IN THE COURT OF APPEALS OF IOWA

No. 17-0532

Filed April 4, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

MASON DAVIS VANG,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

Mason Vang appeals after pleading guilty to assault with intent to commit 

sexual abuse. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.

Mason Vang appeals after pleading guilty to assault with intent to commit 

sexual abuse. See Iowa Code § 709.11(3) (2015). On appeal, he asserts the plea 

court failed to substantially comply with the Iowa Rule of Criminal Procedure 

2.8(2)(b)(4) colloquy requirements regarding his right to confrontation. We find the 

plea court substantially complied with the rule. Vang also asserts his trial counsel 

was ineffective in failing to object to the prosecutor’s alleged breach of the plea 

agreement. We find the prosecutor did not breach the plea agreement, and 

therefore Vang’s counsel had no duty to object. We affirm the district court.

I. Plea Colloquy. 

Vang claims the plea court’s rule 2.8(2)(b) colloquy was deficient. Relevant 

to this appeal, the rule provides that, unless the procedure is waived under certain 

circumstances, before accepting a guilty plea, the court must address the 

defendant personally in open court and inform the defendant that the defendant 

has the right to be tried by a jury and has the right to confront and cross-examine 

witnesses against the defendant. Iowa R. Crim. P. 2.8(2)(b). “We review 

challenges to plea proceedings for correction of errors at law.” State v. Weitzel, 

905 N.W.2d 397, 401 (Iowa 2017). 

During the plea colloquy, the plea court addressed Vang’s constitutional 

rights to a jury trial and explained to him, “At the trial, your lawyer could crossexamine anyone who accuses you. If you wanted witnesses to come to the trial to 

testify and they would not do so voluntarily, the court would use its power to bring 

them to the courtroom to testify.” Vang indicated he understood. 
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On appeal, Vang acknowledges the court advised him of his right to crossexamine witnesses against him and of the compulsory process but argues the 

court failed to advise him of his right to confront witnesses against him. The crux 

of Vang’s argument is that the right of confrontation and the right to cross-examine 

are not the same thing—the right to confrontation is more expansive than the right 

to cross-examine. Although the right to confrontation includes the right to effective 

cross-examination, Vang notes the right to confrontation also encompasses the 

right to testimony under oath and the right to have a jury observe a witness’s 

demeanor. See State v. Shearon, 660 N.W.2d 52, 55 (Iowa 2003) (“Three main 

rights may be claimed under the Confrontation Clause: (1) testimony under oath, 

(2) cross-examination by his counsel, and (3) the right to have the jury observe the 

witness’s demeanor.”); see also State v. Newell, 710 N.W.2d 6, 24 (Iowa 2006) 

(“Two important policies underlie the Confrontation Clause: ‘a preference for faceto-face confrontation at trial and the right of cross-examination.’” (citation omitted)). 

We believe testimony under oath and observation of a witness’s demeanor 

by a jury are implicit in cross-examination by defense counsel at a jury trial, but 

even if they are not, we conclude there was no violation of rule 2.8(2)(b)(4). 

Although strict or actual compliance with the rule is preferred, substantial

compliance is acceptable. See Weitzel, 905 N.W.2d at 406. So, we ask whether 

the record establishes the plea court conveyed the required information to Vang 

such that it could be said he understood the information. See State v. Meron, 675 

N.W.2d 537, 544 (Iowa 2004) (“Substantial compliance requires that the essence 

of each requirement of the rule be expressed to allow the court to perform its 

important role in each case.”). Although the plea court’s statement does not parrot 
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the rule 2.8(2)(b)(4) requirement that a defendant be informed of “the right to 

confront,” the court’s advisory substantially complies with the rule. See State v. 

Myers, 653 N.W.2d 574, 578 (Iowa 2002) (“Under the substantial-compliance 

standard, a trial court is not required to advise a defendant of his rights using the 

precise language of the rule; it is sufficient that the defendant be informed of his 

rights in such a way that he is made aware of them.”); see, e.g., State v. Aherns, 

No. 13-1026, 2016 WL 351235, at *3 (Iowa Ct. App. Jan. 27, 2016) (holding that 

telling a defendant he “could cross-examine the State’s witness” met the 

substantial compliance standard concerning rights to cross-examine and 

confrontation); State v. Taylor, No. 14-1688, 2015 WL 2089711, at *1 (Iowa Ct. 

App. May 6, 2015) (finding statement that “I have a right to hear the evidence 

against me from the witnesses and subject them to cross-examination”

substantially complied with the rule regarding the right to confront and crossexamine witnesses); State v. Hayes, No. 04-0043, 2004 WL 2002596, at *5 (Iowa 

Ct. App. Sept. 9, 2004) (holding statement that the defendant was giving up his 

“right to have the opportunity to ask questions of the State’s witnesses” sufficiently 

informed the defendant of his right to confront witnesses against him and, thus,

substantially complied with the rule’s requirement). 

We conclude the plea court sufficiently informed Vang of his right to confront 

witnesses against him.

II. Ineffective Assistance of Counsel.

Vang also contends his counsel provided constitutionally deficient 

representation in failing to object to the alleged breach of the plea agreement by 

the prosecutor. We review ineffective-assistance-of-counsel claims de novo. 
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State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017). To establish his counsel 

provided ineffective assistance, Vang must establish his counsel failed to perform 

an essential duty and this failure resulted in prejudice. See State v. Straw, 709 

N.W.2d 128, 133 (Iowa 2006). If the State breaches the plea agreement, defense 

counsel breaches an essential duty by failing to object to the breach or otherwise 

take remedial action. See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008). 

Prejudice is presumed under the circumstances because had counsel objected,

the defendant would have been entitled to withdraw the guilty plea or be

resentenced in an untainted proceeding. See State v. Frencher, 873 N.W.2d 281, 

284 (Iowa Ct. App. 2015).

When the State enters into a plea agreement, the prosecutor must comply 

with both the letter and spirit of the plea agreement. See State v. Horness, 600 

N.W.2d 294, 296 (Iowa 1999). When the State has promised to recommend a 

sentence, we have required “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.” Bearse, 748 N.W.2d at 216

(alterations in original) (citations omitted). The ultimate inquiry in determining 

whether the prosecutor complied with the letter and spirit of 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.” Frencher, 873 N.W.2d at 

284. The prosecutor can act contrary to the plea agreement and deprive the 

defendant of the benefit of the plea bargain implicitly. See id. at 285. Typically, 
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implicit action contrary to the plea agreement involves the prosecutor’s expression 

of material reservation regarding the plea agreement while still in technical 

compliance with the plea agreement. See id. The prosecutor could do this in a 

number of ways. For example, the prosecutor could propose alternative 

sentences, request an “an appropriate sentence” rather than the agreed-upon 

sentence, remind the court it is not bound by the plea agreement, or emphasize a

more severe punishment recommended by the presentence investigation author. 

See id. 

At the plea hearing, the prosecutor stated the plea agreement as follows:

The plea agreement is that I’m going to reduce this from a Class “C”

felony to an aggravated misdemeanor. At the time of sentencing, I’m 

going to recommend probation for this defendant, a suspended 

sentence. I’m going to ask that this probation run consecutive to the 

probation he’s currently on.

I told the defendant and his defense counsel that there will be 

a victim impact statement from the family that’s involved, the victim 

and her parents. They may ask the court for incarceration. The 

defendant knows that you’re the final arbiter of his sentence.

There will be, regardless of what the punishment is, other 

ramifications: The lifetime registration with the Sex Offender 

Registry, a special sentence. I’m not going to ask for a fine. He 

needs to make payments on court costs, probation fees, restitution. 

And paramount is a no-contact order with the victim and her family.

Vang and his counsel acknowledged this was the plea agreement.

At the sentencing hearing, the victim read her victim impact statement and 

her mother also gave a statement. Vang’s allocution followed, and then the court 

asked for the State recommendation for sentencing. The prosecutor responded:

Thank you, Judge. You know, by case law, I’m not allowed 

to, in a jury trial, talk about emotion or show emotion, but this was an 

excellent victim impact statement, Judge. It encapsulates everything 

about this crime and about how whenever we look at a sexual assault

case, there’s a real person who has benefited and also been hurt by 

the crime, and that’s . . . the very young girl in this case. And over 
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the course of the time that I have known her she’s grown up because 

of this crime.

The defendant, when you read his PSI, has had in the past a 

life that is out of control, reckless, no supervision. I’m not sure where 

he lived during the period of time that he was involved in Polk County 

in crime, but he was unsupervised and out of control. And his 

behavior impacted other people. He committed a crime against this

victim, which maybe now in hindsight was really—well, there’s no 

explanation for it. You can’t get somebody drunk and then sexually 

assault them. You just can’t. And you learn that from a very early 

age, so it’s not about mistakes of youth.

But I do think because of his youth and the fact that he has 

had no supervision, no parents that have paid attention to him and 

that he was allowed to just wander recklessly, that that should be 

taken into account. I told [defense counsel] at the start of these plea 

negotiations, and I will continue to say it today, he’s a person who 

should be on probation but not get a deferred. There are

ramifications for this kind of behavior. He should be on probation to 

be afforded all the opportunities that he could have for mental health 

care, job development, education, pay restitution, and benefit from 

the services that are available through sex offender treatment for a 

person who needs to wise up and learn about the consequences.

I do not think that the law about deferred judgments was ever 

written for this kind of behavior. I just can’t imagine that the 

legislature anticipated that this kind of behavior should ultimately be 

washed away. He will be on the sex offender registry by virtue of the 

crime he pled guilty to for life, and that is a suitable albatross, but it 

is one that he has earned.

However, I think that the consequences of his behavior 

require not a prison sentence where he could just sit like a lump in 

the penitentiary. I think he needs to be in a community-based setting 

where someone monitors him and makes him do things, school, 

work, go to counseling, which is not available until the very ending of 

a penitentiary stay.

So it’s the State’s position that he should have a probation and 

that it should run consecutive to a probation he’s currently serving 

out of Polk County in, I believe, Hamilton County where he resides.

The court then discussed with the prosecutor issues concerning victim restitution, 

fines and surcharges, and DNA sampling. The prosecutor noted all penalty options 

were open to the judge but concluded, “You should just know I’m not asking for 

prison, but I’m not agreeing to a deferred either.” 
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Vang’s counsel agreed with the prosecutor that the victim’s statement was 

“probably today the best and most poignant victim impact statement that I have 

ever heard in a criminal case. Certainly this young lady is very well-educated, very

well-spoken, and has a very strong voice. There is no question about that.” 

Counsel followed with an impassioned argument for a deferred judgment. 

The court acknowledged defense counsel’s “good arguments” but

disagreed that a deferred judgment was appropriate. The court detailed its

response to the victim impact statement and counsels’ arguments. In the end, the 

court sentenced Vang to 364 days in jail.

On appeal, Vang accuses the prosecutor of failing to comply with the spirit 

of the plea agreement. He specifically argues, “While paying lip service to the plea 

agreement, the prosecutor also emphasized the victim impact statement, which 

requested a year of incarceration, and argued to the court how horrible was Vang’s 

PSI and that he was out of control and reckless.” 

Vang’s extrapolation of the victim impact statement is mistaken. Although 

the victim stated her life had been put “on hold over a year,” that Vang did not 

deserve “a mitigating sentence,” and that she hoped that Vang’s “life can be on 

hold for some time too,” we do not read the statement as a request for a year of 

incarceration. The prosecutor’s remarks that the victim’s impact statement was 

“excellent,” merely expressed an observation patently obvious to anyone in the 

court room—and to anyone reading the transcript. 

The prosecutor’s commentary that the presentence investigation (PSI) 

report indicated that in the past Vang had a life “out of control, reckless, [and] no 

supervision” may be a bit of a stretch, but Vang’s counsel fully responded to the 
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comment and the sentencing court put no stock in it. The court stated, “I do not 

agree at all with the proposition that this incident occurred simply because you

were unsupervised, you were uncontrolled, and somehow your parents failed you.” 

The PSI does indicate that Vang was serving a two-year deferred judgment 

probation for assault and harassment at the time. 

We disagree with Vang’s characterization of the prosecutor’s remarks. As 

we read them, the prosecutor was making a reasoned and forceful argument 

against a deferred judgment, not for incarceration. She did not cross the line to 

undermine the plea agreement. 

On de novo review, we disagree with the contention that the prosecutor 

breached the plea agreement. Vang’s counsel had no duty to object to the 

prosecutor’s statements because no breach of the plea agreement occurred. See 

Frencher, 873 N.W.2d at 286. Accordingly, Vang has failed to establish his claim 

that counsel provided constitutionally deficient representation. See id.

We affirm Vang’s conviction and sentence.

AFFIRMED.