2024 UT App 40

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BENJAMIN LEE HEWARD,

Appellant.

Opinion

No. 20221055-CA

Filed March 28, 2024

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 201400462

Scott F. Garrett and Jessica Griffin Anderson,

Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 Benjamin Lee Heward pled guilty to two charges of 

aggravated sexual abuse of his two minor daughters. As part of 

his plea agreement, the State and the victims promised to 

“affirmatively recommend” a prison sentence of two concurrent 

terms of six years to life. At sentencing, the prosecutor argued 

against probation and recommended a sentence of six years to life,

but the two victims testified they were having second thoughts 

about the arguably lenient sentence, a change that the prosecutor 

attempted to explain. Ultimately, the court followed the 

recommendation of Adult Probation and Parole (AP&P),

sentencing Heward to fifteen years to life on each count, with the 
State v. Heward

20221055-CA 2 2024 UT App 40

sentences to run concurrently. Heward now maintains that the 

prosecutor breached the plea agreement when he made 

statements about probation and the feelings of the victims, and he 

asserts that the district court should have acted sua sponte to 

remedy the situation. Heward also asserts that his attorney 

rendered ineffective assistance in failing to object to the 

prosecutor’s comments. We reject Heward’s claims of error and 

therefore affirm. 

BACKGROUND

¶2 Heward was charged with ten counts of aggravated sexual 

abuse of a child and one count of rape of a child for the admitted

abuse he inflicted on his two minor daughters over a number of 

years. Heward pled guilty to two of the aggravated sexual abuse 

charges: (1) rubbing his clothed genitals over the clothed genitals 

of his older daughter in an act of simulated sexual intercourse and 

(2) rubbing his younger daughter’s genitals skin to skin with his 

hand.

¶3 As part of the plea, the State agreed to dismiss the rape 

charge and the other eight aggravated sexual abuse charges. In 

addition, the plea agreement indicated that the “State and the 

victims” would “affirmatively recommend” a prison sentence of 

six years to life and lifetime sex-offender registration. In contrast, 

AP&P recommended that Heward be sentenced to fifteen years to 

life on each count.0F

1

1. For context, a court imposing a sentence for aggravated sexual 

abuse of a child may deviate downward from the presumptive 

upper range of fifteen years to life if the “court finds that a lesser 

term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). 

The available lesser terms are ten years to life and six years to life.

See id.
State v. Heward

20221055-CA 3 2024 UT App 40

¶4 At sentencing, the prosecutor stated, “I know that based on 

. . . Heward’s statement and the recommendation from his sex 

offender treatment therapist he’s going to be asking for 

probation.” The prosecutor acknowledged there was a “very, very 

narrow exception” to the mandatory imprisonment required for 

aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) 

(stating that imprisonment is mandatory). That exception allows 

a court to “suspend execution of sentence and consider probation 

to a residential sexual abuse treatment center only if,” along with 

numerous other conditions, the perpetrator’s offense “did not 

cause the child victim severe psychological harm.” Id. § 76-5-

406.5(1)(b). To this point, the prosecutor argued, 

Heward needs to show it’s in the best interest of the 

public and specifically the child victims that the 

Court should sentence him to probation instead. He 

can’t show that, Judge. He needs to show that these 

offenses did not cause the child victim severe 

psychological harm. He cannot show that, Judge. 

It’s clear based on the victim impact statements 

from both [of Heward’s daughters] that they are 

suffering severe psychological harm, continued 

psychological harm for what their father did to 

them.

¶5 The prosecutor then emphasized that Heward’s abuse 

would make it “extremely difficult” for his victims to have a 

“sense of peace” and that they were “going to be affected” for “the 

rest of their lives” because Heward “used them as sexual objects.” 

The prosecutor also pointed out that certain sex offenses 

involving children in Heward’s juvenile record indicated that he 

represented a danger to the community. The prosecutor 

concluded by saying, “He’s going to tell the Court right now that 

he should be granted probation because he’s not a threat to the 

community. The Court should disregard that.”
State v. Heward

20221055-CA 4 2024 UT App 40

¶6 The prosecutor then gave Heward’s victims time to speak. 

The older daughter stated that Heward’s abuse had a 

“devastating impact” on her life, that she was “still suffering from 

his actions,” and that she was “always having to look over [her] 

shoulder making sure he’s not around” her. This daughter, after 

recounting the “painful memories” and her continuing trauma, 

stated that Heward was “being shown undue mercy . . . with a 

plea agreement.” She also noted that Heward had violated 

protective orders “[a]gain and again” and even at the sentencing

hearing, he had “force[d]” and “manipulated” her and her sister 

“into an embrace with him.”

¶7 The younger daughter also spoke. She said that as a result 

of the abuse, she struggled with depression and anxiety. She 

shared that she continued to “feel uncomfortable leaving [her]

room” because she was afraid that she would “get raped and 

sexually assaulted again.” She further revealed that whenever 

someone touches her “unexpectedly,” she is “startled” and “can 

physically feel it all happening again.” 

¶8 After Heward’s victims finished speaking, the prosecutor 

expressed that he wanted “to talk about what the State’s 

recommendation [was] going to be.” He explained that “[i]n 

speaking with the victims through plea negotiations,” their 

“minimums were 6 to life” and “lifetime sex offender”

registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, 

if they still feel the same way, understanding that 

I’m bound to the recommendation of 6 to life, that 

I thought it was important for the Court to know 

where the victims stand today. I asked them how 

they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?
State v. Heward

20221055-CA 5 2024 UT App 40

Prosecutor: Yes, sir, that is the State’s 

recommendation.

Court: Okay, . . . you need to be very careful you 

don’t say anything now that could be you trying 

to argue against that deal. So be circumspect in 

your comments.

Prosecutor: Judge, I’m not arguing that it should be 

anything else. I think the Court should be fully 

informed about where the victims are. The 

victims aren’t party to this agreement, but 

victims do have a right to be heard, and that can 

be through their own statements or through that 

of the prosecutor. They felt like they were 

manipulated by the defendant to feel sorry for 

him, and the Court did hear those statements 

today. They felt manipulated, and that’s why 

they wanted 6 to life. That’s the reason for the 

plea offer that was given, Judge. The State is still 

bound and still recommending 6 to life.

¶9 Heward’s attorney (Counsel) then spoke about mitigating 

factors that the court should consider in sentencing. Counsel 

agreed with the State that Heward “probably [was] not qualified” 

for the “statutory exception that allows for probation.” Counsel 

then concluded, “We would concur with the recommendation of 

the two concurrent 6 years. That’s what we’ve all agreed to, and 

that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his 

therapist, spoke about various mitigating factors. And Heward 

himself spoke, stating that he was “not asking for probation.”

¶11 The court was not persuaded by the recitation of mitigating 

factors:
State v. Heward

20221055-CA 6 2024 UT App 40

[I]t evidences a higher level of depravity when the 

victims are your biological children, and this

conduct went on for years. . . . [T]hat’s also an 

aggravating circumstance. It’s an aggravating 

circumstance that you violated the protective order.

Frankly, based on the information that’s before me, 

it seems to me that you’ve minimized the conduct 

that you’ve been involved in. I’d be more inclined to 

accept the versions that [your daughters] provide in 

terms of what happened.

Based on all of that, I’m going to follow the AP&P 

recommendation. I don’t think that I have the 

discretion to sentence you to less than 15 years in 

prison. That’s the sentence of the Court. You’ll be 

sentenced to [two concurrent terms] of 15 years to 

life in the Utah State Prison.

¶12 Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Heward first argues that the “prosecutor breached the plea 

agreement by failing to affirmatively recommend a prison 

sentence of six years to life and by implying the State regretted 

entering into the plea agreement.” Heward acknowledges that 

this claim was not preserved and asks that it be reviewed under 

both plain error and ineffective assistance of counsel. See State v. 

Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an 

unpreserved alleged breach may be reviewed for plain error and 

ineffective assistance of counsel). To demonstrate plain error, 

Heward “must show that: (i) an error exists; (ii) the error should 

have been obvious to the trial court; and (iii) absent the error, 

there is a reasonable likelihood of a more favorable outcome.”

State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), 
State v. Heward

20221055-CA 7 2024 UT App 40

cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

ANALYSIS

I. Plain Error

¶14 Heward complains that the prosecutor breached the plea 

agreement in two separate but related ways. First, Heward argues 

that the prosecutor failed to “affirmatively recommend” the 

prison sentence of six years to life as indicated in the plea 

agreement. Second, Heward argues that the prosecutor then 

“compounded” the breach by bringing up the victims’ apparent 

change of heart about the plea agreement, implying that the State 

regretted entering the plea agreement. And Heward asserts that 

the district court “should have been aware of the errors the 

prosecutor made.” In such cases, our court has focused on 

whether a prosecutor’s statements were egregious enough to 

require a district court to act sua sponte to remedy the situation. 

See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of 

[the prosecutor’s] statements was so egregiously false or 

misleading that the judge had an obligation to intervene by 

raising an objection sua sponte.”); State v. Hosman, 2021 UT App 

103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s 

statements were so egregious that it constituted plain error for the 

court to fail to intervene sua sponte to remedy the harm), cert. 

denied, 502 P.3d 270 (Utah 2021). 

¶15 To succeed on this claim, Heward “must prove that the 

State actually breached the plea agreement, that the breach should 

have been obvious to the district court, and that had the district 

court recognized and remedied the breach, there is a reasonable 

likelihood that [his] sentence would have been more favorable.” 
State v. Heward

20221055-CA 8 2024 UT App 40

State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 

P.3d 1185 (Utah 2016). And “if any one of these requirements is 

not met, plain error is not established.” Id. (cleaned up).

¶16 “[W]hen a plea rests in any significant degree on a promise 

or agreement of the prosecutor, so that it can be said to be part of 

the inducement or consideration, such promise must be fulfilled.” 

Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v.

Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea 

agreement is breached when the State fails to act in accord with 

its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 

595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a 

defendant alleges that the State violated a plea agreement by 

making inappropriate statements at sentencing, as [Heward] does 

here, we consider the prosecutor’s statements in the context of the 

entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

1. Affirmative Recommendation

¶17 Heward argues that the prosecutor failed to “affirmatively 

recommend” the prison sentence of six years to life agreed to in 

the plea. The gist of Heward’s argument is that “[i]n order to 

affirmatively recommend a sentence of six years to life, the 

prosecutor was required to make an effort to position the 

recommendation as one that is ‘in the interests of justice.’” 

(Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, 

instead, the prosecutor “utterly failed to make an argument or 

present the judge with any information that a sentence of six years 

to life was in the interests of justice.” Heward complains that the 

prosecutor “focused solely” on the limited discretion of the judge, 

certain aggravating factors (namely, the psychological harm 

suffered by the victims, Heward’s juvenile record, and Heward’s 

alleged violation of a protective order), and the victims’ alleged 

withdrawal of support for the plea agreement. “By emphasizing 

only aggravating factors in his argument,” Heward asserts, “the 

prosecutor failed to affirmatively recommend a sentence of six 

years to life,” resulting in “a clear breach.” We are not persuaded 
State v. Heward

20221055-CA 9 2024 UT App 40

that any breach, let alone a clear one, occurred when the 

prosecutor highlighted these factors.

¶18 First, the prosecutor’s statements about aggravating factors 

were made not in reference to the plea agreement but in the 

context of arguing that Heward should not be offered probation 

under the limited statutory exception to mandatory 

imprisonment. By pointing to the severe psychological harm 

inflicted on the victims and Heward’s juvenile record, the 

prosecutor was explicitly arguing that Heward was not eligible 

for probation under the statute. And Heward’s violation of the 

protective order was also mentioned in the context of denying 

probation—specifically that Heward should start serving his 

sentence immediately. As the State points out, the prosecutor’s 

remarks about the protective order violations “weren’t about what 

Heward’s sentence should be, but when he should begin to serve 

it.” Arguing against probation and for immediate incarceration—

even if it necessarily required the prosecutor to reference some 

aggravating factors relevant to other aspects of Heward’s

sentencing—was consistent with the State’s recommendation of 

six years to life. After all, the plea agreement made it perfectly 

clear that the State would “affirmatively recommend” a prison 

term, a recommendation that obviously entitled the prosecutor to 

argue—even forcefully—against probation by highlighting 

specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative

recommendation” does not require any particular measure of

enthusiasm for an agreed-upon sentencing recommendation. 

While a prosecutor may not “undermine” a promised sentencing 

recommendation by expressing “personal reservations at the 

sentencing hearing,” the “prosecutor has no responsibility to 

make such recommendations enthusiastically.” State v. Shaffer, 

2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 

2016 UT App 87, ¶ 18 (“[The prosecutor] described the 

circumstances of the crimes to underscore [the absence of 

mitigating factors], and at the conclusion of this discussion, he 
State v. Heward

20221055-CA 10 2024 UT App 40

accurately, if not enthusiastically, described the recommendation 

the State had agreed to make for concurrent sentences . . . . [This] 

context supported a reasonable interpretation that comported 

with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any 

provisions regarding how the State was to fulfill its promise to 

“affirmatively recommend” the six-years-to-life sentence. It offers 

no guidance on how enthusiastically or forcefully the prosecutor 

had to argue in favor of the agreement. Nor does it indicate, as 

Heward argues on appeal that it should, any kind of obligation on 

the part of the prosecutor to highlight mitigating factors. And 

while it is true that the prosecutor did not approach the 

recommendation with gusto, it is even more clear that the 

prosecutor did affirmatively recommend the agreed-upon 

sentence two distinct times. The prosecutor explicitly declared 

that six years to life “is the State’s recommendation.” (Emphasis 

added.) And when cautioned by the court to “be circumspect” in 

his comments to avoid saying “anything” that “could be . . . trying 

to argue against that deal,” the prosecutor clarified that he was 

“not arguing that it should be anything else” and that the “State 

is still bound and still recommending 6 to life.” (Emphasis added.) 

¶21 Moreover, these recommendations were “affirmative” in 

that the prosecutor did more than merely submit the matter 

without any argument against the defense’s recommendation; to 

the contrary, the State expressed its affirmative assent to the 

prison term agreed upon in the plea agreement. See State v. Samul, 

2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between 

situations in which a plea agreement merely “secured the State’s 

promise not to oppose” the defense’s recommendation and 

situations in which a plea agreement requires the State to 

“affirmatively argue for” a particular sentence), cert. denied, 432 

P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort 

to positively express the State’s assent to the term of six years to 

life by declaring that the term “is the State’s recommendation.” 
State v. Heward

20221055-CA 11 2024 UT App 40

(Emphasis added.) That the assent was expressed without great 

enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken 

as a whole, represent a consistently unambiguous affirmation at 

sentencing that the State stood behind its recommendation of six 

years to life. We perceive no breach of the plea agreement in the 

manner in which the prosecutor recommended a six-years-to-life 

prison sentence.

2. Implication of Regret 

¶23 Heward next argues that in informing the court that the 

two victims apparently no longer supported the sentence of six 

years to life, the State breached the plea agreement by implying 

that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain 

sentence and does so” does not breach the bargain “by also 

bringing all relevant facts to the attention of the court, so long as 

the statements are neutral and do not imply that the information 

makes the State regret entering into the plea agreement.” Shaffer, 

2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not 

inherently reflect the position of the State, and victims are not 

authorized to communicate the State’s recommendations. 

Therefore, by sharing the victims’ feelings, the prosecutor was 

making a neutral statement, one that did not reflect the State’s 

position or recommendation. See id. ¶ 32 (“By repeating the 

victim’s statement, the prosecutor did not undermine the State’s 

recommendation or imply that the State regretted that 

recommendation.”). Thus, bringing to the court’s attention that 

the support of Heward’s victims for the plea agreement had 

perhaps waned does not imply that the State regretted entering 

the plea.

¶25 It is also important to note that the prosecutor made these 

comments immediately after Heward’s victims made statements
State v. Heward

20221055-CA 12 2024 UT App 40

that could admittedly cut against the sentence of six years to life. 

The older daughter seemed to explicitly oppose the plea 

agreement, saying that Heward was “being shown undue mercy 

. . . with a plea agreement.” And the younger daughter, while not 

overtly criticizing the plea agreement, described in detail how 

Heward’s abuse caused her to feel “numb,” depressed, anxious,

“suicidal,” “unclean and dirty,” and untrusting. She further 

stated that she continued to have “very vivid nightmares and 

flashbacks” in which she could “physically feel his hands” on her. 

She also said, “I will never be able to forget how it felt when . . . 

Heward did the things he did to me. I’m afraid that wherever I go 

I will see him and he will hurt me in some type of way.” And she 

concluded by saying, “I want . . . Heward to learn from his actions, 

and I want him to know how badly he affected me . . . .” Given 

the graphic descriptions both victims provided of the ongoing 

harm they suffered, it certainly would not be a stretch to conclude 

that the victims thought Heward was being treated too leniently 

by the terms of the plea agreement.1F

2

¶26 It was against this backdrop that the prosecutor spoke. As 

the State points out, the victims’ apparent “about-face on the plea 

agreement demanded an explanation” because the “court may 

have been confused by the disparity between the victims’ 

statements at sentencing and the plea agreement.” After all, the 

plea agreement stated that the “State and victims will 

affirmatively recommend” a sentence of six years to life. But after 

the victims spoke, the court could have easily concluded that the 

victims were no longer on board. It is in this milieu that the 

2. In his reply brief, Heward explicitly states that he “does not 

object to the prosecutor facilitating the victims’ statements to the 

trial court.” Moreover, Heward does not claim in any way that the 

victims speaking up against the low-range sentence was a breach 

of the plea agreement, even where the plea agreement stated the 

victims would “affirmatively recommend” a sentence of six years 

to life along with the State.
State v. Heward

20221055-CA 13 2024 UT App 40

prosecutor assured the court that in “speaking with the victims 

through plea negotiations,” their “minimums were 6 to life” and 

“lifetime sex offender registry” and that was the offer the State 

gave Heward. Then the prosecutor explained that the victims had 

“wanted 6 to life” because “they felt manipulated” by Heward.

We have made clear that a prosecutor conveying the views of the 

victim does not “undermine” or breach a plea agreement. Here, if 

anything, the prosecutor’s statements about how the victims felt 

represented an attempt to salvage the plea agreement after the 

victims’ statements could be taken as militating against it. And it 

was well within the prosecutor’s duty to assist the victims in 

making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 

P.3d 756 (“Prosecutors must assist victims in exercising their right 

to be heard at plea hearings and provide them with clear 

explanations regarding such proceedings.” (cleaned up)). The 

prosecutor appeared to be making the best of a delicate situation 

by juggling the interests of the various parties involved while 

trying to also honor the promises made in the plea agreement.

¶27 In sum, Heward’s complaint of plain error fails because the 

prosecutor did not breach the plea agreement at all, let alone 

commit a breach so obvious as to require the district court to 

intervene without an objection. 

II. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective 

assistance by failing to object to the prosecutor’s alleged breach of 

the plea agreement. 

¶29 To show ineffective assistance of counsel, Heward must 

prove that Counsel performed deficiently and that he suffered 

prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687

(1984). “Because failure to establish either prong of the test is fatal 

to an ineffective assistance of counsel claim, we are free to address 

[Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, 

¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that 
State v. Heward

20221055-CA 14 2024 UT App 40

Counsel did not perform deficiently, we limit our analysis to the 

deficiency prong. We give “trial counsel wide latitude in making 

tactical decisions and will not question such decisions unless there 

is no reasonable basis supporting them.” State v. Heyen, 2020 UT 

App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 

(Utah 2021). So, to prevail on Strickland’s first prong, Heward 

“must overcome the strong presumption that trial counsel 

rendered adequate assistance and exercised reasonable 

professional judgment by persuading the court that there was no

conceivable tactical basis for counsel’s actions.” State v. Samul, 

2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 

P.3d 1233 (Utah 2018). 

¶30 First, any objection would have been unlikely to succeed 

because, as we have explained above, it was far from clear that the 

prosecutor breached the plea agreement. See State v. Burdick, 2014 

UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s 

performance at trial is not deficient if counsel refrains from 

making futile objections, motions, or requests.” (cleaned up)), cert. 

denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a 

reasonable attorney could have concluded that the prosecutor had 

made the required “affirmative recommendation” and had 

therefore not breached the plea agreement at all. See Samul, 2018 

UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned 

basis for counsel’s decision not to object to the State’s remarks at 

sentencing: counsel may have believed that the State was 

accurately describing the terms of the plea agreement.”). 

¶31 Second, even if we assume, for purposes of the discussion, 

that Counsel actually believed, in the moment, that the 

prosecutor’s sentencing remarks constituted a breach of the plea 

agreement, Counsel nevertheless had a solid strategic reason not 

to object to the prosecutor’s statements, namely, an objection 

could jeopardize the plea agreement and he very much wanted it

to remain on the table owing to the favorable terms it offered 

Heward. Through the plea agreement, Heward would serve time 

for only two of his eleven charges—ten counts of aggravated 
State v. Heward

20221055-CA 15 2024 UT App 40

sexual abuse of a child and one count of rape of a child. If Counsel 

had been successful in objecting that the prosecutor breached the 

plea agreement, one of two results would have likely happened. 

At its discretion, the district court could have ordered “either 

specific performance of the plea agreement or withdrawal of the 

guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If 

the court had ordered specific performance, the State would then 

have to reiterate that it was honoring the promises made in the 

plea agreement. But it would have been more likely (had a breach 

occurred) that the court would have allowed Heward to 

withdraw his plea—something he would be reluctant to do since 

the probability of getting an equally favorable offer later would 

be slim in light of the victims’ apparent reservations about the 

existing plea agreement. Competent counsel could easily 

conclude that the risk of objecting was simply too great 

considering the minimal benefit and likely downside. At the very 

least, competent counsel could have reasoned that there was no 

benefit in objecting because the existing agreement was the best 

Heward was going to receive. So, Counsel’s best course of action 

was to express Heward’s concurrence with the six-years-to-life

sentence and hope that the court would agree.

¶32 Accordingly, Heward’s ineffective assistance claim fails 

because Counsel had sound strategic reasons for not lodging an 

objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33 Heward fails to establish that the district court plainly 

erred where he has not shown that the plea agreement was 

breached, much less obviously so. He has also failed to show that 

Counsel provided ineffective assistance in not objecting to the 

prosecutor’s statements. 

¶34 Affirmed.