State of Iowa v. Amy Lee Howell ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1403
Filed August 1, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AMY LEE HOWELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Timothy J. Finn,
Judge.
Amy Howell appeals her judgment and sentence following a guilty plea.
AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, and Darrell G. Meyer
(until withdrawal) of Law Offices of Attorney Darrell G. Meyer, Inc., Marshalltown,
for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2
VAITHESWARAN, Presiding Judge.
The State charged Amy Howell with several crimes arising from her
employer’s loss of funds over a twenty-one month period. Howell agreed to plead
guilty to (1) ongoing criminal conduct, in violation of Iowa Code sections 706A.2(4),
706A.1(5), and 706A.4 (2016), and (2) unauthorized use of a credit card, in
violation of sections 715A.6(1)(a)(3) and 715A.6(2)(c). In exchange, the State
agreed to dismiss fourteen forgery charges and recommend a suspended twenty-
five-year sentence with five years of probation on the first count and a seven-day
jail sentence on the second count. At sentencing, the district court declined to
suspend any portion of the sentences. The court ordered Howell to serve
concurrent prison terms not exceeding twenty-five years on the first count and two
years on the second count.
On appeal, Howell contends (1) her plea attorney was ineffective in failing
to object to a claimed breach of the plea agreement by the prosecutor; (2) the
district court abused its discretion in rejecting the sentencing recommendation; and
(3) her plea attorney was ineffective in failing to advise her to speak in mitigation
of punishment.
I. Claimed Breach of Plea Agreement—Ineffective Assistance
A prosecutor has an obligation “to scrupulously comply with the letter and
spirit of plea agreements.” State v. Lopez, 872 N.W.2d 159, 173 (Iowa 2015). The
obligation requires “more than simply recit[ing] the agreed recommended
sentence.” Id. The prosecutor must “commend or otherwise indicate to the court
that the recommended sentence is supported by the state.” Id. If a prosecutor
honors the agreement, a defense attorney has “no duty to object.” Id. at 169.
 3
Conversely, if a prosecutor breaches the plea agreement, the defense attorney is
“duty-bound to object.” Id. “[P]rejudice is presumed when defense counsel fails
to object to the state’s breach of a plea agreement at the sentencing hearing.” Id.
at 170; see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating
ineffective-assistance-of-counsel claim requires proof of deficient performance
and prejudice).
We find the record adequate to address Howell’s ineffective-assistance-of-
counsel claim relating to a breach of the plea agreement. See Lopez, 872 N.W.2d
at 169. Our de novo review reveals the following statements made at the
sentencing hearing.
Beginning with the first count, the prosecutor stated, “[W]e would ask the
Court to impose the twenty-five year sentence in this case and suspend that
sentence.” The prosecutor went on to resist any request for the lesser sanction of
a deferred judgment on the ground the ongoing criminal conduct offense “occurred
over the course of a two-year period” and involved “more than fifty transactions”
that “damaged the victims in this case.” She reiterated, “So we would ask the
Court to suspend the sentence and impose judgment on [the ongoing criminal
conduct] charge.” She pointed out it would be in victims’ interest to have
defendants in this type of case forgo prison “with the idea that if they are out and
they are working, they are able to pay restitution to the victims.” On the second
count, the prosecutor recommended a one-week jail sentence “to give the
Defendant an opportunity . . . to consider the damage that she’s done to the
victims, and to impress upon her the importance of paying restitution in this case.”
4
Howell concedes the prosecutor correctly informed the district court of the
plea agreement but argues the prosecutor’s discussion of a deferred judgment was
essentially a ruse to inject negative facts into the sentencing record and to highlight
the damage she inflicted on the community. In her words, “[N]o one was seeking
a deferred judgment,” yet the prosecutor “gratuitously and vigorously argued
against a deferred judgment,” thereby “undermin[ing] the agreement for a
suspended sentence.”
To the contrary, the prosecutor forcefully recommended suspension of the
prison term on the first count to allow the victims to be made whole. See State v.
Schlachter, 884 N.W.2d 782, 786 (Iowa Ct. App. 2016) (finding it “not uncommon”
for the prosecutor to recite the defendant’s criminal history and noting the
prosecutor made “a clear-cut, unqualified recommendation”); State v. Frencher,
873 N.W.2d 281, 285 (Iowa Ct. App. 2015) (noting “the prosecutor strongly
advocated for the recommended sentence.”). True, she argued against imposition
of a deferred judgment despite the absence of any indication a deferred judgment
was under consideration. Cf. State v. Edwards, No. 17-0953, 2018 WL 1433154,
at *2 (Iowa Ct. App. Mar. 21, 2018) (noting “[t]he State recommended a suspended
sentence, but the defendant argued for a deferred judgment”).1 But the negative
facts she highlighted during her discussion of the deferred judgment option were
facts forming the basis of the plea agreement. Specifically, numerous acts
underlay the “ongoing” component of “ongoing criminal conduct” offense. And the
1
At the plea proceeding, the district court advised Howell, “I am assuming that [the
prosecutor or defense attorney] have told you that they’ll make the best argument they
can for what the State has agreed to recommend.” (Emphasis added.) And, at sentencing
Howell’s attorney conceded Howell was “not seeking a deferred judgment in this matter.”
5
damage discussion bore on Howell’s significant restitution obligation to her former
employer. Because the State did not breach the plea agreement, Howell’s attorney
had no duty to lodge an objection to the prosecutor’s statements. See Schlachter,
884 N.W.2d at 787 (“There was no reason for defendant’s counsel to object to the
prosecutor’s direct recitation of the plea agreement.”).
II. Sentencing Decision
Howell contends the district court abused its discretion “in failing to follow a
joint sentencing recommendation.” In her view, “[T]he sentencing court actually
said the sentence was only to punish [her],” and her only “relevant criminal history
consists of a conviction for theft in the fifth degree from 2000.” “When a sentence
imposed by a district court falls within the statutory parameters, we presume it is
valid and only overturn for an abuse of discretion or reliance on inappropriate
factors.” See State v. Wickes, 910 N.W.2d 554, 572 (Iowa 2018) (citation omitted).
The district court began by citing its obligation to impose a sentence that
provided “for the protection of the community so this type of action does not happen
again” and “gives you the best chance of rehabilitation.” Although at one point, the
court stated, “Punished. That’s all I’m doing here is punishment,” the court
immediately followed with, “I give you the chance at rehabilitation.” We conclude
the court did not abuse its discretion in declining to suspend the sentence on the
ongoing criminal conduct charge, as recommended. Cf. State v. Eckhardt, No. 01-
1552, 2002 WL 31527922, at *3-4 (Iowa Ct. App. Nov. 15, 2002) (finding no abuse
of discretion where the district court rejected the presentence investigation report
and parties’ recommendations for probation and imposed a prison sentence after
stating, “This sentence provides for punishment by separation from the community,
6
both specific and general deterrence, and rehabilitation, if the Defendant will take
advantage of what is offered in the Institution,” and further stating, “The [district]
court recognized that there is a rehabilitative process in the Department of
Corrections and thus there is a possibility for rehabilitation in prison just as there
would be with [a residential correction facility program] and probation”).
III. Right of Allocution—Ineffective Assistance of Counsel
Prior to the rendition of judgment, “counsel for the defendant, and the
defendant personally, shall be allowed to address the court where either wishes to
make a statement in mitigation of punishment.” Iowa R. Crim. 2.23(3)(d). To fulfill
this requirement, the court must make “a record establishing that the court has
‘invited, or afforded an opportunity for’ the defendant to speak regarding
punishment.” State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001) (quoting State
v. Craig, 562 N.W.2d 633, 635 (Iowa 1997)). “No special language is required to
fulfill the rule’s mandate.” Id. “The important thing is whether the defendant is
given an opportunity to volunteer any information helpful to the defendant’s cause.”
Id. (citation omitted).
The district court afforded Howell the right of allocution, but Howell declined
the opportunity to speak in mitigation of punishment. Howell contends her attorney
was ineffective “in failing to counsel [her] to exercise her right of allocution.” In her
view, “Allocution would have been the only opportunity . . . to hear from [her] and
draw any conclusions about her opportunity for rehabilitation short of prison.” The
State asks us to preserve the issue for postconviction relief to allow better
development of the record. We find the record adequate to address the issue.
7
See State v. Sines, No. 11-1738, 2012 WL 3196111, at *2 (Iowa Ct. App. Aug. 8,
2012).
Although Howell argues her statement might have made a difference in the
sentence, she fails to cite any mitigating evidence that was not already before the
court. See id. at *3. Significantly, her attorney highlighted key mitigating
circumstances. He (1) downplayed the period of time over which the crime took
place, noting the conduct involved a single type of act; (2) informed the court
Howell gained other employment “[e]ven with this case pending”; and (3) stated
Howell was “very remorseful for what happened, for what she did,” and took “full
responsibility for it.”
The preparer of the presentence investigation report similarly stated Howell
felt “[t]errible” about the crime. The preparer also listed several factors contributing
to Howell’s stability and recommended suspension of the prison term.
Because the district court was apprised of mitigating circumstances, we
conclude there is no reasonable probability of a different result had Howell’s
attorney advised her to exercise her right of allocution. Accordingly, this
ineffective-assistance-of-counsel claim fails.
We affirm Howell’s judgment and sentence for ongoing criminal conduct and
unauthorized use of a credit card.
AFFIRMED.