IN THE COURT OF APPEALS OF IOWA

No. 23-0171

Filed August 21, 2024

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CODY JAMES RUDEN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

A defendant appeals his sentence for multiple convictions, alleging

ineffective assistance of counsel and a breach of the plea agreement by the 

prosecutor. AFFIRMED.

Charles D. Paul of Nidey Erdahl Meier & Araguás, PLC, Cedar Rapids, for 

appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee.

Considered by Schumacher, P.J., and Ahlers and Badding, JJ.
2

SCHUMACHER, Presiding Judge.

Cody Ruden appeals his sentence following guilty pleas to eighteen 

charges, alleging ineffective assistance of counsel and a breach of the plea 

agreement by the prosecutor. We are prohibited from deciding Ruden’s ineffective 

assistance of counsel on direct appeal.

1 We conclude there was no breach of the 

plea agreement by the prosecutor. Accordingly, we affirm. 

I. Background Facts and Proceedings. 

Ruden pled guilty to sexual abuse in the third degree, a class “C” felony,

two counts of attempting to entice a minor under the age of sixteen, aggravated 

misdemeanors, and fifteen counts of sexual exploitation of a minor, aggravated 

misdemeanors. Ruden entered his guilty pleas as part of a plea agreement in 

which the State agreed to recommend a prison sentence not to exceed sixteen 

years, a reduction from the maximum sentence of forty-four years. The plea 

agreement provided that both the State and Ruden were free to argue at 

sentencing. And that is what occurred at the hearing, with the State arguing for 

incarceration, and Ruden arguing for a suspended sentence, probation, and 

placement at a residential correctional facility.

Following the contested sentencing hearing, the court sentenced Ruden to 

serve an indeterminate prison sentence not to exceed sixteen years. Ruden 

appeals. He alleges ineffective assistance of counsel and contends the State 

breached the plea agreement by conveying to the court that a sentence longer 

1The attorney who represented Ruden at plea and sentencing is the same attorney 

who represents Ruden on appeal, claiming ineffective assistance of counsel. 
3

than sixteen years was warranted and the only reason the State was limiting its 

recommendation to a sixteen-year sentence was because it was required to do so 

by the plea agreement. 

Before reaching the merits, we first consider whether we have authority to

decide Ruden’s appeal. Because Ruden pled guilty, he must establish good cause 

before our court has jurisdiction to hear his appeal. See Iowa Code 

§ 814.6(1)(a)(3) (2023). We conclude that we have jurisdiction to hear the appeal 

as Ruden met his burden of establishing good cause by claiming the prosecutor 

breached the plea agreement. See State v. Boldon, 954 N.W.2d 62, 69 (Iowa 

2021) (holding that challenging a claimed breach of the plea agreement 

establishes good cause to appeal).

 As Ruden has established good cause as to the breach-of-plea-agreement 

issue, we have jurisdiction over the entire appeal. See State v. Rutherford, 997 

N.W.2d 142, 146 (Iowa 2023). But Iowa Code section 814.7 deprives us of any 

authority to decide Ruden’s claim of ineffective assistance of counsel on direct 

appeal. See id. at 146–48. We therefore do not address Ruden’s ineffectiveassistance-of-counsel claim and limit our discussion to Ruden’s claim that the 

prosecutor breached the plea agreement.2

II. Standard of Review

We review challenges to criminal sentences for correction of errors at law. 

State v. Patten, 981 N.W.2d 126, 130, (Iowa 2022). We vacate a sentence when 

2 The State’s appellate briefing is limited to Ruden’s claim of ineffective assistance 

of counsel. We determine that Ruden’s brief sufficiently addresses the breach of 

plea agreement issue and reach the merits. 
4

the sentencing court abuses its discretion or there is some defect in the sentencing 

procedure. Id. A prosecutor’s breach of the plea agreement is a defect in the 

sentencing procedure. Id. 

III. Analysis 

When, as here, the prosecutor promises to make a sentencing 

recommendation, we require the prosecutor to fulfill that promise. See State v. 

Davis, 971 N.W.2d 546, 556 (Iowa 2022). Fulfilling the promise requires more than 

just reciting the recommended sentence; it requires that the prosecutor present the 

recommendation in such a way that makes it clear the recommendation has the 

prosecutor’s approval, is supported by the State, and is worthy of the court’s 

acceptance. Id. at 557. 

Fulfilling the promise also prohibits the prosecutor from expressing material 

reservations—both explicit and implicit—about the recommendation. Boldon, 954 

N.W.2d at 71–72. Suggesting a more severe sentencing alternative is an example 

of expressing an implicit reservation about the sentence. See State v. Horness, 

600 N.W.2d 294, 299 (Iowa 1999). Another example of expressing implicit 

reservations about a sentence is to emphasize the nature of the offense to suggest 

incarceration would be more appropriate when the plea agreement called for a 

recommendation of probation. See State v. Lopez, 872 N.W.2d 159, 178–80 (Iowa 

2015).

“The relevant inquiry in determining whether the prosecutor breached the 

plea agreement is whether the prosecutor acted contrary to the common purpose 

of the plea agreement and the justified expectations of the defendant and thereby 

effectively deprived the defendant of the benefit of the bargain.” State v. Frencher, 
5

873 N.W.2d 281, 284 (Iowa Ct. App. 2015). Where the prosecutor has agreed to 

make a particular sentencing recommendation, the prosecutor must do “more than 

simply inform[] the court of the promise the State has made to the defendant with 

respect to sentencing. The State must actually fulfill the promise.” Id. (quoting 

State v. Bearse, 748 N.W.2d 211, 216 (Iowa 2008)). Here is what the prosecutor

argued at sentencing:

Thank you, your Honor. Your Honor, in this matter there’s a 

plea agreement and under that plea agreement the State is only 

allowed to request a term of 16 years in prison, so that is exactly 

what the State is requesting today. 

This defendant is a threat to the community. This defendant 

is a threat to the most vulnerable part of this community, minors and 

underage children in this matter. He pled guilty to sexually abusing 

an underage girl . . . who is here in the courtroom today.

She needed a Wi-Fi password. It was COVID times, and she 

was home from school and isolated from her friends. The defendant 

took advantage of that and coerced her into a sex act in order to 

receive a Wi-Fi password. He’s taking no accountability, according 

to the [presentence investigation (PSI)] and to his own therapist, who 

submitted a report in this matter. 

But this one act was not the end. Then twice on two separate 

dates the defendant again attempted to entice [the minor child victim] 

to perform oral sex on him.

On February 2 of 2021 he texted her, “Wannacome give me 

prebday head and bday sex tomorrow?” Which she refused. He 

then continued, “Even tonight do you want my cock in your ass or 

not.”

On February 26 of 2021, the harassment and enticement 

continued. She again asked for the Wi-Fi password and he said, 

“Changed it done giving people shit for free ‘why’”? And [the minor 

child victim] responded, “Do you want money?” Meaning money in 

exchange for the password. And he responded, “Sucked more.” A 

conversation continues about oral sex for a Wi-Fi password.

The defendant is also a threat to children of all ages. He 

entered pleas to all of these other counts of possession of minors in 

sexual acts. Child pornography, as it’s generally called, is not a 

victimless crime. These children continue to be exploited every time 

Mr. Ruden looks at their photographs for sexual pleasure.3

3 While there was no objection to the terminology used at sentencing, we note that 

at least one court has noted that child pornography is more appropriately called 
6

I’m not going to read all of the depictions, but the images that 

Mr. Ruden looked at for his own sexual pleasure were children 

ranging in age from Tanner Stage 1, which is about as young as you 

can get for a child, someone generally under the age of eight, to 

Tanner Stage 2, which is someone who is usually 10 or 11 years old.

There were images of a completely nude female child with her 

legs spread showing her vagina in a lascivious manner, a female 

child with legs spread and adult male penis inside of her vagina. That 

child was Tanner Stage 1. These are hard things to even read.

It goes on and on. Several counts of these things. And I 

would also note that one of the counts includes a video that the 

defendant made of a minor child that he is related to showing her in 

a state of undress and that he took a blanket off of her. 

During his PSI, the defendant was not honest about what he 

did. We even had to recess and come back and do the sentencing 

hearing today because the defendant decided to proclaim his 

innocence during the PSI interview process after he on the record in 

front of a judge admitted to these offenses.

[The investigating officer], who was deposed by the defense 

during this case—for instance, he told the PSI interviewer that he 

was intoxicated when he got arrested, trying to explain why he was 

confused, and he might have made some admissions, that he was 

hanging out with friends. We know from her deposition and the 

police report that’s not true.

[The investigating officer] found the defendant alone 

masturbating when he was arrested. She’s trained to detect signs of 

intoxication. He was not intoxicated. He admitted to her during the 

interaction that he likes, quote, “young porn,” saying, quote, “young 

teen porn,” and, quote, “I type in ‘little girl’”, quote, when searching 

for pornography.

We’re going to hear a lot of supposedly mitigating factors from 

the defense during this hearing. I would submit the fact that the 

defendant entered guilty pleas and didn’t hold the State to its burden 

should not be considered mitigating. 

The State has no concern about its ability to meet its burden 

if this case had gone to trial. The important thing to focus on here is 

the defendant’s lack of insight into the harm he has caused not only 

[to the minor child victim], but the other children, and his complete 

lack of insight or sympathy for what he has done to these kids.

The PSI says he has a limited understanding of the 

seriousness of the sexual abuse. These interviews talk about that 

“Child Sexual Abuse Material.” Because of the lack of consent, it is not possible

to make “pornography,” instead it is evidence of a child being sexually abused, 

making “Child Sexual Abuse Material” or “Child Sexual Abuse Images” a more 

appropriate title. See United States v. Larson, No. 5:19-CR-50165-RAL, 2023 WL 

196171, at *1 n.1 (D.S.D. Jan. 17, 2023).
7

he has mental health problems, he has medical problems. Well, the 

fact is, these make him more of a danger to the community. He lacks 

impulse control. He has ADHD, which leads to impulsive acts, and 

he is noncompliant with his ADHD medication.

The PSI recommends prison, and that is the only acceptable 

outcome for this case because the community is not safe from the 

defendant. Any individual from [the minor child victim]’s age and 

younger is not safe if this defendant is not in prison.

So the State is recommending the maximum we are allowed, 

which is that the ten-year prison sentence recommended by the PSI 

be implemented and that, additionally, three of the aggravated 

misdemeanors be run consecutive for that period of sixteen years.

In support of his breach of the plea agreement argument, Ruden relies on

Bearse, 748 N.W.2d at 211. In Bearse, the prosecutor initially asked that the 

sentencing court impose incarceration. Id. at 213. When informed by the 

sentencing court that such recommendation was contrary to the plea agreement, 

the prosecutor stated that the court was not bound by the plea agreement, but 

clarified that the State would abide by the plea agreement. Id. Ruden’s sentencing 

hearing is easily distinguishable. The prosecutor never asked for a greater period 

of incarceration than agreed to, never informed the court that the court could reject 

the plea, and informed the court twice about the term of incarceration the State 

was recommending in accordance with the plea agreement. 

Ruden’s facts are more akin to Bolden, in which the parties bargained for 

each party to allow to make recommendations for sentencing. 954 N.W.2d at 66. 

In concluding that the prosecutor did not breach the plea agreement, our supreme 

court stated:

Here, the prosecutor recommended concurrent sentences in 

accord with the parties’ plea agreement. The prosecutor stated, “The 

State is recommending that the counts run concurrently with each 

other.” The prosecutor then went on to discuss those factors that 

justified incarceration. At no time during the sentencing proceeding 

did the prosecutor suggest consecutive sentences would be more 
8

appropriate than concurrent sentences. The parties agreed the State 

would recommend concurrent sentences but be free to argue for a 

term of incarceration while the defendant would be free to argue for a 

deferred judgment or suspended sentence. That is what occurred.

The fact the parties bargained for a contested sentencing hearing 

distinguishes this case from those in which the prosecutor technically complied 

with the plea agreement but expressed material reservations regarding the plea 

agreement or sentencing recommendation. See United States v. Cachucha, 484 

F.3d 1266, 1270–71 (10th Cir. 2007) (“While a prosecutor normally need not 

present promised recommendations to the court with any particular degree of 

enthusiasm, it is improper for the prosecutor to inject material reservations about 

the agreement to which the government has committed itself.” (quoting United 

States v. Canada, 960 F.2d 263, 270 (1st Cir. 1992))). Where the prosecutor

technically complied with the plea agreement but expressed material reservation 

regarding the same, “it can be fairly said the State deprived the defendant of the 

benefit of the bargain and breached the plea agreement.” Frencher, 873 N.W.2d 

at 284.

Ruden has failed to establish that the prosecutor acted contrary to the 

common purpose of the plea agreement and thereby deprived him of the benefit 

of the bargain. See id. As in Boldon, the prosecutor was free to argue for 

incarceration. 954 N.W.2d at 66. That is what occurred here. The prosecutor 

twice informed the court that the State was asking the court to impose the terms 

set forth in the plea agreement, which was only to cap the maximum term of 
9

incarceration. The State fulfilled its promise. Accordingly, we affirm as to Ruden’s 

sentencing challenge. 

AFFIRMED.

Badding, J., concurs; Ahlers, J., dissents.
10

AHLERS, Judge (dissenting).

The majority and I see eye to eye on the legal principles at issue in this 

case, but we have different views on how those principles apply. As a result, I must 

respectfully dissent.

Everyone agrees the State entered a plea agreement that obligated it to 

recommend a prison sentence of no longer than sixteen years. The prosecutor 

didn’t get off to a very good start. As quoted in the majority opinion, when given 

the floor to give the State’s position on sentencing, the prosecutor told the court 

that, under the terms of the plea agreement, “the State is only allowed to request 

a term of sixteen years in prison, so that is exactly what the State is requesting 

today.” The only purpose I can see for the prosecutor adding the “only allowed” 

comment was to suggest that a longer sentence was more appropriate. In my 

view, this was probably already an impermissible reservation about the agreedupon recommendation. See State v. Patten, 981 N.W.2d 126, 131–32 (Iowa 2022) 

(prohibiting express or implied reservations about a recommended sentence); 

State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999) (holding that suggesting a 

more severe sentencing alternative is an example of expressing an implicit 

reservation about the sentence). But I recognize that, in the heat of the moment, 

slips of the tongue can occur that result in less-than-ideal phrasing. So, I give the 

prosecutor the benefit of the doubt and look at what came next to see if the “only 

allowed to request” reservation was a slip of the tongue or part of an effort to 

undermine the agreed-upon recommendation. 
11

What came next is the lengthy harangue vilifying Ruden that is quoted 

verbatim in the majority opinion. Don’t get me wrong in how I characterize the 

prosecutor’s statement. This was a contested sentencing, and Ruden was asking 

for an incredibly light sentence under the circumstances—maybe even offensively 

light, in the eyes of the prosecutor—so the prosecutor was justified in aggressively 

highlighting some of the negative sentencing factors in an effort to get the court to 

go along with the State’s recommendation. But the fact that the sentencing was 

contested did not relieve the prosecutor of her obligation to present the State’s 

recommendation in such a way that made it clear the recommendation had the 

prosecutor’s approval, was supported by the State, and was worthy of the court’s 

acceptance. See Patten, 981 N.W.2d at 131. I challenge anyone to find anything 

in the prosecutor’s lengthy statement that suggests the prosecutor approved of the 

sixteen-year recommendation, that it was supported by the State, or that it was 

worthy of the court’s acceptance. Such commendation is simply not there. 

Not only did the prosecutor not make the required commendation of the 

recommended sentence, but at the end of her statement, she doubled down on 

the theme with which she started—that being apparent disgruntlement about being 

capped at a recommendation of sixteen years—when she again said the State was 

recommending “the maximum we are allowed.” Especially coming on the heels of 

having emphasized the nature of Ruden’s offense and describing how dangerous 

he is, this statement impliedly expresses material reservations about the 

recommended sentence of sixteen years by suggesting a longer sentence is 

warranted. See State v. Lopez, 872 N.W.2d 159, 178–80 (Iowa 2015) (noting that 

emphasizing the nature of the offense to suggest a harsher sentence than that 
12

recommended is an example of expressing implicit reservations about the 

recommendation). The prosecutor’s closing remark not only communicated an 

implied reservation about the recommended sentence, but it shows the 

introductory remark stating the same theme was no slip of the tongue. 

If I understand the majority opinion correctly, it relies on the prosecutor’s 

comments at the beginning and end of her statement where she states that the 

State recommends a term of incarceration of sixteen years as having satisfied the 

prosecutor’s obligation. But even ignoring the fact that I believe those statements 

are tainted by the “only allowed” phrasing I’ve already discussed, these statements 

are nothing more than a recital of the sentencing recommendation, and our case 

law is quite clear that mere recital of the recommendation doesn’t cut it. See State 

v. Davis, 971 N.W.2d 546, 557 (Iowa 2022) (“[W]e have made clear the prosecutor 

must do more than simply recite the agreed recommended sentence.” (quoting 

Lopez, 872 N.W.2d. at 173)). To fulfill the State’s obligation, the prosecutor was 

required to indicate that the recommended sentence had the prosecutor’s 

approval, was supported by the State, and was worthy of the court’s acceptance 

of it. Patten, 981 N.W.2d at 131 (“Prosecutors cannot simply inform the court of 

the agreement, they must present the recommended sentences with their 

approval, commend the sentences to the court, and otherwise indicate to the court 

that the recommended sentences are supported by the State and worthy of the 

court’s acceptance.” (cleaned up) (citation omitted)). The prosecutor did not do 

that.

Because the prosecutor failed to make the required commendation of and 

impliedly expressed reservations about the recommended sentence, the State 
13

breached the plea agreement. As a result, I would vacate Ruden’s sentences and 

remand for resentencing before a different judge, with the prosecutor obligated to 

honor the plea agreement and sentencing recommendations. See Lopez, 872 

N.W.2d at 181.