State Of Iowa Vs. Philip Brian Cooper

IN THE SUPREME COURT OF IOWA
No. 132 / 06-0840
Filed October 26, 2007
STATE OF IOWA,
Appellee,
vs.
PHILIP BRIAN COOPER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Clarke County, Gregory A.
Hulse and David L. Christensen, Judges.
Defendant appeals from sentence imposed on his conviction of
operating while intoxicated, third offense, contending his trial counsel
rendered ineffective assistance of counsel. DECISION OF COURT OF
APPEALS VACATED; SENTENCE VACATED; AND CASE REMANDED
FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, and Elisabeth S. Reynoldson, County Attorney, for
appellee.
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PER CURIAM.
The defendant, Philip Brian Cooper, appealed from the sentence
imposed upon his conviction of operating while intoxicated, third offense,
in violation of Iowa Code section 321J.2 (2005). He contended his trial
counsel rendered ineffective assistance by failing to object to the State’s
breach of the parties’ plea agreement. The court of appeals affirmed
Cooper’s conviction and preserved his ineffectiveness claim for a possible
postconviction-relief action. We granted Cooper’s application for further
review. Because we conclude Cooper’s counsel rendered ineffective
assistance, we vacate the decision of the court of appeals, vacate the
sentence imposed on Cooper’s conviction, and remand for resentencing.
I. Background Facts and Proceedings.
The State charged Cooper with operating while intoxicated, third
offense. Cooper pled guilty to the charge pursuant to a plea agreement.
At the plea hearing, the prosecutor read the plea agreement into the
record:
[T]he State’s agreement is that the State will recommend that
the defendant be sentenced to an indeterminate term not to
exceed five years, that that term be suspended, all but 30
days be suspended, and the defendant be placed on formal
and supervised probation, that the defendant pay the
mandatory minimum fine of $2500 plus applicable
surcharges, court costs, and court-appointed attorney fees.
In addition . . . it is the State’s agreement that should the
defendant complete inpatient substance abuse treatment,
that the State will recommend that the defendant receive
credit towards the mandatory 30-day jail time for the
inpatient treatment.
Defense counsel indicated the plea agreement was stated correctly. The
court advised Cooper that the sentencing recommendations were not
binding upon the court and accepted Cooper’s guilty plea after a
colloquy.
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At the sentencing hearing before a different judge, the prosecutor
gave the following recommendation:
Your Honor, it should be noted that at the time of the guilty
plea, the State’s agreement with respect to sentencing was
that the State would agree to recommend an indeterminate
term of incarceration not to exceed five years, that that term
would be suspended – all but 30 days of that term would be
suspended and the defendant would be given credit for
inpatient treatment for that 30 days. That agreement was
conditioned upon the defendant successfully completing that
inpatient treatment program.
The State has been informed by the defendant’s counsel that
the defendant did not successfully complete that inpatient
treatment program. Therefore, the State is requesting the
Court sentence the defendant to – pursuant to the PSI, to an
indeterminate term not to exceed five years and the
defendant to be placed in the OWI continuum program when
the space becomes available and that the defendant be
sentenced to the minimum fine of $2500.
Defense counsel said he did not resist the State’s recommendation. The
court sentenced Cooper to an indeterminate term of five years with
placement in the OWI continuum program, a $2500 fine, and applicable
surcharges.
Cooper appealed, contending his trial counsel rendered ineffective
assistance by failing to object to the State’s breach of the plea agreement.
He asked that his sentence be vacated and the case be remanded for
resentencing. The court of appeals affirmed, but preserved Cooper’s
ineffective-assistance-of-counsel claim for a possible postconviction relief
action.
II. General Principles Governing Ineffective-Assistance-of-
Counsel Claims.
Because Cooper's trial counsel did not object to the prosecutor's
comments at the sentencing hearing, error was not preserved. See State
v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). Consequently, to reach the
merits of this issue on appeal, Cooper must establish that his trial
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counsel rendered ineffective assistance. See State v. Carrillo, 597 N.W.2d
497, 499 (Iowa 1999). We review this constitutional claim de novo. See
Ceaser, 585 N.W.2d at 195.
III. Analysis.
We conclude the State breached its duty under the plea agreement
by using Cooper’s failure to successfully complete inpatient treatment as
a basis to rescind its promise to recommend a suspended sentence.
Under the parties’ plea agreement, Cooper's completion of inpatient
treatment would only affect the State's recommendation regarding a
credit towards the portion of the sentence that would not be suspended.
We conclude Cooper's counsel breached an essential duty by not
objecting to the State’s failure to make the promised recommendation.
We can discern no proper basis for counsel’s failure to object given
the State’s switch from recommending a suspended sentence to its
recommendation of imposition of a five-year prison term. Counsel’s
failure to alert the trial court to this clear breach deprived that court of
the opportunity to remedy the error, resulting in prejudice to Cooper.
See State v. Horness, 600 N.W.2d 294, 301 (Iowa 1999). Cooper has
therefore demonstrated his counsel rendered ineffective assistance, and
there is no need to preserve the issue for a possible postconviction relief
proceeding.
IV. Conclusion.
Because Cooper’s counsel rendered ineffective assistance in failing
to object to the State’s breach, we vacate the court of appeals decision,
vacate the sentence imposed upon Cooper’s guilty plea, and remand the
case for resentencing. The State shall abide by the plea agreement at
resentencing.
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DECISION OF COURT OF APPEALS VACATED; SENTENCE
VACATED; AND CASE REMANDED FOR RESENTENCING.
All justices concur except Streit, J., who takes no part.
This is not a published opinion.