STATE OF IOWA, Plaintiff-Appellee, vs. GREAGORY ALLEN BEARSE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-230 / 06-0916
Filed May 9, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREAGORY ALLEN BEARSE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire
and C.H. Pelton, Judges.
Defendant-appellant appeals from his conviction and sentence for sexual
abuse in the third degree following a guilty plea. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, William E. Davis, County Attorney, and Joseph A. Grubisich and Robert
Weinberg, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
Defendant-appellant Greagory Allen Bearse appeals from his conviction
and sentence for sexual abuse in the third degree following a guilty plea,
contending trial counsel was ineffective for failing to: (1) object to the
prosecutor’s breach of the plea agreement and (2) file a motion in arrest of
judgement.
BACKGROUND FACTS AND PROCEEDINGS.
The facts of this case are undisputed. Defendant Bearse, a thirty-sevenyear-old man, had an on-going sexual relationship with a fourteen-year-old girl.
When the trial information was filed on November 16, 2005, the girl was pregnant
with Bearse’s child. On May 10, 2006, Bearse pled guilty as charged. On May
24, 2006, judgment was entered and Bearse was sentenced to a prison term not
to exceed ten years. Bearse appeals upon receiving this sentence. He claims
the State breached the plea agreement by failing to recommend probation, and
counsel was ineffective for failing to object to this breach. He further claims his
plea was not made voluntarily and knowingly, and that counsel was ineffective for
failing to file a motion in arrest of judgement on that ground.
STANDARD OF REVIEW.
We review claims of ineffective assistance of counsel de novo. State v.
McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001). To succeed with a claim of
ineffective assistance of counsel, a defendant typically must prove the following
two elements: (1) counsel failed to perform an essential duty, and (2) defendant
was prejudiced by counsel’s error. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). There is an assumption
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that counsel’s performance is competent. Id. 466 U.S. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694. The defendant must show that his counsel performed
below the standard demanded of a reasonably competent attorney. Id. 466 U.S.
at 687-8, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
To show prejudice, the
defendant must show that there is a reasonable probability that, but for his
counsel’s unprofessional errors, the result of the proceeding would have been
different.
Id.
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Ineffectiveness claims raised on direct appeal are ordinarily preserved for
postconviction relief to allow full development of the facts surrounding counsel’s
conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).
ANALYSIS.
Prosecutor’s Breach of Plea Agreement: The record is adequate for us
to decide this issue on direct appeal. Bearse was originally represented by Tom
Preacher who negotiated a plea agreement with the State.
Preacher later
withdrew and this agreement was never finalized. Maria Pauly substituted as
Bearse’s counsel.
She negotiated with the State, and reached another plea
agreement. Pursuant to this agreement, Bearse would plead guilty to sexual
abuse in the third degree, and the State would “recommend against incarceration
of Defendant, recognizing that the court may grant a deferred judgment or place
Defendant on probation.”
The agreement further stated that the court’s
acceptance of this plea agreement was not a condition of Bearse’s plea. The
second plea agreement was filed and in effect when the plea hearing was held.
The existence of two plea agreements caused some confusion at the
sentencing hearing.
A different prosecutor than the one from the plea
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proceeding appeared for the State at the sentencing hearing. When the court
asked what sentence the State recommended, the prosecutor stated, “The State
concurs in the recommendation of the presentence investigation report, 1 Your
Honor, for incarceration.” The sentencing judge immediately pointed out this
recommendation was inconsistent with the plea agreement. At this time, Pauly,
Bearse’s counsel, clarified with the court, “[T]he plea agreement that we entered
into was: that [Bearse] may get probation and/or a deferred judgment.” She later
explained that the existence of the prior agreement might have caused the
confusion. Upon hearing this explanation, the sentencing judge stated, “I see.
Okay.” The prosecutor then stated, “Your Honor, the Court is not bound by the
plea agreement.
The State is, so we’ll – we’ll – we’ll abide by the plea
agreement. The Court has the presentence investigation report.” This statement
gave rise to Bearse’s first claim. Bearse argues that this statement does not
amount to a recommendation opposing incarceration.
By referring to the
presentence investigation report (PSI), Bearse argues, the prosecutor was
clearly recommending incarceration in violation of the plea agreement; therefore,
counsel breached an essential duty for failing to object to this statement.
We do not find the record indicates counsel was ineffective. First, we do
not find the State breached the plea agreement. The prosecutor, due to his
misunderstanding with regard to which agreement was in effect, recommended a
sentence inconsistent with the plea agreement.
This was not an intentional
noncompliance. After Pauly clarified the situation, the prosecutor admitted his
confusion and stated twice that if the State had recommended probation, he
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The Department of Correctional Services had completed a presentence investigation
report before the plea hearing was held, and the report recommended incarceration.
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would abide by it.
This case is distinguishable from State v. Horness, 600
N.W.2d 294, 296 (Iowa 1999). In Horness, the prosecutor not only referred to
the recommendation in the PSI as an alternative recommendation, he also
detailed the circumstances of the defendant’s offenses in such a way as to
support the PSI recommendation.
Id.
In the present case, although the
prosecutor referred to the PSI, he did not incorporate this report as part of his
recommendation. Neither did he suggest that the sentence recommended by the
PSI was more appropriate. We conclude the State complied with the spirit of the
plea agreement, and counsel had no duty to object.
Second, we do not find the proceedings would have been different even if
the State had never referred to the PSI. After announcing the sentence, the
sentencing judge explained the reasons for his decision. He emphasized the
significant age difference between Bearse and the victim, an adult’s duty to stop
improper sexual contacts, and the importance of protecting children from sexual
abuse. He also stated there was some punishment for Bearse’s lack of remorse
and the need of deterrence.
It is clear the sentencing judge believed
imprisonment was more appropriate than probation under the circumstances.
We conclude the proceedings would not have been different even if the State
had never mentioned the recommendation made in the PSI.
Bearse was
therefore not prejudiced.
Counsel’s Failure to File Motion in Arrest of Judgement.
A new
section of the Iowa Code, 903B.1, effective July 1, 2005, provides that a person
convicted of a class “C” felony or greater under Iowa Code Chapter 709 shall be
sentenced to a special sentence committing the person into the custody of the
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director of the Iowa Department of Corrections for the rest of the person’s life, in
addition to any other punishment. Bearse claims that this law applies to him, but
he was never informed of this provision and therefore his guilty plea was not
made voluntarily and knowingly and his attorney was ineffective for failing to file a
motion in arrest of judgement.
The record on this issue is inadequate regarding counsel’s conduct. We
note the sentencing order makes no reference to Chapter 903B. We therefore
preserve the issue for postconviction relief.
AFFIRMED.
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