IN THE COURT OF APPEALS OF IOWA
No. 2-313 / 01-1033
Filed June 19, 2002
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTOPHER MICHAEL WATERMAN,
Defendant-Appellant.
Appeal from the Iowa District Court for Des Moines County, David B.
Hendrickson and John G. Linn, Judges.
Christopher Waterman appeals the judgment and sentence entered upon
his guilty plea to burglary in the third degree and possession of a
controlled substance with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Patricia C. Jackson, County Attorney, and Andrew Prosser and
Michael Bennett, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
HECHT, J.
On June 5, 2000, Christopher Waterman pled guilty to burglary in the
third degree and possession with intent to deliver a controlled substance
in violation of Iowa Code sections 124.401(1)(c)(6), 713.1, and 713.6A
(1999). According to the terms of the plea agreement, the State would
recommend concurrent sentences. [1] On August 4, 2000, the court was
notified Waterman had been arrested on a warrant in Missouri that had
issued on June 22, 2000. At the sentencing hearing on June 4, 2001, the
prosecutor recommended the sentence in the Iowa case be served
consecutively to the sentence imposed in the Missouri case. On appeal,
Waterman contends his trial counsel was ineffective in failing to object to
the prosecutor's sentencing recommendation.
We review claims of ineffective assistance of counsel de novo. State
v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). A defendant receives
ineffective assistance of counsel when (1) the defense attorney fails in an
essential duty and (2) prejudice results. State v. Bugely, 562 N.W.2d 173,
178 (Iowa 1997). An ineffective assistance of counsel claim may be
disposed of if the defendant fails to prove either prong. State v. Cook,
565 N.W.2d 611, 614 (Iowa 1997).
We conclude counsel breached no duty in failing to object to the
prosecutor's sentencing recommendations. The plea agreement required the
State to recommend concurrent sentences for the two offenses charged in the
Des Moines County trial information. The State complied with this
agreement. Waterman's conviction and sentence in Missouri was not
contemplated at the time of the plea agreement and was therefore not within
its scope. Accordingly, Waterman's trial counsel did not fail in an
essential duty by not objecting to the prosecutor's sentencing
recommendations because she was under no duty to do so. See State v. Rice,
543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to
make a meritless motion).
AFFIRMED.
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[1] During the plea colloquy, the prosecutor communicated the following
relevant terms of the plea agreement: "[t]he State will be arguing for a
ten-year and a five-year sentence, to run concurrently with each other . .
."
