State of Iowa v. Amber Diane Movick

IN THE COURT OF APPEALS OF IOWA

No. 23-0941
Filed April 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

AMBER DIANE MOVICK,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman

Salic, Judge.

A defendant appeals the sentence imposed upon her drug conviction.

AFFIRMED.

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

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Considered by Schumacher, P.J., Ahlers, 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.

Amber Movick appeals the sentence imposed upon her conviction for

possession of methamphetamine, third offense. She argues (1) the State

breached the plea agreement by failing to endorse the agreed-upon sentencing

recommendation, and (2) the district court erred by not ordering an updated

presentence investigation report (PSI) or ensuring she waived her right to its use

in sentencing.

I. Background Facts and Proceedings

In May 2022, Movick was arrested for third-offense possession of

methamphetamine. She was granted pre-trial release on the condition that she

obtain a substance-use evaluation and comply with any resulting

recommendations. The court scheduled a plea hearing for July 19 after it was

advised that Movick intended to enter a plea of guilty. On Movick’s motion and

with agreement by the State, it was continued to August 2. Movick failed to appear

for that hearing, and a warrant issued for her arrest.

Roughly a week later, Movick filed a written plea of guilty to the charged

crime. The plea document noted the parties would offer a joint sentencing

recommendation including a suspended five-year term of imprisonment, a

suspended fine and surcharge, probation, the completion of a substance-use

evaluation, and compliance with any treatment recommendations.1 It also noted

the sentencing recommendation would not be binding on the sentencing court.

The next day, the court accepted the plea, scheduled sentencing for October 10,

1 The plea document also called for Movick pleading guilty in a separate simple

misdemeanor case to striking an unattended vehicle.
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and ordered the preparation of a PSI. While Movick was arrested on the pending

warrant the same day, she was again granted pre-trial release.

The PSI was completed prior to the October sentencing date. The PSI

noted that Movick was repeatedly unresponsive to the investigator’s attempts at

completing the investigation and providing the necessary paperwork. It was

therefore completed based on the information available. Movick failed to appear

for sentencing, and a warrant again issued for her arrest. Roughly two weeks later,

defense counsel filed a “motion to recall warrant and reset sentencing,” in which

he noted Movick appeared at the wrong courthouse for sentencing and “she has

now turned in her PSI paperwork.” Counsel also stated “[f]urther order may be

needed” to have the previously prepared PSI amended. The court entered orders

canceling the warrant and rescheduling sentencing for November.

Movick again failed to appear for sentencing in November, and another

warrant issued for her arrest. In December, defense counsel moved to withdraw

due to lack of contact with Movick, and the motion was granted. Movick was

arrested on the warrant in May 2023, and the court rescheduled sentencing to

occur a week later. New counsel was then appointed, and the court again

continued sentencing until May 22, to allow counsel to prepare.

At the sentencing hearing, the court noted its receipt of the PSI, although it

“did not contain any recommendations due to the defendant’s failure to participate

in the investigation.” When asked whether she had any objections or corrections

to offer regarding the PSI, defense counsel said no. Counsel later added there

was no legal reason why sentencing could not proceed.
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When asked for the State’s sentencing recommendation, the prosecutor

stated the following:

I’m pretty sure that the State is recommending a suspended
sentence and probation, Your Honor. Can I have a moment to review
the plea offer?
....
My offer to [defense counsel] as of May 19, 2022, was that for
her pleading guilty as charged . . . we would recommend a term not
to exceed five years, fully suspended, for the possession of a
controlled substance, third offense, methamphetamine; the
mandatory minimum $1025 fine, also suspended, with a
suspended 15 percent surcharge; and this, I think, is an issue that
we talked about prior to sentencing, a condition of the probation that
I’m recommending is completion of a substance abuse evaluation
and follow through with any treatment. Technically she was required
to do that pretrial, I don’t think that ever got done, but I indicated to
defense counsel that I would be agreeable to accomplishing that as
part of probation or whatever the court sentences today . . . .
Your Honor, I believe that given her criminal history, and I’m
ignoring the developments since the plea change and would think it’s
appropriate for the court to ignore those too, but that’s up to you, I
believe this is an appropriate sentence given her criminal history and
the facts of this case and probation would allow her time to undo any
negative inferences from the things that have happened since the
plea change, so I would urge the court to follow the State’s
recommendation.

When asked for her sentencing recommendation, defense counsel concurred with

the State’s recommendation.

In reaching its sentencing decision, the court noted its consideration of the

need for protection of the community, the nature of the offense, the

recommendations of the parties, the PSI, Movick’s personal circumstances, her

extensive criminal history, her prior opportunities for rehabilitation, her failures to

appear and absconsion in this case, her failure to participate in the PSI process,

“and anything else I’ve learned about you throughout the proceeding.” Based on

those circumstances, the court decided a suspended sentence with probation
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would be insufficient to facilitate the goals of sentencing. The court then imposed

an indeterminate term of imprisonment not to exceed five years, a minimum fine,

and a surcharge. Movick appeals.

II. Discussion

On appeal, Movick argues (1) the State breached the plea agreement by

failing to endorse the agreed-upon sentencing recommendation, and (2) the district

court erred by not ordering an updated PSI or ensuring she waived her right to its

use in sentencing. We review sentencing challenges for correction of errors at law

and will not reverse the sentence imposed unless there was an abuse of discretion

or some defect in the sentencing procedure. State v. Davis, 971 N.W.2d 546, 553

(Iowa 2022). We address Movick’s claims in turn.

A. Breach of the Plea Agreement

As to the alleged breach of the plea agreement, Movick argues “[t]he

prosecutor in this case failed to truly recommend the agreed upon sentence.”

Movick focuses on the prosecutor’s reference to developments since the guilty

plea—which Movick says was a reference to her failures to appear—and that,

although the prosecutor said he was ignoring those developments and the court

should too, “he added the caveat, ‘but that’s up to you.’” According to Movick,

“[t]his tepid recitation of the plea agreement, including the frequent reminders of

[her] misdeeds, was insufficient to fulfill the terms of the plea agreement.”

“The relevant inquiry in determining whether the prosecutor breached the

plea agreement is whether the prosecutor acted contrary to the common purpose

of the plea agreement and the justified expectations of the defendant and thereby

effectively deprived the defendant of the benefit of the bargain.” State v.
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Boldon, 954 N.W.2d 62, 71 (Iowa 2021) (quoting State v. Frencher, 873

N.W.2d 281, 284 (Iowa Ct. App. 2015)). “Where the prosecutor has agreed to

make a particular sentencing recommendation, the prosecutor must do more than

simply inform the court of the promise the State has made to the defendant with

respect to sentencing. The State must actually fulfill the promise.” Id. (cleaned

up). “[T]echnical compliance” with the terms of the plea agreement does “not

suffice if the prosecutor otherwise ‘undercut[s] the plea agreement.’” State v.

Beres, 943 N.W.2d 575, 582 (Iowa 2020) (second alteration in original) (quoting

State v. Lopez, 872 N.W.2d 159, 170 (Iowa 2015)).

To begin, the State expressly offered the agreed-upon joint sentencing

recommendation. See Boldon, 954 N.W.2d at 71 (finding no breach where

prosecutor’s recommendation was “in accord with the parties’ plea agreement”).

At no time did the prosecutor suggest prison would be more appropriate than a

suspended sentence and probation. See id. (finding no breach where prosecutor

did not suggest consecutive sentences would be more appropriate than concurrent

sentences as required by the plea agreement). It is true that the prosecutor

passively referenced some of Movick’s shortcomings since she entered her plea.

But the State went on to explain those matters did not change its mind about its

sentencing recommendation. Moreover, the State continued to advocate for

probation despite those shortcomings, which would allow Movick “time to undo any

negative inferences from the things that have happened since the plea change.”

The prosecutor did not express any regret about agreeing to suspended

sentences, undercut the recommendation by referring to other more severe
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sentencing options, or otherwise express any material reservations about the joint

sentencing recommendation. See id. at 71–72.

In all, while the prosecutor implied to the court that it did not need to overlook

what transpired since Movick entered her plea, the prosecutor still floridly

advocated for the joint sentencing recommendation. Therefore, we are unable to

conclude “the prosecutor acted contrary to the common purpose of the plea

agreement and the justified expectations of the defendant and thereby effectively

deprived the defendant of the benefit of the bargain.” Id. at 71.

B. PSI

Next, Movick argues “the district court erred by not ordering an updated PSI

or by failing to ensure [she] waived her right to the use of a PSI.” Movick complains

the PSI was prepared “without input from” her and points out she later turned in

her investigation paperwork and her counsel stated in a motion that an additional

order for amendment of the PSI may be needed. She additionally complains the

PSI was never amended and the sentencing court “expressed frustration with the

lack of information in the PSI” at the time of sentencing. Movick argues the court

was required to either order the PSI be updated or secure a valid waiver of the use

of the PSI at sentencing.

The State argues that, because the “claim is that the error occurred in the

proceedings prior to imposition of sentence” and “does not involve the inherent

power of the court to sentence” Movick for the crime, Movick was required to

preserve error by moving to have the PSI updated but failed to do so. State v.

Gordon, 921 N.W.2d 19, 23 (Iowa 2018). According to the State, Movick was
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required to bring these “matter[s] to the court’s attention at the time of sentencing,”

id. at 24, and that the court was not required to order the PSI updated sua sponte.

In response, Movick does not dispute that error preservation was indeed

required. Instead, she argues she preserved error because, after she turned in

her paperwork, her attorney noted in a motion that “[f]urther order may be needed

to have the [judicial district department of correctional services] amend or append

the PSI that has already been prepared.” Movick also claims she “questioned the

lack of an update when her attorney failed to bring it up at the sentencing hearing.”

We accept the parties’ agreement that error preservation was required. See

State v. McKinney, No. 22-0708, 2023 WL 4104031, at *2–3 (Iowa Ct. App.

June 21, 2023) (discussing Gordon and the error-preservation distinction between

claiming error in the proceeding extrinsic to the court’s inherent sentencing power

and claiming the sentence is intrinsically flawed). On our review of the record, we

find no concrete request was ever made that the PSI be updated, and the district

court certainly never ruled on such a request. See Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.”). While counsel passively noted in the motion that an

update may be needed, he never formally requested an update, and the court

never ruled on the passing comment. While Movick claims she requested that the

PSI be updated at the sentencing hearing, she only points to her statement that

she filled out her paperwork and turned it in. Neither was this a request that the
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PSI be updated.2 Because an updated PSI was never requested let alone ruled

upon, we agree with the State that error was not preserved. Because no one

objected, the court was authorized to consider the PSI as it existed. See State v.

Grandberry, 619 N.W.2d 399, 402 (Iowa 2000). And because it was considered,

the court did not need to secure a waiver of its use.

III. Conclusion

We affirm, concluding the prosecutor did not breach the plea agreement

and Movick failed to preserve error on her claims regarding the PSI.

AFFIRMED.

2 Before the court imposed sentence, it allowed Movick an opportunity to exercise

her right of allocution. See Iowa Code § 901.4B (2022); Iowa R. Crim. P.
2.23(2)(d)(3). Specifically, the court told Movick “you have the right of allocution,
which is your opportunity to tell me anything else you’d like me to consider before
I decide what your sentence should be. Is there anything that you want me to
know?” Movick responded, “No, ma’am.” The court then proceeded to survey
Movick’s lengthy criminal history, although it commended her for the years during
which she had no criminal charges. Movick then explained what transpired since
the entry of her plea, shifting part of the “miscommunication” and blame to her
attorney and others. While Movick went on to state she turned in her “paperwork,”
this was not even an informal motion for the PSI to be updated.