State of Iowa v. Eugene Frederick Wunschel Jr.

IN THE COURT OF APPEALS OF IOWA

No. 23-1349
Filed September 4, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

EUGENE FREDERICK WUNSCHEL JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Sac County, Adria Kester, Judge.

A defendant asks for resentencing before a different district court judge.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney

General, for appellee.

Considered by Tabor, C.J., and Greer and Schumacher, JJ.
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TABOR, Chief Judge.

Eugene Frederick Wunschel Jr. (Fred) and his brother John Wunschel

entered Alford pleas1 to lascivious acts with the same child. In both plea deals,

the State agreed to make no sentencing recommendation. The district court set

back-to-back hearings for the brothers. At John’s sentencing, the State presented

evidence from the victim’s custodian detailing the child’s struggles since the

molestation—possibly breaching its agreement to stand silent. At the start of

Fred’s hearing, his counsel asked the judge to recuse herself based on the

prosecutor’s conduct in John’s case. The judge declined and sentenced Fred to

an indeterminate ten-year prison term. Fred appeals, asking for resentencing

before a different judge.

Because the record reveals no abuse of discretion by the court in refusing

to recuse, we affirm.

I. Facts and Prior Proceedings

The victim told a child protection interviewer that Fred and John started

having sexual contact with her when she was thirteen years old. After further

investigation, the State pursued charges against both brothers.

In a trial information separate from his brother’s case, the State charged

Fred with two counts of sexual abuse in the third degree (in violation of Iowa Code

section 709.4 (2021)) and one count of lascivious acts with a child (in violation of

section 709.8(1)), all as second or subsequent offenses and all class “A” felonies.

Fred accepted a plea offer from the State to the reduced charge of lascivious acts

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“[A]n express admission of

guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty.”).
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with a child (in violation of Iowa Code section 709.8(1)(a), a class “C” felony). The

agreement anticipated that he would enter an Alford plea. In return, the State

agreed to dismiss the two other counts. The State also agreed to “remain silent”

at sentencing as to all applicable discretionary terms and provisions. The court

accepted the plea, finding it was knowing and voluntary and had a factual basis.

Fast forward to sentencing. At the beginning of the hearing, Fred’s attorney

made the following record:

Out of an abundance of caution, Your Honor—and I don’t do this
lightly, Judge—I feel like I’m compelled to move the court to recuse
itself from my client’s sentencing. While the defendants were not
charged together, their facts and circumstances did intertwine. They
are involving the same victim. Their plea offers and sentencing
recommendations mirror each other. And as such, Your Honor,
pursuant to our plea agreement, the State is to stand silent, which I
expect the State will do related to any recommendations. I also
believe that that means the presentation of evidence.

Counsel explained that he attended John’s hearing, at which the victim gave an

impact statement—as allowed under the code. But then “the current custodian

presented a rendition of what has happened since.” Counsel asserted that the

custodian’s statement violated the State’s promise to stand silent at sentencing.

[E]ven if that statement doesn’t occur in our proceeding, I feel the
need to ask the Court for that recusal. Because under Iowa caselaw,
when there’s a violation of the plea agreement related to standing
silent at sentencing, it is incumbent upon the defense attorney to
bring that to the court’s attention and then ask for sentencing in front
of a different judge. I believe the same would apply here, Your
Honor, because we have the same victim and similar circumstances.

Counsel argued that it was impossible to “un-ring the bell related to the statement

made by the current custodian as to everything that this young lady has endured

since this time, which I’m not making light of in any way, shape, or form, and would
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certainly apply similarly to my client in the court’s consideration.” So defense

counsel asked that Fred be sentenced in front of a different judge.

When the court asked for clarification, defense counsel acknowledged that

he was not alleging a violation of the plea agreement in Fred’s case. From there,

the court rejected the call for recusal,

The facts of this case are such that no violation of the plea agreement
has been alleged by this Defendant. The court routinely handles
matters regarding the same victim in different cases and my job is to
evaluate the information that’s presented to me for each individual
Defendant. I do not have blanket rules on how I sentence somebody.

After considering all the pertinent sentencing factors, including the nature of the

offense and the harm to the victim, the court imposed a prison term not to exceed

ten years. Fred appeals. 2

II. Scope and Standard of Review

We review a district court’s refusal to recuse for an abuse of discretion.

State v. Trane, 984 N.W.2d 429, 433 (Iowa 2023). We reverse only if the court

rests its decision on untenable grounds or acts unreasonably. Id. at 434.

Judges must disqualify themselves from any proceeding in which their

impartiality might reasonably be questioned. Iowa Code of Judicial Conduct

R. 51:2.11(A); see also Iowa Code § 602.1606(1)(a) (“A judicial officer is

disqualified from acting in a proceeding . . . if . . . [she] has a personal bias or

prejudice concerning a party.”).3 The test is objective: would a reasonable person

2
Because Fred challenges the sentencing procedure, rather than the plea itself,
we find good cause to hear his appeal. See State v. Patten, 981 N.W.2d 126, 130
(Iowa 2022).
3 Recusal and disqualification are interchangeable terms. Iowa Code of Judicial

Conduct R. 51:2.11 cmt. 1.
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knowing the facts doubt the judge’s impartiality? State v. Mann, 512 N.W.2d 528,

532 (Iowa 1994). Impartiality means the lack of bias or prejudice for or against a

party and the commitment to keeping an open mind on issues before the court.

Iowa Code of Judicial Conduct, Terminology. The party seeking recusal must

show that the judge’s “alleged bias and prejudice . . . stem from an extrajudicial

source and result in an opinion on the merits on some basis other than what the

judge learned from participation in the case.” Carter v. Carter, 957 N.W.2d 623,

644 (Iowa 2021) (quoting State v. Bear, 452 N.W.2d 430, 435 (Iowa 1990)).

III. Analysis

Fred contends that because the State “breached the plea agreement” at his

brother’s sentencing hearing, his own sentencing hearing should have been

rescheduled before a different judge. Fred recognizes that the breach did not

occur in his case. But he emphasizes that the two cases “involved the same

prosecutor, the same judge, the same victim, and interrelated underlying facts.”

We reject Fred’s contention for two reasons.

First, John’s sentencing is not part of our record. See Iowa R. App. P. 6.801

(defining composition of record on appeal); State v. Washington, 832 N.W.2d 650,

655–56 (Iowa 2013) (noting limited authority of appellate courts to take judicial

notice of court records in different proceedings without the agreement of both

parties). All we have is trial counsel’s argument that the State violated the plea

agreement in that related case by failing to stand silent and offering a statement

from the child’s custodian. On appeal, Fred argues that the prosecution “did not

deny that it had breached the plea agreement in the other case.” But neither did

the prosecution concede a violation. Instead, the prosecutor argued that the
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sentencing court was “capable of not considering evidence if it is, in fact, evidence

and not a presentation of a victim impact statement.”

True, the accused is denied the benefit of his bargain when the prosecutor

expresses material reservations about the agreed-to recommendation. See

Patten, 981 N.W.2d at 133−34. But it’s not clear that is what happened in John’s

case. Fred’s counsel observed that the prosecutor presented information about

the victim’s situation despite agreeing to take no position on John’s sentence. Yet

that presentation did not automatically breach their plea agreement. We do not

equate standing silent on sentencing recommendations with “offer[ing] no

information of any kind at sentencing.” State v. Smith, No. 04-0241, 2004 WL

2296708, at *1 (Iowa Ct. App. Oct. 14, 2004).

And second, even if we assume the State breached the plea agreement in

John’s case, Fred cannot show the district court abused its discretion in refusing

to recuse so that he could be sentenced by a different judge. When we dissect

Fred’s claim, we find an amalgam of recusal and reassignment theories. “Although

the line can grow fuzzy in individual cases, there are a number of important

differences between recusal and reassignment.” Toby J. Heytens, Reassignment,

66 Stan. L. Rev. 1, 8 (2014) [hereinafter Heytens]. On the one hand, “the whole

point of the recusal statutes is that certain judges should not be deciding certain

cases in the first place.” Id. at 10. When trial judges do not recuse from cases

when their impartiality might reasonably be questioned, an appellate court may set

aside their decisions to remedy that failure to recuse. Id. A recusal “decision is

inherently backward looking: the trial court judge is removed to remedy the failure

to recuse that occurred in the past.” Id.
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On the other hand, in reassignment cases, “the error that triggers appellate

reversal is not the trial court judge’s failure to remove herself from the case.” Id.

Instead, it is a non-recusal-related error—such as the prosecutor reneging on a

plea agreement—that prompts the appellate court to assign the case to a different

judge on remand. See State v. Lopez, 872 N.W.2d 159, 181 (Iowa 2015)

(reiterating that remedy for State’s breach of a plea agreement is resentencing by

a different judge with the prosecutor obligated to honor the plea agreement and

sentencing recommendation). Appellate courts “intend no criticism” of the trial

court by this action. Id. (citation omitted). Rather, “reassignment is inherently

forward looking: the original trial court judge is removed not to remedy some past

error, but rather to reduce the risk of undesirable consequences going forward.”

Heytens, at 10.

Fred essentially contends the district court should have done its own

appellate review by reassigning his case to a different sentencing judge after the

prosecution allegedly breached its plea agreement in John’s case. But the

question before the district court was recusal not reassignment. And this record

does not show that the district court harbored any bias toward Fred stemming from

an extrajudicial source. See State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976)

(explaining that “evidence presented in the trial of a prior cause” is not considered

extrajudicial). We find no abuse of discretion in the sentencing court’s denial of

the motion to recuse.

AFFIRMED.