State of Iowa v. Cody James Ruden

IN THE COURT OF APPEALS OF IOWA

No. 23-0171
Filed August 21, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CODY JAMES RUDEN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

A defendant appeals his sentence for multiple convictions, alleging

ineffective assistance of counsel and a breach of the plea agreement by the

prosecutor. AFFIRMED.

Charles D. Paul of Nidey Erdahl Meier & Araguás, PLC, Cedar Rapids, for

appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Schumacher, P.J., and Ahlers and Badding, JJ.
2

SCHUMACHER, Presiding Judge.

Cody Ruden appeals his sentence following guilty pleas to eighteen

charges, alleging ineffective assistance of counsel and a breach of the plea

agreement by the prosecutor. We are prohibited from deciding Ruden’s ineffective

assistance of counsel on direct appeal.1 We conclude there was no breach of the

plea agreement by the prosecutor. Accordingly, we affirm.

I. Background Facts and Proceedings.

Ruden pled guilty to sexual abuse in the third degree, a class “C” felony,

two counts of attempting to entice a minor under the age of sixteen, aggravated

misdemeanors, and fifteen counts of sexual exploitation of a minor, aggravated

misdemeanors. Ruden entered his guilty pleas as part of a plea agreement in

which the State agreed to recommend a prison sentence not to exceed sixteen

years, a reduction from the maximum sentence of forty-four years. The plea

agreement provided that both the State and Ruden were free to argue at

sentencing. And that is what occurred at the hearing, with the State arguing for

incarceration, and Ruden arguing for a suspended sentence, probation, and

placement at a residential correctional facility.

Following the contested sentencing hearing, the court sentenced Ruden to

serve an indeterminate prison sentence not to exceed sixteen years. Ruden

appeals. He alleges ineffective assistance of counsel and contends the State

breached the plea agreement by conveying to the court that a sentence longer

1
The attorney who represented Ruden at plea and sentencing is the same attorney
who represents Ruden on appeal, claiming ineffective assistance of counsel.
3

than sixteen years was warranted and the only reason the State was limiting its

recommendation to a sixteen-year sentence was because it was required to do so

by the plea agreement.

Before reaching the merits, we first consider whether we have authority to

decide Ruden’s appeal. Because Ruden pled guilty, he must establish good cause

before our court has jurisdiction to hear his appeal. See Iowa Code

§ 814.6(1)(a)(3) (2023). We conclude that we have jurisdiction to hear the appeal

as Ruden met his burden of establishing good cause by claiming the prosecutor

breached the plea agreement. See State v. Boldon, 954 N.W.2d 62, 69 (Iowa

2021) (holding that challenging a claimed breach of the plea agreement

establishes good cause to appeal).

As Ruden has established good cause as to the breach-of-plea-agreement

issue, we have jurisdiction over the entire appeal. See State v. Rutherford, 997

N.W.2d 142, 146 (Iowa 2023). But Iowa Code section 814.7 deprives us of any

authority to decide Ruden’s claim of ineffective assistance of counsel on direct

appeal. See id. at 146–48. We therefore do not address Ruden’s ineffective-

assistance-of-counsel claim and limit our discussion to Ruden’s claim that the

prosecutor breached the plea agreement.2

II. Standard of Review

We review challenges to criminal sentences for correction of errors at law.

State v. Patten, 981 N.W.2d 126, 130, (Iowa 2022). We vacate a sentence when

2
The State’s appellate briefing is limited to Ruden’s claim of ineffective assistance
of counsel. We determine that Ruden’s brief sufficiently addresses the breach of
plea agreement issue and reach the merits.
4

the sentencing court abuses its discretion or there is some defect in the sentencing

procedure. Id. A prosecutor’s breach of the plea agreement is a defect in the

sentencing procedure. Id.

III. Analysis

When, as here, the prosecutor promises to make a sentencing

recommendation, we require the prosecutor to fulfill that promise. See State v.

Davis, 971 N.W.2d 546, 556 (Iowa 2022). Fulfilling the promise requires more than

just reciting the recommended sentence; it requires that the prosecutor present the

recommendation in such a way that makes it clear the recommendation has the

prosecutor’s approval, is supported by the State, and is worthy of the court’s

acceptance. Id. at 557.

Fulfilling the promise also prohibits the prosecutor from expressing material

reservations—both explicit and implicit—about the recommendation. Boldon, 954

N.W.2d at 71–72. Suggesting a more severe sentencing alternative is an example

of expressing an implicit reservation about the sentence. See State v. Horness,

600 N.W.2d 294, 299 (Iowa 1999). Another example of expressing implicit

reservations about a sentence is to emphasize the nature of the offense to suggest

incarceration would be more appropriate when the plea agreement called for a

recommendation of probation. See State v. Lopez, 872 N.W.2d 159, 178–80 (Iowa

2015).

“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. Frencher,
5

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. (quoting

State v. Bearse, 748 N.W.2d 211, 216 (Iowa 2008)). Here is what the prosecutor

argued at sentencing:

Thank you, your Honor. Your Honor, in this matter there’s a
plea agreement and under that plea agreement the State is only
allowed to request a term of 16 years in prison, so that is exactly
what the State is requesting today.
This defendant is a threat to the community. This defendant
is a threat to the most vulnerable part of this community, minors and
underage children in this matter. He pled guilty to sexually abusing
an underage girl . . . who is here in the courtroom today.
She needed a Wi-Fi password. It was COVID times, and she
was home from school and isolated from her friends. The defendant
took advantage of that and coerced her into a sex act in order to
receive a Wi-Fi password. He’s taking no accountability, according
to the [presentence investigation (PSI)] and to his own therapist, who
submitted a report in this matter.
But this one act was not the end. Then twice on two separate
dates the defendant again attempted to entice [the minor child victim]
to perform oral sex on him.
On February 2 of 2021 he texted her, “Wannacome give me
prebday head and bday sex tomorrow?” Which she refused. He
then continued, “Even tonight do you want my cock in your ass or
not.”
On February 26 of 2021, the harassment and enticement
continued. She again asked for the Wi-Fi password and he said,
“Changed it done giving people shit for free ‘why’”? And [the minor
child victim] responded, “Do you want money?” Meaning money in
exchange for the password. And he responded, “Sucked more.” A
conversation continues about oral sex for a Wi-Fi password.
The defendant is also a threat to children of all ages. He
entered pleas to all of these other counts of possession of minors in
sexual acts. Child pornography, as it’s generally called, is not a
victimless crime. These children continue to be exploited every time
Mr. Ruden looks at their photographs for sexual pleasure.3

3
While there was no objection to the terminology used at sentencing, we note that
at least one court has noted that child pornography is more appropriately called
6

I’m not going to read all of the depictions, but the images that
Mr. Ruden looked at for his own sexual pleasure were children
ranging in age from Tanner Stage 1, which is about as young as you
can get for a child, someone generally under the age of eight, to
Tanner Stage 2, which is someone who is usually 10 or 11 years old.
There were images of a completely nude female child with her
legs spread showing her vagina in a lascivious manner, a female
child with legs spread and adult male penis inside of her vagina. That
child was Tanner Stage 1. These are hard things to even read.
It goes on and on. Several counts of these things. And I
would also note that one of the counts includes a video that the
defendant made of a minor child that he is related to showing her in
a state of undress and that he took a blanket off of her.
During his PSI, the defendant was not honest about what he
did. We even had to recess and come back and do the sentencing
hearing today because the defendant decided to proclaim his
innocence during the PSI interview process after he on the record in
front of a judge admitted to these offenses.
[The investigating officer], who was deposed by the defense
during this case—for instance, he told the PSI interviewer that he
was intoxicated when he got arrested, trying to explain why he was
confused, and he might have made some admissions, that he was
hanging out with friends. We know from her deposition and the
police report that’s not true.
[The investigating officer] found the defendant alone
masturbating when he was arrested. She’s trained to detect signs of
intoxication. He was not intoxicated. He admitted to her during the
interaction that he likes, quote, “young porn,” saying, quote, “young
teen porn,” and, quote, “I type in ‘little girl’”, quote, when searching
for pornography.
We’re going to hear a lot of supposedly mitigating factors from
the defense during this hearing. I would submit the fact that the
defendant entered guilty pleas and didn’t hold the State to its burden
should not be considered mitigating.
The State has no concern about its ability to meet its burden
if this case had gone to trial. The important thing to focus on here is
the defendant’s lack of insight into the harm he has caused not only
[to the minor child victim], but the other children, and his complete
lack of insight or sympathy for what he has done to these kids.
The PSI says he has a limited understanding of the
seriousness of the sexual abuse. These interviews talk about that

“Child Sexual Abuse Material.” Because of the lack of consent, it is not possible
to make “pornography,” instead it is evidence of a child being sexually abused,
making “Child Sexual Abuse Material” or “Child Sexual Abuse Images” a more
appropriate title. See United States v. Larson, No. 5:19-CR-50165-RAL, 2023 WL
196171, at *1 n.1 (D.S.D. Jan. 17, 2023).
7

he has mental health problems, he has medical problems. Well, the
fact is, these make him more of a danger to the community. He lacks
impulse control. He has ADHD, which leads to impulsive acts, and
he is noncompliant with his ADHD medication.
The PSI recommends prison, and that is the only acceptable
outcome for this case because the community is not safe from the
defendant. Any individual from [the minor child victim]’s age and
younger is not safe if this defendant is not in prison.
So the State is recommending the maximum we are allowed,
which is that the ten-year prison sentence recommended by the PSI
be implemented and that, additionally, three of the aggravated
misdemeanors be run consecutive for that period of sixteen years.

In support of his breach of the plea agreement argument, Ruden relies on

Bearse, 748 N.W.2d at 211. In Bearse, the prosecutor initially asked that the

sentencing court impose incarceration. Id. at 213. When informed by the

sentencing court that such recommendation was contrary to the plea agreement,

the prosecutor stated that the court was not bound by the plea agreement, but

clarified that the State would abide by the plea agreement. Id. Ruden’s sentencing

hearing is easily distinguishable. The prosecutor never asked for a greater period

of incarceration than agreed to, never informed the court that the court could reject

the plea, and informed the court twice about the term of incarceration the State

was recommending in accordance with the plea agreement.

Ruden’s facts are more akin to Bolden, in which the parties bargained for

each party to allow to make recommendations for sentencing. 954 N.W.2d at 66.

In concluding that the prosecutor did not breach the plea agreement, our supreme

court stated:

Here, the prosecutor recommended concurrent sentences in
accord with the parties’ plea agreement. The prosecutor stated, “The
State is recommending that the counts run concurrently with each
other.” The prosecutor then went on to discuss those factors that
justified incarceration. At no time during the sentencing proceeding
did the prosecutor suggest consecutive sentences would be more
8

appropriate than concurrent sentences. The parties agreed the State
would recommend concurrent sentences but be free to argue for a
term of incarceration while the defendant would be free to argue for a
deferred judgment or suspended sentence. That is what occurred.

The fact the parties bargained for a contested sentencing hearing

distinguishes this case from those in which the prosecutor technically complied

with the plea agreement but expressed material reservations regarding the plea

agreement or sentencing recommendation. See United States v. Cachucha, 484

F.3d 1266, 1270–71 (10th Cir. 2007) (“While a prosecutor normally need not

present promised recommendations to the court with any particular degree of

enthusiasm, it is improper for the prosecutor to inject material reservations about

the agreement to which the government has committed itself.” (quoting United

States v. Canada, 960 F.2d 263, 270 (1st Cir. 1992))). Where the prosecutor

technically complied with the plea agreement but expressed material reservation

regarding the same, “it can be fairly said the State deprived the defendant of the

benefit of the bargain and breached the plea agreement.” Frencher, 873 N.W.2d

at 284.

Ruden has failed to establish that the prosecutor acted contrary to the

common purpose of the plea agreement and thereby deprived him of the benefit

of the bargain. See id. As in Boldon, the prosecutor was free to argue for

incarceration. 954 N.W.2d at 66. That is what occurred here. The prosecutor

twice informed the court that the State was asking the court to impose the terms

set forth in the plea agreement, which was only to cap the maximum term of
9

incarceration. The State fulfilled its promise. Accordingly, we affirm as to Ruden’s

sentencing challenge.

AFFIRMED.

Badding, J., concurs; Ahlers, J., dissents.
10

AHLERS, Judge (dissenting).

The majority and I see eye to eye on the legal principles at issue in this

case, but we have different views on how those principles apply. As a result, I must

respectfully dissent.

Everyone agrees the State entered a plea agreement that obligated it to

recommend a prison sentence of no longer than sixteen years. The prosecutor

didn’t get off to a very good start. As quoted in the majority opinion, when given

the floor to give the State’s position on sentencing, the prosecutor told the court

that, under the terms of the plea agreement, “the State is only allowed to request

a term of sixteen years in prison, so that is exactly what the State is requesting

today.” The only purpose I can see for the prosecutor adding the “only allowed”

comment was to suggest that a longer sentence was more appropriate. In my

view, this was probably already an impermissible reservation about the agreed-

upon recommendation. See State v. Patten, 981 N.W.2d 126, 131–32 (Iowa 2022)

(prohibiting express or implied reservations about a recommended sentence);

State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999) (holding that suggesting a

more severe sentencing alternative is an example of expressing an implicit

reservation about the sentence). But I recognize that, in the heat of the moment,

slips of the tongue can occur that result in less-than-ideal phrasing. So, I give the

prosecutor the benefit of the doubt and look at what came next to see if the “only

allowed to request” reservation was a slip of the tongue or part of an effort to

undermine the agreed-upon recommendation.
11

What came next is the lengthy harangue vilifying Ruden that is quoted

verbatim in the majority opinion. Don’t get me wrong in how I characterize the

prosecutor’s statement. This was a contested sentencing, and Ruden was asking

for an incredibly light sentence under the circumstances—maybe even offensively

light, in the eyes of the prosecutor—so the prosecutor was justified in aggressively

highlighting some of the negative sentencing factors in an effort to get the court to

go along with the State’s recommendation. But the fact that the sentencing was

contested did not relieve the prosecutor of her obligation to present the State’s

recommendation in such a way that made it clear the recommendation had the

prosecutor’s approval, was supported by the State, and was worthy of the court’s

acceptance. See Patten, 981 N.W.2d at 131. I challenge anyone to find anything

in the prosecutor’s lengthy statement that suggests the prosecutor approved of the

sixteen-year recommendation, that it was supported by the State, or that it was

worthy of the court’s acceptance. Such commendation is simply not there.

Not only did the prosecutor not make the required commendation of the

recommended sentence, but at the end of her statement, she doubled down on

the theme with which she started—that being apparent disgruntlement about being

capped at a recommendation of sixteen years—when she again said the State was

recommending “the maximum we are allowed.” Especially coming on the heels of

having emphasized the nature of Ruden’s offense and describing how dangerous

he is, this statement impliedly expresses material reservations about the

recommended sentence of sixteen years by suggesting a longer sentence is

warranted. See State v. Lopez, 872 N.W.2d 159, 178–80 (Iowa 2015) (noting that

emphasizing the nature of the offense to suggest a harsher sentence than that
12

recommended is an example of expressing implicit reservations about the

recommendation). The prosecutor’s closing remark not only communicated an

implied reservation about the recommended sentence, but it shows the

introductory remark stating the same theme was no slip of the tongue.

If I understand the majority opinion correctly, it relies on the prosecutor’s

comments at the beginning and end of her statement where she states that the

State recommends a term of incarceration of sixteen years as having satisfied the

prosecutor’s obligation. But even ignoring the fact that I believe those statements

are tainted by the “only allowed” phrasing I’ve already discussed, these statements

are nothing more than a recital of the sentencing recommendation, and our case

law is quite clear that mere recital of the recommendation doesn’t cut it. See State

v. Davis, 971 N.W.2d 546, 557 (Iowa 2022) (“[W]e have made clear the prosecutor

must do more than simply recite the agreed recommended sentence.” (quoting

Lopez, 872 N.W.2d. at 173)). To fulfill the State’s obligation, the prosecutor was

required to indicate that the recommended sentence had the prosecutor’s

approval, was supported by the State, and was worthy of the court’s acceptance

of it. Patten, 981 N.W.2d at 131 (“Prosecutors cannot simply inform the court of

the agreement, they must present the recommended sentences with their

approval, commend the sentences to the court, and otherwise indicate to the court

that the recommended sentences are supported by the State and worthy of the

court’s acceptance.” (cleaned up) (citation omitted)). The prosecutor did not do

that.

Because the prosecutor failed to make the required commendation of and

impliedly expressed reservations about the recommended sentence, the State
13

breached the plea agreement. As a result, I would vacate Ruden’s sentences and

remand for resentencing before a different judge, with the prosecutor obligated to

honor the plea agreement and sentencing recommendations. See Lopez, 872

N.W.2d at 181.