State of Iowa v. James Milton Morgan Jr.

IN THE COURT OF APPEALS OF IOWA

No. 23-2000
Filed January 9, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JAMES MILTON MORGAN JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.

A defendant appeals his sentence for two burglary convictions.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney

General, for appellee.

Considered by Tabor, C.J., and Chicchelly and Sandy, JJ.
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TABOR, Chief Judge.

Our courts “place a heightened expectation on prosecutors to meticulously

carry out the promises they make as part of a plea deal.” See State v. Patten, 981

N.W.2d 126, 128 (Iowa 2022). As part of that expectation, prosecutors must

recommend the agreed-upon sentence, not just inform the court what the

agreement is. Id. at 131. Because the prosecutor appearing at James Morgan

Jr.’s sentencing for two counts of burglary violated the plea agreement by making

no recommendation for concurrent sentences, we vacate the consecutive ten-year

terms and remand for resentencing.

I. Facts and Prior Proceedings

In 2023, on April 29 and again on May 1, Morgan broke into the apartment

of his former girlfriend. Both times, she awoke to him “hovering” over her. During

the second break-in, Morgan sprayed “bear mace” at her face. Not only did

Morgan lack permission to enter the victim’s home, but he was subject to a no-

contact order in connection with two domestic abuse assault charges.

The State charged Morgan with two counts of burglary in the second

degree, class “C” felonies, in violation of Iowa Code section 713.5 (2023). He

entered a plea agreement with the State, which the prosecutor outlined at the

August guilty plea hearing:

In the two felony matters before the Court today the defendant would
be pleading guilty to burglary second in each of those. The State
would be asking that these two cases run concurrently, or at the
same time with one another, and then he has two misdemeanor
cases that were also going to be taken into consideration.
One of them he would be pleading guilty to and that would
also, the State would agree, run concurrently with the felony matters.
The other one would be dismissed at his cost. The defendant would
be free to argue for any disposition he would like. The State would
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be bound to be requesting concurrent time and not consecutive time.
The fines would be suspended where possible.

A different prosecutor appeared at the December 2023 sentencing hearing.

When asked for its sentencing recommendation, the prosecutor stated:

Your Honor, the State is recommending that in both of the
felony cases, the defendant receive a ten-year sentence, a prison
term that would be imposed, and that the defendant be remanded to
the custody of the Department of Corrections.
It is my understanding that the agreement between the parties
is that those sentences will run concurrent to one another, and then
any fines that would be assessed. [The prosecutor who reached the
plea agreement] didn’t provide me with any notes on that, but I would
assume they would be minimal fines and suspended to the extent
they can be. Victim restitution, if there is any to be imposed. And
then the State has argument if the Court would like to hear it as to
why the State is recommending prison.

The court responded: “I would like to hear it.” The prosecutor then gave a

lengthy rendition of Morgan’s criminal history and described these two burglaries

as “both very, very terrifying criminal incidents.” In his turn, Morgan asked for

placement in a residential correctional facility. The court imposed consecutive

prison terms for a total sentence not to exceed twenty years. Morgan appeals that

sentence, arguing the State breached the plea agreement.

II. Analysis

We review Morgan’s sentencing claim for the correction of legal error. See

State v. Davis, 971 N.W.2d 546, 553 (Iowa 2022).1 An example of legal error is

the State’s breach of a plea agreement. Patten, 981 N.W.2d at 130. When

deciding whether there was a breach, we hold prosecutors to “strict, not

1 Morgan has good cause to appeal under Iowa Code section 814.6(1)(a)(3))
because he is challenging the sentence imposed based on the prosecutor’s
alleged breach of the plea agreement rather than the plea itself. See Davis, 971
N.W.2d at 554.
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substantial, compliance with the terms of plea agreements” they reach with the

accused. State v. Fannon, 799 N.W.2d 515, 522 (Iowa 2011).

Morgan contends that the prosecutor failed to uphold the State’s promise to

recommend concurrent sentences; what he did instead was recite the agreement

and then provide information that “expressed implicit reservations” about the

sentence proposed in the plea agreement. We agree with Morgan’s contention.

For decades, our appellate courts have emphasized “that the State’s

promise to recommend specific sentences to the court requires the prosecutor to

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

sentences to the court, and to [indicate] 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). By contrast, it is not enough to just “inform” the

court of the agreement reached. Patten, 981 N.W.2d at 131.

This case falls into the “inform only” category. The prosecutor did nothing

more than relay the content of the agreement. He started by telling the court that

the State was “recommending that in both of the felony cases, the defendant

receive a ten-year sentence, a prison term that would be imposed and that the

defendant be remanded to the custody of the Department of Corrections.” When

referencing the State’s sentencing concession, he did not recommend, commend,

or otherwise suggest that concurrent sentences deserved the court’s acceptance.

Rather, he gave this lackluster summation of the plea bargain: “It is my

understanding that the agreement between the parties is that those sentences will

run concurrent to one another.”
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The State maintains that the prosecutor was free to argue in support of a

prison term rather than probation and placement at a residential facility. It

compares Morgan’s case to State v. Boldon, arguing there is no breach of a plea

agreement where the prosecutor recommends concurrent terms but also

“identifie[s] factors militating in favor of a prison sentence.” 954 N.W.2d 62, 67

(Iowa 2021). But Boldon is distinguishable. There, the prosecutor said outright:

“The State is recommending that the counts run concurrently with each other.” Id.

The Boldon court found that the prosecutor “complied with the spirit and letter of

the plea agreement” by recommending concurrent terms while countering the

defense request for a deferred judgment. Id. at 72. Not so here. The prosecutor

did not advocate for concurrent terms. He did not even make a “perfunctory

request” for the court to adopt the plea agreement. See Patten, 981 N.W.2d at

132. “Having found at least implicit material reservations in the prosecutor’s

explanation,” we cannot conclude that the State fulfilled its promise to recommend

concurrent sentences. Id. at 133.

“[T]he remedy for the State’s breach of a plea agreement as to a sentencing

recommendation is to 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). In doing

so, “[w]e intend no criticism of the district [court] judge.” Id. (quoting United States

v. Cachucha, 484 F.3d 1266, 1271 (10th Cir. 2007)).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.