IN THE SUPREME COURT OF IOWA

No. 116 / 06–0916 

Filed April 18, 2008 

STATE OF IOWA, 

 Appellee, 

vs. 

GREAGORY ALLEN BEARSE, 

 Appellant. 

 On review from the Iowa Court of Appeals. 

 Appeal from the Iowa District Court for Scott County, J. Hobart 

Darbyshire and Charles H. Pelton, Judges. 

 Appellant seeks further review of court of appeals decision 

affirming the district court judgment and sentence following a guilty plea 

to third-degree sexual abuse. DECISION OF COURT OF APPEALS 

VACATED; SENTENCE VACATED; CASE REMANDED. 

 Mark C. Smith, State Appellate Defender, and Patricia A. 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. 
2

CADY, Justice.

In this appeal from a guilty plea and sentencing for third-degree 

sexual abuse, we must decide whether trial counsel was ineffective in 

failing to object to an alleged breach of a plea agreement by the 

prosecutor. We conclude the prosecutor breached the plea agreement 

and counsel was ineffective in failing to object. We preserve the claim 

that defense counsel was ineffective for failing to file a motion in arrest of 

judgment to challenge the alleged involuntariness of the plea. We affirm 

the conviction, but vacate the sentence and remand for resentencing. 

 I. Background Facts and Proceedings. 

Greagory Bearse was charged by trial information with the crime of 

sexual abuse in the third degree in violation of Iowa Code section 

709.4(2)(c)(4) (2005). The State claimed Bearse engaged in a long-term 

sexual relationship with a fourteen-year-old girl. Bearse was thirty-seven 

years old at the time. The relationship was revealed after the girl became 

pregnant. Bearse’s attorney eventually negotiated a plea agreement with 

the State prior to trial. The agreement required Bearse to enter a plea of 

guilty to the charge and required the State to recommend against 

incarceration at the time of sentencing, “recognizing that the court may 

grant a deferred judgment or place the defendant on probation.” The 

plea agreement was formalized in writing. 

Bearse subsequently entered a plea of guilty to sexual abuse in the 

third degree at a hearing before the district court. The district court was 

informed of the plea agreement at the hearing, and the plea colloquy 

revealed the sentencing court was not bound to follow the State’s 

sentencing recommendation. Following the hearing, the department of 

correctional services conducted a presentence investigation. The 
3

presentence investigation report ultimately recommended Bearse be 

incarcerated. 

Bearse appeared for sentencing in district court with his attorney. 

The prosecuting attorney who appeared for the State was not the same 

prosecutor who had negotiated the plea agreement and had appeared for 

the State at the guilty-plea hearing. 

During the course of the sentencing hearing, the court asked the 

State to make a sentencing recommendation. In response, the 

prosecutor stated “[t]he State concurs in the recommendation of the 

presentence investigation report, your honor, for incarceration.” The 

court immediately informed the prosecutor that the recommendation by 

the State was inconsistent with the plea agreement. The prosecutor 

acknowledged the existence of some confusion based on the contents of 

his file. Yet, after the correct terms of the plea agreement were identified, 

the prosecutor merely said: “Your Honor, the court is not bound by the 

plea agreement. The State is, so we’ll . . . abide by the plea agreement. 

The court has the presentence investigation report.” Counsel for Bearse 

did not object to the comments by the prosecutor. 

 At the conclusion of the sentencing hearing, the court sentenced 

Bearse to an indeterminate term of incarceration not to exceed ten years. 

The court detailed its reasons for imposing incarceration, which included 

the age difference between Bearse and the victim and an absence of 

remorse on the part of Bearse. The court did not mention the 

prosecutor’s recommendation as a sentencing factor. Additionally, 

Bearse was not sentenced to the special life sentence provided for in Iowa 
4

Code section 903B.1, and no mention of the special life sentence appears 

in the record.1 

Bearse appeals and asserts two claims of error. First, he makes a 

two-part argument that the prosecutor breached the plea agreement by 

failing to recommend against incarceration, and his trial counsel was 

ineffective by failing to object to the breach. Second, Bearse argues his 

trial counsel was ineffective for failing to file a motion in arrest of 

judgment after the court failed to inform him at the guilty-plea hearing of 

the special life sentence applicable to his case. Even though the district 

court failed to impose the special sentence, Bearse points out the 

provisions would be applicable to him in the event resentencing is 

required. 

We transferred the case to the court of appeals. The court of 

appeals affirmed the judgment and sentence of the district court. It 

determined defense counsel was not ineffective because the prosecutor 

did not breach the plea agreement. The court of appeals found the 

record inadequate for consideration of Bearse’s second ineffectiveassistance-of-counsel claim and preserved the issue for postconviction 

proceedings. We granted further review. 

 II. Standard of Review. 

 We review ineffective-assistance-of-counsel claims de novo. State 

v. Horness, 600 N.W.2d 294, 297 (Iowa 1999). 

 1Iowa Code section 903B.1 requires that a person convicted of an offense under 

chapter 709 

shall also be sentenced, in addition to any other punishment provided by 

law, to a special sentence committing the person into the custody of the 

director of the Iowa department of corrections for the rest of the person’s 

life, with eligibility for parole as provided in chapter 906. 
5

 III. Discussion. 

 A. Breach of Plea Agreement. 

 1. Error preservation. Bearse concedes his trial attorney did not 

object during the sentencing hearing when the prosecutor allegedly 

breached the plea agreement. Consequently, he claims the failure to 

object amounts to ineffective assistance of counsel. We consider this 

claim on appeal. See State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 

1999). 

2. Adequacy of record for review. Bearse argues his counsel was 

ineffective for failing to object to the prosecutor’s breach of the plea 

agreement. “If an ineffective assistance of counsel claim is raised on 

direct appeal from the criminal proceedings, the court may decide the 

record is adequate to decide the claim or may choose to preserve the 

claim for determination under chapter 822 [postconviction proceedings].” 

Iowa Code § 814.7(3). “Although claims of ineffective assistance of 

counsel are generally preserved for postconviction relief proceedings, we 

will consider such claims on direct appeal where the record is adequate.” 

Horness, 600 N.W.2d at 297. The record in this case clearly reflects the 

written plea agreement and the circumstances giving rise to Bearse’s 

claim that the prosecutor breached the agreement, as well as defense 

counsel’s response. As such, we find the record adequate to review 

Bearse’s first ineffective-assistance-of-counsel claim on direct appeal. 

3. Failure to perform essential duty. A successful ineffectiveassistance-of-counsel claim requires proof by a preponderance of the 

evidence that (1) counsel failed to perform an essential duty, and (2) 

prejudice resulted. Id. at 298. In analyzing the first prong of the test, we 

presume counsel acted competently. Id. Counsel cannot fail to perform 

an essential duty by merely failing to make a meritless objection. Id. at 
6

297. Consequently, to determine whether counsel failed to perform an 

essential duty in failing to object to the prosecutor’s recommendation, we 

must first determine whether the State breached the plea agreement. Id. 

If the State did not breach the plea agreement, defense counsel could not 

have been ineffective. 

 We begin our consideration of this question by recognizing the 

important role plea agreements play in our scheme of justice and the 

concomitant need for strict compliance with those agreements. 

The disposition of criminal charges by agreement between 

the prosecutor and the accused, sometimes loosely called 

“plea bargaining,” is an essential component of the 

administration of justice. Properly administered, it is to be 

encouraged. If every criminal charge were subjected to a 

full-scale trial, the States and the Federal Government would 

need to multiply by many times the number of judges and 

court facilities. 

Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30 

L. Ed. 2d 427, 432 (1971). 

While proper use of plea agreements is essential to the efficient 

administration of justice, improper use of the agreements threatens the 

liberty of the criminally accused as well as “the honor of the government” 

and “public confidence in the fair administration of justice.” State v. 

Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). Violations of plea 

agreements “adversely impact the integrity of the prosecutorial office and 

the entire judicial system.” State v. King, 576 N.W.2d 369, 370 (Iowa 

1998). Further, “ ‘[b]ecause a plea agreement requires a defendant to 

waive fundamental rights, we are compelled to hold prosecutors and 

courts 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)). For all those reasons, 

“ ‘violations of either the terms or the spirit of the agreement’ require 
7

reversal of the conviction or vacation of the sentence.” Id. (quoting Stubbs 

v. State, 972 P.2d 843, 844 (Nev. 1998)). 

In this case, the prosecutor initially breached the plea agreement 

as the result of confusion or perhaps inattention. A prosecutor must 

take care to properly carry out all obligations and promises of the state in 

good faith. This duty requires each prosecutor who enters a courtroom 

on behalf of the state in every case to understand the state’s obligations 

under a plea bargain and to strictly comply with those obligations. “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. The prosecutor is not 

merely the representative of an ordinary party in a private controversy, 

“but of a sovereignty whose obligation to govern impartially is as 

compelling as its obligation to govern at all.” United States v. Shanahan, 

574 F.2d 1228, 1231 (5th Cir. 1978) (describing the role of the United 

States Attorney). As such, “our time-honored fair play norm and 

accepted professional standards” require strict compliance. 

Kuchenreuther, 218 N.W.2d at 624. Thus, inadvertence by a prosecutor 

will not excuse noncompliance. 

 A fundamental component of plea bargaining is the prosecutor’s 

obligation to comply with a promise to make a sentencing 

recommendation by doing more than “simply inform[ing] the court of the 

promise the State has made to the defendant with respect to sentencing.” 

Horness, 600 N.W.2d at 299. The State must actually fulfill the promise. 

Where the State has promised to “recommend” a particular sentence, we 

have looked to the common definition of the word “recommend” and 

required 
8

the prosecutor to present the recommended sentence[] with 

his or her approval, to commend the sentence[] to the court, 

and to otherwise indicate to the court that the recommended 

sentence[] [is] supported by the State and worthy of the 

court’s acceptance. 

Id. (citing Webster’s Third New International Dictionary 1897 (unabr. ed. 

1993) (defining “recommend” to mean (1) “to mention or introduce as 

being worthy of acceptance, use, or trial,” (2) “to make a commendatory 

statement about as being fit or worthy,” (3) “to bring forward as being fit 

or worthy,” (4) “present with approval,” (5) “indicate as being one’s choice 

for something or as otherwise having one’s approval or support,” (6) “offer 

or suggest as favored by oneself”)); see also United States v. Brown, 500 

F.2d 375, 377 (4th Cir. 1974) (requiring the prosecutor’s 

recommendation be “expressed with some degree of advocacy”). 

The record in this case not only demonstrates noncompliance with 

the express terms of the plea agreement, but also with the spirit of the 

plea agreement. Despite the prosecutor’s initial confusion about the 

terms of the plea agreement, the applicable plea agreement clearly 

required the State to recommend against incarceration. Yet, even after 

the initial confusion was resolved and the prosecutor understood the 

terms of the agreement, he failed to comply with the obligation of the 

State to recommend that Bearse not be incarcerated. Instead, he merely 

indicated the State would “abide by the agreement,” but only after first 

telling the court it was “not bound by the plea agreement,” followed by a 

reminder that the court had “the presentence investigation report.” We 

have said “[t]he State’s promise to make a sentencing recommendation 

. . . [carries] with it the implicit obligation to refrain from suggesting more 

severe sentencing alternatives.” Horness, 600 N.W.2d at 299 (recognizing 

the plea agreement “is of little value to the defendant” if the State is 

allowed to recommend alternative sentences); see also State v. Birge, 638 
9

N.W.2d 529, 536 (Neb. 2002) (finding breach of a plea agreement cannot 

be cured by prosecutor’s offer to withdraw improper remarks, even in 

case where district court affirmatively stated it was not influenced by the 

improper comments). Not only did the State in this case mistakenly 

recommend incarceration at the outset, but it clearly suggested 

incarceration should be imposed by referring to the presentence 

investigation report (which recommended incarceration) and reminding 

the court that it was not bound by the plea agreement. The State clearly 

breached the plea agreement by suggesting more severe punishment 

than it was obligated to recommend. 

The argument by the State that it ultimately complied with the plea 

agreement ignores our previous jurisprudence requiring the prosecutor 

to do more than merely inform the court of the promise made by the 

State. Horness, 600 N.W.2d at 299. The agreement in this case required 

a recommendation against incarceration. The State’s initial 

recommendation of incarceration and subsequent agreement to “abide by 

the plea agreement” do not amount to a recommendation against 

incarceration. The prosecutor did not present the recommended 

sentence with his approval or commend a sentence to the court other 

than incarceration, such as probation. Consequently, the State failed to 

fulfill the promise under the plea agreement to recommend against 

incarceration. 

 Having found a breach of the plea agreement, we must next 

consider whether defense counsel failed to perform an essential duty by 

failing to object to the breach. We have previously held defense counsel 

has a duty to object to the breach of a plea agreement: 

When the State breached the plea agreement, the 

defendant’s trial counsel clearly had a duty to object; only by 

objecting could counsel ensure that the defendant received 
10

the benefit of the agreement. Moreover, no 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. 

Id. at 300 (citations omitted). As such, defense counsel failed to perform 

an essential duty. 

 4. Prejudice. The ineffective-assistance-of-counsel claim by Bearse 

also requires that he demonstrate prejudice. In determining prejudice, 

we have rejected the standard that, “but for his counsel’s failure to 

object, he would have received a different sentence.” Id. (citing State v. 

Carrillo, 597 N.W.2d 497, 500 (Iowa 1999)). Instead, “the defendant 

must simply show that the outcome of the [sentencing] proceeding would 

have been different.” Id. at 300–01 (citing Carrillo, 597 N.W.2d at 500). 

In Horness, we said: 

The 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 plea[], 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 

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. 

Id. at 300 (citations omitted). 

 The State asserts that the absence of an objection in this case did 

not result in prejudice at sentencing because the sentencing judge knew 

the State was obligated to recommend against incarceration, and the 

tactics employed by the prosecutor to imply the State nevertheless 

actually wanted the court to impose a sentence of incarceration had no 

impact on the sentencing decision of the court. The State points out the 

sentencing judge enumerated the factors upon which the ten-year 
11

indeterminate sentence was based, and the State’s recommendation of 

incarceration was not one of those. In Carrillo, we noted that 

we have no way of knowing what sentence this judge would 

have imposed had the State [performed its obligation under 

the plea agreement], and we certainly will not speculate 

about the sentence a different judge would have imposed 

had [defendant’s] counsel objected and the case been set for 

resentencing. 

597 N.W.2d at 501. We likewise refuse to engage in such speculation in 

this case. See Santobello, 404 U.S. at 262–63, 92 S. Ct. at 499, 30 

L. Ed. 2d at 433 (finding error and remanding even though sentencing 

court stated it would have given the same sentence had prosecutor 

fulfilled plea bargain); Birge, 638 N.W.2d at 536 (same). 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. The concept of justice has a 

far greater meaning. 

 Additionally, as in Horness, an objection by defense counsel leads 

to a procedure that alerts the court to correct the taint by allowing the 

defendant to withdraw the plea or by scheduling a new sentencing 

hearing with a prosecutor who will make the promised recommendation. 

600 N.W.2d at 301. Thus, the outcome of the sentencing proceeding in 

this case would have been different if defense counsel would have 

objected. The sentencing hearing would have been rescheduled, or the 

plea of guilty would have been withdrawn. Consequently, Bearse has 

shown his counsel was ineffective. 

 5. Remedy. Having determined counsel was ineffective, we must 

decide what remedy is appropriate. Bearse asks us to vacate the 
12

conviction and allow him to plead anew. When the district court 

erroneously fails to remedy a prosecutor’s breach of the plea agreement, 

we will “determine the appropriate remedy necessary to ensure the 

interests of justice are served—either withdrawal of the guilty plea or 

resentencing before another judge.” See King, 576 N.W.2d at 371 

(determining defendant was entitled to specific enforcement of the 

bargained-for plea agreement and remanding for resentencing). The 

interests of justice are adequately served in this case by remanding for 

resentencing. Bearse can still receive the benefit of his bargain under 

the plea agreement if the State carries out its obligation at resentencing. 

Consequently, there 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. Therefore, we affirm the conviction, 

but vacate the decision of the court of appeals, vacate Bearse’s sentence, 

and remand the case for resentencing. 

 B. Special Life Sentence. Iowa Code section 903B.1 requires 

that a person convicted of an offense under chapter 709 

shall also be sentenced, in addition to any other punishment 

provided by law, to a special sentence committing the person 

into the custody of the director of the Iowa department of 

corrections for the rest of the person’s life, with eligibility for 

parole as provided in chapter 906. 

This provision essentially requires sex-abuse offenders to remain on 

parole or probation for life. The word “shall” in the statute indicates the 

legislature intended the special life sentence to be mandatory. See Iowa 

Code § 4.1(36)(a) (requiring that unless otherwise specifically provided by 

the legislature, “[t]he word ‘shall’ imposes a duty”); State v. Tenny, 493 

N.W.2d 824, 826 (Iowa 1992) (stating “ ‘shall’ indicates mandatory intent 

unless the context indicates otherwise”). 
13

Bearse argues the district court failed to advise him of the special 

life sentence prior to accepting his plea of guilty, which rendered his 

guilty plea involuntary and unintelligent. In order to challenge a guiltyplea proceeding on appeal, a defendant must file a motion in arrest of 

judgment. Iowa R. Crim. P. 2.24(3)(a); State v. Kress, 636 N.W.2d 12, 19 

(Iowa 2001). Counsel for Bearse failed to file the required motion. 

“However, this failure does not bar a challenge to a guilty plea if the 

failure to file a motion in arrest of judgment resulted from ineffective 

assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) 

(citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)). 

The State argues defense counsel could not have been ineffective 

for failing to raise the special life sentence by filing a motion in arrest of 

judgment because Bearse was not sentenced under the special provision. 

Yet, on remand, Bearse will face resentencing under all applicable 

provisions, and he will be subject to the special sentencing provision. 

Thus, even if Bearse failed to preserve his claim by filing a motion in 

arrest of judgment, we can consider whether the failure to file a motion 

in arrest of judgment resulted from ineffective assistance of counsel. 

 In considering a claim of ineffective assistance of counsel on direct 

appeal, Iowa Code section 814.7(3) allows us to evaluate the record 

surrounding an ineffective-assistance-of-counsel claim and choose 

whether we will decide the claim on direct appeal or preserve it for 

postconviction proceedings. As mentioned earlier, we apply the wellsettled, two-prong test to analyze Bearse’s ineffective-assistance-ofcounsel claim. Bearse “must demonstrate (1) his trial counsel failed to 

perform an essential duty, and (2) this failure resulted in prejudice.” Id.

 Even assuming defense counsel failed to perform an essential duty 

by failing to file a motion in arrest of judgment, Bearse cannot meet his 
14

burden to prove he was prejudiced by the failure on this record. As we 

clarified in Straw, a defendant who relies on an ineffective-assistance-ofcounsel claim to challenge the adequacy of a guilty plea has the burden 

to prove “there is a reasonable probability that, but for counsel’s errors, 

he or she would not have pleaded guilty and would have insisted on 

going to trial.”2 Id. at 138. In Straw, we explained: 

Under the “reasonable probability” standard, it is 

abundantly clear that most claims of ineffective assistance of 

counsel in the context of a guilty plea will require a record 

more substantial than the one now before us. . . . [T]here is 

nothing in this record to indicate whether or not Straw’s trial 

counsel told him about the possibility of consecutive 

sentences. Such evidence could be a significant part of our 

prejudice analysis. This case exemplifies why claims of 

ineffective assistance of counsel should normally be raised 

through an application for postconviction relief. In only rare 

cases will the defendant be able to muster enough evidence 

to prove prejudice without a postconviction relief hearing. 

Id. As in Straw, the record before us on this direct appeal is devoid of 

evidence indicating Bearse would not have pleaded guilty, but would 

have insisted on going to trial. In the absence of such evidence, we must 

preserve the claim for postconviction proceedings. To do otherwise, 

would be to adopt a per se rule of prejudice and shift the burden to the 

State. See id. at 137 (refusing to adopt a per se rule of prejudice). We 

refused to do so in Straw, and we again refuse to do so here. This record 

makes it impossible for Bearse to muster sufficient evidence to satisfy his 

burden of demonstrating prejudice. His claim should be preserved for 

postconviction proceedings. 

 2In Straw, the defendant appealed from judgments and sentences entered 

following guilty pleas. Id. at 130. As in this case, the defendant complained that “his 

counsel rendered ineffective assistance by failing to file a motion in arrest of judgment 

after the district court did not inform him of the maximum punishment he could face by 

pleading guilty.” Id. 
15

 IV. Conclusion. 

 We vacate the decision of the court of appeals and sentence of the 

district court and remand for resentencing before a new district court 

judge. 

DECISION OF COURT OF APPEALS VACATED; SENTENCE 

VACATED; CASE REMANDED. 

 All justices concur except Wiggins, J., who concurs in part and 

dissents in part.