                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1955
                           Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT EARL BRANDHORST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge (motion to dismiss), and DeDra L. Schroeder (trial),

Judge.



      A defendant appeals his conviction for driving while barred as a habitual

offender. AFFIRMED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J. and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Robert Brandhorst appeals his conviction for driving while barred as a

habitual offender, in violation of Iowa Code sections 321.560 and 321.561

(2015). He claims the district court erred when it failed to dismiss the matter for

failure to prosecute within one year from the date of arraignment, the district

court failed to inform him of his rights associated with stipulating to his status as

a habitual offender, and there was insufficient evidence to support his conviction.

We find no error in the district court’s decision to deny dismissal for failure to

prosecute within one year of Brandhorst’s arraignment or in the district court’s

failure to inform Brandhorst of his rights associated with the stipulation that he is

a habitual offender pursuant to Iowa Code section 321.555.          We also reject

Brandhorst’s claims attacking the sufficiency of the evidence. Thus, we affirm his

conviction.

   I. Background Facts and Proceedings

       At approximately 3:30 a.m. on July 1, 2015, a deputy working with the

Floyd County Sheriff’s office was on patrol near the town of Midway.          As he

crossed a bridge, the deputy noticed three individuals—two were fishing and one

was on a bicycle. The deputy approached the three individuals to inquire about

their fishing licenses. As the deputy ran their information in his patrol car, a

vehicle approached and pulled in behind the patrol car.         Once the vehicle’s

headlights illuminated the patrol car the vehicle stopped, reversed, and took off in

another direction.

       The deputy followed the vehicle’s taillights or dust from the gravel road to

the top of a nearby hill where the deputy lost sight of the vehicle. At the top of
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the hill, the deputy exited his vehicle and approached a farmhouse property on

foot. He located a vehicle around the backside of the house where he found

Brandhorst sitting in the driver’s seat of a small, single-cab pickup truck. The

deputy noticed several beer cans on the floor of the passenger side and asked

Brandhorst why he tried to dodge the deputy and if he had permission to be on

the property. Brandhorst indicated he “did not have a driver’s license” and did

not know the property owner.        Brandhorst proceeded to explain another

individual, “Dale,” drove Brandhorst onto the property and took off running before

the deputy arrived.

      The deputy placed Brandhorst under arrest after running his driver’s

license and determining that Brandhorst’s driving privileges were barred. The

trial information charged Brandhorst with one count of driving while barred as a

habitual offender. At trial, Brandhorst’s defense was that Dale had been driving.

A defense witness testified she was on the way to pick up one of the fishermen

when a man appeared out of the ditch and ran in front of her vehicle into the

other ditch.   The jury convicted Brandhorst of driving while barred, and

Brandhorst stipulated his driving privileges were barred as a habitual offender.

Brandhorst appeals.

   II. Standard of Review

      “[T]he court’s application of procedural rules governing speedy trial” is

reviewed for correction of errors at law. State v. Miller, 637 N.W.2d 201, 204

(Iowa 2001). We apply an abuse-of-discretion standard. State v. Elder, 868

N.W.2d 448, 453 (Iowa Ct. App. 2015).
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      “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). The jury’s verdict will

not be disturbed if it is supported by substantial evidence. Id. “Evidence is

considered substantial if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” Id. As always, the jury is free to give weight to the evidence it chooses

and reject the evidence it chooses. Id.

   III. Speedy Trial

      Iowa Rule of Criminal Procedure 2.33(2)(c) provides: “All criminal cases

must be brought to trial within one year after the defendant’s initial arraignment

pursuant to rule 2.8 unless an extension is granted by the court, upon a showing

of good cause.” State v. Elder, 868 N.W.2d at 453. Exceptions to the one-year

deadline thus include (1) waiver by the defendant, (2) delay attributable to the

defendant, and (3) other “good cause” for the delay. Id.

      The district court denied Brandhorst’s motion to dismiss for “good cause.”

The State asserts trial counsel impliedly waived the right by acquiescing to a

continuance during the pretrial conference on August 9. Although no transcript

was available, the district court entered an order following the August 9 pretrial

conference indicating “[Brandhorst] WAIVES Speedy Trial.”         Additionally, on

August 17, the court entered an order continuing the trial “[b]y agreement of the

parties.” The trial was in the tenth position and all those ahead of Brandhorst’s

case were being resolved either by filing pleas or continuances.        While trial

counsel argued she agreed to a continuance on another case, not Brandhorst’s

case, the district court did not find her explanation of any confusion supported by
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the record and denied the motion to dismiss. We agree with the district court, the

record supports trial counsel waived Brandhorst’s speedy-trial right by agreeing

to a continuance of the trial set in August 2016. See, e.g., State v. O’Connell,

275 N.W.2d 197, 200 (Iowa 1979) (establishing speedy-trial rights could be

waived by continuance motions made by defense counsel).

   IV. Habitual Offender

         Brandhorst next contends the district court erred in failing to inform him of

his constitutional rights associated with the stipulation that he is a habitual

offender. He asserts the district court was required to inform him of the nature of

the habitual-offender element and inform him that the prior convictions must have

been obtained when he was represented by counsel or after he knowingly and

voluntarily waived the right to counsel. See State v. Harrington, 893 N.W.2d 36,

45–46 (Iowa 2017). The State asserts Brandhorst did not preserve error on this

claim.

         “The doctrine of error preservation has two components—a substantive

component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011) (holding a one-page resistance that stated there was no legal

basis for the State’s actions did not properly preserve error with respect to the

defendant’s constitutional claims). To preserve error on appeal, the party must

first state the objection in a timely manner, that is, at a time when corrective

action can be taken, in addition to the basis for the objection. Id. at 524. The

court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012).
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       Brandhorst concedes he did not preserve error by failing to include the

argument in his motion in arrest of judgment but argues the enhanced sentence

is illegal because he was not informed of the nature of the habitual-offender

element. We find Brandhorst’s claim is not actually a claim his sentence is illegal

but is a challenge to the evidence supporting this conviction. See Tindell v.

State, 629 N.W.2d 357, 360 (Iowa 2001) (“[A] claim of procedural error is not a

claim of illegal sentence, and therefore, it is precluded by our normal error-

preservation rules.”).

       Brandhorst was charged under Iowa Code section 321.561, which makes

it “unlawful for any person found to be a habitual offender to operate a motor

vehicle in this state.” In this case, the jury was instructed the State had to prove:

“1. On or about the 1st day of July, 2015, Robert Brandhorst operated a motor

vehicle in Floyd County, Iowa. 2. At the time he operated a motor vehicle, his

driver’s license was barred.” Thus, when Brandhorst stipulated to being barred

from driving as a habitual offender, he was stipulating to an element of the

offense, not a sentencing enhancement. The district court is not required to

conduct a colloquy when a defendant chooses to stipulate to an element of an

offense. State v. Everett, 372 N.W.2d 235, 237 (Iowa 1985) (holding there is no

“due process requirement to undertake a guilty plea colloquy prior to accepting a

stipulated factual record”).   Since Brandhorst stipulated to an element of the

offense and was not stipulating to the application of a sentencing enhancement,

the plea colloquy protections under Harrington do not apply, and Brandhorst was

required to object to any deficiency in the factual record supporting the element

of the offense in a timely manner, which he failed to do. We find Brandhorst did
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not preserve error on his challenge to the habitual-offender element of the

charged offense.

   V. Sufficiency of the Evidence

       Brandhorst claims the evidence was insufficient to support his conviction.

Specifically, Brandhorst asserts the evidence failed to identify him as the driver.

He argues the State’s evidence was merely circumstantial and there was

evidence that a second person had been present.

       Our review of the record indicates there is sufficient evidence to support

the jury’s verdict. Brandhorst did not dispute he was in the vehicle, so the only

question is whether he was the driver. While one witness testified she saw a

man run across the road in front of her car, the deputy rejected the idea another

man was driving and identified Brandhorst as the driver. The deputy testified he

followed the vehicle onto the farm property and found Brandhorst sitting in the

driver’s seat. The deputy further testified he asked Brandhorst why he pulled

onto that particular property, and Brandhorst replied “[b]ecause I don’t have a

driver’s license.” Additionally, the vehicle’s keys were found tucked under the

front seat, under the ignition. On the passenger’s side, the floor was littered with

undented, empty beer cans as well as other objects, and the passenger seat

contained several items including an unopened beer can, a propane cylinder,

some screwdrivers, and clothing. As the deputy testified, with all of the items

found on the passenger side of the vehicle, it would make sitting in the

passenger’s seat “difficult and uncomfortable,” especially considering Brandhorst

is six-foot, three inches tall and wears a size 14 shoe.
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       When asked about the alleged second person, Brandhorst guessed at

possible last names but ultimately was not able to provide one. The deputy

noted there was no evidence a second person was nearby when he approached

the vehicle.

       The jury was free to evaluate the witnesses at trial and determine what it

believed. See Sanford, 814 N.W.2d at 615. The jury could have reasonably

determined the deputy’s testimony was more credible. Accordingly, we conclude

there was sufficient evidence to support the jury’s verdict.

   VI. Conclusion

       Because we reject Brandhorst’s claims regarding sufficiency of the

evidence, the district court did not err in denying dismissal for failure to prosecute

within one year, and Brandhorst did not preserve error on his challenge to his

status as a habitual offender, we affirm his conviction.

   AFFIRMED.
