State v. Bearse , N.W.2d   (Iowa 2008) - Another great breach of the plea agreement case.  Once again the prosecutor failed to follow the State’s agreed upon  recommendation which was to recommend against incarceration. When the sentencing court pointed this out, the prosecutor responded the court was not bound by plea agreement, so the he would “abide by the plea agreement,” and the court had the PSI report which recommended prison.  No objection by defense counsel. Bearse was sentenced to an indeterminate term of ten years. 

The Supreme Court found defense counsel ineffective for failing to object to the breach and that Bearse was prejudiced by the breach.  The Supreme Court stressed the importance of plea agreements in the judicial process and it was “compelled to hold prosecutors and courts to the most meticulous standards of both promise and performance. . . . ‘[V]iolations of either the terms or the spirit of the agreement’ require reversal of the conviction or vacation of the sentence.”  Prosecutors have a duty to know the State’s obligations.  Strict compliance is required, and inadvertence by a prosecutor is no excuse.  When the prosecutor agrees to recommend a particular sentence, then it must actually recommend that sentence, i.e., advocate for the recommended sentence, not simply acknowledge the existence of the agreement.  Agreeing to make a sentencing recommendation carries “with it the implicit obligation to refrain from suggesting more severe sentencing alternatives” – such as pointing out the court’s not bound and the PSI’s prison recommendation.  Counsel’s failure to object was a breach of duty as there was no plausible advantage for not objecting to the prosecution’s breach.

Determination of the prejudice prong is whether the outcome of the sentencing proceeding would have been different, not whether the defendant would have received a different sentence.  Here the fact that the sentencing court knew what was the prosecutor’s obligated recommendation did not eliminate the prejudice.  The court refused to speculate what sentence a different judge would have imposed had trial counsel objected to the breach.  “Moreover, the 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.”  Ouch.  Finally, an objection by counsel alerts the court to correct the taint by allowing the defendant to withdraw the plea or schedule a new sentencing hearing.  Therefore, the sentencing proceeding would have been different had counsel objected. The court also found that the appropriate remedy was to affirm Bearse’s conviction, vacate his sentence and remand for resentencing before another judge. 

Bearse also argued he was denied the effective assistance of counsel when counsel did not file a motion in arrest of judgment when the plea court did not advise him of the special life sentence under § 903B.1.  Relying on State v Straw, the court found that Bearse could not show that he would not have pleaded guilty had he been informed of § 903B.1.  Therefore, it preserved the matter for postconviction proceedings.  

 Attorneys need to make their clients aware of section 903B.1.

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By Martha Lucey
Appellate Defender 

As there has already been many comments posted regarding the decision in State v. Reyes, I will not go into great detail regarding the decision.  My comments will only focus on the ideas that I believe are important to take from the Court’s ruling.  The following are my ideas, not the official position of the State Appellate Defender’s Office, or for that matter, many of my co-workers.

    I.  The notice requirement has been given attention in other postings.  But, here is my 2 cents worth.  Although the court may excuse a late notice, the notice requirement is still important.  There are many ways the defense may become aware of prior allegations.  Several questions have arisen since Reyes.  Is it acceptable to give notice by the Minutes of Testimony?  What happens when the defense discovers it during depositions?  Does the prosecutor then need to file an additional notice?  
I believe the prosecution should file a formal notice of its intent to present evidence of a  prior offense pursuant to the statute outlining the testimony.

If the prosecution does not provide notice, do not expect to be successful on appeal with a notice argument.  Reyes illustrates the evidentiary exception to error preservation.

    II.  The enactment of Iowa Code § 701.11 changes everything about the admissibility of prior sexual offenses in a sexual abuse trial.  The statute supercedes Iowa Rule of Evidence 5.404(b) in sexual abuse cases.  See Iowa Code § 602.4202.  The statute specifically allows for the admission of propensity evidence if the trial court determines (1) the evidence is relevant; (2) the state presents clear proof of the commission of the prior act; and (3) the probative value of the evidence is substantially outweighed by the danger of the unfair prejudice, confusion of the issues or misleading the jury, or by the consideration of undue delay, waste of time, or needless presentation of cumulative evidence.  

Under Iowa Rule of Evidence 5.404(b), the Court evaluated the evidence as relevant to any legitimate issue, that is, not for propensity purposes.  State v. Castaneda, 621 N.W.2d 435, 439-40 (Iowa 2001).  With Iowa Code § 701.11 that is no longer the standard since propensity is now the acceptable purpose.  Therefore, almost any prior incident of sexual abuse is going to be relevant to whether the defendant committed the current charge.  Of course, the degree of relevance will depend on all of the circumstances.

Clear proof is established by the alleged victim’s testimony.  Opinion, p. 9.  If the victim says the incident happened, that is all that is required.  At this point, the defendant really does not have much to lose by turning the current trial into a trial on the prior allegations.  Of course, there may be a reason to avoid too much detail about the prior offense if it is much more damaging or graphic than the current offense.  If the prior offense was committed with a different victim, require the State to bring that victim into court.  Reyes reserves the question regarding other victims.  See below.  

The balancing of whether the probative value is outweighed by unfair prejudice has also changed.  It is my opinion that unfair prejudice is no longer just based on the propensity factor.  I would recommend anyone involved in this type of case read the federal cases addressing Federal Rules of Evidence 413 and 414.  See e.g. United States v. Mound, 149 F.3d 799 (8th Cir. 1998); United States v. Castillo, 140 F.3d 874 (10th Cir. 1998); United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998); and United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998).  Guardia is probably the most helpful case to a defendant.  You may also want to look for other jurisdictions that have enacted a similar rule or law. 

"The defendant, JoAnn Kamber, was sentenced to five years imprisonment, suspended, with two years probation after pleading guilty to theft in the second degree. Although the defendant had requested a deferred judgment, the district court determined she was ineligible for this sentencing option because she had been given deferred sentences for two prior theft convictions. The defendant appeals, claiming the court erred in concluding she was not eligible for a deferred judgment. We agree the defendant’s prior deferred sentences do not render her ineligible for a deferred judgment. Therefore, we vacate her sentence and remand for resentencing." Read Opinion

Now the reverse question: If you've been granted two prior deferred judgments, can you now request a deferred sentence (unless disqualified by statute like OWI and domestic abuse)? We think you can.

Next question: What is a deferred sentence? Well, our understanding is that it is a sentencing option where the court imposes a conviction (unlike a deferred judgment) but does not impose a sentence (i.e. jail/fine) but imposes probation that must be sucessfully completed or the sentence (i.e. jail/fine)  would be imposed. (users have disagreed - see comments)

Next question:  If you plead to or are found guilty of more than 2 charges but sentenced on the same date, are you eligible for deferred judgments on all charges? We believe that you are entitled to that relief. See facts set out in State v. Stessman and habitual offender language. See also State v. Gordon.

Next question:  If you received multiple deferred judgments as outlined above, does that count as one previous deferred? We believe that this is similar to the habitual offender language. See also  State v. Gordon  Read B. John's thoughts in his blog that follows. {comment}