed not to bring:
Apparently the county attorney entered into the instantly
involved plea bargain and attendant agreement in all good
faith but for some reason changed his mind while en route to
the court house. In any event the bargain made was breached
by the State. Under existing circumstances such is nothing
less than an intolerable violation of our time-honored fair play
norm, and accepted professional standards.
State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974).
When the State breaches the plea agreement, the defendant who
requests such a remedy is generally entitled to specific performance. See
Macke, 933 N.W.2d at 228; State v. Fannon, 799 N.W.2d 515, 524 (Iowa
2011); Bearse, 748 N.W.2d at 218; State v. Carrillo, 597 N.W.2d 497, 500–
01 (Iowa 1999) (per curiam). “If the district court determines that [the
defendant] did not breach the cooperation agreement, fundamental
fairness requires the government to uphold its part of the agreement and
the district court may enforce the agreement by dismissing the
indictment.” United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986).
Accordingly, we grant specific performance here and reverse the denial of
Beres’s motion to dismiss. We remand for dismissal of the trial
information in this case.
V. Conclusion.
For the foregoing reasons, we reverse the district court’s order and
remand with directions to grant Beres’s motion to dismiss.
DISTRICT COURT ORDER REVERSED AND CASE REMANDED.
All justices concur, and Appel, J., files a separate concurring
opinion.
20
#19–0369, State v. Beres
APPEL, Justice (concurring specially).
I join the majority opinion, as I concur in the result in this case and
in much of the reasoning of the majority opinion. In my view, however,
there are additional points that should be made.
First, although contract analysis is often helpful in the context of
plea bargaining, particularly in analyzing whether a breach has occurred,
it is not the be-all and end-all within the context of a plea bargain. Unlike
a private commercial transaction, the plea-bargaining process invokes
criminal justice sanctions and obviously has procedural and substantive
due process implications.
Thus, a plea bargain is not a mere contract but is a constitutional
contract. While defendants are at least entitled to the protection of
ordinary contracts, they may be entitled additional protections not
afforded by contract law. As noted by Justice Brennan,
This Court has yet to address in any comprehensive way
the rules of construction appropriate for disputes involving
plea agreements. Nevertheless, it seems clear that the law of
commercial contract may in some cases prove useful as an
analogy or point of departure in construing a plea agreement,
or in framing the terms of the debate. It is also clear, however,
that commercial contract law can do no more than this,
because plea agreements are constitutional contracts. The
values that underlie commercial contract law, and that govern
the relations between economic actors, are not coextensive
with those that underlie the Due Process Clause, and that
govern relations between criminal defendants and the State.
Unlike some commercial contracts, plea agreements must be
construed in light of the rights and obligations created by the
Constitution.
Ricketts v. Adamson, 483 U.S. 1, 16, 107 S. Ct. 2680, 2689 (1987)
(Brennan, J., dissenting) (citation omitted). Justice Brennan’s
21
observations apply with equal force to rights and obligations created by
the Iowa Constitution.
By way of example, due process concerns surround the plea-
bargaining waiver process, including the requirement that waiver be
knowing and voluntary. See, e.g., Santobello v. New York, 404 U.S. 257,
261, 92 S. Ct. 495, 498 (1971); Brady v. United States, 397 U.S. 742, 748,
90 S. Ct. 1463, 1468–69 (1970). See generally Russell D. Covey, Plea-
Bargaining Law After Lafler and Frye, 51 Duq. L. Rev. 595 (2013) (exploring
broadly the procedural protections around the plea-bargaining process for
defendants). And, as shortcomings in our criminal justice system and the
plea-bargaining process are revealed by DNA exonerations and other
showings of actual innocence, the due process concept of actual innocence
has taken hold.
The concept that actual innocence matters where a defendant has
pled guilty is rooted in the law of due process under the Iowa Constitution,
and not the law of contract. See Schmidt v. State, 909 N.W.2d 778, 793–
95 (Iowa 2018) (finding that “the Iowa Constitution permits freestanding
post-conviction claims of actual innocence” under article I, sections 9 and
17). Further, there is substantial authority for the proposition that due
process is violated when the prosecution negotiates a plea bargain without
disclosure of Brady material. See Daniel Conte, Note, Swept Under the
Rug: The Brady Disclosure Obligation in a Pre-Plea Context, 17 Suffolk J.
Trial & App. Advoc. 74, 80–82 (2012) (discussing the ethical duties of
prosecutors under ABA Model Rule of Processional Conduct 3.8(d) in
discovery). See generally Colin Miller, The Right to Evidence of Innocence
Before Pleading Guilty, 53 U.C. Davis L. Rev. 271 (2019) (surveying caselaw
leading to the evidentiary disclosure requirements in Brady, as well as
developments in federal disclosure requirements post-Brady).
22
While ordinary contract analysis can be useful in the plea-
bargaining context, and is often dispositive, it is not necessarily
determinative in every case involving a plea bargain. See generally Colin
Miller, Plea Agreements as Constitutional Contracts, 97 N.C. L. Rev. 31
(2018) [hereinafter Miller, Plea Agreements] (examining plea agreements
under the framework of constitutional contracts, arguing that plea
bargains have all the protections of contract law, and suggesting reforms
to bolster protections for defendants within the plea-bargaining context).
In addition, there is caselaw suggesting that due process requires
more than ordinary contract law in other plea-bargaining contexts. See,
e.g., United States v. Newbert, 504 F.3d 180, 187 (1st Cir. 2007) (“[T]he
analogy between plea agreements and commercial contracts is not exact,
and the parties do not necessarily bear equal obligations.”); In re Grand
Jury Witness Altro, 180 F.3d 372, 375 (2d Cir. 1999) (“Our concern for
fairness is rooted in an appreciation of the fact that, unlike ordinary
contracts, plea agreements call for defendants to waive fundamental
constitutional rights, and in an awareness that the Government generally
drafts the agreement and enjoys significant advantages in bargaining
power.”); Plaster v. United States, 720 F.2d 340, 352 (4th Cir. 1983)
(“[P]rinciples of contract law, which implicate entirely different concerns of
economic efficiency in a situation involving equally strong parties, may not
properly be applicable to the prosecutor-defendant agreement context.
Indeed, we note[] that fundamental fairness under . . . specific
circumstances . . . require[] enforcement of the [plea] agreement despite its
not having been accepted under principles of contract law.” (Footnote
omitted.)); State v. Rivest, 316 N.W.2d 395, 407 (Wis. 1982) (noting that
plea agreements consider not just contract law, but also include
“considerations of due process” and “considerations of the sound and
23
effective administration of the criminal justice system”); see also Miller,
Plea Agreements, 97 N.C. L. Rev. at 42–43 (noting that “courts have mostly
treated criminal defendants the same as or better than parties to normal
contracts” and noting also that “[l]ower courts have also, in some cases,
refused to import specific commercial contract law doctrines into plea
bargaining”).
Further, an emerging rule of interpretation dictates that plea
bargains should be construed against the government, with ambiguities in
the plea agreement to be construed against the state. See, e.g., United
States v. Gebbie, 294 F.3d 540, 551–52 (3d Cir. 2002) (“When we interpret
ambiguous plea agreements and extrinsic evidence does not resolve the
ambiguity, then we construe the ambiguity against the drafter. Because
of the Government’s advantage in bargaining power, we, and numerous
other courts of appeals, construe ambiguities in plea agreements against
the Government.”); United States v. Harvey, 791 F.2d 294, 303 (4th Cir.
1986) (“Having concluded that the disputed provision was ambiguous in
the respect found dispositive by the district court, we further conclude that
under the plea bargaining principles above stated the provision must be
read against the Government.”); State v. Bisson, 130 P.3d 820, 825 (Wash.
2006) (en banc) (affirming that in cases of illegal plea terms, or lack of
informed consent by defendant to terms of plea, defendant may decide
whether to enforce or withdraw the plea bargain); see also Guilty Pleas, 33
Geo. L.J. Ann. Rev. Crim. Proc. 363, 379 n.1313 (2004) (cataloguing
federal cases in which ambiguities in plea agreements are construed
against the state). To the extent the prosecution seeks to creatively exploit
ambiguous terms in the plea bargain, it has no prospect of success under
the prevailing caselaw.
24
Finally, plea bargains are generally thought to be subject to a duty
of good faith and fair dealing. See, e.g., Cole v. State, 922 A.2d 354, 359
(Del. 2005) (“[I]n Delaware, a covenant of good faith and fair dealing applies
to plea bargains as well as to any agreement between a criminal defendant
and the State.”); State v. Williams, 11 P.3d 878, 880 (Wash. Ct. App. 2000)
(“Plea agreements are contracts, and the law imposes upon the State an
implied promise to act in good faith.”); State v. Scott, 602 N.W.2d 296, 302
(Wis. Ct. App. 1999) (“[T]he State was obliged to act in good faith and
adhere to the bargain it had struck with [the defendant]. After the contract
had been negotiated and [the defendant’s] no contest pleas entered,
neither party had the right to renege on the agreement.”); see also Miller,
Plea Agreements, 97 N.C. L. Rev. at 49–89 (outlining thoroughly in section
III of the article the implied covenant of good faith and fair dealing within
the context of plea agreements, and citing supporting caselaw throughout).
Among other things, good faith and fair dealing mean that the state cannot
take action that prevents the defendant from performing under a plea
bargain, and that is exactly what happened in this case. The majority
rightly refuses to permit the prosecution in this case from preventing the
defendant’s performance. I understand that nothing in the majority
opinion is inconsistent with the above propositions, and I therefore concur
in the majority opinion.