State of Iowa v. John Robert Grafton

IN THE COURT OF APPEALS OF IOWA

No. 23-1746
Filed February 5, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JOHN ROBERT GRAFTON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.

A defendant appeals his sentences stemming from a rule 2.10(3) plea

agreement. SENTENCES VACATED AND REMANDED FOR RESENTENCING

WITH DIRECTIONS.

Martha J. Lucey, State Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Joshua Henry and Darrel Mullins,

Assistant Attorneys General, for appellee.

Heard by Greer, P.J., and Langholz and Sandy, JJ.
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SANDY, Judge.

“As with the wisdom about liberty, it seems that the price of justice in a

system driven by plea bargaining is eternal vigilance.” State v. Hanes, 981

N.W.2d 454, 464 (Iowa 2022) (McDermott, J., dissenting). This case provides a

stark reminder that a lack of vigilance during the plea-bargaining process can result

in deprivations of liberty for criminal defendants.

John Grafton entered into a universal plea agreement with the State to

resolve three separate criminal cases pending against him. Grafton maintains the

plea agreement he entered into was an Iowa Rule of Criminal Procedure 2.10(3)

plea agreement conditioned on the district court’s concurrence. At the conclusion

of his sentencing hearing, Grafton received a harsher sentence than the sentence

contemplated by his plea agreement. On appeal, Grafton challenges his sentence

arguing (1) he should have been given an opportunity to withdraw his plea; (2) the

sentence violates double jeopardy; and (3) the district court abused its discretion

in sentencing him.

Because we find Grafton entered into a rule 2.10(3) plea agreement and the

district court rejected the agreement, we conclude the district court was required

to give him an opportunity to withdraw his plea. It did not do so. Accordingly, we

vacate his sentence and remand for resentencing with directions.

I. Background Facts and Proceeding Facts

Over the course of 2023, the State initiated three separate criminal cases

against Grafton. In case number OWCR427347, Grafton was charged by trial

information with operating while intoxicated (third offense), a class “D” felony;
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driving while barred, an aggravated misdemeanor; and driving while license denied

or revoked, a serious misdemeanor.

In case number OWCR428222, he was charged by trial information with

operating while intoxicated (third offense), a class “D” felony; eluding a pursuing

law enforcement vehicle in excess of the speed limit by twenty-five miles per hour

or more, a class “D” felony; driving while barred, an aggravated misdemeanor; and

two counts of driving while license denied or revoked, each a serious

misdemeanor.

Finally, in case number FECR430922, Grafton was charged by trial

information with theft in the second degree, a class “D” felony; and operating a

vehicle without owner’s consent, an aggravated misdemeanor. In each case, the

State indicated it would seek sentencing enhancements based on Grafton’s status

as a habitual offender.

In July 2023, Grafton entered into a universal plea agreement with the State

to resolve the three cases pending against him. As a condition of the agreement,

Grafton agreed to plead guilty to all pending charges across the three cases.

Additionally, the plea agreement provided:

This is an open plea. Each of the parties are free to make any
sentencing recommendation they deem appropriate. However, on
the express condition that this plea is accepted by August 31, 2023
the State agrees to the following sentencing concessions: (1) The
State will not seek the habitual offender sentencing enhancement;
(2) The State will recommend that any sentences imposed in Case
FECR430922, OWCR42822, and OWCR[4]27347 run concurrent to
each other and concurrent to a probation revocation in Case
FECR420863.

On the last page of the plea agreement, the following sentence appeared in bold

type: “Concurrence of the Court to this Agreement is/is not a condition to the
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acceptance of the plea.” Neither the defendant nor the State circled or crossed

out either option.

Fortunately, the plea agreement was not the only written document filed.

On the same day the plea agreement was entered into, Grafton filed written guilty

pleas in each of the three cases. All three written guilty pleas indicated the plea

agreement was conditioned on the district court’s concurrence and provided:

This written guilty plea is entered pursuant to Iowa Rule of Criminal
Procedure 2.10 based upon an agreement with the State concerning
the charge(s) against me and my sentence. If, at the time of
sentencing, the court does not accept the plea agreement, I may
withdraw my plea of plea of guilty.

Following the entry of the plea agreement, the district court issued an order in each

of the three respective cases accepting the plea agreement. In case numbers

OWCR427347 and OWCR42822, the district court expressly stated, “the Court’s

concurrence IS a part or condition of the plea agreement,” and that Grafton would

be afforded an opportunity to withdraw the guilty plea” if the district court chose to

reject the plea agreement. The State did not object nor request an order nunc pro

tunc.1

The district court held a sentencing hearing on October 11, 2023. 2 At the

hearing, Grafton advocated for supervised probation. When asked for its

recommendation, the State advocated for incarceration. The State added:

Moving on, per the plea agreement, the State has agreed that all
counts in this cause run concurrent to each other, along with
concurrent to a stipulated probation revocation in Cause

1 Oddly, the district court order in case number FECR430922 did not contain the

same language concerning the rule 2.10(3) plea agreement and the district court’s
concurrence.
2 No in-person record plea hearing occurred.
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FECR420863. That essentially caps liability for Mr. Grafton at a total
of an indeterminate sentence not to exceed 5 years.

However, the district court opted not to follow the sentencing scheme provided in

Grafton’s plea agreement. In pronouncing Grafton’s sentences, the district court

stated:

Further, based on the seriousness of these offenses, and the
repetitive nature of these offenses, the Court believes that an
enhanced sentencing beyond the recommendation of the State is
warranted. For those reasons, in this matter, the Court will impose a
period of concurrent sentences as to some charges and consecutive
sentences as to some charges that I will announce as we are
entering those sentences herein.

The district court subsequently sentenced Grafton, ordering all but three sentences

to run concurrently to each other. In case number FECR430922, Grafton received

an indeterminate five-year sentence for his conviction for second-degree theft. In

case number OWCR428222, he received an indeterminate five-year sentence for

his conviction for operating intoxicated. He received the same sentence for his

conviction for operating while intoxicated in case number OWCR427347. These

specific sentences were ordered to run consecutively. In effect, this meant Grafton

received an indeterminate fifteen-year prison sentence. Despite receiving a more

severe overall sentence than the one provided for in his 2.10(3) plea agreement,

Grafton was never afforded an opportunity to withdraw his plea.

This appeal followed.

II. Standard of Review

We review a district court’s “application of the rules of criminal procedure

for correction of legal error.” State v. Hurlburt, 970 N.W.2d 259, 264 (Iowa 2022).
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Our review in challenges to criminal sentences is for correction of errors at law.

State v. Patton, 981 N.W.2d 126, 130 (Iowa 2022).

III. Good Cause

Before conducting our analysis, we must determine whether Grafton has

established good cause to appeal. See Iowa Code § 814.6(1)(a)(3) (2023). If a

defendant does not establish good cause, we lack jurisdiction over the appeal.

See State v. Clark, No. 22-1653, 2024 WL 3292545, at *2 (Iowa Ct. App. July 3,

2024) (finding the court lacked jurisdiction over the appeal because the defendant

failed to establish good cause). The State does not assert Grafton has failed to

establish good cause. But even if a challenge to our jurisdiction is not made, we

still are required to independently assess whether we have jurisdiction over an

appeal. See Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa 2014)

(“Although no party challenges this court’s jurisdiction in this case, an appellate

court has responsibility sua sponte to police its own jurisdiction.”).

We conclude Grafton has established good cause because he makes at

least one challenge to his underlying discretionary sentences. See State v.

Damme, 944 N.W.2d 98, 105 (Iowa 2020) (concluding a defendant established

good cause because he challenged his “sentence rather than the guilty plea,” and

the sentence was “neither mandatory nor agreed to” as part of the plea

agreement). Additionally, because Grafton has established good cause for at least

one of his claims, we have jurisdiction over all his claims on appeal. See State v.

Rutherford, 997 N.W.2d 142, 146 (Iowa 2023) (concluding an appellate court has

jurisdiction over an entire appeal if good cause is established for at least one

claim).
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IV. Analysis

A. Plea Withdrawal

1. Error Preservation

Before addressing the merits of Grafton’s argument that the district court

should have given him an opportunity to withdraw his plea pursuant to a rule

2.10(3) plea agreement, we note the State contends he did not preserve error on

this issue. As the State argues, “Grafton’s claim that he should have been afforded

an opportunity to withdraw his pleas prior to the imposition of sentence is purely

procedural and he was thus required to preserve error on it.” For this proposition,

the State relies on Tindell v. State, a case in which the supreme court held that

sentences illegally imposed due to procedural errors were subject to normal error

preservation rules. 629 N.W.2d 357, 359 (Iowa 2001) (explaining “our cases[]

allow challenges to illegal sentences at any time, but they do not allow challenges

to sentences that, because of procedural errors, are illegally imposed”).

Additionally, the State advances that if the plea agreement was ambiguous

relative to whether it was a rule 2.10(3) plea, Grafton never filed a motion in arrest

of judgment claiming a defect in his plea proceedings. The State adds, “Grafton

never filed any motion in arrest of judgment, let alone one claiming a defect in the

plea agreement itself.” The State contends failure to do so precludes Grafton from

claiming the district court erred by not giving him an opportunity to withdraw his

plea. We disagree on both points and conclude Grafton was not required to raise

this issue to preserve error on appeal.

We think the State’s reliance on Tindell is misplaced given one of our

supreme court’s recent opinions. In State v. Chawech, the supreme court
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explained that substantively illegal sentences and procedural defective sentences

are immune from normal rules of error preservation on direct appeal. 15 N.W.3d

78, 85 (Iowa 2024) (“[B]oth illegal-sentence challenges and procedural-defect

challenges are excepted from our error preservation requirements.”). Further, the

court in Chawech cast doubt on Tindell’s application to a direct appeal. Id. at 86

(noting Tindell involved a postconviction proceeding and concluding it was not

“particularly relevant” to a defendant’s claim of a procedurally defective sentence

on direct appeal). Accordingly, we find Grafton was not required to raise the issue

of the district court’s failure to comply with rule 2.10(3) to preserve such a claim on

direct appeal regardless of whether the error was procedural or substantive.

Second, we reject the State’s argument that, because Grafton did not file a

motion in arrest of judgment prior to the sentencing hearing he is precluded from

raising this issue on direct appeal. Grafton was under the impression—and for

good reason—that his plea agreement was a rule 2.10(3) plea agreement

conditioned on the district court’s acceptance. The State’s argument on this point

assumes that there was a defect in the plea agreement prior to the sentencing

hearing. But, as explained below, when the record is viewed in its entirety, we

conclude there was no defect in the plea agreement. As such, we cannot conclude

Grafton was required to file a motion in arrest of judgment to preserve his claim on

this issue. See State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014) (“The rule

has no applicability to a situation, as in this case, where the defendant does not

know the deficiency in the plea proceeding until after sentencing.”).
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Because we find Grafton is entitled to raise this claim for the first time on

direct appeal and was not required to file a motion in arrest of judgment to preserve

error, we proceed to the merits of his argument.

2. Merits

We begin by noting the parties are diametrically opposed on the issue of

whether Grafton’s plea agreement was a rule 2.10(3) agreement. Grafton asserts

that his plea agreement was a rule 2.10(3) agreement. To support this argument,

he points to his three written guilty pleas, which clearly indicate his plea agreement

was a rule 2.10(3) agreement conditioned on the district court’s acceptance.

Additionally, he highlights that two of the three district court orders accepting his

written guilty pleas stated the plea agreement was a rule 2.10(3) agreement

conditioned on the district court’s concurrence. He also claims that the fact the

plea agreement does not affirmatively indicate whether it is conditioned on the

district court’s acceptance is not fatal to his case.

The State argues we should look only to the written plea agreement itself to

ascertain whether the agreement was conditioned on the district court’s

concurrence and consider nothing else. The State seems to suggest the supreme

court’s recent decision in State v. Hightower, 8 N.W.3d 527 (Iowa 2024), indicates

appellate courts are only to consult the plea agreement itself to determine whether

a plea is a rule 2.10(3) plea. And the State argues that because the plea

agreement does not affirmatively indicate whether it was conditioned on the district

court’s concurrence, rule 2.10(3)(b)(1) does not apply. Further, the State claims

that rule 2.10(b)(1)(3) is inapplicable unless the parties agree to a “specific

sentence.” In the State’s view, because the parties did not agree to a specific
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sentence, rule 2.10(3)(b)(1) is inapplicable. Thus, the State believes Grafton was

not entitled to an opportunity to withdraw his plea. We disagree with the State.

Rule 2.10(3)(b)(1) provides:

When the plea agreement is conditioned upon court approval of a
sentencing agreement, and the court determines it will reject the
sentencing agreement, the court shall inform the parties of this fact
and afford the defendant an opportunity to withdraw the plea. If the
court defers its decision to accept or reject the plea agreement and
later decides to reject the plea agreement after receiving the
presentence investigation report, the court shall likewise afford the
defendant the opportunity to withdraw the plea.

Iowa R. Crim. P. 2.10(3)(b)(1). We have previously held that the district court

abuses its discretion when it fails to comply with the requirements of rule

2.10(3)(b)(3). State v. Malone, 511 N.W.2d 423, 425 (Iowa Ct. App. 1993).

We begin our analysis by noting our disagreement with the State’s

contention that the supreme court’s recent decision in Hightower mandates that

we only consult the plea agreement itself to determine whether it was conditioned

on the district court’s concurrence. Such a reading of Hightower is illogical

because in Hightower there was no plea agreement, only a written plea of guilty

memorializing the plea agreement. 8 N.W.3d at 532. And the Hightower court

analyzed the written guilty plea to determine whether the defendant had entered

into a plea agreement conditioned on the district court’s acceptance. Id. The State

cites no language from Hightower that stands for the proposition that we are limited

to only consulting the plea agreement to determine whether a plea is governed by

rule 2.10(3).

Further, as Grafton points out, our own case law suggests that we may

consult written guilty pleas and district orders accepting such pleas to ascertain
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whether the defendant entered into a plea agreement conditioned on the district

court’s concurrence. See State v. Williams, No. 22-1463, 2023 WL 5093366, at *4

(Iowa Ct. App. Aug. 9, 2023) (consulting the district court order accepting the

defendant’s guilty plea to determine whether the defendant entered into a plea

agreement conditioned on the court’s concurrence);3 State v. Hoffman, No. 21-

1134, 2022 WL 468739, at *3 (Iowa Ct. App. Feb. 16, 2022) (consulting the

defendant’s guilty plea to determine whether his plea agreement was conditioned

on the district court’s concurrence). When Grafton’s written guilty pleas and the

district court orders accepting his pleas are considered, we have little difficulty in

concluding he entered into a plea agreement conditioned on the district court’s

concurrence.

But this does not end our analysis. The State also contends

rule 2.10(3)(b)(1) is inapplicable in this case because it asserts the supreme

court’s decision in Hightower is clear that a “specific sentence” must be agreed

upon by the parties for the rule to apply. In Hightower, the supreme court found

rule 2.10(3) was inapplicable because the defendant at issue and the State did not

agree upon “any specific sentence.” 8 N.W.3d at 542. The written guilty plea at

issue in Hightower only provided that the State was to follow a presentence

3 In Williams, we analyzed the district court order accepting the defendant’s guilty

plea and noted the State did not contest our doing so. 2022 WL 5093366, at *4.
But here, the State does contest looking past the plea agreement to determine
whether the defendant entered into an agreement conditioned on the district
court’s acceptance. We find this argument unpersuasive. Given the constitutional
rights a defendant gives up by entering into a plea agreement, we find it is a
sensible approach to consult additional items in the record to clarify potential
ambiguities in a plea agreement. See United States v. Gall, 829 F.3d 64, 72 (1st
Cir. 2016) (“[W]hen the words of a plea agreement are unclear, extrinsic evidence
may be considered to clarify the parties’ understanding.”).
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investigation report’s (PSI) recommendation or advocate for a suspended

sentence. Id. But as the court noted, if the PSI report recommended incarceration,

the State was free to advocate for incarceration. Id. Additionally, the court pointed

out the defendant “wasn’t bound at all” and was free to argue any punishment he

desired. Id. Thus, the court concluded rule 2.10(3) was inapplicable because the

parties had not agreed “upon a sentence.” Id.

The State seems to suggest that the phrase “specific sentence”—as used

by the court in Hightower—means “complete” agreement on all aspects of a

potential sentence. We do not read Hightower to stand for the proposition that rule

2.10(3)(b)(1) only applies to plea agreements where a defendant and the State

agree on all aspects of a potential sentence. When more factual context is added

to the court’s analysis in Hightower, we believe it becomes clear the court found

rule 2.10(3) did not apply because the parties’ plea agreement functionally left the

State with the option to recommend any possible sentence.

We believe this case is distinguishable from Hightower because the plea

agreement at issue here is much more concrete and specific. In exchange for

Grafton pleading guilty to all charges against him, the State agreed to recommend

that all sentences run concurrently. This capped Grafton’s liability at five years.

Additionally, the State agreed to not seek enhanced sentencing based on Grafton’s

status as a habitual offender. This is very different than the virtual nonagreement

at issue in Hightower. We believe the sentencing agreement between Grafton and
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the State was sufficient for purposes of rule 2.10(3)(b)(1). Thus, we conclude the

rule should have been applied in this case.4

Because we find Grafton entered into a plea agreement conditioned on the

district court’s concurrence and the court rejected the sentence contemplated in

his agreement, we conclude he should have been given an opportunity to withdraw

his plea. We thus vacate Grafton’s sentences and remand for resentencing. For

resentencing, the sentencing judge must ensure compliance with rule 2.10(3)(b)(1)

and afford Grafton the opportunity to withdraw his plea if the court decides to reject

his plea agreement.

V. Conclusion

In sum, we find Grafton entered into a rule 2.10(3) plea agreement

conditioned on the concurrence of the district court. Because the district court

imposed a harsher sentence than the one contemplated by his plea agreement,

Grafton should have been afforded the opportunity to withdraw his plea. We thus

vacate his sentences and remand for resentencing. On resentencing, the district

court shall give Grafton an opportunity to withdraw his plea if the court rejects his

4 The State contends Grafton’s argument on this issue “is really a challenge to his

pleas based on an alleged defect in the plea proceedings.” Thus, the State posits
application of Iowa Code section 814.29 should result in Grafton’s claim failing.
Section 814.29 provides that, with a challenge to a guilty plea, “the plea shall not
be vacated unless the defendant demonstrates that the defendant more likely than
not would not have pled guilty if the defect had not occurred.” Iowa Code § 814.29.
Because Grafton made no such showing, the State believes his claim on this issue
should fail. But we disagree with the State’s framing of Grafton’s claim and
determine section 814.29 is inapplicable to his claim. See State v. Barnes,
No. 21-1939, 2023 WL 3860153, at *1 n.1 (Iowa Ct. App. June 7, 2023)
(determining a defendant’s claim that the district court failed to comply with rule
2.10(3) was a sentencing challenge and section 814.29 was not applicable to such
a challenge).
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plea agreement. Because we find Grafton’s rule 2.10(3) claim to be dispositive,

we do not address his remaining claims.

SENTENCES VACATED AND REMANDED FOR RESENTENCING WITH

DIRECTIONS.