Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0655
                            Filed December 24, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FRANK PHILLIP BROCATO,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      A defendant appeals claiming counsel was ineffective for failing to object

to the State’s breach of the spirit of the plea agreement and claiming the district

court abused its discretion in sentencing him. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, Stephen H. Holmes, County Attorney, and Tiffany L. Meridith, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, P.J.

       Frank Brocato appeals following the resentencing1 on his guilty plea to

assault causing bodily injury, in violation of Iowa Code sections 708.1(1) and

708.2(2) (2013). He claims the State violated the spirit of the plea agreement

and his attorney was ineffective in not objecting to the violation. He also claims

the district court abused its discretion when it sentenced him to 180 days in jail.

We affirm.

       The written guilty plea filed by Brocato recited the plea agreement as

follows: “In return for my guilty plea the State will recommend 180 days all but 7

days suspended, $315 fine, 35% surcharge, court costs, attorney fees,

restitution, up to one year probation to the Center for Creative Justice, dismissal

of all remaining counts with costs to the defendant.” At the sentencing hearing,

the prosecutor made the following statement

              May it please the court, Your Honor. Your Honor, in this
       case the State is recommending 180-day jail sentence, that all but
       7 of those days be suspended; that he be placed on probation to
       the Center for Creative Justice for a period not to exceed 12
       months; that the minimum fine of $315 plus applicable court costs,
       surcharges, and court-appointed attorney’s fees be imposed; and
       that a five-year no contact order with regards to the victim, Valeria
       Dennis, enter in this case, Your Honor. Nothing further.

Brocato acknowledges the State complied with the “explicit terms” of the

agreement, but he contends it did not comply with the “spirit” of the agreement.

He claims the State merely recited the terms of the agreement, informing the

court of the promise it made, and failed to advocate for the sentence by


1
  Brocato was originally sentenced in June of 2013, but an appeal resulted in an order
from the supreme court vacating that sentence and remanding the case for resentencing
due to the fact the district court improperly relied on an unproven charge.
                                            3



commending it to the court as supported and worthy of the court’s acceptance.

He claims the State’s recommendation was at best “half-hearted” and failed to

live up to the spirit of the agreement. Because the State breached the spirit of

the agreement, Brocato claims his counsel was ineffective in failing to object to

the breach resulting in prejudice to him.

       We review ineffective-assistance claims de novo as these claims implicate

the defendant’s Sixth Amendment right to counsel. State v. Lyman,
776 N.W.2d 865, 877
 (Iowa 2010). Brocato must prove counsel failed to perform an essential

duty and prejudice resulted. See
id.
 It is true that when a plea agreement

requires a prosecutor to “recommend” a particular sentence, the prosecutor must

“present the recommended sentences with his or her approval, to commend

these sentences to the court, and to otherwise indicate to the court that the

recommended sentences are supported by the State and worthy of the court’s

acceptance.” State v. Horness,
600 N.W.2d 294, 299
 (Iowa 1999).

       Here, the State informed the court it was “recommending” the sentence

outlined in the plea agreement. It was not required to use other terms in addition

to “recommending” as urged by Brocato. The plea agreement required the State

to “recommend.” The State used a form of the word “recommend” which, by the

dictionary definition argued by Brocato, means those very things Brocato claims

the State should have said.        It did not use a term that had a different or

diminished measure of significance than “recommend.” It did not undercut its

promise by making “alternative recommendations,” suggesting a more severe

sentence as in Horness.
Id.
   Neither did the State suggest a more severe
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punishment should be imposed by reminding the court of the recommendation of

presentence investigation report and informing the court it was not bound by the

plea agreement, as in State v. Bearse,
748 N.W.2d 211, 216
 (Iowa 2008).

Because we find no breach of the spirit of the plea agreement, counsel had no

duty to object. Horness,
600 N.W.2d at 298
 (“The defendant’s counsel here

cannot be faulted for failing to object to the prosecutor’s statements as being a

breach of the plea agreement if, in fact, they were not contrary to the State’s

agreement.”).

      Next, Brocato claims the court abused its discretion when sentencing him

because the mitigating factors in this case supported the plea agreement

sentence. The district court’s decision to impose a particular sentence that is

within the statutory limits is “cloaked with a strong presumption in its favor and

will only be overturned for an abuse of discretion or the consideration of

inappropriate matters.” State v. Formaro,
638 N.W.2d 720, 724
 (Iowa 2002). An

abuse of discretion will be found only where the sentencing decision was

exercised on grounds or for reasons that were clearly untenable or

unreasonable.
Id.

      The court, in imposing the sentence in this case, stated:

              THE COURT: Well, Mr. Brocato, the purpose of sentencing
      you is to do two things, it is meant to rehabilitate you and to protect
      our community from further offenses from you. And Mr. Brocato,
      it’s pretty clear that this sentence needs to make you understand
      how dangerous and how serious this charge is, and to make you
      understand that you do not have the right to assault another
      person, and when you do that there are going to be serious
      consequences both to yourself and to the victim of this offense.
      And I think I can say with some confidence that the victim of this
      offense probably looks at people differently now, she probably lives
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her life differently because of what you did to her, and that’s your
responsibility and you have to own that responsibility.
        So the question is: What kind of a sentence can I impose
that will make you understand how totally and completely
unacceptable your behavior was and how important that it is in the
future you do a better job with your decision making? Mr. Brocato,
on the one hand it appears that you now maintain employment,
have a stable relationship, and have a stable environment. On the
other hand you have a prior conviction for disorderly conduct, a
prior conviction for this very same offense, assault causing injury,
and then it looks like a theft fifth conviction. So back in 2009 you
were convicted of this very same offense. You were put on
probation with a suspended jail sentence, and apparently you
completed that probation. You went to anger management it looks
like, and now—and it also looks like that probation was revoked,
and you ended up serving some time in jail.
        Mr. Brocato, it’s pretty hard to understand how probation is
going to work now when it didn’t work in 2009. There’s really
nothing in this record to indicate that you’ve changed or that you
make your decisions differently or that you are now rehabilitated
when you were not rehabilitated after your last probation.
Probation just simply did not work on this very same charge, and I
don’t see anything to indicate that it’s going to work this time. I
think you need to go to jail, and I think you need to suffer
consequences to make you understand no matter how angry you
get, no matter how upset you are, you cannot assault other people
because the consequences are just too severe.
        I sentenced you to serve 180 days in jail the last time you
were here, and I still think that is the appropriate sentence, and
that’s the sentence that will be imposed today. And I hope, and I
think, that when you get out of jail next time you will understand
how serious the consequences are and you’ll make a decision not
ever to let this happen again.
        So Mr. Brocato, it is the order of this Court that you are
adjudged guilty of assault causing injury in violation of section
708.2(2) of the Iowa Code. You are sentenced to serve 180 days
in the Story County Jail, mittimus to issue immediately, and you are
granted credit for time served.
        You are ordered to pay a fine of $315, a 35 percent
surcharge, court costs, court-appointed attorney fees, and
restitution of $933.34. The no contact order shall now be extended
for five years. Any remaining counts and companion charges are
dismissed with costs taxed to the defendant.
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      The sentence, while it did not comply with the plea agreement, was within

the statutory limits, and the court recited adequate reasons for imposing the

sentence it did.    The court considered the need for rehabilitation of the

defendant, protection of the community, the circumstances of the offense, and

the impact on the victim.    The court also considered Brocato’s prior criminal

history, prior performance on probation, participation in an anger management

class, current employment, current relationships, and current environment. We

find no abuse of discretion here.

      We affirm Brocato’s conviction and sentence.

      AFFIRMED.