author: MARING, Justice.

text:
    2007 ND 181
    HENDRICKS PROPERTY MANAGEMENT CORP., Plaintiff and Appellee v. BIRCHWOOD PROPERTIES LIMITED PARTNERSHIP, Breezy Shores, LLC, Bramley Properties Limited Partnership, Marcy’s, LLC, and O’Grady, LLC, Defendants and Appellants.
    No. 20070028.
    Supreme Court of North Dakota.
    Nov. 19, 2007.

      Ronald H. McLean (argued) and Jane L. Dynes (on brief), Serkland Law Firm, Fargo, N.D., for plaintiff and appellee.
    Michael D. McNair, McNair, Larson & Carlson, Ltd., Fargo, N.D., for defendants and appellants.
   MARING, Justice.

[¶ 1] Birchwood Properties Limited Partnership, Breezy Shores, LLC, Bram-ley Properties Limited Partnership, Marcy’s, LLC, and O’Grady, LLC, (collectively referred to as “defendants”) appeal from a judgment entered after the district court found they had each breached property management agreements with Hendricks Property Management Corporation and awarded Hendricks Property Management $298,643 in liquidated damages. We conclude the district court did not err in deciding the defendants breached the property management agreements and the court’s findings of fact on the foundational requirements for a valid liquidated damages clause are not clearly erroneous. We affirm the judgment.

I

[¶ 2] In the late 1990s, Melvin Hendricks approached Scott Fridlund and Wynn Juran to sell his government subsidized housing units. Melvin Hendricks’ housing units had been managed by Hendricks Property Management, a management company owned by his son, Chuck Hendricks. Fridlund and Juran eventually purchased Melvin Hendricks’ housing units in 1999, which they subsequently operated as Birchwood Properties.

[¶ 3] Birchwood Properties executed a property management agreement with Hendricks Property Management, which provided for a three-year term beginning on May 7, 1999, and ending on April 30, 2002, with an automatic year-to-year renewal unless either party terminated the agreement “with or without cause, at the end of the initial term or of any following term year upon the giving of 60 days’ written notice prior to the end of said initial term or following term year.” The management agreement also included language authorizing termination for cause:

Thirty (30) days after the receipt of notice by either party to the other specifying in detail a material breach of this Agreement, if such breach has not been cured within said thirty (30) day period; or if such breach is of a nature that it cannot be cured within said thirty (30) day period but can be cured within a reasonable time thereafter, if efforts to cure such breach have not commenced or/and such efforts are not proceeding and being continued diligently both during and after such thirty (30) day period prior to the breach being cured. HOWEVER, the breach of any obligation of either party hereunder to pay any monies to the other party under the terms of this Agreement shall be deemed to be curable within thirty (30) days.

The management agreement further provided for “termination compensation” if Birchwood Properties terminated the agreement before the end of the initial term or any subsequent term year, which required Birchwood Properties to pay Hendricks Property Management “as liquidated damages an amount equal to the management fee ... for the calendar month immediately preceding the month in which the notice of termination is given ... multiplied by the number of months and/or portions thereof remaining from the termination date until the end of the initial term or term year in which the termination occurred.”

[¶ 4] In 2001, Fridlund and Juran purchased three additional groups of government subsidized housing units from other individuals, which they operated under separate entities as Bramley, Marcy’s, and O’Grady. Those three entities executed separate property management agreements with Hendricks Property Management to manage the respective properties, and the three management agreements each set a beginning date of July 1, 2001, and an ending date of June 30, 2004. Each of those three management agreements also included language identical to the Birchwood Properties’ agreement for termination and for liquidated damages.

[¶ 5] In April 2002, the initial three-year term for the Birchwood Properties’ management agreement was about to expire without either party providing a 60-day notice of termination. As a result, the language authorizing an automatic year-to-year renewal was triggered, which resulted in a scheduled expiration date of April 30, 2003. At an April 2002, meeting, Chuck Hendricks provided Fridlund and Juran with a copy of a proposed new management agreement. In a May 10, 2002, letter to Chuck Hendricks, Fridlund and Juran, on behalf of Birchwood Properties, “decided to accept an automatic renewal [of the management agreement] for the term of one year” with an expiration date of April 30, 2003, and they requested that before that renewal date, they receive a copy of the new contract for review “NO LATER THAN January 31, 2003” with any changes in the current contract “underlined in red” or “blacklined.” According to Chuck Hendricks, he called Frid-lund on January 16, 2003, with a question, and Hendricks left a message that he thought they were “just auto renewing” and he received “no reply by 1/31/03.”

[¶ 6] By letter dated April 23, 2003, Birchwood Properties informed Hendricks Property Management that it had “elected to terminate the management agreement that will expire on June 30, 2003, as agreed to by the parties at the time of the ^one (1) year renewal term.” Hendricks Property Management thereafter informed Birch-wood Properties .that the one-year automatic renewal of the management agreement extended that agreement from April 30, 2003, through April 30, 2004. Fridlund and Juran nevertheless began managing Birchwood Properties on July 1, 2003.

[¶ 7] Meanwhile, by letters dated April 24, 2003, Bramley, Marcy’s, and O’Grady informed Hendricks Property Management that they were terminating their respective property management agreements at the end of the June 30, 2004, three-year term. In those letters, Bram-ley, Marcy’s, and O’Grady also informed Hendricks Property Management that its failure to “timely deliver reports” constituted a material breach of the management agreements and that the respective letters constituted a 30-day notice to cure the deficiency. By letter dated May 8, 2003, Hendricks Property Management stated it had delivered various reports to the three entities on April 30, 2003, to cure any alleged deficiency. By letter dated August 6, 2003, the defendants gave Hendricks Property Management notice of alleged breaches of the management agreements involving all four properties. Fridlund and Juran assumed management responsibilities for the Bramley, Marcy’s, and O’Grady properties on September 1, 2003.

[¶ 8] Hendricks Property Management sued the defendants for breach of contract, alleging the defendants breached the termination provisions of the agreements by failing to provide a 60-day notice of termination for the Birchwood Properties’ contract and by failing to allow Hendricks Property Management a 30-day period to cure any default in the other three contracts. Hendricks Property Management sought damages under the provision in each agreement which authorized liquidated damages. The district court decided the defendants’ termination of the four property management agreements constituted a breach of contract. The court awarded Hendricks Property Management $298,643 in liquidated damages, finding the foundational requirements for a valid liquidated damages clause had been established and the liquidated damage clause in each management agreement was enforceable.

II

[¶ 9] We initially consider the defendants’ claim that they did not breach the property management agreements. They contend the district court clearly erred in failing to decide their agency argument, because agency law governed the parties’ relationship and there was uncontroverted evidence the defendants’ termination of the property management agreements was caused by Chuck Hendricks’ prior breach of his agency and fiduciary duties. The defendants contend that in May 2002, their agent, Chuck Hendricks, was instructed in writing to present a new property management agreement for Birchwood Properties’ review before January 31, 2003, for the upcoming renewal on April 30, 2003. They claim their breach of the 60-day notice requirement in Birchwood Properties’ management agreement was caused by Hendricks’ failure to follow their instructions and prepare a new management agreement. They assert if Hendricks had presented the requested management agreement to them by January 31, 2003, they could have terminated the contract lawfully. They argue Chuck Hendricks’ failure allowed Hendricks Property Management to retain the benefit of the 60-day notice requirement for terminating the management agreement, which is strictly prohibited by the law of agency and trust. The defendants also claim that rationale “serves the same purpose” for Hendricks Property Management’s contracts with Bramley, Marcy’s, and O’Grady, and a breach of one agreement is a breach of all the agreements.

[¶ 10] “Agency is the relationship which results where one person, called the principal, authorizes another, called the agent, to act for him in dealing with third persons.” N.D.C.C. § 3-01-01. Agency involves both a contractual relationship and a fiduciary relationship. Burlington Northern & Sante Fe Ry. Co. v. Burlington Res. Oil & Gas Co., 1999 ND 39, ¶ 15, 590 N.W.2d 433. The interpretation of an agent’s authority is governed by rules for construing contracts, except to the extent the fiduciary relationship requires a special rule. Id. at ¶¶ 15, 27. See Restatement of the Law 3d Agency § 8.07, comment (b) (2006); Warren A. Seavey, Handbook of the Law of Agency §§ 20-21 (1964).

[¶ 11] In Burlington Northern, 1999 ND 39, ¶ 3, 590 N.W.2d 433, this Court considered an issue about an agent’s alleged self-dealing with its principal’s oil and gas rights, and the scope of the principal’s authorization for the agent to deal with those rights for “its own account.” We said the terms of the parties’ management agreement generally governed the agent’s duties to the principal, but an agency agreement is also a special kind of contract that must be interpreted in light of the fiduciary relationship between the agent and the principal. Id. at ¶¶ 15-16. We recognized, however, that an agent’s duties to the principal were governed by the rules of contract interpretation, and by contract, the parties may “otherwise agree” to alter the normal rules of their relationship. Id. at ¶ 15. In Burlington Northern, we construed the parties’ agreement to be a general authorization for self-dealing, which did not specifically eliminate the agent’s fiduciary duties to the principal. Id. at ¶¶ 22-26.

[¶ 12] Burlington Northern involved the interpretation of an agent’s authority under a management agreement that, in the absence of language specifically eliminating the agent’s fiduciary duties, this Court construed to impose certain fiduciary duties on the agent. This case involves the interpretation of language for terminating a management agreement and the parties’ obligations under those provisions. Under N.D.C.C. § 9-07-02, the language of a contract governs its interpretation if the language is clear and explicit and does not involve an absurdity. A contract is interpreted to give effect to the mutual intentions of the parties at the time of contracting. N.D.C.C. § 9-07-03. When a contract is reduced to writing, the parties’ intentions must be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04. A contract is interpreted as a whole to give effect to every provision if reasonably practicable and each clause is used to help interpret other clauses. N.D.C.C. § 9-07-06. A contract is interpreted in its ordinary and popular sense. N.D.C.C. § 9-07-09.

[¶ 13] In this case, the parties’ property management agreements explicitly provided a procedure for termination, with an automatic renewal provision and provisions for termination for cause with an opportunity to cure. The agreements also specified that “[n]o change to the Agreement shall be valid unless made by supplemental written agreement executed and approved by Owner and Agent. Except as otherwise provided herein, any and all amendments, additions, or deletions to this Agreement shall be null and void unless approved by Owner and Agent in writing.” Although agents have fiduciary duties to their principals, the issues in this ease are governed by contract law, the plain and ordinary meaning of the language of the property management agreements regarding termination, and the requirement that all amendments to the agreements shall be void unless approved by the parties in writing.

[¶ 14] Here, the district court found the defendants had breached the termination language of all four property management agreements:

27. In April of 2002, the parties met regarding the annual review of operations. Chuck Hendricks proposed a new two-year contract for the operation of the Birchwood properties. The agreement was never agreed to nor executed.
28. Fridlund and Juran responded to the proposal negatively and were critical of Chuck Hendricks claiming that the changes of compensation in Section 17.1 and Section 17.6 exemplified a kind of “catch me if you can attitude.” They rejected the proposed two-year contract. They wrote in response:
As per our reading of the contract, “extended for one year” means it will expire on April SO, 2003. Prior to that renewal date we request a copy of the new contract be presented for our review NO LATER THAN January 31, 2003. We further request that any changes you will have made to our current contract be underlined in red, or if printed from someplace other than a computer, that it be blacklined. (Emphasis added)
30. In January, 2003, Chuck Hendricks left messages with Fridlund regarding the Birchwood Agreement but his telephone messages were unreturned. There was no effort by Juran and Frid-lund to contact Chuck Hendricks.
31. The Birchwood contract, pursuant to its automatic one-year extension, was set to terminate on April 30, 2003. Any notice to terminate the contract and stop the automatic renewal pursuant to Section 1.3 had to be sent out sixty (60) days prior to the end of the term. No notice of termination was sent out prior to March 1, 2003.
39.... The termination date for the Birchwood Management Agreement was April 30, 2002. The contract automatically renewed unless there was sixty (60) days’ written notice prior to the following year term given of a notice to terminate. No sixty (60) day prior notice to April 30, 2002 was ever prepared and sent to [Hendricks Property Management]. There is no credible evidence to support any agreed-upon amendment to the termination date that it was amended to June 30, 2003.
40. The defendants breached the O’Grady, Marcy’s and Bramley contracts. Pursuant to ... the three Management Agreements, the defendants could have terminated [Hendricks Property Management] for cause upon thirty (30) day notice of material breach with time for cure.... Prior to the expiration of the thirty (30) day extension period, the defendants wrongfully announced that they were taking over the properties as of September 1, 2003. The taking over of the three properties on September 1, 2003 was a breach of the agreements.
41. Even if the thirty (30) days’ notice to cure had been given, the defendants failed to meet their burden of proof that there was cause under the contract to terminate the plaintiffs.

[¶ 15] A district court’s findings of fact and conclusions of law must be stated with sufficient specificity to provide this Court with a clear understanding of the court’s decision, and we have said that findings are adequate if we are able to understand the factual basis for the court’s determination. Gross v. Sta-Rite Indus., Inc., 322 N.W.2d 679, 682 (N.D.1982). Here, we are able to understand the basis for the district court’s decision. The court decided there was no credible evidence to support an amended termination date for the Birchwood Properties’ agreement, and this record does not reflect that the parties mutually agreed in writing to alter the termination date or the procedure for terminating the management agreements. Moreover, there is evidence in this record that Juran and Fridlund knew the expiration dates of the Birchwood Properties’ agreement, as evidenced by their May 2002, letter requesting that a copy of a new contract be presented for review no later than January 31, 2003, and stating the Birchwood Properties’ contract would expire on April 30, 2003. An agent must disclose to the principal those facts that the agent knows will affect the principal’s judgment unless the principal knows those facts. See Burlington Northern, 1999 ND 39, ¶¶ 19-20, 590 N.W.2d 433. We are able to understand the factual basis for the district court’s decision, and we conclude the court did not err in deciding the defendants breached the language of the termination provisions of the four property management agreements.

Ill

[¶ 16] The defendants argue the district court clearly erred in finding Hendricks Property Management proved the foundational facts necessary for a valid liquidated damages provision.

[¶ 17] Section 9-08-03, N.D.C.C, provides that “[penalties imposed by contract for any nonperformance thereof are void.” Under N.D.C.C. § 9-08-04, a contractual provision fixing liquidated damages is void “except that the parties may agree therein upon an amount presumed to be the damage sustained by a breach in cases in which it would be impracticable or extremely difficult to fix the actual damage.” A party seeking to enforce a contractual clause for liquidated damages has the burden of proof under N.D.C.C. § 9-08-04. Circle B Enterprises, Inc. v. Steinke, 1998 ND 164, ¶ 11, 584 N.W.2d 97; Fisher v. Schmeling, 520 N.W.2d 820, 822 (N.D.1994). This Court has construed N.D.C.C. § 9-08-04 to follow the modern trend to uphold liquidated damages clauses in cases that do not involve adhesion contracts. Steinke, at ¶ 12; Fisher, at 822-23; City of Fargo v. Case Dev. Co., 401 N.W.2d 529, 533 n. 3 (N.D.1987).

[¶ 18] Under N.D.C.C. § 9-08-04 and case law interpreting that statute, this Court has established three foundational facts for the inquiry about whether a contractual provision is a valid liquidated damages clause or a void penalty: (1) the damages stemming from a breach are impractical or extremely difficult to estimate when the contract was entered; (2) the parties reasonably endeavored to fix their damages; and (3) the amount stipulated bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably anticipated. Steinke, 1998 ND 164, ¶ 11, 584 N.W.2d 97; Fisher, 520 N.W.2d at 822; Coldwell Banker-First Realty, Inc. v. Meide & Son, Inc., 422 N.W.2d 375, 378 (N.D.1988); Hagan v. Havnvik, 421 N.W.2d 56, 59-60 (N.D.1988); City of Fargo, 401 N.W.2d at 531; Eddy v. Lee, 312 N.W.2d 326, 330 (N.D.1981).

[¶ 19] The foundational requirements in N.D.C.C. § 9-08-04 are not mutually exclusive. Steinke, 1998 ND 164, ¶ 12, 584 N.W.2d 97; Fisher, 520 N.W.2d at 822. In Fisher, at 822-23, we said the difficulty of estimating damages has greater importance where there has been little negotiation for the liquidated damages clause, and less importance where there has been bona fide reasonable negotiations for liquidated damages. We recognized that although N.D.C.C. § 9-08-04 has not been amended to clearly reflect the modern trend to uphold liquidated damage provisions, we nevertheless construed our statute to be receptive to the interests of those who, in good faith, endeavor to avoid the traditional recourse to the court system by utilizing a liquidated damages provision. Fisher, at 822-23. In City of Fargo, 401 N.W.2d at 533, we explained the reasonable endeavor requirement to fix damages does not require face-to-face negotiations about the amount of liquidated damages as a prerequisite to enforcing the clause.

[¶ 20] The foundational requirements for a valid liquidated damages clause under N.D.C.C. § 9-08-04 are questions of fact which are reviewed under the clearly erroneous standard in N.D.R.Civ.P. 52(a). Steinke, 1998 ND 164, ¶ 11, 584 N.W.2d 97; Fisher, 520 N.W.2d at 822; Coldwell Banker, 422 N.W.2d at 378; City of Fargo, 401 N.W.2d at 531; Eddy, 312 N.W.2d at 331. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or, if there is some evidence to support the finding, on the entire record we are left with a definite and firm conviction a mistake has been made. Burlington Northern, 1999 ND 39, ¶ 10, 590 N.W.2d 433; Coldwell Banker, at 378; City of Fargo, at 531.

[¶ 21] The defendants argue the uncontested evidence shows there were no negotiations for the written property management agreements or the liquidated damages provisions, and, therefore, the damages from the breach were not impractical or extremely difficult to ascertain when the agreements were executed, the parties did not reasonably try to fix the damages, and the amount of liquidated damages does not bear a reasonable relation to probable damages and is disproportionate to any damages reasonably anticipated. Relying on Industry Fin. Corp. v. Redman, 383 N.W.2d 847 (N.D.1986), they claim the amount of the liquidated damages awarded by the district court eliminated Hendricks Property Management’s duty to mitigate damages. They also claim the testimony of Hendricks Property Management’s expert, Dr. Leonard Sliwo-ski, does not satisfy the foundational requirements for a valid liquidated damages clause,

[¶ 22] The defendants’ reliance on Redman is misplaced. In Redman, 383 N.W.2d at 848-49, we construed two provisions in leases together to render the leases reasonable and lawful. One provision authorized the calculation of damages on default in language that required mitigation of damages and the other provision said the lease was irrevocable for its full term without a rent abatement. Id. at 848. Citing N.D.C.C. §§ 9-08-03 and 9-08-04, we said the provision for unabated rent, standing alone, imposed no obligation to mitigate losses and permitted double recovery, which by itself would be void and unenforceable as a penalty. Redman, at 848. We construed the two provisions together to authorize mitigation of damages. Id. at 848-49. Redman involved the interpretation of two provisions in leases and did not involve an analysis of the foundational requirements for a valid liquidated damages clause. It does not control the analysis of the liquidated damages clauses in this case.

[¶ 23] Here, although the parties may not have had face-to-face negotiations about the liquidated damages clauses, we have said face-to-face negotiations are not necessary to uphold a liquidated damages clause. City of Fargo, 401 N.W.2d at 533. In City of Fargo, we cited California precedent interpreting a statute similar to N.D.C.C. § 9-08-04, which held that, in a case involving a liquidated damages clause in a form contract, the “ ‘reasonable endeavor’ requirement was satisfied by evidence that ‘the parties agreed to the liquidated provisions, and there is no evidence that they were not fully aware of circumstances making it desirable that liquidated damages be provided for.’ ” 401 N.W.2d at 533 (quoting Better Food Markets, Inc. v. American Dist. Tel. Co., 40 Cal.2d 179, 253 P.2d 10, 15 (1953)). See also Utility Consumers’ Action Network v. AT&T Broadband, 135 Cal.App.4th 1023, 37 Cal.Rptr.3d 827, 843-44 (2006) (citing City of Fargo and holding reasonable endeavor does not require face-to-face negotiations in form contract). We also cited another California precedent in which an individual claimed he had not read the entire agreement and the liquidated damages clause was not pointed out to him or discussed at anytime:

“[the individual], as president of at least one corporation engaged in commercial trade, must be presumed to have executed the agreement with knowledge that he was bound by its terms and it was incumbent upon him to review and acquire at least a working knowledge of the advantages and limitations of the contract. He cannot now be heard to refute its effect or to avoid the consequences by disclaiming knowledge where he had the opportunity to discuss and negotiate terms.”

City of Fargo, at 533 (quoting Zurich Ins. Co. v. Kings Indus., Inc., 255 Cal.App.2d 919, 63 Cal.Rptr. 585, 588-89 (1967)).

[¶24] In City of Fargo, 401 N.W.2d at 533-34, we upheld a liquidated damages provision, stating the entity bound by the agreement consisted of experienced business people who had an opportunity to review the agreement and make suggested changes. We rejected the contention there must be actual negotiations or discussions about the amount designated as liquidated damages, because it ignored commercial realities. Id. at 534. We said that, in the normal course of conducting business, many agreements are signed without the parties fully negotiating each individual term of the contract, and we declined to invalidate a liquidated damages clause in a contract negotiated by parties bargaining at arm’s length where each party had an equal opportunity to dictate the contract’s terms. Id.

[¶ 25] Here, the district court found Fridlund and Juran had multiple attorneys available to them when they purchased the properties, and they were both experienced and knowledgeable business people and knew or should have known the content of the management contracts they signed. The court found that Hendricks Property Management presented the Birchwood Properties’ management agreement to Fridlund and Juran for their review and execution, and they had the opportunity to review the agreement. There is evidence that Fridlund and Juran first executed the Birchwood Properties’ agreement in January 1999 and also initialed the same agreement in April 1999, before it took effect on May 7, 1999. The court found Fridlund and Juran thereafter entered into three new agreements for the subsequently purchased properties, which had language identical to the first agreement except for the rate of compensation for Hendricks Property Management’s services. The court found two of those subsequent agreements included a “bonus attachment” which was negotiated between the parties. The court found Hendricks Property Management had to expand its operation to take on those additional properties. The court also made specific findings on the foundational facts:

a. The court finds that at the time of contracting the type of damages that [Hendricks Property Management] would incur would be difficult to determine. [Hendricks Property Management] is a small company with fixed overhead. It works in a specialized industry. The revenues under these contracts were a substantial portion of its income.
b. The parties executed the identical liquidated damage clause four times. This establishes that the parties did reasonably attempt to fix their damages.
c. A reasonable relationship exists between the damages stipulated to and the amount that would have been reasonably anticipated under the circumstances. The amount of revenue lost by these contracts was substantial to [Hendricks Property Management], a small business in a specialized field. It had specialized trained staff who were cross-trained. From a viewpoint of the time of contracting, the damages stipulated to reasonably anticipate those that would be incurred.

[¶ 26] Under the circumstances of this case, where experienced parties and their attorneys had multiple opportunities to examine the contracts and discuss their terms, including the liquidated damages clauses, we conclude the evidence supports the district court’s finding that the liquidated damages clauses were the result of reasonable endeavor by the parties to fix compensation. We are not persuaded the district court erred in relying on Dr. Sliwo-ski’s testimony about liquidated damages provisions in property management agreements to provide context for property management agreements and to help understand the reason for liquidated damages in what the district court termed a “specialized field.” There is evidence in this record that supports the district court’s findings, and we are not left with a definite and firm conviction the court made a mistake in finding the foundational facts for valid liquidated damages clauses. We conclude the district court’s findings on the foundational facts for these liquidated damages provisions are not clearly erroneous.

IV

[¶ 27] We affirm the judgment.

[¶ 28] GERALD W. VANDE WALLE, C.J., JOHN C. McCLINTOCK, JR., D.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 29] The Honorable JOHN C. McCLINTOCK, JR., D.J., sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee v. David Michael BOGGS, Appellant.
    No. 05-1625.
    Supreme Court of Iowa.
    Nov. 16, 2007.

      Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Daniel Feistner, County Attorney, for appellee.
   CADY, Justice.

In this appeal, we must interpret a statutory provision relating to double jeopardy to determine if a defendant can be subjected to a retrial for a greater offense after reversal of a conviction for a lesser offense, when the greater offense was originally charged but dismissed during the first prosecution as part of an agreement between the parties in which the defendant waived a jury trial and agreed to a trial on the minutes of testimony on the lesser offense. On our review of this issue, as well as the other claims raised on appeal, we affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

The relevant facts of this case date back to January 10, 2003, when law enforcement officers executed a search warrant at the residence of David Boggs in Atlantic, Iowa. The officers suspected Boggs was engaged in drug dealing and obtained a search warrant after gathering incriminating evidence from the trash left outside the residence. After entering the residence, officers discovered Boggs seated at a desk in a room of the basement. He was startled by their unsuspected entry into the room. A large quantity of methamphetamine could be observed on the desk, and Boggs was dividing it into smaller quantities with the aid of his driver’s license. There was also a chunk of methamphetamine in a plastic bag located on the desk. The quantity of methamphetamine in the bag was consistent with an amount frequently sold by drug dealers, known as an “eight ball.” Officers also observed numerous accoutrements of drug use and dealing, including a razor blade, burnt foil, rolling papers, duct-taped pouch, and digital scale. There was also a bong and a “snort tube” in the area. Boggs had thirty-nine, twenty-dollar bills in his wallet. Surveillance cameras were located outside the house that allowed the occupants to monitor activities outside the house on a television screen. A stash of marijuana and another bong were located in a nearby bedroom that Boggs shared with a woman.

One chunk of methamphetamine found on the desk weighed 58.66 grams. The estimated street value of the methamphetamine was in excess of $6000. The “eight ball” found in the plastic bag weighed 8.25 grams. The stashes of marijuana in the bedroom weighed 7.80 grams, 2.52 grams, and 1.02 grams.

Boggs was arrested and transported to jail. He was given his Miranda rights and signed a written waiver of those rights. During the course of a subsequent interview by an officer, Boggs acknowledged ownership of the methamphetamine and marijuana found in the basement. He said he obtained the methamphetamine from a person in Council Bluffs. There were also discussions between Boggs and the officer during the interview about a possible plea agreement in exchange for helpful information, and the officer spoke to the county attorney on the telephone. However, a plea bargain never materialized.

Boggs was later charged by a two-count trial information. Count I charged Boggs with possession of marijuana in violation of Iowa Code section 124.401(5) (2001). Count II charged Boggs with possession of methamphetamine (more than five grams) with intent to deliver and within 1000 feet of a public park, a class “B” felony, enhanced as a second or subsequent offender in violation of sections 124.401(1)(6)(7), 124.401A, and 124.411.

Boggs eventually accepted an offer by the State to dismiss the charge of possession of marijuana and reduce Count II of the trial information to charge possession of methamphetamine (less than ten grams) with intent to deliver, a class “C” felony, enhanced as a second or subsequent offender. In return, Boggs agreed to waive a jury trial and be tried to the court on the minutes of testimony. The parties contemplated this procedure would preserve Boggs’ right to appeal three claims of error: a ruling by the district court on a motion to suppress, rulings by the trial court on his request for self-representation, and the sufficiency of evidence to support a finding of guilt.

At the trial on the minutes of testimony, the district court briefly questioned Boggs about the agreement before finding him guilty of the charge in the amended trial information. Boggs was then sentenced to a term of incarceration not to exceed thirty years and was fined in the amount of $1000. He filed a timely notice of appeal.

During the pendency of the appeal, the State moved for summary reversal of the judgment and sentence. We granted the motion and remanded the case for a new trial, based on a finding that the record in the case revealed the district court failed to make a valid inquiry into Boggs’ request to waive counsel and represent himself.

On remand, the State sought to pursue the original class “B” felony charge of possession with intent to deliver methamphetamine. Boggs filed a pretrial motion and claimed a new trial on the original charge under Count II would violate the double jeopardy provisions of Iowa Code section 811.3(3) because the crime of conviction from the first trial was a lesser included offense of the original class “B” possession of methamphetamine with intent to deliver charge. The district court overruled Boggs’ motion, and the case proceeded to a jury trial on the original charges.

The officers who executed the search warrant and interviewed Boggs after his arrest testified at trial. This testimony revealed Boggs was discovered cutting methamphetamine into saleable quantities in a room in his residence set np for that purpose. It also revealed Boggs admitted ownership of the drags after his arrest. Defense counsel objected to the admissions, claiming they were inadmissible plea negotiations. To support the objection, defense counsel conducted a voir dire examination of the officer who interviewed Boggs, but the questioning failed to elicit any facts to show the admissions were made in conjunction with the plea discussions. The State presented other evidence of guilt and later submitted evidence of Boggs’ prior drag convictions to support the repeat-offender element of the charge.

Following the submission of the evidence at the trial, the district court instructed the jury. One instruction informed the jury how to consider evidence of Boggs’ character and reputation for drug use. This instruction told the jury they could consider Boggs’ “good character or reputation” in determining the probability or lack of probability of his guilt of the crime. Defense counsel failed to object to the instruction, even though Boggs never introduced any evidence of his good character.

During closing arguments, the prosecutor repeatedly mentioned the charge of possession of methamphetamine with intent to deliver in the context of the “community” and the distribution of drugs into the “community.” In response to defense testimony at trial that contradicted some of the testimony of the officers who had testified at trial, the prosecutor also told the jury the officers had no reason to lie, and they told the truth.

The jury found Boggs guilty of possession of marijuana and possession of methamphetamine with intent to deliver, as charged in the original indictment.

Prior to sentencing, trial counsel for Boggs filed a motion to withdraw. This occurred after Boggs filed a statement with the district court listing his claims of ineffective assistance of counsel. The district court questioned Boggs and his attorney before ruling on the motion. Boggs told the court it did not “really matter” to him if trial counsel continued to represent him. However, trial counsel expressed his belief that he was no longer able to zealously represent Boggs or speak on his behalf at sentencing due to his complaints of ineffective assistance of counsel. The district court overruled the motion, and the ease proceeded to sentencing. The district court sentenced Boggs to an indeterminate term of imprisonment not to exceed seventy-five years, with a mandatory one-third minimum period of confinement and a fine of $15,000. Prior to pronouncing sentence, the court gave Boggs and his attorney an opportunity to speak. Boggs submitted a written statement in mitigation of punishment, as well as a letter of support and other written documentation of mitigation. Counsel for Boggs only reiterated his belief that it was “not appropriate” to address the court.

On appeal, Boggs raises four grounds of error. First, he claims it was error to be reprosecuted on the original charge following the reversal of his original conviction. Second, he claims the district court erred in admitting his incriminating statements made to police. Third, he claims the district court erred by failing to appoint substitute counsel at the sentencing hearing. Finally, he claims trial counsel provided ineffective assistance during the trial.

II. Standard of Review.

The district court’s interpretation of a statute must be reviewed for errors at law. Iowa R.App. P. 6.4; State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998) (“We review the trial court’s interpretation of statutes for errors of law.”). To the extent Boggs raises constitutional questions, our review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). We review claims of ineffective assistance of counsel de novo. State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004). We normally review claims of error in the admission of evidence for abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). However, when admission of evidence turns on interpretation of a statute, we review for errors of law. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994).

III. Double Jeopardy.

The right to be free from double jeopardy is rooted deeply in our common law and assumes a familiar and prominent position in our state and federal constitutions. See generally Jay A. Sigler, Double Jeopardy 1-37 (1969) (tracing history of the double jeopardy doctrine); Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 716 (1969) (noting the guarantee against double jeopardy “can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence”). The Fifth Amendment of the United States Constitution declares no person may be “subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, the Iowa Constitution provides a person may not be tried for the same offense “after acquittal.” Art. I, § 12. Generally, the double jeopardy principle protects persons “from prosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense.” State v. Burgess, 639 N.W.2d 564, 568 (Iowa 2001). It “serves ‘a constitutional policy of finality for the defendant’s benefit.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977) (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971)).

While the principles of double jeopardy are etched into our federal and state constitutions, our legislature has chosen to separately define double jeopardy protections and exceptions by statute. See Iowa Code ch. 816 (entitled “Double Jeopardy.”). States are not only permitted to enact statutes that are consistent with constitutional principles, they may also define greater rights than provided by the federal and state constitution. See Peel v. Burk, 197 N.W.2d 617, 619 (Iowa 1972) (“The legislature may enact any law providing it is not prohibited by some provision of the state or federal constitutions.”). Thus, the question we face in this case is whether Iowa has defined additional rights under its statute.

Generally, Iowa’s double jeopardy statute establishes two rules that bar retrial after a conviction or acquittal, followed by three exceptions or limitations to the bar to retrial, and concludes with a procedural rule governing a plea of former conviction or acquittal. See Iowa Code §§ 816.1-.4. The first statutory rule bars a second prosecution for the same offense following a conviction or acquittal. Id. § 816.1. The second rule bars a second indictment for the same offense previously charged or any lesser degree of the offense, or for an included offense, when the defendant is convicted or acquitted of an indictment or an offense consisting of different degrees. Id. § 816.2. The specific section of the statute at issue in this case is the third exception. It provides:

A prosecution is not barred ...
3. If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty; but in no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which the defendant was originally convicted.

Id. § 816.3.

Thus, the exception has two components that govern retrial when a conviction is set aside or otherwise reversed. First, the exception declares a defendant may be prosecuted after a conviction has been invalidated, set aside, reversed, or vacated unless the defendant was adjudicated not guilty. Second, the exception is subject to a qualification that in no event may a defendant be “prosecuted for a higher degree of the crime for which the defendant was originally convicted” when “a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated.”

The exception comports with the long-standing, judicially recognized principle first announced by the United States Supreme Court in Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), that double jeopardy under the Constitution does not normally prohibit the retrial of a defendant whose conviction has been set aside or reversed on appeal because of an error in the trial proceedings. Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265, 272 (1988); State v. Swartz, 541 N.W.2d 533, 537 (Iowa Ct.App.1995). The rationale for this rule ultimately rests on “the premise that the original conviction has ... been wholly nullified and the slate wiped clean.” North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656, 667 (1969). Viewed another way, the jeopardy attached to the original conviction continues through the retrial, and consequently, there is no second jeopardy to attach on retrial. Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957). In addition to these constitutionally based theories that permit retrial, the exception is also justified by the important public policy of the “sound administration of justice.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451 (1964). In Tateo, the Supreme Court explained this important public policy behind the Ball principle as follows:

Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.

Id.

Thus, based on these reasons, it has been well-settled law, at least since 1896, that the double jeopardy bar to retrial following a conviction does not normally apply to a reversal of a conviction on appeal. Pearce, 395 U.S. at 719-20, 89 S.Ct. at 2077-78, 23 L.Ed.2d at 666. Of course, this principle, as with Iowa’s statutory exception at issue in this case, does not apply when the conviction was invalidated or reversed on grounds of insufficient evidence because such a ground for reversal is equivalent to an adjudication of not guilty. United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 341 (1980); Swartz, 541 N.W.2d at 537; see also Iowa Code § 816.3(3) (retrial following reversal of conviction on appeal not barred by double jeopardy “unless the defendant was adjudged not guilty”). Thus, the statutory exception does not define any greater rights than those currently derived from our federal and state constitutions. Instead, it reiterates existing constitutionally based rules.

The qualification to the exception enunciated in section 816.3(3) also appears to be aligned with constitutional principles of double jeopardy. While the Ball principle or exception has dominated the double jeopardy landscape for over a century, it was crafted in the context of a retrial of the same charge as in the prior conviction. In that context, both the Constitution and public policy permit retrial of a defendant whose first conviction was set aside or reversed. However, in Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 205 (1957), the Supreme Court qualified the Ball principle. It held Ball did not apply to a retrial of a greater crime following the conviction of a crime in the first trial, which was set aside or reversed. Green, 355 U.S. at 189, 78 S.Ct. at 224, 2 L.Ed.2d at 205.

In Green, the defendant was indicted and tried on separate counts of arson and murder in the first degree. Id. at 185, 78 S.Ct. at 222, 2 L.Ed.2d at 203. The first-degree murder count included the lesser offense of second-degree murder. Id. at 185-86, 78 S.Ct. at 222-23, 2 L.Ed.2d at 203. The jury found Green guilty of arson and second-degree murder. Id. at 185, 78 S.Ct. at 223, 2 L.Ed.2d at 203. The second-degree murder conviction was later reversed on appeal. Id. Green was tried again, over his objection, on the first-degree murder count, and the second trial resulted in a conviction of murder in the first degree. Id. The Court distinguished the case from the Ball situation by emphasizing that Green was not retried “for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge.” Id. at 190, 78 S.Ct. at 225, 2 L.Ed.2d at 205. Double jeopardy was violated because the jury’s refusal to convict Green of first-degree murder in the first trial was an “implicit acquittal” of the charge. Id. Green was placed in direct jeopardy of a conviction for first-degree murder in the first trial, and the jury refused to convict him. Id. This qualification to the Ball principle recognized in Green has also been long recognized in Iowa. State v. Smith, 217 Iowa 825, 826, 253 N.W. 130, 131 (1934).

This background reveals two important conclusions. First, Iowa’s statutory exception to the rule barring retrials echoes the long-standing judicially crafted exception. Second, the judicially crafted double jeopardy exception has been qualified in those cases involving the retrial of a greater offense, as with the statutory exception. Importantly, the judicial qualification of the exception applies when the greater offense was submitted to the trier of fact at the first trial. Yet, Boggs claims the Iowa statute contains no such qualification. Thus, Boggs claims the Iowa statute provides greater protection by also prohibiting prosecution of a greater offense when the greater offense was charged, but dismissed prior to trial so that only the lesser included offense was submitted to the fact finder for adjudication. Thus, we must ultimately decide if our legislature has defined rights or protections greater than recognized under the Federal and state Due Process Clauses.

We acknowledge lesser included crimes can be identified and determined independent of any facts of a particular case. See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (identifying a lesser included offense by “putting the offenses side by side and comparing the elements”). Thus, it would be possible for the legislature to construct a rule to bar the retrial of a greater offense of the crime of conviction, even when the greater crime was not expressly or impliedly adjudicated in the first trial. In deciding whether section 816.3 contains such a rule, we first return to the language of the statute. See State v. Bonstetter, 637 N.W.2d 161, 166 (Iowa 2001) (determining the intent of the legislature by considering the language of the statute).

We observe the statutory rule only applies to a “conviction of a lesser included offense.” While a greater and lesser included offense can be determined in the abstract, a “conviction for a lesser included offense” normally signifies the fact finder was given the option to also return a conviction for the greater crime. Otherwise, it would be unnecessary to designate the conviction as “a lesser included offense.” Instead, the conviction would simply be for the offense charged. Generally, we interpret statutes consistent with their normal meaning, and we refrain from an interpretation that is strained. Gen. Elec. Co. v. Iowa State Bd. of Tax Review, 702 N.W.2d 485, 489 (Iowa 2005). Moreover, it is clear the legislature could have expressed a clear intent to bar the retrial of an unprosecuted higher offense by simply not referring to the crime of conviction as one for a lesser included offense. See Hines v. Ill. Cent. Gulf R.R., 330 N.W.2d 284, 289 (Iowa 1983) (assuming “the legislature was familiar with the existing state of the law” and “if the legislature sought to remedy a specific evil it would have clearly so indicated”). In other words, the reference to a “lesser included” crime in the statute implies the higher crime excluded from reprosecution under the statute was submitted to the fact finder and included in the deliberations that led to the “conviction for a lesser included crime.” An intent to exclude unprosecuted greater crimes from reprosecution would actually be expressed by excluding any reference to the crime of conviction as “a lesser included crime.”

We next turn to the objectives and purpose of section 816.3(3). In interpreting statutes, we search for a reasonable interpretation that best achieves the purpose of the statute. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). As previously noted, the driving public policy that permits retrial after a conviction has been set aside or reversed is derived from the proper administration of justice. A retrial after a conviction has been set aside serves both the rights of a defendant and the interest of society. Furthermore, the qualification to the Ball exception recognized in Green is entirely consistent with this purpose. If a defendant is placed in jeopardy of the greater crime in the first trial, so that the fact finder implicitly acquits the defendant of the greater crime by convicting the defendant of a lesser crime, society no longer has any interest in punishing the defendant for the crime of which he or she has been acquitted. On the other hand, if the trier of fact never weighed a defendant’s guilt or innocence on the greater crime at the first trial, the competing interests in the administration of justice recognized in Ball as a justification for a retrial continue to exist. Yet, under the interpretation of section 816.3(3) advocated by Boggs, no retrial would be permitted. Instead, a defendant would not only be immune from a retrial, but would be permitted to rescind the guilty plea while retaining its benefits. See Tateo, 377 U.S. at 466, 84 S.Ct. at 1589, 12 L.Ed.2d at 451.

These considerations have led a vast majority of the courts from other jurisdictions to conclude that a defendant who succeeds in setting aside a conviction may normally be retried on all charges in the original indictment that were not expressly or implicitly resolved by the finder of fact at the first trial. See Sweetwine v. State, 288 Md. 199, 421 A.2d 60, 64 n. 3 (1980) (citing state and federal cases). See generally Michael A. DiSabatino, Retrial on Greater Offense Following Reversal of Plea-Based Conviction of Lesser Offense, 14 A.L.R.4th 970 (1982). Only a few jurisdictions have taken the position urged by Boggs, and some of these jurisdictions later changed course and adopted the majority rule. See Hawk v. Berkemer, 610 F.2d 446, 446-48 (6th Cir.1979) (overruling prior cases and adopting majority rule); see also People v. Dugan, 15 Ill.App.3d 1071, 305 N.E.2d 308, 308-09 (1973), abrogated by People v. McCutcheon, 68 Ill.2d 101, 11 Ill.Dec. 278, 368 N.E.2d 886, 887-89 (1977) (plea of guilty to lesser included offense was not acquittal of greater offense). The rationale for the minority rule was largely predicated on the fear that the majority rule can unfairly discourage the exercise of the right to appeal by defendant. See People v. Thornton, 403 Mich. 389, 269 N.W.2d 192, 193 (1978). Only one state apparently followed the minority rule at the time our legislature enacted section 816.3(3). See Sweetwine, 421 A.2d at 65 n. 4. We consider the state of the law when a statute was enacted. Doe v. Ray, 251 N.W.2d 496, 501 (Iowa 1977). We also assume our legislature was familiar with the existing state of the law when it enacted section 816.3(3) in 1979. Hines, 330 N.W.2d at 289.

In construing statutes, it is also important to read the text of the statute in light of its overall context. H & Z Vending v. Iowa Dep’t of Inspections & Appeals, 511 N.W.2d 397, 398 (Iowa 1994). Chapter 816 clearly governs double jeopardy. Additionally, we can derive legislative intent not only from the subject matter of statutes, but also the consequences of the competing interpretations. State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006). As we have previously indicated, double jeopardy principles do not cast a protective net over retrials on a greater charge not submitted to the trier of fact in the first trial. On the other hand, situations can arise when it would be unfair to permit the prosecution of a defendant for a greater crime following reversal of a conviction for a lesser crime, even when the greater crime was not submitted for adjudication in the first prosecution. Thus, the interpretation sought by Boggs does have some appeal. However, these circumstances normally concern the situation in which the prosecutor and defendant have entered into a plea bargain (involving a reduction of the charge to a lesser included offense in exchange for an adjudication of guilt) prior to the original conviction, and the defendant then seeks to enforce the plea bargain on retrial following a reversal of the conviction on grounds other than insufficiency of evidence, while the prosecutor seeks to prosecute the defendant on the original greater offense. This situation has little to do with double jeopardy policy, but relates instead to a due process analysis that normally involves claims of prose-cutorial vindictiveness. See Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S.Ct. 2098, 2101-03, 40 L.Ed.2d 628, 632-35 (1974); Pearce, 395 U.S. at 723-26, 89 S.Ct. at 2080-81, 23 L.Ed.2d at 668-70; United States v. Moulder, 141 F.3d 568, 571-72 (5th Cir.1998) (finding no double jeopardy obstacle when the state seeks to reprose-cute the original charge after defendant successfully challenges a conviction based on a plea bargain on appeal, but a due process claim of vindictiveness exists). We do not think our legislature would develop a broad rule that effectively immunizes all defendants from being retried on a crime for which jeopardy has never attached based on a due process analysis that depends upon the facts and circumstances of a particular case. See Moulder, 141 F.3d at 572 (considering the context of the entire proceedings in deciding a claim that reinstatement of more serious charge violated due process).

We are respectful of the power of our legislature to create rights by statute and are mindful of our limited task to discern the intent of the legislature when an enactment is disputed. See State v. Dann, 591 N.W.2d 635, 638 (Iowa 1999) (noting the polestar of all statutory construction is to search for the true intention of the legislature). These fundamental precepts are especially important to keep in mind in cases like this when the development of the law has been heavily influenced by judicial decision making. We emphasize that the exceptions and qualifications to the double jeopardy rule developed by our courts do not necessarily need to be shared by our legislature. See State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999) (recognizing the goal of statutory interpretation is not to decide what the supreme court thinks the law should be). Yet, considering our rules of statutory construction, as applied to the statute, we are convinced the legislature did not intend, by enacting the qualification to the section 816.3(3) exception, to immunize all defendants from being retried following a reversal of a conviction on the original, greater charge that was never submitted to the trier of fact at the original trial. We also observe that at least one other state court has reached the same conclusion based on statutory language similar to that in our statute. See State v. Martinez, 120 N.M. 677, 905 P.2d 715, 716 (1995) (concluding a Code section that prohibits retrial of a defendant for a “crime or degree of the crime greater than the one of which he was originally convicted” precludes retrial of a greater offense only after acquittal of that offense). We give weight to the judicial interpretation of similar statutory language in other jurisdictions. Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 866 (Iowa 1978), superseded by statute on other grounds as stated in Gray v. Kinseth Corp., 636 N.W.2d 100, 102 (Iowa 2001).

Under our rules of statutory construction, we conclude the intent of the legislature under section 816.3(3) was only to preclude retrial on the greater crime when the greater crime was submitted for adjudication with the lesser included offense, consistent with our established double jeopardy jurisprudence. Since Boggs makes no due process claim in this case, we do not address the issue further. Section 816.3(3) did not prohibit prosecution for the original crime.

IV. Plea Negotiations.

Boggs claims the trial court erred by admitting into evidence at trial his incriminating statements about the source and ownership of the drugs made to the officer following his arrest. He claims the statements were inadmissible plea discussions under Iowa Rule of Criminal Procedure 2.10(5). This rule, in relevant part, provides: “If a plea discussion does not result in a plea of guilty, ... the plea discussion ... shall not be admissible in any criminal or civil action or administrative proceeding.”

Rule 2.10(5) makes certain plea discussions inadmissible at trial because they are privileged. See State v. Taylor, 336 N.W.2d 721, 726 (Iowa 1983). However, the privilege only extends to actual plea discussions. Id. It does not extend to all conversations between law enforcement and a defendant hoping to achieve some leniency by agreeing to talk to law enforcement. See People v. Jones, 315 Ill.App.3d 500, 248 Ill.Dec. 499, 734 N.E.2d 207, 212 (2000), rev’d on other grounds, 197 Ill.2d 346, 258 Ill.Dec. 775, 757 N.E.2d 464 (2001). Thus, a distinction exists between “those discussions in which the accused was merely making an admission and those discussions in which the accused was seeking to negotiate a plea agreement.” United States v. Robertson, 582 F.2d 1356, 1367 (5th Cir.1978).

In this case, the State offered the incriminating statements into evidence at trial through the testimony of the officer who interviewed Boggs following his arrest. Boggs objected to the admission of these statements and was permitted by the district court to voir dire the witness for the purpose of supporting the objection. During the voir dire examination, Boggs established that the law enforcement officer conducted the interview in an effort to obtain an admission of guilt and to determine if a plea agreement could be reached, although there was no evidence elicited to show Boggs was aware of these purposes. Boggs also established during the voir dire examination that the interview included plea discussions and that the interviewer contacted the county attorney by telephone during the interview.

Importantly, Boggs failed to produce any evidence to reveal that point during the interview when plea discussions first occurred and that point when the incriminating statements were made by Boggs to the officer. Plea discussions that take place during the course of a general police interview of a suspect do not transform the entire interview into a plea discussion so that all statements made during the interview become privileged under rule 2.10(5). Instead, the “totality of the circumstances” must be examined to determine “whether a discussion can properly be characterized as a privileged plea negotiation.” State v. Hovind, 431 N.W.2d 366, 370 (Iowa 1988). A defendant must exhibit an “actual subjective expectation to negotiate a plea at the time of the discussion,” and the defendant’s expectation must be “ ‘reasonable given the totality of the objective circumstances.’” Taylor, 336 N.W.2d at 726 (quoting Robertson, 582 F.2d at 1366).

While plea discussions took place in this case, there was no evidence elicited that Boggs had a reasonable expectation to negotiate a plea at the time he made the incriminating statements pertaining to the source and ownership of the drugs found in his residence. Boggs’ counsel was given an opportunity to elicit this evidence and failed to do so. Accordingly, we conclude the district court did not err in admitting the incriminating statements.

V. Substitute Counsel at Sentencing.

Boggs claims the district court erred by failing to grant the motion to withdraw filed by his counsel prior to the sentencing. He claims a complete breakdown of the attorney-client relationship took place that justified substitution of counsel prior to the sentencing hearing after his attorney informed the trial court that he was unable to zealously represent him and speak on his behalf at the time of sentencing. Boggs further claims he was denied effective assistance of counsel at sentencing when his attorney actually declined to speak on his behalf after the court denied the motion to withdraw. Thus, Boggs not only claims the district court erred by denying the motion to withdraw and failing to appoint substitute counsel, but that his rights to effective counsel guaranteed under the Sixth Amendment to the Federal Constitution and article I, section 10 of the Iowa Constitution were denied when his attorney failed to speak on his behalf at sentencing. Boggs does not claim the denial of the motion to withdraw and the failure to appoint substitute counsel implicated any form of waiver of his right of self-representation or that the court failed to adequately inquire into the need for substitute counsel. See State v. Martin, 608 N.W.2d 445, 449-50 (Iowa 2000); Tejeda, 677 N.W.2d at 749. Instead, Boggs asserts the record justified the appointment of substitute counsel.

A defendant has a right to counsel “[a]t all critical stages of the criminal process.” State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006). This right extends to sentencing. The grounds to justify the appointment of substitute counsel include a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the defendant and counsel. Martin, 608 N.W.2d at 449. The defendant must show the grounds to justify substitute counsel. Id. The court has considerable discretion whether to grant substitute counsel, and eleventh-hour requests for substitute counsel are generally disfavored. Tejeda, 677 N.W.2d at 749.

A complete breakdown in communication supports the appointment of substitute counsel because it deprives counsel of a critical component to an adequate defense — attorney-client communication. See U.S. v. Barrow, 287 F.3d 733, 738 (8th Cir.2002) (focusing inquiry on the adequacy of counsel in the adversarial process). Yet, general frustration and dissatisfaction with defense counsel expressed by a defendant does not alone render counsel unable to perform as a zealous and effective advocate. The focus of the inquiry is not on the defendant’s relationship with his or her attorney, but “the adequacy of counsel in the adversarial process.” Id. In reality, “a person accused of a crime is often genuinely unhappy with an appointed counsel who is nevertheless doing a good job.” Id. Thus, not all criticism lodged by a defendant against defense counsel requires new counsel. Nevertheless, counsel for Boggs took the position in this case that the criticism leveled by Boggs rendered him unable to be a zealous advocate and prevented him from speaking on his behalf at sentencing. Thus, two questions are presented. The first question is whether counsel’s declaration of intent to remain silent at sentencing justified the appointment of substitute counsel. The second question is whether Boggs was denied effective assistance of counsel when his attorney failed to speak on his behalf in mitigation of the sentence.

Before considering these questions, we turn to the element of prejudice. In the context of a claim for ineffective assistance of counsel, defendant must establish that prejudice resulted from the ineffective assistance. See State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006) (stating prejudice exists when it is reasonably probable the result would have been different without counsel’s unprofessional error). Similarly, a defendant must generally establish prejudice when denied substitute counsel unless the defendant was completely denied counsel or counsel had a conflict of interest. State v. Lopez, 633 N.W.2d 774, 779 (Iowa 2001). Similar to a complete denial of counsel, a third exception to the rule of prejudice governing the denial of substitute counsel is recognized when “ ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ ” Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914, 928 (2002) (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984)). Importantly, this exception recognized in Cronic requires a complete failure by counsel. Bell, 535 U.S. at 697, 122 S.Ct. at 1851, 152 L.Ed.2d at 928.

If none of the three exceptions apply in this case, prejudice is required to be established. Thus, we must decide if Boggs’ claim falls within one of the three exceptions. Boggs does not claim he was denied counsel or his counsel had an irreconcilable conflict. Moreover, he does not claim his counsel failed to represent him at the sentencing hearing as a whole, but only in failing to address the court on his behalf in mitigation of punishment. See id. Consequently, the specific failure of counsel to speak on behalf of Boggs in mitigation of punishment at the sentencing does not fall within the third exception. See Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S.Ct. 2464, 2473-74, 91 L.Ed.2d 144, 160-61 (1986) (holding failure of counsel to offer any mitigation evidence at sentencing did not constitute ineffective assistance of counsel); Burger v. Kemp, 483 U.S. 776, 788, 107 S.Ct. 3114, 3122, 97 L.Ed.2d 638, 653 (1987) (same). Accordingly, Boggs must show he suffered prejudice in his claim that the trial court erred in failing to appoint substitute counsel at sentencing, as well as with his claim that he was denied effective assistance of counsel at sentencing.

The existence of prejudice is evaluated under the same standard as a claim for ineffective assistance of counsel. See Bell, 535 U.S. at 697-98, 122 S.Ct. at 1851-52, 152 L.Ed.2d at 929. Boggs has failed to explain how he was prejudiced, and our review of the record fails to support prejudice. After the district court denied the motion to withdraw, Boggs’ counsel acknowledged he had reviewed the presen-tence investigation report and found no errors. He also informed the district court that he gave Boggs a copy of the presentence investigation report prior to the sentencing. Additionally, he told the district court he knew of no reason why the court could not pronounce the sentence.

Counsel for Boggs did fail to speak on behalf of Boggs in mitigation of punishment at the sentencing hearing. However, Boggs submitted a written statement of mitigation together with other documents in mitigation of punishment. He was also given his right of allocution. Boggs makes no claim that the sentence imposed by the district court was illegal or that any evidence in mitigation existed that was not presented to the court. The court was fully apprised of Boggs’ background and other matters pertinent to the imposition of sentence by the presentence investigation report. Under all the circumstances, Boggs has failed to establish prejudice.

VI. Ineffective Assistance of Trial Counsel.

Boggs claims his trial counsel was ineffective for two main reasons. First, he claims trial counsel was ineffective for failing to object to an instruction given to the jury by the district court concerning Boggs’ character and reputation for drug use. Boggs points out that no evidence was presented at trial concerning his good character or reputation, and the only evidence of his drug use was introduced by the officer who executed the search warrant when he mentioned that the occupants of the house had a history of drug activity. Boggs believes the instruction and this evidence permitted the jury to consider the evidence of his drug use in deciding whether he was guilty of the crimes charged.

Boggs also claims his trial counsel failed to object to multiple incidents of prosecu-torial misconduct during closing arguments. Boggs claims the prosecutor repeatedly made improper references about removing drugs from the streets of the community. He also claims the prosecutor made improper comment on the credibility of witnesses when he stated that Boggs’ defense in the case was to show the State’s witnesses were “lying” and when he argued that police who testified did not lie.

To establish a claim of ineffective assistance of counsel, a defendant must show trial counsel failed to perform an essential duty and prejudice resulted. State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). Generally, claims of ineffective assistance of counsel are preserved for postconviction relief. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). However, if the record shows the defendant cannot prevail under either element as a matter of law, we will affirm the conviction without preserving the claim. Id. In this case, we turn to the second prong of the test without considering the first.

The defendant establishes prejudice by showing “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Graves, 668 N.W.2d at 882 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 697 (1984)). This standard is met when the probability of a different result is “ ‘sufficient to undermine confidence in the outcome.’ ” Id. We consider the totality of the circumstances, the factual findings that would have been affected by counsel’s conduct and whether the effect of the conduct was pervasive or isolated and trivial. See Graves, 668 N.W.2d at 882-83. To the extent Boggs makes a due process claim based on prosecutorial misconduct, we consider whether Boggs was denied a fair trial in light of the following factors:

(1) the severity and pervasiveness of misconduct; (2) the significance of the misconduct to the central issues in the case; (3) the strength of the State’s evidence; (4) the use of cautionary instructions or other curative measures; (5) the extent to which the defense invited the misconduct.

Id. at 869 (citations omitted). The most important factor is the strength of the State’s case against the defendant. State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006).

The submission of the character instruction to the jury was perplexing, at best. The instruction permitted the jury to consider evidence of Boggs’ good character or reputation regarding drug use in deciding if he committed the crimes charged, but no such evidence of good character was introduced. Generally, the submission of an instruction unsubstantiated by the evidence is prejudicial. Tejeda, 677 N.W.2d at 753. Yet, the error in the submission of the instruction under the circumstances of this case does not undermine our confidence in the verdict. See id. The officers’ testimony that the occupants of the house had a history of drug use could be considered as evidence of a bad reputation regarding drug use, but the instruction did not specifically tell the jury it could consider Boggs’ bad history or reputation for drug use in considering its verdict. The instruction largely informed the jury how to consider evidence of good character. Thus, we do not share Boggs’ concern that the instruction impacted the verdict. Additionally, the prosecutor did not make any argument to suggest the instruction could be used in such a manner. Moreover, the State’s case against Boggs was overwhelming. He was caught “red-handed” by law enforcement officers dividing a large quantity of methamphetamine into small quantities in a room filled with numerous drug paraphernalia and other evidence of drug dealing. See id. at 755 (holding no prejudice resulted for the purposes of an ineffective-assistance-of-counsel claim when the prosecution presented overwhelming evidence of the defendant’s guilt and the effect of a superfluous jury instruction was speculative).

We also conclude the conduct of the prosecutor during closing argument did not result in prejudice to Boggs. At the outset, comments about the “community” are improper when used to improperly inflame the jury. See State v. Johnson, 534 N.W.2d 118, 128 (Iowa Ct.App.1995) (prosecutor urged jury to convict to “protect community values”). Similarly, a prosecutor who calls a witness a “liar” improperly inflames the jury. See Carey, 709 N.W.2d at 558. While we do not decide if the comments in this case constituted misconduct, they were not egregious. The references to the community were not pervasive and largely related to the intent-to-distribute element of the crime, not the need for the jury to convict to protect the community. See State v. Monroe, 236 N.W.2d 24, 30-31 (Iowa 1975) (condemning prosecutor’s references regarding the need to protect the community from drug dealing because their purpose was to inflame the jury). Similarly, the statements by the prosecutor about “lying” were isolated and generalized with no specific reference to Boggs. See Carey, 709 N.W.2d at 558 (suggesting that, while referring to the defendant as a liar is misconduct, asking the jury to make reasonable inferences as to the believability of certain testimony, based on the evidence, is permissible).

Under all the circumstances, no prejudice can be observed. The alleged improper comments were not inflammatory and were isolated. Moreover, as previously indicated, the case against Boggs was strong.

VII. Conclusion.

For the reasons set forth in this opinion, we reject all claims raised by Boggs in support of his appeal. We affirm the judgment and sentence of the district court.

AFFIRMED.

      . Various rules of evidence also address the relevancy of plea negotiations and other such postoffense activity. See B. John Burns, Iowa Practice, Criminal Procedure § 25:2(e) (2007) [hereinafter Burns]. In particular, rule of evidence 5.410 makes certain pleas, plea discussions, and related statements inadmissible, including "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn." Iowa R. Evid. 5.410(4). This rule correlates with Iowa Rule of Criminal Procedure 2.10(5), but rule of evidence 5.410 is specifically limited to plea negotiations with a prosecuting attorney. Rule 2.10(5) applies to "all discussions relating to resolution of the case including those between the defense and law enforcement officers." Burns, at § 25:2(e). Boggs makes no claim that rule 5.410(4) applies to this case.

      . On appeal, we denied a request by Boggs to supplement the record with a videotape of the interview between Boggs and the law enforcement officer. A videotape of the interview would be very helpful in determining whether the incriminating statements by Boggs were privileged, but the videotape in this case was never introduced into evidence or otherwise made a part of the trial court record. It is a fundamental principle that our review of district court rulings is limited to the record made before the district court. Additionally, Boggs did not raise any claim of ineffective assistance of trial counsel based on the failure of his trial counsel to make an adequate record of the interview at trial. Boggs did claim on appeal that his trial counsel was ineffective for failing to file a motion to suppress the incriminating statements. However, Boggs raised this claim only if we found he failed to preserve error on his claim by objecting at trial that the incriminating statements were improperly admitted. Boggs preserved error by making his trial objection, but failed to establish grounds to support his claim of error.

      . We have adopted the two exceptions to the prejudice requirement from Williams v. Nix, 751 F.2d 956, 960 (8th Cir.1985). See State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995).

      . The phrase "red-handed” is derived from the anonymous Latin phrase "flagrante delicto.” Bartels Familiar Quotations 123:128 (17th ed. 2002). "To be caught ‘red-handed’ is to be caught in the act, in flagrante delicto, as if with blood on the hands.” Brewer’s Dictionary of Phrase and Fable 920 (14th ed. 1989). Black’s Law Dictionary 782 (7th ed.1999) translates "flagrante delicto” as "while the crime is ablaze.”


author: /s/ Lorie S. Gildea Associate Justice

text:
    Melvin A. PETRUS, Respondent, v. MINNEGASCO, INC./Self-Insured, and St. Paul Travelers Insurance Company, Relators, and MN Dept. of Labor & Industry/VRU, Intervenor.
    No. A07-1534.
    Supreme Court of Minnesota.
    Nov. 21, 2007.
    Thomas P. Kieselbach, Cousineau McGuire Chtd., Minneapolis, MN, for Appellant.
    Melvin A. Petrus, Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 11, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 NW.2d 361, 366 (Minn.1982) (explaining that [sjummary af-firmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Lorie S. Gildea

Associate Justice


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST James L. BERG, a Minnesota Attorney, Registration No. 139105.
    No. A07-563.
    Supreme Court of Minnesota.
    Nov. 29, 2007.

      Cassie Breta Hanson, Office of Lawyer’s Professional Responsibility Saint Paul, MN, for Petitioner.
    Phillip A. Cole, Lommen, Nelson, Cole, Stageberg, Minneapolis, MN, for Respondent.
   OPINION

PER CURIAM.

This attorney discipline case concerns the appropriate discipline to be imposed on respondent James L. Berg. The Director of the Office of Lawyer’s Professional Responsibility filed a petition and a supplementary petition for discipline alleging several acts of misconduct. Berg agreed that he committed the acts of misconduct alleged in the petitions by entering a stipulation for discipline with the Director. In the stipulation, Berg and the Director jointly recommended that Berg be suspended from the practice of law in Minnesota for a minimum of five years with conditions placed on reinstatement. Because of the presence of numerous mitigating factors and because it is appropriate in this case to give some deference to the Director’s recommendation in the stipulation, we impose the discipline of a five-year suspension.

In October 1982, Berg was admitted to practice law in Minnesota. Until the Director filed the petition in this case, Berg had never been the subject of a disciplinary action. Berg initially filed an answer to the petition, but withdrew that answer and agreed to the allegations and those of the supplementary petition. Berg’s acts of misconduct include misappropriation and mishandling of client funds, a single instance of forgery, making false statements, failing to communicate with clients, neglecting client matters, failing to enter written contingency fee agreements, and failing to cooperate with the disciplinary investigation underlying this case.

Berg admitted to misappropriating the funds of six different clients. During his representation of C.W., Berg misappropriated funds he received on C.W.’s behalf by disbursing the proceeds from his client trust account prior to April 1, 2005. To whom Berg made these disbursements is unclear, but his trust account retained a sufficient balance to cover the C.W. funds at other times during the Director’s audit of this account. Then in May and June 2005, Berg misappropriated settlement funds he received on behalf of J.R. by withdrawing the entire amount from his client trust account. In October or November 2005, Berg misappropriated settlement funds he received on KS.’s behalf by disbursing those funds from his client trust account. Berg made these disbursements after negotiating the check by forging KS.’s signature on the endorsement. Sometime before November 18, 2005, Berg misappropriated funds he received on behalf of B.C. by disbursing them from his client trust account for his own use. Berg also misappropriated insurance premium and mortgage escrow funds he received for L.H. by disbursing them for his own use in February 2007. Finally, Berg misappropriated funds he received from G.B. as an advance fee payment and an appellate filing fee, by failing to deposit them in his client trust account. Berg agreed that each of these disbursements, and his failure to deposit money he received from G.B., violated Minn. R. Prof. Conduct 1.15(a) & (b) and 8.4(b) & (c). Berg agreed that his forgery of K.S.’s signature, though made under the mistaken belief that he was authorized to negotiate the check for K.S., violated Minn. R. Prof. Conduct 8.4(b) and (c).

During an audit of Berg’s trust account from April 2005 through April 2006, the Director discovered that Berg deposited personal funds into and made personal cash withdrawals from his client trust account. Berg also authorized his own creditors to make electronic withdrawals from that account. He also failed to disburse funds to clients by trust account checks. Berg and the Director agreed that these actions violated Minn. R. Prof. Conduct 1.15(a) and (b).

Berg failed to enter 'written contingency fee agreements with four different clients. Berg made these unwritten contingency fee arrangements with J.R. in March 2005, with K.S. in October 2003, with L.L.P. sometime before December 23, 2005, and with T.L. sometime before January 4, 2006. Berg also received settlement funds on behalf of J.R. for which he has never accounted. Berg agreed that his failure to execute written contingency fee agreements violated Minn. R. Prof. Conduct 1.5(c).

Berg disbursed to L.L.P. the portion of the settlement funds to which she was entitled, but he did not provide her a written statement showing the outcome of the matter or the method by which the funds were divided between his fees and her remittance. Berg did not provide K.S. and T.L. with documentation showing the outcome of their cases. Nor did he provide them with documentation showing the method of division between his fees and their remittance. Berg agreed that his failure to provide appropriate documentation to these clients violated Minn. R. Prof. Conduct 1.5(c).

Berg made false statements to G.B. and L.H. while representing them. He also made false statements to the Director during the disciplinary investigation. Berg told L.H. that he was unable to release funds to which she was entitled without first obtaining additional signatures. This statement was false because Berg had actually misappropriated the funds. Berg told G.B. that opposing counsel had asked Berg to withdraw G.B.’s appeal in March 2007 in order to settle the case. This statement was false because opposing counsel had actually contacted Berg about settling the case more than a month earlier. In response to a complaint K.S. made to the Director about Berg’s representation, Berg falsely stated that he had received a settlement offer in December 2005 to which K.S. agreed. Berg had actually agreed to the settlement without KS.’s consent in August 2005. Berg agreed that these acts violated Minn. R. Prof. Conduct 4.1 and 8.4(c).

Berg admitted to several instances of failing to communicate with clients and neglecting client matters. He failed to communicate with J.R.’s bankruptcy attorney in late 2005 about the status of funds Berg held on J.R.’s behalf. Berg also failed to resolve a lien on J.R.’s property. Berg failed to respond to KS.’s attempts to contact him from August through December 2005. While handling an appeal for G.B., Berg failed to file a memorandum ordered by the court of appeals. This failure led to the dismissal of G.B.’s appeal. Berg never informed G.B. of the dismissal. Berg agreed that these acts violated Minn. R. Prof. Conduct 1.1, 1.3, 1.4(a), 1.4(a)(4), 3.2, 3.4(c), and 8.4(d).

Finally, Berg did not cooperate with the disciplinary investigation. He failed to comply with the district ethics committee investigator’s and the Director’s requests that he provide trust account records; failed to return settlement funds to J.R. pending the resolution of Berg’s claim that Berg was entitled to them; failed to respond to the Director’s March 2006 notice of investigation of Berg’s representation of C.W. and another request regarding that representation in November 2006; failed to provide the Director with the file, retainer agreement, and trust account records related to his representation of G.B.; failed to provide trust account records related to his representation of L.H.; and failed to provide records related to the overdraft of his trust account. Berg agreed that his lack of cooperation with the investigatory process violated Minn. R. Prof. Conduct 8.1(b) and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR).

Initially, Berg responded to the petition for discipline by denying many of its allegations. He later withdrew that answer and admitted all the allegations of the petition and supplementary petition as part of the terms of the stipulation. In the stipulation, the parties jointly recommended an indefinite suspension for a minimum of five years with conditions placed on reinstatement. Because the agreed acts of misconduct would justify disbarment, we invited the parties to file briefs explaining why Berg should not be disbarred.

In the memorandum attached to the stipulation, the Director described certain aspects of Berg’s conduct and of his physical and psychological condition that were considered in mitigation of some of his misconduct. First, at the time briefs were filed the Director had verified that Berg had made restitution to all of his clients other than J.R. At oral argument, the Director confirmed that Berg had made restitution to J.R. Second, prior to this disciplinary action, Berg had no disciplinary history in over 20 years of practice. Third, before any of the events leading to this disciplinary action occurred, Berg was diagnosed with a terminal heart condition known as idiopathic dilated cardiomyopa-thy. For Berg, this condition carries with it a 70 percent likelihood of death within the next five years. Berg’s treating cardiologist indicated that the loss of function in Berg’s heart caused by his condition has resulted in a deterioration of the quality of Berg’s life which may have had an impact on his ability to handle client matters effectively. Finally, Berg suffers from depression and anxiety as a result of this diagnosis. The Director recognizes Berg’s depression as a mitigating factor with respect to his unintentional misconduct, but not with respect to his intentional misconduct.

Because Berg does not challenge the allegations in the petitions and admits to engaging in professional misconduct, the only issue before us is the appropriate discipline to be imposed. See In re Dovolis, 572 N.W.2d 734, 736 (Minn.1998). “Disciplinary sanctions for professional misconduct are imposed to protect the public and the judicial system, and to deter future misconduct.” In re Crandall, 699 N.W.2d 769, 771 (Minn.2005). In determining the appropriate sanction for professional misconduct by an attorney, we consider four factors: “(1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.” In re Nelson, 733 N.W.2d 458, 463 (Minn.2007). Analogous cases provide guidance on the appropriate discipline in a given case, but sanctions are imposed on a case-by-case basis in light of aggravating and mitigating circumstances. Id. at 463-64.

Nature of the Misconduct

We have generally said that cases involving misappropriation result in disbarment. In re Wentzel, 711 N.W.2d 516, 520-21 (Minn.2006). But we have occasionally imposed the less severe sanction of a lengthy suspension where substantial mitigating circumstances are present. And we have occasionally deferred to recommendation of the Director for suspension even where mitigating factors were not emphasized. In re Rooney, 709 N.W.2d 263, 272 (Minn.2006) (“[E]xtraordinary stress in an attorney’s personal life, such as the serious illness of a loved one, is a mitigating factor that can lead to a sanction less than disbarment in a misappropriation case.”); In re Neal, 733 N.W.2d 117 (Minn.2007) (imposing 18-month suspension as jointly recommended where attorney misappropriated funds, without mention of mitigating factors); In re Singer, 630 N.W.2d 404 (Minn.2001) (accepting stipulation for indefinite suspension where attorney misappropriated funds, without mention of mitigating factors).

Berg’s misconduct involved concealment of the misappropriation, failure to cooperate with the disciplinary investigation and other misconduct in addition to misappropriation. See Rooney, 709 N.W.2d at 269 (noting cases where disbarment followed several types of misconduct in addition to misappropriation). But Berg’s misappropriations were accompanied by a number of mitigating factors.

In misappropriation cases it is appropriate to consider restitution to the affected clients as a mitigating factor so long as restitution is not “prompted by [an attorney’s] fear of getting caught.” Rooney, 709 N.W.2d at 271 (citing In re Stromwall, 481 N.W.2d 60, 62 (Minn.1992)). We agree with the parties that Berg’s complete restitution to each of his clients should be considered in mitigation of his misconduct.

A factor that mitigates Berg’s unintentional misconduct is his depression. Ordinarily, for an attorney’s psychological disability to be considered a mitigating factor proof of five factors is required: (1) that the attorney has a severe psychological disability; (2) that the disability caused the misconduct; (3) that the attorney is seeking treatment; (4) that the treatment has stopped the misconduct; and (5) that the misconduct is not likely to recur. In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). We agree with the Director that Berg’s depression does not mitigate his intentional misconduct, such as misappropriation and the forgery of KS.’s signature. See In re Jellinger, 655 N.W.2d 312, 316 (Minn.2002) (recognizing causal link between depression and “passive misconduct”). The Director acknowledges that Berg likely only meets the first of the Weyhrich factors, but our decisions have occasionally considered depression in mitigation where an attorney’s psychological condition does not completely satisfy the Weyhrich test. See Jellinger, 655 N.W.2d at 316 (mitigating discipline where attorney made partial showing of causative relationship between depression and passive misconduct, receipt of treatment for the disability, and lack of pecuniary loss to clients stemming from misconduct); In re Bergstrom, 562 N.W.2d 674, 678 (Minn.1997) (considering the significant role depression played in causing misconduct).

Cumulative Weight of Disciplinary Violations

“[T]he cumulative weight and severity of multiple disciplinary rule violations may compel severe discipline even when a single act standing alone would not have warranted such discipline.” Nelson, 733 N.W.2d at 464 (citing In re Oberhauser, 679 N.W.2d 153, 160 (Minn.2004)). In Nelson we noted that an attorney’s prior disciplinary history can be considered as an aggravating factor while considering the cumulative weight of an attorney’s misconduct. 733 N.W.2d at 464-65. But we have also considered an attorney’s lack of a disciplinary history as a mitigating factor in determining the appropriate discipline. See, e.g., In re Hottinger, 731 N.W.2d 827, 828 (Minn.2007) (noting the lack of a prior disciplinary record in 34 years of attorney’s practice). We emphasize here that prior to the events leading to this disciplinary action, and before Berg’s diagnosis with a terminal heart condition, he had no disciplinary history.

Because Berg engaged in multiple acts of misappropriation, dishonesty, and other forms of misconduct, however, the cumulative weight of his misconduct is great and warrants serious discipline. See In re Holker, 730 N.W.2d 768, 776 (Minn.2007) (imposing indefinite suspension where attorney mishandled trust account, failed to diligently represent clients, and failed to cooperate with the disciplinary investigation).

Harm to the Public and Harm to the Legal Profession

We must also consider the harm to the public and to the legal profession resulting from Berg’s misconduct. The purpose of attorney discipline is not to punish the attorney but rather to protect the courts, the public, and the legal profession. Jellinger, 655 N.W.2d at 316. All of Berg’s misappropriations have been repaid. But the harm to the public and the perception of the legal profession caused by an attorney’s misappropriation of funds warrants serious discipline. See In re Wentzel, 711 N.W.2d at 522 (noting that misappropriation of client funds “reflects poorly on the entire legal profession and erodes the public’s confidence in lawyers”). Berg’s false statements and forgery also warrant serious discipline as they are akin to a “breach of trust.” See Nelson, 733 N.W.2d at 465 (“Honesty and integrity are chief among the virtues the public has a right to expect of lawyers.”).

Because of the Director’s prominent role in the administration of the attorney discipline process, we give some deference to the Director’s recommendation of discipline, particularly where contained in a stipulation with the attorney. We observe that under Rule 5, RLPR, the Director “shall be responsible and accountable directly to the [Lawyers Professional Responsibility] Board and through the Board to this Court for the proper administration of the Office of Lawyers Professional Responsibility and [the RLPR].” Although we are ultimately responsible for determining the appropriate discipline to be imposed in cases involving professional misconduct by attorneys, we recognize that Director is in the best position to weigh the cost and risk of litigation and to determine when a stipulated discipline will best serve the interests of the Board.

The Director and Berg stipulated to discipline based on the existence of mitigating factors. As in Rooney, “[t]he presence of numerous mitigating circumstances, none of which alone would suffice to avoid disbarment, persuades us that disbarment in this case is not necessary to achieve the goals of attorney discipline.” 709 N.W.2d at 272. Because we agree that the presence of numerous mitigating factors makes disbarment unnecessary to achieve the goals of attorney discipline, we hold that Berg’s misconduct warrants the discipline recommended by the stipulation.

Accordingly, we order that:

1. Respondent James L. Berg is indefinitely suspended from the practice of law in the State of Minnesota, effective 14 days from the date of this decision, and is ineligible to apply for reinstatement for a minimum of five years;
2. Berg shall comply with the notice requirements or Rule 26, RLPR;
3. Berg shall pay to the Director costs in the amount of $900 plus interest and disbursements in the amount of $583.66 plus interest pursuant to Rule 24, RLPR; and
4. If Berg seeks reinstatement, he shall comply in all respects with Rule 18, RLPR.

So ordered.