Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 22-0424
                            Filed December 21, 2022


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RENEE ALICE KIMBROUGH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Henry County, Wyatt Peterson,

Judge.



      Renee Kimbrough appeals her sentence for operating while intoxicated,

second offense. AFFIRMED



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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AHLERS, Presiding Judge.

      Renee Kimbrough appeals the prison sentence imposed for her sixth

operating-while-intoxicated (OWI) offense. The offense was originally charged as

OWI, third offense, a class “D” felony, but the parties reached a plea agreement.

In return for the State reducing the charge to OWI, second offense, an aggravated

misdemeanor, and dismissing a separate charge, Kimbrough pleaded guilty to the

amended charge.

      At sentencing, Kimbrough and the State both argued for some combination

of jail time and suspended jail time. The district court chose not to follow either

recommendation and imposed the maximum period of incarceration, an

indeterminate term not to exceed two years to be served in prison.

      Kimbrough appeals. She contends the State breached the plea agreement

by not adequately advocating for a suspended sentence and the district court

abused its discretion by sending her to prison instead of placing her on probation.

I.    Jurisdiction and Standard of Review

      A defendant, such as Kimbrough, who pleads guilty to an offense other than

a class “A” felony is prohibited from appealing unless the defendant can establish

good cause. See
Iowa Code § 814.6
(1)(a)(3) (2022). As Kimbrough alleges

breach of the plea agreement and challenges the sentence imposed, she has good

cause to appeal. See State v. Davis,
971 N.W.2d 546
, 554 (Iowa 2022) (holding

that an appeal claiming the prosecutor breached the plea agreement with respect

to a sentencing recommendation is a challenge to the sentence imposed, rather

than to the plea itself, and constitutes good cause under section 814.6(1)(a)(3));

State v. Damme,
944 N.W.2d 98
, 105 (Iowa 2020) (“We hold that good cause
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exists to appeal from a conviction following a guilty plea when the defendant

challenges his or her sentence rather than the guilty plea.”).

       We review criminal sentencing decisions for correction of errors at law.

Davis, 971 N.W.2d at 553. Unless there is an abuse of discretion or a defect in

the sentencing procedure, we do not reverse a sentence. Id.

II.    Analysis

       As noted, Kimbrough raises two issues, which we address in turn.

       A.     Breach of the Plea Agreement

       Kimbrough asserts the prosecutor breached the plea agreement by failing

to “strongly advocate for the recommended plea agreement sentence.” Plea

agreements are essentially contracts. Id. at 556. A prosecutor’s violation of “‘the

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

of the sentence.” Id. (citation omitted). To assess Kimbrough’s claim, we must

first determine the terms of the agreement.         The terms are spelled out in

Kimbrough’s written guilty plea, which she and her attorney signed:




As shown, the plea agreement as articulated by Kimbrough and her attorney called

for the parties to “argue sentencing,” which we take to mean an open sentencing

at which each party could argue for any sentence the party deems appropriate.
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The fact that the plea agreement left the parties free to “argue sentencing” is

confirmed by the State’s plea proposal attached to Kimbrough’s written guilty plea.

       As the terms of the plea agreement called for open sentencing, the State

was not obligated to make any particular sentencing proposal.            Therefore,

regardless of what sentence the State proposed, or how zealously the State

argued for it, there was no breach of the plea agreement. Although it is a moot

point given the agreement for open sentencing, we note that the State

recommended a sentence of one hundred eighty days in jail with all but thirty days

suspended—a much lighter sentencing recommendation than the State could

have made given its freedom to argue for any sentence.

       There was no breach of the plea agreement.          Therefore, Kimbrough’s

challenge on this basis fails.

       B.     Sentencing Discretion

       Kimbrough also argues the district court abused its discretion in imposing a

two-year prison sentence by not adequately considering and weighing the

recommendation of the presentence investigator, Kimbrough’s substance-abuse

struggles, and mitigating factors. A sentencing decision is cloaked with a strong

presumption in its favor. State v. Crooks,
911 N.W.2d 153, 171
 (Iowa 2018). The

defendant has the burden of showing that the district court abused its discretion.
Id.
 Here, there is no claim that the sentence is not within statutory limits, so the

sentence “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.” See State v. Formaro,
638 N.W.2d 720, 724
 (Iowa 2002) (citing State v.

Pappas,
337 N.W.2d 490, 494
 (Iowa 1983)).
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       To the extent Kimbrough is claiming abuse of discretion because the district

court did not follow the recommendation of the presentence investigator, we reject

the claim, as the court has no obligation to follow such a recommendation. See

State v. Grgurich,
253 N.W.2d 605, 606
 (Iowa 1977). As to her remaining claims,

the district court considered proper factors and appropriately weighed them. The

court expressly considered the sentencing recommendations of the parties and the

recommendation of the presentence investigator.         The court also specifically

considered Kimbrough’s education; employment history; substance-abuse issues

and needs; mental and physical health; the circumstances surrounding the

offense; and criminal history. All of these are proper factors to consider, and

Kimbrough does not claim otherwise.         In considering those factors, the court

commented on how some were positives and some were negatives for Kimbrough.

As such, we find no abuse of discretion in the court’s sentence.

III.   Conclusion

       As the State did not breach the plea agreement that called for open

sentencing and the district court considered and weighed proper factors, we affirm

the district court’s sentencing decision.

       AFFIRMED.