STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN ALAN RICH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-161 / 08-1145
Filed April 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN ALAN RICH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, David M. Remley
(plea) and Amanda Potterfield (sentencing), Judges.
Defendant appeals his guilty plea and sentencing for operating while
intoxicated, third offense arguing his counsel was ineffective. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger Assistant Attorney
General, Harold Denton, County Attorney, Jerry Vander Sanden and Susan
Nehring, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
EISENHAUER, J.
On February 25, 2008, Justin Rich was charged with two counts:
(I)
operation of a motor vehicle while intoxicated, third offense; and (II) driving while
barred.
A subsequent plea agreement was detailed at the March 10 plea
hearing. Rich would plead to count I and the State would dismiss both count II
and any companion traffic violations.
Rich would be released pending
sentencing. The State would not make a recommendation regarding sentencing,
however, the State “reserve[s] the right to make an adverse recommendation if
Mr. Rich picks up new charges before sentencing.” Rich pled guilty.
After the plea but before sentencing, Rich was arrested for interference
with official acts. Due to this arrest, the State did not abstain from making a
sentencing recommendation at the May 16 sentencing hearing.
Rather, the
State asked the court to follow the recommendation of the presentence
investigation report. This report concluded, “[t]his is the defendant’s 9th lifetime
OWI” and recommended indeterminate incarceration up to five years to “protect
the community.”
Rich was sentenced to a prison term not to exceed five years and appeals
seeking resentencing due to ineffective assistance of counsel. Rich faults his
counsel’s failure to object to the State’s alleged breach of the plea agreement
when the State made a recommendation at the sentencing hearing. Rich claims
the State could only make a recommendation upon Rich’s subsequent conviction
of a new offense and a subsequent arrest without an accompanying conviction is
insufficient.
3
In order to prevail on his claims of ineffective assistance of counsel, Rich
must show (1) counsel failed to perform an essential duty, and (2) prejudice
resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). Rich’s inability
to prove either element is fatal. See State v. Greene, 592 N.W.2d 24, 29 (Iowa
1999).
We evaluate the totality of the relevant circumstances in a de novo
review. Lane, 726 N.W.2d at 392. We can resolve the issue on direct appeal
when the record is adequate to determine Rich will be unable to establish one or
both elements. See State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). Here
the record is adequate to resolve Rich’s appeal.
At the plea proceeding, the State conditioned its lack of a sentencing
recommendation on Rich’s not “picking up new charges” while he was free
awaiting
sentencing.
Generally,
defendants
“bargain
for
sentencing
recommendations from the State because such recommendations may . . .
influence the trial court in fixing sentence.” State v. Weig, 285 N.W.2d 19, 21
(Iowa 1979). The State did not agree to withhold a recommendation only in the
absence of new convictions and Rich was free to reject the plea if he did not
agree with the “new charges” bargain.
See id. at 22 (stating State could
condition its sentencing recommendation on the condition of intervening criminal
charges). Rich’s trial counsel was not ineffective because she had no duty to
make a meritless motion. See State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005).
AFFIRMED.
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