IN THE COURT OF APPEALS OF IOWA

No. 16-1982

Filed June 21, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JAMES MICHAEL PRYOR,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, 

District Associate Judge.

A defendant appeals following his plea of guilty to driving while barred as 

an habitual offender. AFFIRMED.

Edward S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des 

Moines, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, Judge.

James Pryor appeals the judgment and sentence imposed following his

guilty plea to driving while barred as an habitual offender. Pryor argues his plea 

counsel was ineffective for failing to file a motion in arrest of judgment after the 

district court advised Pryor it would not follow the sentencing recommendation 

from his plea bargain with the State but allegedly did not afford Pryor the 

opportunity to withdraw his guilty plea. Because Pryor’s plea agreement was not 

conditioned upon concurrence of the court, counsel had no duty to file a motion 

in arrest of judgment. Accordingly, we affirm.

On July 11, 2016, the State charged Pryor with driving while barred as an

habitual offender, an aggravated misdemeanor, in violation of Iowa Code 

section 321.561 (2016). On October 12, Pryor signed a petition to plead guilty to 

the offense, indicating, “[t]he plea agreement is: $1000 fine” and “[t]he Court is 

not bound by the plea agreement and may impose the maximum sentence as 

allowed by law.” The district court accepted Pryor’s guilty plea that same day. 

The court’s order notified Pryor of his right to contest the plea by filing a motion in 

arrest of judgment and then stated: “COURT HAS ADVISED THE DEF THE 

COURT WILL NOT AGREE TO PLEA AGREEMENT.” 

Pryor appeared for sentencing on November 16, 2016. Following the 

hearing, the court issued an order sentencing Pryor to a suspended two-year 

term of incarceration. Later that day, the court issued a nunc pro tunc order 

stating the suspension of Pryor’s sentence was in error and ordering his 

incarceration for two years. 

Pryor now appeals.
3

We review ineffective-assistance-of-counsel claims de novo because they

are based in the Sixth Amendment. See State v. Clay, 824 N.W.2d 488, 494 

(Iowa 2012). To succeed on appeal, Pryor must demonstrate by a 

preponderance of the evidence both: (1) his counsel breached an essential duty 

and (2) the breach resulted in prejudice. See State v. Straw, 709 N.W.2d 128, 

133 (Iowa 2006). Generally, we preserve ineffective-assistance claims for 

postconviction-relief proceedings to allow counsel in the underlying proceedings 

the opportunity to defend against the accusation. State v. Thorndike, 860 

N.W.2d 316, 319 (Iowa 2015). Only when the record is adequate will we resolve 

the claims on direct appeal. See id. We find the record is adequate here.

Pryor argues his plea counsel should have filed a motion in arrest of 

judgment because Pryor “was not allowed to withdraw his guilty plea after the 

Court indicated it would not follow the plea agreement.” In support of this claim, 

Pryor relies on Iowa Rule of Criminal Procedure 2.10, which governs plea 

bargaining. Rule 2.10(4) provides: 

If, at the time the plea of guilty is tendered, the court refuses to be 

bound by or rejects the plea agreement, the court shall inform the 

parties of this fact, afford the defendant the opportunity to then 

withdraw defendant’s plea, and advise the defendant that if 

persistence in a guilty plea continues, the disposition of the case 

may be less favorable to the defendant than that contemplated by 

the plea agreement. If the defendant persists in the guilty plea and 

it is accepted by the court, the defendant shall not have a right 

subsequently to withdraw the plea except upon a showing that 

withdrawal is necessary to correct a manifest injustice.

The State contends this rule requires a district court to allow a defendant 

to withdraw a guilty plea only if the plea agreement is conditioned upon the 

concurrence of the district court. We agree. While “[o]n its face, subsection (4) 
4

appears to apply any time a court declines to follow a plea agreement entered 

into by the defendant and the State . . . subsection (4) cannot be viewed in 

isolation.” State v. Weaver, No. 05-0764, 2006 WL 3018498, at *3 (Iowa Ct. App. 

Oct. 25, 2006). When the rule is read as a whole, “it soon becomes clear that the 

requirements of subsection (4) are meant to apply only when the plea agreement 

has been conditioned on the court’s concurrence in the agreement between the 

parties.”

1

 Id.; see also State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981) 

(noting predecessor to rule 2.10 “gives a court three options regarding the plea 

agreement at the time the plea is offered if the agreement is conditioned on the 

court’s acceptance” (emphasis added)). 

In Pryor’s case, the written plea agreement expressly stated the 

sentencing recommendation was not binding on the district court. Therefore, the 

 

1 The two preceding subsections of the rule guide our analysis. Rule 2.10(2) provides: 

Advising court of agreement. If a plea agreement has been 

reached by the parties the court shall require the disclosure of the 

agreement in open court at the time the plea is offered. Thereupon, if the 

agreement is conditioned upon concurrence of the court in the charging 

or sentencing concession made by the prosecuting attorney, the court 

may accept or reject the agreement, or may defer its decision as to 

acceptance or rejection until receipt of a presentence report.

Iowa R. Crim. P. 2.10(2). Further, rule 2.10(3) states:

Acceptance of plea agreement. When the plea agreement is 

conditioned upon the court’s concurrence, and the court accepts the plea 

agreement, the court shall inform the defendant that it will embody in the 

judgment and sentence the disposition provided for in the plea agreement 

or another disposition more favorable to the defendant than that provided 

for in the plea agreement. In that event, the court may accept a waiver of 

the use of the presentence investigation, the right to file a motion in arrest 

of judgment, and time for entry of judgment, and proceed to judgment.

Iowa R. Crim. P. 2.10(3).
5

district court was not required to allow Pryor to withdraw his guilty plea.

2

 See 

State v. Thompson, 856 N.W.2d 915, 922 (Iowa 2014) (finding district court was 

not required to allow defendant the opportunity to withdraw his plea before 

sentencing when court rejected sentencing agreement, agreement did not 

require court’s concurrence, and defendant acknowledged in written petition to 

plead guilty that “[t]he court is not bound by the agreement and may impose the 

maximum sentence as required by law”). Accordingly, Pryor’s plea counsel did 

not breach an essential duty by failing to file a meritless motion in arrest of 

judgment on this ground, and Pryor’s ineffective-assistance claim cannot prevail. 

See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (noting we may affirm 

if either ineffective-assistance element is lacking).

AFFIRMED.

 

2 Our record on appeal does not include a transcript of the guilty plea hearing. 

Accordingly, we have no documentation of Pryor’s claim that the district court failed to 

provide him with the opportunity to withdraw his guilty plea after indicating it would not 

“agree to [the] plea agreement.”