IN THE COURT OF APPEALS OF IOWA

No. 17-0953

Filed March 21, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SHANE JASON EDWARDS,

Defendant-Appellant.

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Appeal from the Iowa District Court for Polk County, David N. May, Judge.

Defendant appeals following conviction for possession of a controlled 

substance, methamphetamine, third offense, in violation of Iowa Code section 

124.401(5) (2016). AFFIRMED. 

Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.

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

General, for appellee.

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

Shane Edwards pleaded guilty to possession of a controlled substance, 

methamphetamine, third offense, in violation of Iowa Code section 124.401(5) 

(2016). Pursuant to the plea agreement, the parties were “free to argue for an 

appropriate disposition” at the time of sentencing with the understanding the 

prosecutor would recommend Edwards receive a suspended sentence and 

Edwards would argue for a deferred judgment. During the guilty plea colloquy, 

Edwards stated he understood the court was “not bound at sentencing by any 

recommendations of the parties” and the court was not “required to suspend that 

prison sentence.” At sentencing, the district court rejected the prosecutor’s 

recommendation for a suspended sentence and the defendant’s request for a 

deferred judgment and instead sentenced Edwards to an indeterminate term of 

incarceration not to exceed five years. On appeal, Edwards contends the 

prosecutor breached the plea agreement by not recommending a suspended 

sentence and Edwards’ counsel provided constitutionally deficient representation 

in failing to object to the alleged breach. 

To establish his plea counsel provided constitutionally deficient 

representation, Edwards must establish his counsel failed to perform an essential 

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

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

counsel breached 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 his guilty plea or be resentenced 
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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. 

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 

explicitly or implicitly. See id. at 285. Explicit action contrary to the plea agreement 

is exactly what it sounds like and is easy to identify. Implicit action contrary to the 

plea agreement is more ambiguous and harder to identify. Typically, 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 
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is not bound by the plea agreement, or emphasize a more severe punishment 

recommended by the presentence investigation author. See id. 

Here, Edwards contends the prosecutor failed to comply with the spirit of 

the plea agreement by unduly emphasizing the defendant’s criminal history at the 

time of sentencing. The contested recommendation was as follows: 

Your Honor, the State would ask this Court to impose an 

indeterminate term of incarceration as to Count I not to exceed five 

years and that sentence be suspended and the defendant be placed 

on a term of probation.

Your Honor, the basis of the recommendation, as can be 

evidenced by the PSI, is based on the defendant’s age, his criminal 

history, his substance abuse history, and his employment 

circumstances. 

It is the understanding of the State the defendant will ask this 

Court to issue a deferred judgment. The State finds that a suspended 

sentence would be more appropriate, specifically based on the 

content of the defendant’s criminal history as well as his own 

admitted use of illegal narcotics after his arrest to the PSI writer.

While we commend the defendant for his honesty, it does go 

to show the defendant’s continued criminal activity since the arrest 

in this case. The State feels that substance abuse treatment and the 

recommendations proposed by the PSI writer would give the 

defendant both the maximum opportunity for rehabilitation as well as 

protect the community from further offenses by the defendant, Your 

Honor.

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

breached the plea agreement and defense counsel had a duty to object to the 

prosecutor’s recommendation. The presentence investigation report 

recommended the defendant receive a suspended sentence and, among other

things, complete substance-abuse treatment. The prosecutor relied on the 

recommendation at the time of sentencing. The prosecutor’s reference to the 

defendant’s criminal history and substance-abuse history provided context to the 

sentencing recommendation and demonstrated support of the presentence 
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investigation report’s recommended disposition of a suspended sentence, 

supervised probation, and treatment. In similar circumstances, we have concluded 

discussion of the defendant’s criminal history when made to provide context in 

support of the recommendation is consistent with the spirit of the plea agreement. 

See, e.g., State v. McDowell, No. 17-0679, 2017 WL 6034123, at *1 (Iowa Ct. App. 

Dec. 6, 2017) (holding prosecutor’s discussion of defendant’s criminal history was 

not in violation of the plea agreement where the discussion provided context in 

light of “a strong recommendation for a suspended sentence”); State v. Schlachter, 

884 N.W.2d 782, 786 (Iowa Ct. App. 2016) (“The correct recitation of Schlachter’s 

criminal record was not a distraction from the prosecutor’s recommendation, but 

strengthened it by alerting the court the prosecutor was aware of Schlachter’s 

criminal record and was making the recommendation with that knowledge.”); 

Frencher, 873 N.W.2d at 285 (concluding there was no breach where the 

prosecutor discussed criminal history “only to provide context to the sentencing 

recommendation”). 

Our conclusion is bolstered by an additional consideration. Here, the 

parties were not making a joint recommendation for a sentence. The parties 

reserved the right to argue for an appropriate disposition at the time of sentencing. 

The State recommended a suspended sentence, but the defendant argued for a 

deferred judgment. The prosecutor acted within the spirit of the plea agreement 

by identifying considerations that supported the State’s recommendation for a 

suspended sentence but that also militated against the grant of a deferred 

judgment. 
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Plea counsel had no duty to object to counsel’s statement because no 

breach of the plea agreement occurred. See Frencher, 873 N.W.2d at 286. 

Accordingly, Edwards has failed to establish his claim that counsel provided 

constitutionally deficient representation. See id.

AFFIRMED.