IN THE COURT OF APPEALS OF IOWA

No. 4-53 / 13-0896

Filed March 26, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

LEMUEL CORNELIOUS JOHNSON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, James C. 

Bauch, Judge.

Defendant appeals the disposition imposed for violation of a no-contact 

order. DISPOSITION VACATED AND REMANDED FOR REHEARING.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney 

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant 

County Attorney, for appellee.

Considered by Danilson, C.J., Vaitheswaran, J., and Huitink, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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DANILSON, C.J.

Lemuel Johnson appeals the disposition imposed following a guilty plea 

for violation of a no-contact order. On appeal, he maintains counsel provided 

ineffective assistance at sentencing. In support of his contention, he claims 

counsel breached an essential duty by failing to accurately state the agreement 

to the court. He maintains he was prejudiced by this failure because he was 

punished to a longer jail term than the agreement provided for. Because we find 

counsel did provide ineffective assistance and Johnson was prejudiced by

counsel’s error, we vacate Johnson’s disposition and remand for rehearing to fix 

punishment.

I. Background Facts and Proceedings.

On January 4, 2012, Johnson was charged with criminal mischief and 

eluding. These charges stemmed from events which had occurred on 

November 21, 2011. Following those events, the district court had issued a nocontact order, requiring Johnson to “have no contact whatsoever” with Penny 

Montgomery and her three minor children.

On October 8, 2012, Montgomery reported to local police officers that 

Johnson had assaulted her in her residence. The following day, one of the 

officers filed a complaint alleging Johnson had violated the no-contact order. 

On November 13, 2012, Johnson entered a written guilty plea regarding 

the violation of the no-contact order. The written plea provided, in part, that 

Johnson would receive a punishment of incarceration for seven days, to run 

concurrently with the sentences imposed in two other pending cases.
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On April 29, 2013, the district court held a sentencing hearing regarding 

several pending cases, including the guilty plea for violating the no-contact order. 

Pursuant to a separate plea agreement, Johnson was sentenced to five years 

imprisonment. Johnson also pled guilty for failure to appear and received 

another five-year sentence, which was to run consecutively to the other 

sentence, for a total term of imprisonment not to exceed ten years. Johnson’s 

counsel then reminded the court there was an outstanding violation of the nocontact order for which Johnson still needed to be punished. Counsel stated that 

Johnson admitted to the violation as part of his agreement and the agreement 

was for thirty days imprisonment to run consecutive with the sentence for the 

serious misdemeanor but concurrent with the sentence for the felony charges. 

The court accepted the agreement and entered disposition accordingly. Johnson 

appeals. 

II. Standard of Review.

A defendant may raise an ineffective-assistance claim on direct appeal if 

he has reasonable grounds to believe the record is adequate for us to address 

the claim on direct appeal. State v. Straw, 709 N.W. 2d 128, 133 (Iowa 2006). If 

we determine the record is adequate, we may decide the claim. Id. We review 

claims for ineffective assistance of counsel de novo. Id. This is our standard 

because such claims have their basis in the Sixth Amendment to the United 

States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion.

Johnson maintains counsel provided ineffective assistance at disposition 

for violation of a no-contact order. He contends counsel misstated the terms of 
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the agreement to the court1at the hearing, which the court then accepted and 

imposed.

2

 

The right to counsel has been extended to civil contempt proceedings 

because imprisonment was a contemplated sanction. See State ex rel. Hamilton 

v. Snodgrass, 325 N.W.2d 740, 742 (Iowa 1982) (“We have recognized a right to 

counsel in a hearing that might directly result in incarceration.”). Our ultimate 

concern in claims of ineffective assistance is with the “fundamental fairness of 

the proceeding whose result is being challenged.” State v. Risdal, 404 N.W.2d 

130, 131 (Iowa 1987). To succeed on his claim, Johnson must show by a 

preponderance of the evidence that (1) his counsel failed to perform an essential 

duty and (2) prejudice resulted. See State v. Rodriguez, 804 N.W.2d 844, 848 

(Iowa 2011). 

If this were a criminal prosecution instead of a contempt violation of a nocontact order, the rules to apply would be fairly settled. “‘[V]iolations of either the 

terms or the spirit of the [plea] agreement’ require reversal of the conviction or 

vacation of the sentence, regardless of whether the violation is intentional or 

accidental.” State v. Fannon, 799 N.W.2d 515, 521 (Iowa 2011) (internal 

citations omitted). Moreover, defense counsel is ineffective for failing to object to 

 

1 Either the written plea or the oral explanation of the agreement was in error although 

we have been unable to discern how the parties have concluded the written explanation 

was the accurate rendition.

2 The State maintains that we must first determine whether to sustain a writ of certiorari 

before deciding Johnson’s ineffective-assistance claim. However, Johnson does not 

challenge the district court’s ruling that he was in contempt for violating a no-contact 

order or claim that the punishment imposed by the district court was in violation of 

statutory limits. See Iowa Ct. R. 1.1401 (“A party may commence a certiorari action 

when authorized by statute or when the party claims an inferior tribunal, board, or officer, 

exercising judicial functions, or a judicial magistrate exceeded proper jurisdiction or 

otherwise acted illegally.”). Because Johnson’s only claim is that counsel provided 

ineffective assistance, no writ of certiorari is necessary in this case. 
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a prosecutor’s misstatement of a plea agreement. Id. at 522–23. Thus, if 

defense counsel is ineffective for failing to object to the prosecutor’s explanation 

of the agreement, surely defense counsel would be ineffective for personally 

misstating the agreement. 

Here, both parties agree that trial counsel violated the express terms of 

Johnson’s agreement by misrepresenting the terms of the agreement to the 

court. In doing so, counsel failed to perform an essential duty. See State v. 

Horness, 600 N.W.2d 294, 300 (Iowa 1999) (“[N]o possible advantage could flow 

to the defendant from counsel’s failure to point out the . . . noncompliance. 

Defense counsel’s failure in this regard simply cannot be attributed to 

improvident trial strategy or misguided tactics.” (internal citations omitted)).

In a criminal case, Johnson would still be obligated to prove prejudice. To 

establish prejudice, Johnson must show that the outcome of the proceeding 

would have been different. Fannon, 799 N.W.2d at 523. The State argues

Johnson suffered no prejudice because he will not be required to serve any

additional time in prison, as his thirty day sentence is set to run concurrent with 

his felony sentences. However, our supreme court has determined that in a 

criminal case, a defendant is prejudiced when he is prevented from receiving the 

benefit of the plea agreement. See State v. Bergmann, 600 N.W.2d 311, 314 

(Iowa 1999) (“When trial counsel fails to object to the prosecutor’s breach of the 

plea agreement and thereby prevents the defendant from receiving the benefit of 

the plea agreement, the defendant is prejudiced.”); see also Fannon, 799 N.W.2d 

at 524 (holding the defendant had been prejudiced where the State made a 

sentencing recommendation in violation of the plea agreement, even though
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there was no evidence the sentencing court considered the improper 

recommendation). 

In a contempt proceeding, we are not convinced the same type of benefit 

inures. Iowa Rule of Criminal Procedure 2.10 permits binding plea agreements 

in a criminal sentencing but the rule is not applicable to contempt dispositions. 

In criminal proceedings, an appropriate remedy for a breached plea

agreement is one that “ensure[s] the interests of justice are served.” State v. 

Bearse, 748 N.W.2d 211, 218 (Iowa 2008). “Generally, a breached plea

agreement may be remedied by allowing the defendant to withdraw the guilty 

plea or by remanding for resentencing before a new judge.” Fannon, 799 

N.W.2d at 523. 

Although our rules do not provide for a dispositional agreement that is 

binding upon the court, we conclude the interests of justice are best served by 

vacating Johnson’s disposition and remanding for a rehearing on disposition. 

Doing so ensures Johnson receives the benefit of the joint recommendations 

much like the benefit of the bargain of a plea agreement. See Bearse, 748 

N.W.2d at 218. “[T]here is no need to expend the added prosecutorial and 

judicial resources that would be required by vacating the conviction and allowing 

the process to start anew.” Id. 

Therefore, we affirm the district court’s finding of contempt, vacate the 

correlating disposition, and remand the matter for rehearing to impose 

disposition. 

DISPOSITION VACATED AND REMANDED FOR REHEARING.