IN THE COURT OF APPEALS OF IOWA

No. 14-0284

Filed November 13, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ANDREW JAMES LOPEZ,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.

Andrew Lopez appeals from his guilty plea to child endangerment causing 

bodily injury. AFFIRMED.

Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, Stephen Holmes, County Attorney, and Tiffany Meredith, 

Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

Andrew Lopez appeals from his guilty plea to child endangerment causing 

bodily injury, in violation of Iowa Code sections 726.6(1)(a)-(b), .6(6) (2013). He 

asserts trial counsel was ineffective for failing to object on the basis of the State’s 

failure to comply with the plea agreement. Because we conclude the State did 

not breach the plea agreement, trial counsel was not ineffective for failing to 

object to the State’s actions during the sentencing hearing. Consequently, we 

affirm Lopez’s conviction and sentence.

On September 18, 2013, Lopez was watching B.H., the son of his live-in 

paramour. B.H. was approximately two years old. When the mother returned 

home, she discovered bruising on B.H.’s back, arms, and wrists, a bite mark on 

B.H.’s upper arm, and a burn on his abdomen below the top of his diaper. Lopez 

later admitted that he had pulled B.H. too roughly, which resulted in bruising. He 

also stated “magical fire” had caused the burn mark.

Lopez was initially charged with willful injury, in violation of Iowa Code 

section 708.4(2), but the State later amended the trial information to charge 

Lopez with child endangerment causing bodily injury, in violation of Iowa Code 

sections 726.6(1)(a)-(b), .6(6). On December 30, 2013, Lopez pleaded guilty. 

The plea agreement required Lopez to plead guilty to the child endangerment 

charge in exchange for a joint sentencing recommendation for a deferred 

judgment, two years probation, and minimum fines and fees. The agreement 

also required Lopez to complete a parenting class, an anger management class, 

a mental health evaluation and treatment, as well as comply with the various nocontact orders entered with respect to B.H., his mother, and Lopez’s minor child,
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A.L. On February 13, 2014, following a hearing, the district court sentenced 

Lopez to a term of incarceration not to exceed five years. Lopez appeals.

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

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128, 

133 (Iowa 2006). We may either decide the record is adequate and issue a 

ruling on the merits, or we may choose to preserve the claim for postconviction 

proceedings. Id. We review ineffective-assistance-of-counsel claims de novo. 

Id. To succeed on this claim, the defendant must show, first, that counsel 

breached an essential duty, and, second, that he was prejudiced by counsel’s 

failure. Id.

Lopez argues trial counsel was ineffective for failing to object to the 

State’s alleged failure to comply with the plea agreement. Specifically, he 

asserts the State failed to adequately inform the court that it approved of the plea 

agreement, in violation of State v. Bearse, 748 N.W.2d 211, 215–16 (Iowa 2008), 

which requires “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.” Lopez also claims the State introduced evidence 

“whose sole function was to seek to undermine the plea agreement.” This 

evidence consisted of photographs of B.H.’s injuries and the State’s witnesses—

B.H.’s biological father and B.H.’s guardian ad litem—who presented victim 

impact statements to the court.

The guardian ad litem took the stand on behalf of B.H., in which the 

following exchange occurred: 
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The Court: All right. Ms. Leighty, you may be seated and 

you may make your statement.

Ms. Leighty: Thank you, Your Honor. I’m the guardian ad 

litem appointed to the child in the juvenile matter. Normally I don’t 

get involved in the criminal matters. I’ve been an attorney for about 

thirteen years, and this is actually the first time I’ve ever come into 

court to make a statement. However, in this case I couldn’t remain 

silent as the child needs a voice.

I don’t believe that Mr. Lopez deserves a deferred judgment. 

I attended the guilty plea hearing hoping to hear if Mr. Lopez would 

take responsibility for his actions. Instead I heard excuses, I heard 

him minimize his actions. 

Mr. Lopez needs to have anger management classes, a 

mental health evaluation, and parenting classes. I believe that a no 

contact order needs to be extended for an additional five years. It’s 

my understanding that one wasn’t imposed, so I would ask that one 

be imposed for that time period. 

It’s very unlikely that the child would be protected if Mr. 

Lopez is on probation rather than in custody. In this matter the 

child is very young. He’s only two years of age, he won't be three 

until next month, and he’s not able to protect himself. I’m very 

concerned that if Mr. Lopez is around the child again, that further 

injuries will occur.

The State then recited the terms of the plea agreement when making its 

sentencing recommendation:

Your Honor, in this case the State is jointly recommending a 

deferred judgment on this case. We are recommending that 

[Lopez] be imposed with the minimum fines, court costs, and 

surcharges and attorney’s fees. He pay the jail costs and 

probationary costs. That he be placed on probation for the 

minimum amount of time allowed by the law with the Department of 

Corrections. That while he’s on probation he attend a parenting 

class and complete it and file proof of completion of that with the 

Court. That he also complete an anger management course and 

file proof of completion of that with the court, and that he obtain a 

mental health evaluation, follow through with any recommended 

treatment.

There is an agreement, Your Honor, in this case for three 

separate no contact orders to enter. The first would be with the 

young child [B.H.], and that that be entered for a period of time of 

five years. That a no contact order regarding his mother [T.H.] also 

be entered. That is the child’s primary caretaker. We are asking 

that a no contact order regarding [A.L.], Your Honor, be entered, 

and that one be different in allowing him to have visitation with his 
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daughter at the discretion of the Department of Human Services, 

but due to her young age we feel it is also appropriate in this case, 

Your Honor.

Defense counsel affirmed the county attorney had correctly recited the 

terms. She then provided the court with many reasons why the court should 

follow the agreement, including detailing Lopez’s remorse for his actions, his 

future plans, and his family support system, all of which supported Lopez’s

eligibility for a deferred judgment. Lopez also addressed the court, accepting 

responsibility for his actions and outlining his commitment to turning his life 

around. 

The Court, however, rejected the plea agreement and stated in part:

Mr. Lopez, I think in order to be successful this sentence 

needs to make you understand how totally and completely 

unacceptable your behavior was. No matter what the 

circumstances, you never, ever, have the right to assault a 2-yearold, and when you do there are going to be serious consequences, 

and you need to understand, the community needs to understand, 

your family needs to understand, and the victim’s family needs to 

understand, how seriously this Court treats assault offenses. 

Mr. Lopez, I can tell you right now you are not getting a 

deferred judgment. That’s not an issue. The issue here is: Do you 

get probation or do you go to prison? Those are the two alternative 

sentences, not a deferred judgment. You got a deferred judgment 

on an OWI, you were found in contempt because you violated 

probation, you kept your deferred, and now you’re in court again on 

a much more serious charge. Obviously a deferred judgment 

probation did not rehabilitate you because you ended up 

committing a much more serious criminal offense after having 

completed your prior probation.

When I look at this case . . . I have some real concerns 

about the safety of our community if you are released into the 

community. I have some real concerns about your ability to be able 

to control your temper and not do this again. You have to 

understand here . . . that your actions now have affected probably 

forever the lives of a lot of people. Obviously they have affected 

the life of the victim, and his family, to a lesser degree. You have 

affected the lives of your family and yourself.
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When I look at the sentencing options available here . . . I 

don’t think probation at this point in your life is appropriate. 

Probation didn’t work before. You committed a very serious assault 

offense against a 2-year-old and you . . . cannot be trusted in the 

community on street probation or even a residential facility. You 

are going to prison, and I think that is the only appropriate sentence 

here.

The court clearly made its own assessment of the appropriate sentence to 

impose, and the record does not demonstrate the State breached the plea 

agreement. The State’s introduction of permissible evidence—including the 

photographs and victim impact statements—does not amount to a breach of the 

plea agreement. See generally Iowa Code §§ 901.2, .5 (stating the court may 

receive into evidence “any information . . . which is relevant to the question of 

sentencing” and that the court must then examine said evidence before 

considering sentencing options); id. § 915.21 (governing victim impact 

statements without the express limitation that the court only receives one 

statement). The State otherwise complied with the plea agreement by reciting 

the agreement to the district court and indicating its support of the recommended 

sentence. See United States v. Benchimol, 471 U.S. 453, 455–56 (1985) 

(holding the prosecutor is not obligated to “enthusiastically” recommend the 

sentence set forth in the agreement); Bearse, 748 N.W.2d at 216 (holding the 

State breached the plea agreement when it recommended a different sentence at 

the hearing than what was memorialized in the plea agreement); State v. 

Horness, 600 N.W.2d 294, 298–99 (Iowa 1999) (holding counsel was ineffective 

for failing to object to the prosecutor’s statements regarding the fact the 

presentence investigation report recommended a different sentence than the 
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plea agreement, recited the danger the defendant imposed upon her children by 

driving drunk, and stating “we had an alternative recommendation”). 

Here, the court adamantly rejected the plea agreement, detailing its 

reasons for imposing the sentence it determined was more fitting. Because 

counsel has no duty to present a meritless objection, Lopez’s trial counsel was 

not ineffective for failing to object to the State’s conduct during the sentencing 

hearing. See State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999) (noting 

counsel is not ineffective for failing to pursue a meritless objection). 

Consequently, we affirm Lopez’s conviction and sentence.

AFFIRMED.