State of Iowa v. Christopher Ryan Brekke

IN THE COURT OF APPEALS OF IOWA

No. 22-1407
Filed July 13, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CHRISTOPHER RYAN BREKKE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.

Christopher Brekke appeals his sentence following a guilty plea.

AFFIRMED.

Tiffany Kragnes, Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., Ahlers, J., and Gamble, S.J.*

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

(2023).
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GAMBLE, Senior Judge.

Christopher Brekke appeals following entry of a global plea agreement,

which resolved his charges in OWCR420586 for operating while under the

influence (OWI), third offense, and driving while barred. Under the agreement,

Brekke pleaded guilty to OWI third offense and the State dismissed the charge for

driving while barred. The agreement included the following sentencing

recommendation:

In OWCR420586[,] the defendant is noticed that any
conviction for OWI 3rd offense carries a mandatory minimum
sentence of 30 days incarceration. As such, the State is prohibited
from recommending probation. Any terms of the release, including
supervised probation and parole, will be determined by the Iowa
Department of Corrections (DOC), and the Iowa Board of Parole
(BOP). Therefore, the State will recommend an indeterminate term
of incarceration not to exceed 5 years, and the statutory minimum
fine of $3125.00.

Brekke never filed a motion in arrest of judgment following the court’s acceptance

of the global plea agreement. At sentencing, the State recommended Brekke be

sentenced “pursuant to the OWI continuum to a five year term of incarceration with

sixty days at [the Iowa Medical and Classification Center (IMCC)] and that he be

ordered to pay $3125.00 fine and his driving privileges be revoked for six years.”

The district court sentenced Brekke in accordance with the State’s

recommendation.

Brekke appeals. He fashions his appeal as a challenge to his sentence

asserting the State breached the plea agreement. See State v. Patten, 981

N.W.2d 126, 129–30 (Iowa 2022) (recognizing a defendant has good cause to

appeal following a guilty plea when the defendant claims the State breached the
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plea agreement). However, within his argument he makes two distinct claims:

(1) his plea was unknowing and (2) the State breached the plea agreement.1

As to his first claim, he contends the plea agreement misstated the law as

to whether the State could recommend probation resulting in his guilty plea being

unknowing. However, he failed to preserve error on this claim because he never

filed a motion in arrest of judgment challenging his plea as unknowing and was

previously adequately advised of his requirement to do so. See Iowa R. Crim.

P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea

proceeding by motion in arrest of judgment shall preclude the defendant’s right to

assert such challenge on appeal.”); State v. Tucker, 959 N.W.2d 140, 153–54

(2021) (discussing when a defendant must file a motion in arrest of judgment to

challenge a plea as unknowing or involuntary on appeal).

So we only consider his second claim—that the State breached the plea

agreement by failing to make a sentencing recommendation in conformity with the

plea agreement. At sentencing, the State recommended the court sentence

Brekke “pursuant to the OWI continuum to a five year term of incarceration with

sixty days at IMCC and that he be ordered to pay a $3125.00 fine and his driving

privileges be revoked for six years.” Brekke contends this breached the plea

agreement because although the agreement does not explicitly specify that the

State would recommend a minimum thirty days incarceration, it states that would

be the minimum possible sentence. So “it stands to reason the State agreed with

a thirty-day minimum sentence and Brekke relied upon that understanding and

1To the extent Brekke alleges he received ineffective assistance of counsel, we
cannot consider this claim on direct appeal. See Iowa Code § 814.7 (2022).
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statement with entering into the plea agreement.” Brekke argues the State

backtracked from the thirty-day minimum when it recommended a sixty-day

minimum. We disagree. The State’s sentencing recommendation is consistent

with the plea agreement.

Iowa Code section 321J.2(5) provides in relevant part,

A third or subsequent [OWI] offense is punishable by all of the
following:
a. Commitment to the custody of the director of the
department of corrections for an indeterminate term not to exceed
five years, with a mandatory minimum term of thirty days.
(1) If the court does not suspend a person’s sentence of
commitment to the custody of the director of the department of
corrections under this paragraph “a,” the person shall be assigned to
a facility pursuant to section 904.513.
(2) If the court suspends a person’s sentence of commitment
to the custody of the director of the department of corrections under
this paragraph “a,” the court shall order the person to serve not less
than thirty days nor more than one year in the county jail, and the
person may be committed to treatment in the community under
section 907.6.

The plea agreement correctly explained, “The defendant is noticed that any

conviction for OWI 3rd offense carries a mandatory minimum sentence of thirty

days incarceration.”2 The plea agreement continues, “As such, the State is

prohibited from recommending probation.” (Emphasis added.) This sentence is

confusing. The introductory phrase “[a]s such” refers to the mandatory minimum

of thirty days in the previous sentence. But the next clause says, “the State is

prohibited from recommending probation.” Read in isolation, this clause is

inaccurate. The State could have recommended a suspended sentence and

2 Under section 321J.2(5)(a), third offense OWI carries a thirty-day mandatory
minimum. The thirty days is served in jail if the sentence is suspended. Iowa Code
§ 321J.2(5)(a)(2). It is served in prison if the sentence is not suspended. Id.
§ 321J.2(5)(a)(1).
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probation. But under section 321J.2(5)(a)(2), if the court suspends the sentence,

the offender must serve a minimum of thirty days in the county jail with credit for

time served before a defendant may be placed on probation.3 While the plea

agreement is not a model of clarity, we believe the first and second sentences read

together reflect the understanding of the parties that the State could not

recommend probation without the thirty-day mandatory minimum. And this

understanding was confirmed when the Department of Correctional Services

amended the PSI to recommend a thirty-day jail term followed by probation.4

The plea agreement went on to explain, “Any terms of release, including

supervised probation and parole, will be determined by the Iowa Department of

Corrections (DOC), and the Iowa Board of Parole (BOP).” This is consistent with

our governing statutes. Cf. Iowa Code §§ 321J.2(5)(a)(1) (explaining if the court

does not suspend the sentence, “the person shall be assigned to a facility pursuant

to Iowa Code section 904.513”); 904.513(2) (explaining placement is determined

by DOC). Pursuant to section 904.513, the DOC developed the OWI continuum.

The OWI continuum worksheet attached to Brekke’s original presentence

investigation report provided for a short-term incarceration of sixty days followed

by the residential OWI program.

As to the State’s recommendation conforming with the plea agreement, the

plea explicitly stated the State would “recommend an indeterminate term of

3Brekke served twenty-three days prior to imposition of sentence.
4 An addendum to the presentence investigation report recommended probation
so Brekke could keep his job allowing him to use vacation to serve the remainder
of his thirty-day jail term. But the State recommended incarceration due to
Brekke’s prior OWIs and danger to the community.
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incarceration not to exceed five years, and the statutory minimum fine of

$3125.00.” The State did not breach the plea agreement by doing exactly what it

said it would in recommending the imposition of an indeterminate prison term not

to exceed five years. Its recommendation at sentencing to place Brekke at the

IMCC for sixty days of that sentence did not violate any implicit belief Brekke may

have had that the State would recommend placement for only thirty days. The

sixty-day placement was not a mandatory minimum sentence. It was a

consequence of Brekke’s indeterminate sentence because it was required by the

DOC’s OWI continuum. The plea agreement made clear the thirty-day

requirement was the minimum period of incarceration required but did not bind the

State to a minimum of thirty days in placement when the DOC required sixty.

Perhaps Brekke simply made that assumption. But it was not a reasonable reading

of the plea agreement. See Patten, 981 N.W.2d at 131 (“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.” (citation omitted)). We conclude the

State’s recommendation at sentencing was consistent with the purpose of the plea

agreement. Brekke’s expectation to the contrary was not justified.

Because the State did not breach the plea agreement when it made its

sentencing recommendation, we affirm.

AFFIRMED.