                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0550
                            Filed November 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON GENE MCDONNELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol L. Coppola,

District Associate Judge.



      Defendant appeals his conviction for operating a vehicle without the

owner’s consent. AFFIRMED.



      Brendon D. Moe of Glazebrook, Moe & Hurd, L.L.P., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                        2


SCOTT, Senior Judge.

      Defendant Jason McDonnell appeals his conviction for operating a vehicle

without the owner’s consent.        McDonnell claims he received ineffective

assistance because defense counsel did not file a motion to dismiss on speedy

trial grounds. We determine the record is inadequate to address McDonnell’s

claim of ineffective assistance, and therefore, we preserve the claim for possible

postconviction proceedings. Defendant’s conviction is affirmed.

      I.     Background Facts & Proceedings

      The State filed a trial information on November 25, 2013, charging

McDonnell with operating a vehicle without the owner’s consent, in violation of

Iowa Code section 714.7 (2013), an aggravated misdemeanor.               He was

scheduled to be arraigned on December 4, 2013. On December 4, 2013, the

arraignment was rescheduled to December 11, 2013. McDonnell did not appear

on December 11, 2013, and the matter was not rescheduled.1 McDonnell was

arraigned on February 20, 2014.

      On February 28, 2014, McDonnell entered a guilty plea to operating a

vehicle without the owner’s consent. The court accepted his plea. McDonnell

requested immediate sentencing. He was sentenced to eighty-five days in jail,

with credit for eighty-five days served, and a fine was suspended. Later that

same day, McDonnell filed a motion to dismiss on the ground that he had not

been tried within ninety days, as required by Iowa Rule of Criminal Procedure

2.33(2)(b). The State filed a resistance to the motion, claiming McDonnell was


1
   McDonnell had been arrested on other charges on December 6, 2013, and was in
custody on those charges.
                                           3


aware of the speedy trial issue but entered into a plea agreement in which he

would plead guilty and the State would recommend a sentence of time served.

McDonnell also filed a motion seeking to set aside his guilty plea. Before the

court could rule on his motions, McDonnell appealed.2

       II.    Ineffective Assistance

       McDonnell claims he received ineffective assistance because defense

counsel permitted him to plead guilty to a charge that he asserts should have

dismissed on speedy trial grounds. Under rule 2.33(2)(b), “the defendant must

be brought to trial within 90 days after indictment is found,” unless there is “good

cause” for the delay. The trial information was filed on November 25, 2013,

making the speedy trial deadline February 24, 2014.           McDonnell entered his

guilty plea on February 28, 2014.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

       “Ineffective-assistance-of-counsel      claims   are   an   exception    to   the

traditional error-preservation rules.”   State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010). “If a claim of ineffective assistance of counsel is raised on direct

appeal from the criminal proceedings, the court may address it if the record is




2
    After McDonnell appealed the district court entered an order stating it did not have
jurisdiction to address the pending motions.
                                         4

adequate to decide the claim.” Id. “If the record is not adequate, the defendant

may raise the claim in a postconviction action.” Id.

      In general, criminal charges should be dismissed if the speedy trial

deadlines have been surpassed, “unless the defendant has waived speedy trial,

the delay is attributable to the defendant, or other ‘good cause’ exists for the

delay.” State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001). The concept of “good

cause” focuses on only one factor—the reason for the delay. Id. at 205. In a

claim of ineffective assistance of counsel, the defendant must show, by a

preponderance of the evidence, the State would be unable to establish good

cause for the delay. Ennenga, 812 N.W.2d at 706.

      We determine the record in this case is not adequate for us to address

McDonnell’s claim of ineffective assistance of counsel. While McDonnell entered

a guilty plea past the speedy trial deadline, we are unable to determine if a

motion to dismiss on speedy trial grounds would have been successful. The

parties have not had the opportunity to present evidence on the issues of

whether defendant waived his right to a speedy trial, the delay was attributable to

him, or there was other “good cause” for the delay. See Miller, 637 N.W.2d at

204. We conclude McDonnell’s claim he received ineffective assistance because

defense counsel did not file a motion to dismiss the charge against him on

speedy trial grounds should be preserved for possible postconviction

proceedings.

      We affirm McDonnell’s conviction for operating a vehicle without the

owner’s consent.

      AFFIRMED.
