IN THE COURT OF APPEALS OF IOWA

No. 21-1643

Filed October 19, 2022

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JOHNNY LEE HOVENGA, JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, 

Karen Kaufman Salic, District Associate Judge.

A defendant appeals his sentence, contending the state breached a plea 

agreement. AFFIRMED.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines, 

for appellant.

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

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.

Johnny Hovenga Jr. appeals the imposition of a prison sentence that ran 

consecutively to his sentence from a separate probation revocation proceeding. 

His sole claim on appeal is that the State breached the plea agreement by failing 

to recommend the sentences run concurrently to the sentence imposed in the

probation revocation. Because we conclude the State did not breach the plea 

agreement, we affirm. 

I. Background Facts & Proceedings

Hovenga entered into a written plea agreement on August 18, 2021, for four 

separate cases.1 At the same time, he had charges pending pertaining to the 

violation of probation in three cases. On August 23, he entered into a stipulation 

admitting to the probation violations. In return, the State agreed to recommend the 

disposition of the probation revocation run concurrently to the two felonies he pled

guilty to five days before—the burglary and operating while intoxicated offenses.2 

The court revoked Hovenga’s probation, imposed the original sentences, and 

ordered these sentences to run concurrently with one another. 

A sentencing hearing was held on October 25, 2021, for the offenses

Hovenga pled guilty to on August 18. The State requested the two felonies run 

consecutively to one another, each with a five-year sentence. The State further 

1 Those cases involved burglary in the third degree; operating while intoxicated, 

third offense; assault causing bodily injury and criminal mischief in the fourth 

degree; and trespass, damage greater than $300. 

2 A transcript of the sentencing proceedings concerning the felony charges is not 

part of our appellate record, so it is unclear if the probation revocation proceedings 

were mentioned in that proceeding. 
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recommended the misdemeanor offenses run concurrently to the felonies. 

Following the State’s recommendation, the following exchange occurred:

[Defense Counsel]: First of all, I thought part of the plea 

bargain was that everything run concurrent with his probation 

revocation cases too and the State was just asking for the two fives 

[(the felony charges)] to run consecutive on the two felonies. 

[State]: And that is the recommendation, Your Honor, it’s just 

the probation wasn’t in front of this court at this time, I guess. 

Hovenga’s counsel requested the court impose a five-year prison term, with all 

charges running concurrently. 

The court sentenced Hovenga to five years in prison for the burglary, to run 

consecutively to a five-year term of imprisonment for operating while intoxicated. 

The sentences imposed for the misdemeanors were ordered to run concurrently 

to the felonies. The court ordered the probation revocation sentences to run 

consecutively to the instant convictions. Hovenga appeals. 

II. Standard of Review

“A defendant’s allegation of prosecutorial breach ‘is a species of sentencing 

error.’” State v. Jordan, 959 N.W.2d 395, 399 (Iowa 2021) (quoting State v. 

Boldon, 954 N.W.2d 62, 70 (Iowa 2021)). “Thus, we review it for the correction of 

errors at law.” Jordan, 959 N.W.2d at 399. “We will not reverse a sentence unless 

there is an abuse of discretion or some defect in the sentencing procedure.” Id. 

(quoting State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020)). 

III. Discussion 

Hovenga claims the prosecutor breached the plea agreement by not 

recommending Hovenga’s prison sentence run concurrently with his probation 

revocation. “The relevant inquiry in determining whether the prosecutor breached 
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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. 

Davis, 971 N.W.2d 546, 556 (Iowa 2022) (quoting Boldon, 954 N.W.2d at 71). 

“[V]iolations of either the terms or the spirit of the agreement require reversal of 

the conviction or vacation of the sentence.” Id. (alteration in original) (quoting State 

v. Fannon, 799 N.W.2d 515, 520 (Iowa 2011)). 

Hovenga contends the prosecutor did not do enough to express support of 

the recommended sentence. “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 . . . .” Id. (first alteration in original) (quoting 

State v. Bearse, 748 N.W.2d 211, 215-16 (Iowa 2008)). Rather, “[t]he prosecutor 

is required 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.”3 Id. at 557 (cleaned up). 

After defense counsel corrected the prosecutor’s omission of details 

involving Hovenga’s probation revocation, the prosecutor informed the court, “that 

3 Our courts have further defined the prosecutor’s duty to recommend the sentence 

as: 

(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 
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is the recommendation, Your Honor, it’s just the probation wasn’t in front of this 

court at this time, I guess.” Such shows the omission was not an effort to deprive 

Hovenga of the benefits of the plea. Instead, the prosecutor believed it was not 

the procedurally appropriate time to raise the issue. Once corrected, the State 

indicated the defense counsel correctly explained the plea agreement. Thus, the 

State noted, “that is the recommendation.” (Emphasis added.) The stipulation 

entered into by the State and Hovenga required the State to recommend the 

sentences run concurrently to the probation revocations, and that is exactly what 

the State recommended to the court. 

True, more forceful language in recommending the agreed-to portion of the 

sentence could have been used by the State. However, “[w]e do not mandate 

florid advocacy when the State agrees to recommend a particular sentence.” 

Davis, 971 N.W.2d at 557. Indeed, “[t]he State’s recommendation, whether 

pursuant to a plea agreement or otherwise, carries with it the State’s implicit 

representation it is ‘worthy of the court’s acceptance.’” State v. Schlachter, 884 

N.W.2d 782, 786 (Iowa Ct. App. 2016) (citation omitted). 

The cases Hovenga cites to support the proposition that the State did not 

adequately recommend the sentence invariably include additional conduct by the 

prosecutor undercutting the agreed-to recommendation. For instance, in Davis, 

after spending fifteen minutes reading victim statements calling for prison 

sentences, the prosecutor told the court, “the plea agreement was that the State 

otherwise having one’s approval or support, (6) offer or suggest as 

favored by oneself.

Davis, 971 N.W.2d at 557 (quoting Bearse, 748 N.W.2d at 216). 
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would follow the recommendation made by the presentence investigation [(PSI)], 

so the State would join in those recommendations being made.” 971 N.W.2d at 

555. Our supreme court found the prosecutor breached the agreement based on 

“the juxtaposition of the prosecutor’s perfunctory endorsement of the PSI report’s 

recommendation for suspended sentences immediately after she read the four 

victim-impact statements calling for prison time.” Id. at 557. The prosecutor’s 

“cryptic lip service to the plea agreement” was insufficient only when considered 

together with the lengthy time spent reading opposing statements. Id. 

Similarly, in Bearse, the prosecutor informed the court, “Your Honor, the 

court is not bound by the plea agreement. The State is, so we’ll abide . . . by the 

agreement. The court has the presentence investigation report,” which called for 

a higher sentence than the plea agreement. 748 N.W.2d at 213 (alteration in 

original). The court found that despite the State’s acknowledgment of the plea 

deal, the prosecutor’s reference to the court’s ability to ignore the recommendation 

and instead follow the more punitive PSI report effectively undercut the spirit of the 

agreement. Id. at 216; see also State v. Horness, 600 N.W.2d 294, 300 (Iowa 

1999) (finding the prosecutor breached a plea agreement after twice noting the 

PSI report suggested a different sentence, noting the details of the offense, and 

asking the court “to issue an appropriate sentence”). Breaches of plea agreements 

have also been found when the prosecutor unnecessarily discussed the 

defendant’s criminal history or the details of the offense. State v. Lopez, 872 

N.W.2d 159, 179-80 (Iowa 2015) (finding the prosecutor’s use of photos 

emphasized the horrific nature of the crime and violated the spirit of the plea deal);

State v. Brown, 911 N.W.2d 180, 186 (Iowa Ct. App. 2018) (finding the prosecutor 
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breached an agreement by (1) failing to recommend the sentence and (2) 

discussing the defendant’s criminal history). 

The through line to all these cases is the prosecutor’s expression of some 

explicit or implicit material reservation involving the plea agreement. See Boldon, 

954 N.W.2d at 71. Here, the prosecutor’s statements offer no such reservations.

Nor is this a case in which the prosecutor made a sentencing recommendation 

“with a wink and a nod.” See Davis, 971 N.W.2d at 558 (citation omitted). Instead, 

the prosecutor explained to the court that the State’s recommendation was for the 

sentence to run concurrently with the probation revocation. The court’s decision 

to impose consecutive terms of imprisonment “was not at the suggestion—either 

explicit or implicit—of the prosecutor.” See Boldon, 954 N.W.2d at 72. 

Accordingly, we affirm. 

AFFIRMED.