IN THE COURT OF APPEALS OF IOWA
No. 18

- 0300 Filed September 12, 2018

STATE OF IOWA, Plaintiff

- Appellee,

vs. SAM CHESTER THOMAS II , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, James D. Coil , District Associate Judge.

Sam Thomas appeals his convictions for operating a motor vehicle while intoxicated, t hird offense, and driving while barred. AFFIRMED.

Adam R. Junaid of Frerichs Law Office, PC , Waterloo , for appellant. Thomas J. Miller, Attorney General, and Bridget A. Chambers , Assistant Attorney General, for appellee.

Considered by Vaitheswaran, P.J. , and Doyle and Mullins, JJ.2

VAITHESWARAN , Presiding Judge

. Sam Thomas entered an Alford plea 1 to operating a motor vehicle while intoxicated, third offense, and driving while barred. See Iowa Code § § 321J.2(2)(c) , 321.555 , 321.561 (2015)

. The sentencing court declined to accept the State ’ s sentencing recommendation to suspend all but 120 days of the
indeterminate five

- year prison term on the first charge and fully suspend the
indeterminate two

- year prison term on the second charge. The cou rt imposed both prison terms , reasoning in part that this was Thomas ’ “ sixth operating while intoxicated offense here in the state of Iowa ” and prison time might serve as a
deterrent

. On appeal, Thomas contends the district court abused its discretion “ by failing to abide by the terms of the plea agreement without giving [him] the opportunity to withdraw his plea. ” He relies on Iowa Rule of Criminal Procedure
2.10 (4), which states: If, at the time the plea of guilty is tendered, the court refuses to b e bound by or rejects the plea agreement, the court shall inform the parties of this fact, afford the defendant the opportunity to then withdraw defendant ’ s plea, and advise the defendant that if persistence in a guilty plea continues, the disposition of t he case may be less favorable to the defendant than that contemplated by the plea agreement. But the rule is triggered only if the plea is conditioned on the court ’ s concurren c e. See State v

. Wenzel , 306 N.W.2d 769, 771 (Iowa 1981) (setting forth three o ptions provided by rule). Nothing in Thomas ’ plea stated the plea was conditioned on the

1 An Alford plea is a variation of a guilty plea where the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v

. Alford , 400 U.S. 25, 37 (1970).3

court ’ s concurrence. To the contrary, the written plea referred to the State ’ s sentencing “ recommend[ation]

. ” See St ate v

. Thompson , 856 N.W.2d 915, 922 (Iowa 2014) ( “ Here the plea agreement was that the State would recommend a certain sentence upon Thompson ’ s plea of guilty. Nowhere in the plea agreement did it state the agreement required the district court ’ s concurrence. ” ). Similarly, the transcript of the plea colloquy contain s no express statement that the court would be bound by the State ’ s sentencing recommendation.
Thomas concedes the absence of express language binding the court to
the recommendation . H e argues the court “ impliedly informed [him] that t he court would abide by ” the agreement when the court engaged in the following exchange:

COURT: Has anybody promised you exactly what the sentence will be

— DEFENDANT: No. COURT:

— other than the plea agreement that was stated? DEFENDANT: No, Your H onor. Alternatively, he argues the exchange bound the court by default.
Thomas reads too much into the words “ other than. ” I n context, it is clear the court was simply trying to comply with its r ule 2.8(2)(b) obligation to ensure the plea was “ made voluntarily and intelligently. ” The court did not agree to be bound by the sentencing recommendation , and we discern no abuse of discretion in the
district court ’ s decision to impose term s of incarceration.
We affirm Thomas ’ conviction and sentence.
A FFIRMED.