State of Iowa v. Mathew Gregory Andrew Whitten

IN THE COURT OF APPEALS OF IOWA

No. 23-0224
Filed December 18, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MATHEW GREGORY ANDREW WHITTEN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jefferson County, Mary Ann Brown,

Judge.

A defendant who pleaded guilty to a felony offense and later had his

deferred judgment revoked appeals his plea and sentence. SENTENCE

VACATED AND CASE REMANDED FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Badding, P.J., Chicchelly, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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VOGEL, Senior Judge.

Mathew Whitten pleaded guilty to domestic abuse assault by strangulation

and causing bodily injury. He received a deferred judgment. After he violated his

probation by not completing a domestic abuse program as well as being charged

with another offense, that deferred judgment was revoked, judgment was entered,

and Whitten was sentenced. He now appeals, alleging his plea was unknowing

and involuntary, the prosecutor breached the plea agreement, and the sentencing

court erroneously failed to reduce his criminal fine as required by Iowa Code

section 908.11(5) (2022). Because Whitten never argued he would not have

pleaded guilty but for the alleged plea defects, we lack authority to vacate his plea

under Iowa Code section 814.29. However, we agree the prosecutor breached

the plea agreement by failing to recommend Whitten’s criminal fine be suspended.

Thus, we vacate his sentence and remand for resentencing before a different

judge.

I. Factual Background and Proceedings.

In February 2022, the State charged Whitten with domestic abuse assault

by strangulation and causing bodily injury, a Class “D” felony. See Iowa Code

§ 708.2A(5). The next month, Whitten pleaded guilty to the charge. He received

a deferred judgment in May. The court imposed two years of probation, ordered

Whitten to complete the Iowa Domestic Abuse Program, and assessed a $1025

civil penalty. See generally id. §§ 902.9(1)(e) (setting minimum fine of $1025 for

Class “D” felonies); 907.14 (instructing courts to assess “a civil penalty of an

amount not less than the amount of any criminal fine authorized by law for the

offense under section 902.9” upon entering a deferred judgment).
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Six months later, the State moved to revoke Whitten’s deferred judgment.

Whitten failed to complete the domestic-abuse program and had been arrested

and charged with another offense—maintaining a drug house, an aggravated

misdemeanor. See id. § 124.402(1)(e), 2(a).

In January 2023, both the revocation of the deferred judgment and the new

drug-house charge came before the district court for hearing. Whitten pleaded

guilty to the drug house charge. As for the revocation, Whitten signed a written

admission to violating his probation terms, and that admission also contained the

parties’ agreement for sentencing. Under that agreement, the minimum criminal

fine would be suspended. However, during the hearing, both the prosecutor and

Whitten’s counsel failed to notify the court of their agreement to suspend the fine.

The district court followed the parties’ agreement as described during the

hearing—revoking Whitten’s deferred judgment, convicting him of the domestic-

abuse charge, and imposing a suspended five-year prison sentence with probation

with the Eighth Judicial District halfway house. The court also imposed the

minimum $1025 criminal fine, plus surcharges. The drug-house and domestic-

abuse sentences ran concurrently.

Whitten now appeals.

II. Analysis.

Whitten brings three challenges to his domestic-abuse conviction and

sentence. First, he asks that we vacate his guilty plea from March 2022 because

it was not knowing or voluntary. Second, he argues the State breached his plea

agreement when it failed to recommend suspending the minimum fine during the

revocation hearing and otherwise failed to indicate the agreement was worth
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accepting. Finally, he asserts the court failed to reduce his criminal fine by the

amount of the civil penalty previously imposed.

A. Authority to Vacate Whitten’s Domestic-Abuse Plea.

Whitten first argues that his written guilty plea to the domestic-abuse charge

was unknowing and involuntary because it inaccurately stated a mandatory

minimum punishment, omitted a mandatory surcharge, and did not advise him of

the right to counsel had he insisted on going to trial. The State, while conceding

jurisdiction over this appeal generally, see State v. Rutherford, 997 N.W.2d 142,

146 (Iowa 2023), raises two barriers to reviewing Whitten’s guilty plea: (1) Whitten

never moved in arrest of judgment, and (2) Whitten does not allege he would not

have pleaded guilty but for the defects in his plea. Because the second barrier

succeeds, we need not consider the first.

“If a defendant challenges a guilty plea based on an alleged defect in the

plea proceedings, the plea shall not be vacated unless the defendant

demonstrates that the defendant more likely than not would not have pled guilty if

the defect had not occurred.” Iowa Code § 814.29. On appeal, Whitten never

argues he would not have pleaded guilty but for his alleged defects. Instead, he

only disputes whether section 814.29 applies to him at all. He asserts the statute

should not apply because (1) he was not given a proper motion-in-arrest-of-

judgment advisory and thus was not on notice of the requirement to make a record

about his intentions, (2) the statute violates due process, and (3) the statute

violates the separation of powers. Yet all three contentions were recently

considered and rejected by our supreme court, therefore section 814.29 applies to

Whitten. See State v. Hightower, 8 N.W.3d 527, 539–41 (Iowa 2024).
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Consequently, even if Whitten’s arrest-of-judgment advisory was inadequate, and

even if he could show defects in his plea, he has neither alleged nor shown he

would not have pleaded guilty but for those defects, and we therefore lack authority

to vacate his plea. See id. at 542 (holding section 814.29 precluded vacating

defendant’s plea despite defendant receiving inadequate arrest-of-judgment

advisory and showing a substantial defect in her plea).

B. Breached Plea Agreement.

Whitten next argues that the prosecutor breached the parties’ plea

agreement by failing to recommend suspending the criminal fine and otherwise

failing to indicate the agreement merited acceptance. A prosecutor breaches a

plea agreement by acting “contrary to the common purpose of the plea agreement

and the justified expectations of the defendant,” thereby depriving “the defendant

of the benefit of the bargain.” State v. Patten, 981 N.W.2d 126, 131 (Iowa 2022)

(citation omitted). “Violations of either the terms or spirit of the agreement, even if

seemingly minor, are intolerable and adversely impact the integrity of the

prosecutorial office and the entire justice system.” Id. (cleaned up). Thus, “strict,

not substantial, compliance with the terms of plea agreements” is required. Id.

(citation omitted).

Here, there is no dispute the plea agreement provided for suspending the

minimum fine and the prosecutor failed to recommend the fine be suspended. On

appeal, the State offers no defense of the prosecutor’s recommendation. Rather,

the State exclusively argues that because it concedes that the district court’s

imposed criminal fine was not reduced by the amount of his prior civil penalty,

remanding to fix that miscalculation obviates the need to resolve the prosecutor’s
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breach. See Iowa Code § 908.11(5) (“[I]f the court revokes the probation of a

defendant who received a deferred judgment and imposes a fine, the court shall

reduce the amount of the fine by an amount equal to the amount of the civil penalty

previously assessed against the defendant . . . . However, the court shall assess

any required surcharge, court cost, or fee upon the total amount of the fine prior to

reduction pursuant to this subsection.”).

Yet the State’s approach puts the cart before the horse. Before we consider

whether the imposed criminal fine should have been reduced, we must address

the circumstances that led to the fine being imposed at all. Though it may be true

that the sentencing court would have imposed the fine even if the prosecutor had

recommended suspension, that is not enough to save Whitten’s sentence.

“[R]egardless of whether a prosecutor’s breach of a plea agreement was likely

ignored by the court, or even explicitly ignored, a breached plea agreement leaves

an indelible taint on the proceedings we cannot excuse or overlook.” Patten, 981

N.W.2d at 130–31 (citations omitted).

Whitten was deprived of the benefit of the bargain when the prosecutor

failed to recommend that the criminal fine be suspended. When prosecutors do

not strictly comply with the terms of a plea agreement, we “remand the case for

resentencing by a different judge, with the prosecutor obligated to honor the plea

agreement and sentencing recommendation.” State v. Lopez, 872 N.W.2d 159,

181 (Iowa 2015). Of course, this remand is “no criticism of the district judge,” id.,

particularly in light of Whitten’s counsel’s failure to object, see State v. Boldon, 954

N.W.2d 62, 70 (Iowa 2021) (allowing direct review of prosecutor’s alleged breach

of a plea agreement “even in the absence of contemporaneous objection” because
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it is “a species of sentencing error to which the traditional rules of error preservation

are inapplicable”).

In sum, we leave Whitten’s guilty plea intact, vacate his sentence, and

remand for resentencing by a different judge. Because Whitten’s sentence is

vacated, we do not reach the miscalculation issue under section 908.11(5).

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.