State of Iowa v. Richard Warren Fannon

IN THE SUPREME COURT OF IOWA
No. 09–1492
Filed May 20, 2011
STATE OF IOWA,
Appellee,
vs.
RICHARD WARREN FANNON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Thomas L.
Koehler, Judge.
On further review, defendant claims his trial counsel was
ineffective for failing to object after the State allegedly breached the plea
agreement during sentencing. DECISION OF COURT OF APPEALS
VACATED; SENTENCES VACATED AND CASE REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, Harold L. Denton, County Attorney, and
Gerald A. Vander Sanden and Jennifer P. Clinton, Assistant County
Attorneys, for appellee.
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APPEL, Justice.
In this case, we consider whether a criminal defendant receives
ineffective assistance of counsel when the defendant’s attorney fails to
object after the State allegedly breaches its plea agreement with the
defendant during the sentencing hearing. For the reasons expressed
below, we answer in the affirmative. As a result, we vacate the
defendant’s sentences and remand the case for resentencing before a
different judge.
I. Factual and Procedural Background.
The State charged by trial information the defendant, Richard
Fannon, with two counts of sexual abuse in the second degree against a
minor child. Prior to trial, Fannon and the State reached a plea
agreement. The agreement provided that, in exchange for Fannon’s
guilty pleas, the State would reduce both counts to sexual abuse in the
third degree and make no sentencing recommendation during the
sentencing hearing. The State subsequently amended the trial
information in accordance with the agreement, and Fannon entered a
plea of guilty on both counts.
A different prosecutor represented the State at the sentencing
hearing. The following discussion took place during the hearing:
The Court: State have a recommendation, Mr. Vander
Sanden? A. Yes, your Honor. Thank you.
With regard to Counts I and II, the State requests the
Court sentence the Defendant to an indeterminate term not
to exceed ten years on both counts and order that both those
terms run consecutive to each other for a total of twenty
years, along with the mandatory minimum fines that apply
on both counts and the other terms and conditions of the
sentence that would be typical for a Class C felony offense,
court costs, attorney fees, and, of course, the requirement
for lifetime parole and registry with the sex offender registry
once he is released from his incarceration.
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I believe that there are compelling reasons to run the
two sentences consecutive to one another.
Mr. Sissel [defense counsel]: Your Honor, can we
approach real quick?
The Court: You may.
(A discussion was held off the record at the bench
between the Court and counsel.)
Mr. Vander Sanden: Your Honor, if I can start again, I
understand that based upon the conversation we’ve had up
at the bench, the plea agreement was that Mr. Fannon would
plead guilty to both counts of Sexual Abuse in the Third
Degree, and we would leave the matter of consecutive versus
concurrent up to the Court and that the defense would be
free to argue for concurrent sentences.
Defense counsel did not request to withdraw Fannon’s guilty pleas, nor
did counsel request specific performance of the agreement before a
different sentencing judge. Also, the record shows defense counsel did
not consult with Fannon before electing to proceed with the hearing.
The court, citing the presentence investigation report and Fannon’s
criminal history, subsequently ordered that each sentence be served
consecutively. Fannon appealed.
On appeal, Fannon claimed that his state and federal
constitutional rights to the effective assistance of counsel were violated.
Specifically, Fannon argued that his trial counsel failed to perform an
essential duty by failing to object after the State breached the plea
agreement during sentencing. Relying on Santobello v. New York, 404
U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), Fannon argued he was
prejudiced by his counsel’s failure because the breach “tainted” the
sentencing hearing.
In response, the State argued there was no breach and that the
prosecutor’s recommendation for consecutive sentences was a
“misstatement” and a “mistake.” The State argued that defense counsel
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provided effective assistance because counsel “was aware of the mistake,
addressed it with counsel and the court, and chose to proceed with
sentencing.” According to the State, the prosecutor’s “quick and
complete acknowledgement of the error” and the decision of Fannon’s
counsel to proceed with sentencing satisfied the requirements of the
Sixth Amendment and article I, section 10 of the Iowa Constitution. In
the alternative, the State asserted that the record was inadequate for the
court to consider the ineffective-assistance-of-counsel claim on direct
review.
The court of appeals affirmed. The court first noted that, although
ineffective-assistance-of-counsel claims are typically reserved for
collateral review, the record was adequate to decide the case on direct
review. Addressing the merits, the court reasoned that Fannon failed to
show that the State breached the plea agreement or that Fannon suffered
prejudice. The court noted that defense counsel did not fail to perform
an essential duty because counsel “immediately brought the
misstatement of the prosecutor to the court’s attention, therefore
fulfilling his duty.” The court also explained that Fannon failed to
establish prejudice because the sentencing court relied on the
presentence investigation report, not the prosecutor’s statements, in
ordering consecutive sentences. Fannon applied for further review,
which we granted.
II. Discussion.
The Sixth Amendment of the United States Constitution and article
I, section 10 of the Iowa Constitution guarantee to each criminal
defendant not only the right to the assistance of counsel, but the effective
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assistance of counsel. 1 Simmons v. State Pub. Defender, 791 N.W.2d 69,
75 (Iowa 2010). Ineffective-assistance-of-counsel claims are generally
preserved for postconviction relief proceedings, but “ ‘we will consider
such claims on direct appeal where the record is adequate.’ ” State v.
Bearse, 748 N.W.2d 211, 214 (Iowa 2008) (quoting State v. Horness, 600
N.W.2d 294, 297 (Iowa 1999)); see also Iowa Code § 814.7(3) (2007). To
prevail on a claim of ineffective assistance of counsel, the defendant
must show: “ ‘(1) counsel failed to perform an essential duty and (2)
prejudice resulted.’ ” State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006)
(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)); see also
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984).
A. Adequacy of the Record. A defendant requesting the court to
decide an ineffective-assistance-of-counsel claim on direct appeal must
establish “an adequate record to allow the appellate court to address the
issue.” State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). “[I]t is for
the court to determine whether the record is adequate and, if so, to
resolve the claim.” Id.; see also Iowa Code § 814.7. In this case, the
record reflects the terms of the plea agreement, the State’s conduct that
is alleged to have breached the plea agreement, and defense counsel’s
response to the alleged breach. Further, the record shows defense
counsel did not consult with Fannon before allowing the hearing to
continue. Therefore, we are satisfied that the record is adequate to
1Fannon asserts his ineffective-assistance-of-counsel claim under both the Sixth
Amendment of the United States Constitution and article I, section 10 of the Iowa
Constitution. Fannon does not, however, argue that we should interpret the legal
standards of article I, section 10 in a fashion different from those governing the parallel
provisions of the Sixth Amendment of the United States Constitution. In this situation,
although we reserve the right to apply the principles differently, we generally assume
that the legal principles governing both provisions are the same. See Simmons v. State
Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).
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decide this case on direct review. See Bearse, 748 N.W.2d at 214
(concluding that the record was adequate to decide the matter on direct
review because it reflected “the written plea agreement and the
circumstances giving rise to [the defendant’s] claim that the prosecutor
breached the plea agreement, as well as defense counsel’s response”);
Horness, 600 N.W.2d at 297–98 (holding the record was adequate to
consider ineffective-assistance claim on direct review because the record
provided the terms of the plea agreement). We decide the issue de novo.
Bearse, 748 N.W.2d at 214.
B. Failure to Perform an Essential Duty. A defense attorney
fails to perform an essential duty when his or her performance falls
below the “ ‘normal range of competence.’ ” State v. McPhillips, 580
N.W.2d 748, 754 (Iowa 1998) (quoting State v. Spurgeon, 533 N.W.2d
218, 219 (Iowa 1995)). Counsel is presumed to have performed within
the normal range of competence. Horness, 600 N.W.2d at 298. This
presumption may be overcome by a showing that counsel failed to raise a
valid objection. See Bearse, 748 N.W.2d at 215, 217. However, “[t]rial
counsel is not ineffective in failing to urge an issue that has no merit.”
McPhillips, 580 N.W.2d at 754. We, therefore, first consider whether the
State breached the plea agreement during the sentencing hearing. See
Bearse, 748 N.W.2d at 215–17. If so, we must then address whether
defense counsel adequately responded to the State’s breach. See id. at
217.
“[A] guilty plea is a serious and sobering occasion inasmuch as it
constitutes a waiver of . . . fundamental rights . . . .” Santobello, 404
U.S. at 264, 92 S. Ct. at 500, 30 L. Ed. 2d at 434 (Douglas, J.,
concurring). Although the use of plea agreements is an “essential
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component of the administration of justice,” 2 the validity of the plea-
bargaining process “presuppose[s] fairness in securing agreement
between an accused and a prosecutor.” Id. at 260–61, 92 S. Ct. at 498,
30 L. Ed. 2d at 432; see also State v. Kuchenreuther, 218 N.W.2d 621,
624 (Iowa 1974). “ ‘[V]iolations of either the terms or the spirit of the
agreement’ require reversal of the conviction or vacation of the sentence,”
Horness, 600 N.W.2d at 298 (quoting Stubbs v. State, 972 P.2d 843, 845
(Nev. 1998)), regardless of whether the violation is intentional or
accidental, Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at
433; Bearse, 748 N.W.2d at 215.
The parties agree that the sentencing prosecutor initially violated
the express terms of the plea agreement by recommending consecutive
sentences. The fighting issue in this case is whether the prosecution’s
attempt to cure its improper remarks salvaged an otherwise broken
promise. The question of whether such improper remarks may be so
cured is an issue of first impression in Iowa. 3
Several courts in other jurisdictions have had occasion to address
this issue. In State v. Birge, 638 N.W.2d 529, 531 (Neb. 2002), the
defendant pled no contest to unlawful possession with intent to deliver
cocaine in exchange for the State’s promise to dismiss other charges and
remain silent at sentencing. During the sentencing hearing, the
prosecutor asked the court to consider the full range of potential
2An estimated ninety-five percent of convictions are secured through the plea-
bargaining process. Michael M. O’Hear, Plea Bargaining & Procedural Justice, 42 Ga. L.
Rev. 407, 409 & n.1 (2008).
3Though similar, Bearse does not control our analysis on this issue. The State
correctly points out that Bearse turned on whether the State satisfied its obligation to
recommend against incarceration under the plea agreement. See Bearse, 748 N.W.2d
at 216–17. Bearse left unresolved whether the State may cure an alleged breach by
withdrawing its improper remarks and starting anew.
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punishments. Birge, 638 N.W.2d at 531. Defense counsel objected and
explained the plea agreement to the court. Id. The prosecutor then
stated, “I will withdraw the remarks. I do not make any recommendation
as to sentencing at all.” Id. at 532. Relying on Santobello, the Nebraska
Supreme Court concluded:
[O]nce the State has violated the plea agreement by failing to
remain silent at sentencing, the violation cannot be cured
either by the prosecutor’s offer to withdraw the comments or
by the trial court’s statement that it will not be influenced by
the prosecutor’s comments in imposing sentence.
Id. at 535–36; but see State v. Timbana, 186 P.3d 635, 638–39 (Idaho
2008); State v. Knox, 570 N.W.2d 599, 600–01 (Wis. Ct. App. 1997).
Federal cases draw similar conclusions. Particularly, in White v.
United States, 425 A.2d 616, 616 (D.C. 1980), the Government agreed
not to oppose defense counsel’s recommendation that the defendant be
placed in a drug rehabilitation program in lieu of incarceration. During
sentencing, however, the Government expressed its agreement with the
district court’s concerns that the defendant had unsuccessfully gone
through many programs before. White, 425 A.2d at 617. These
comments drew an objection, which prompted the prosecutor to
withdraw his statements. Id. The D.C. court found the prosecutor’s
comments in breach of the agreement. Id. at 620.
The court first noted that the Government must strictly comply
with the terms of plea agreements. Id. at 618. The court was troubled
by the fact that the prosecutor’s statements implied that, but for the plea
agreement, the Government would oppose placing the defendant in a
drug rehabilitation program. Id. at 619. Thus, the court concluded,
“Although the prosecutor formally withdrew his statement after defense
counsel objected to it, that perfunctory gesture alone could not cure the
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breach.” Id.; see also United States v. Munoz, 408 F.3d 222, 228 (5th Cir.
2005) (holding that the prosecutor’s request to have the court follow the
plea agreement after the prosecutor’s breach during sentencing
“amounted to little more than lip service to the plea agreement and did
not rectify the breach”); United States v. Taylor, 77 F.3d 368, 370–71
(11th Cir. 1996) (concluding that the Government breached the plea
agreement by supporting, prior to sentencing, a presentence
investigation report that was incompatible with the plea agreement, even
though the Government advocated for the terms of the plea agreement
during the sentencing hearing); United States v. Kurkculer, 918 F.2d 295,
298 & n.5 (1st Cir. 1990) (stating that “[i]t is clear error to say that no
breach ever occurred” when “the prosecution withdrew its first
recommendation, which was contrary to the plea agreement, and told the
court that it was recommending sentencing in accordance with the
agreement”).
We agree with these decisions and hold that the State’s conduct
during Fannon’s sentencing hearing constitutes a breach of the plea
agreement that could not be cured by the prosecutor’s withdrawal of the
improper remarks. The improper use of a plea agreement not only
“threatens the liberty of the criminally accused,” but also “ ‘the honor of
the government’ and ‘public confidence in the fair administration of
justice.’ ” Bearse, 748 N.W.2d at 215 (quoting Kuchenreuther, 218
N.W.2d at 624). We therefore hold prosecutors “ ‘to the most meticulous
standards of both promise and performance.’ ” Horness, 600 N.W.2d at
298 (quoting State ex rel. Brewer v. Starcher, 465 S.E.2d 185, 192
(W. Va. 1995)). These standards demand of prosecutors strict, not
substantial, compliance with the terms of plea agreements. Bearse, 748
N.W.2d at 215.
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Here, the State violated both the spirit and express terms of the
agreement. Although the sentencing prosecutor attempted to “start
again” following the breach, his conduct, whether intentional or
inadvertent, 4 revealed that, but for the agreement, the State would
recommend consecutive sentences. The sentencing prosecutor,
therefore, failed to strictly comply with the agreement, and, accordingly,
his conduct fell below the most meticulous standards of both promise
and performance. See Horness, 600 N.W.2d at 298.
Because the State breached the plea agreement, we must
determine whether defense counsel adequately responded to the breach.
If the State breaches a plea agreement during the sentencing hearing, a
reasonably competent attorney would make an objection on the record to
“ ‘ensure that the defendant receive[s] the benefit of the agreement.’ ”
Bearse, 748 N.W.2d at 217 (quoting Horness, 600 N.W.2d at 300). “[N]o
possible advantage could flow to the defendant from counsel’s failure to
point out the State’s noncompliance. Defense counsel’s failure in this
regard simply cannot be attributed to improvident trial strategy or
misguided tactics.” Horness, 600 N.W.2d at 300 (citation omitted).
After the State breached the plea agreement, defense counsel
requested a bench conference. Following the bench conference, the
prosecutor withdrew his earlier remarks and explained the terms of the
agreement to the court. At no point did defense counsel object on the
record to the State’s breach, request Fannon be given an opportunity to
withdraw the guilty pleas, or request a new sentencing hearing before a
4Although the record suggests the breach in this case may have been the result
of miscommunication or confusion between the prosecutor who entered into the plea
agreement and the sentencing prosecutor, “inadvertence . . . will not excuse
noncompliance.” Bearse, 748 N.W.2d at 215. “The staff lawyers in a prosecutor’s office
have the burden of ‘letting the left hand know what the right hand is doing’ or has
done.” Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433.
11
different judge. Counsel also failed to consult with Fannon to discuss
these legal options in light of the prosecutor’s breach. Therefore, defense
counsel failed to perform an essential duty. 5 See id.
C. Prejudice. In order to establish prejudice, Fannon need not
establish that, “ ‘but for his counsel’s failure to object, he would have
received a different sentence.’ ” Bearse, 748 N.W.2d at 217 (quoting
Horness, 600 N.W.2d at 300). Instead, Fannon must show that “the
outcome of the [sentencing] proceeding would have been different.”
Horness, 600 N.W.2d at 300–01. The State asserts Fannon suffered no
prejudice because “the record is clear that the court did not consider” the
prosecutor’s improper recommendation.
The State raised, and we rejected, a similar argument in Bearse.
We explained:
[T]he ability of the sentencing court to stand above the
fray and overlook the conduct of the prosecutor cannot be
used by the State to minimize the prejudice component of
the analysis. Our system of justice requires more and
does not allow prosecutors to make sentencing
recommendations with a wink and a nod. The concept of
justice has a far greater meaning.
Bearse, 748 N.W.2d at 217–18; see also State v. Carrillo, 597 N.W.2d
497, 501 (Iowa 1999). We set forth the appropriate analytical framework
to assess prejudice in this context in Horness, stating:
A proper objection by the defendant’s attorney would have
alerted the sentencing court to the prosecutor’s breach of the
plea agreement. In that circumstance, the court would have
allowed the defendant to withdraw his guilty pleas, or would
have scheduled a new sentencing hearing at which time the
prosecutor could make the promised recommendations. The
outcome of the defendant’s sentencing proceeding was
5After the conference at the bench, the record shows that Fannon was sentenced
without an opportunity to consult with counsel. We, therefore, have no occasion to
consider whether the district court could have validly sentenced Fannon had Fannon
made an on-the-record, knowing and voluntary waiver of his right to withdraw his
guilty pleas or be sentenced by a different judge during a new sentencing hearing.
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different, however, because defense counsel did not make
the necessary objection. Consequently, the defendant was
sentenced by the court at a hearing tainted by the
prosecutor’s improper comments.
Horness, 600 N.W.2d at 301 (citations omitted); accord Bearse, 748
N.W.2d at 217; see also State v. Bergmann, 600 N.W.2d 311, 314 (Iowa
1999) (“When trial counsel fails to object to the prosecutor’s breach of the
plea agreement and thereby prevents the defendant from receiving the
benefit of the plea agreement, the defendant is prejudiced.”).
As in Horness, defense counsel’s failure to object to the State’s
breach prevented Fannon from having an opportunity to either demand
specific performance of the agreement before a new sentencing judge or
withdraw the guilty pleas. We have no reason to doubt the ability of the
sentencing court to disregard improper remarks made by prosecutors
during sentencing. Nevertheless, “the interests of justice and
appropriate recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty will be best served by”
ensuring defendants who plead guilty in reliance on promises made by
the State receive the benefit of the bargain. See Santobello, 404 U.S. at
262–63, 92 S. Ct. at 499, 30 L. Ed. 2d at 433. Therefore, counsel’s
failure to object to the State’s breach caused prejudice by depriving
Fannon of the benefit of the bargain, namely, that the State would make
no sentencing recommendation during the sentencing hearing.
D. Remedy. An appropriate remedy for a breached plea
agreement is one that “ensure[s] the interests of justice are served.”
Bearse, 748 N.W.2d at 218. Generally, a breached plea agreement may
be remedied by allowing the defendant to withdraw the guilty plea or by
remanding for resentencing before a new judge. Id.; State v. King, 576
N.W.2d 369, 371 (Iowa 1998); see generally George L. Blum, Choice of
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Remedies Where State Prosecutor Has Breached Plea Bargain, 9 A.L.R. 6th
541 (2005) (discussing remedies when prosecutors breach plea
agreements). Fannon does not request a specific remedy; he merely
requests us to grant him an opportunity to withdraw his guilty pleas or
vacate his sentences and remand for resentencing before a new
sentencing judge.
The interests of justice are best served in this case by vacating
Fannon’s sentences and remanding for resentencing. Doing so ensures
Fannon receives the benefit of the bargain by demanding specific
performance of the plea agreement. See Bearse, 748 N.W.2d at 218.
“[T]here is no need to expend the added prosecutorial and judicial
resources that would be required by vacating the conviction and allowing
the process to start anew.” Id. Therefore, we affirm Fannon’s convictions
for sexual abuse in the third degree, vacate his sentences, and remand
the matter for resentencing before a new judge.
III. Conclusion.
For these reasons, we vacate the decision of the court of appeals,
vacate the defendant’s sentences, and remand the matter to the district
court for resentencing.
DECISION OF COURT OF APPEALS VACATED; SENTENCES
VACATED AND CASE REMANDED FOR RESENTENCING.
All justices concur except Mansfield, J., who takes no part.