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IN THE SUPREME COURT OF IOWA
No. 132 / 06-0840 Filed October 26, 2007 STATE OF IOWA, Appellee, vs. PHILIP BRIAN COOPER, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Clarke County, Gregory A. Hulse and David L. Christensen, Judges.

Defendant appeals from sentence imposed on his conviction of operating while intoxicated, third offense, contending his trial counsel rendered ineffective assistance of counsel. DECISION OF COURT OF

APPEALS VACATED; SENTENCE VACATED; AND CASE REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Elisabeth S. Reynoldson, County Attorney, for appellee.

2 PER CURIAM. The defendant, Philip Brian Cooper, appealed from the sentence imposed upon his conviction of operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2005). He contended his trial counsel rendered ineffective assistance by failing to object to the State's breach of the parties' plea agreement. The court of appeals affirmed

Cooper's conviction and preserved his ineffectiveness claim for a possible postconviction-relief action. We granted Cooper's application for further review. Because we conclude Cooper's counsel rendered ineffective

assistance, we vacate the decision of the court of appeals, vacate the sentence imposed on Cooper's conviction, and remand for resentencing. I. Background Facts and Proceedings. The State charged Cooper with operating while intoxicated, third offense. Cooper pled guilty to the charge pursuant to a plea agreement. At the plea hearing, the prosecutor read the plea agreement into the record: [T]he State's agreement is that the State will recommend that the defendant be sentenced to an indeterminate term not to exceed five years, that that term be suspended, all but 30 days be suspended, and the defendant be placed on formal and supervised probation, that the defendant pay the mandatory minimum fine of $2500 plus applicable surcharges, court costs, and court-appointed attorney fees. In addition . . . it is the State's agreement that should the defendant complete inpatient substance abuse treatment, that the State will recommend that the defendant receive credit towards the mandatory 30-day jail time for the inpatient treatment. Defense counsel indicated the plea agreement was stated correctly. The court advised Cooper that the sentencing recommendations were not binding upon the court and accepted Cooper's guilty plea after a colloquy.

3 At the sentencing hearing before a different judge, the prosecutor gave the following recommendation: Your Honor, it should be noted that at the time of the guilty plea, the State's agreement with respect to sentencing was that the State would agree to recommend an indeterminate term of incarceration not to exceed five years, that that term would be suspended

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