                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0606
                            Filed December 18, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

UNTRIL D. OVERSTREET,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II

Judge.



      Untril Overstreet appeals multiple criminal convictions stemming from a

traffic stop. AFFIRMED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Ashley

Stewart, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Untril Overstreet appeals multiple criminal convictions stemming from a

traffic stop. He raises two arguments on appeal: (1) the district court abused its

discretion in denying his request to continue trial for the purpose of filing a motion

to suppress and (2) his attorneys rendered ineffective assistance in failing to move

for suppression of evidence obtained following the stop on the basis that the stop

was pretextual and therefore in violation of article I, section 8 of the Iowa

Constitution. We address his arguments in turn.

       Motions to suppress must be filed within forty days after arraignment. Iowa

R. Crim. P. 2.11(2)(c), (4). The time for filing may be extended for “for good cause

shown.” Iowa R. Crim. P. 2.11(3). “Absent a showing of good cause, an untimely

motion to suppress constitutes waiver of the grounds forming the basis for the

motion.” State v. Eldridge, 590 N.W.2d 734, 736 (Iowa Ct. App. 1999). We review

good-cause determinations and rulings on motions to continue for an abuse of

discretion. State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (motion to continue);

Eldridge, 590 N.W.2d at 736 (good cause). This is our most deferential standard

of review. State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017). “An abuse of

discretion occurs when the trial court exercises its discretion ‘on grounds of for

reasons clearly untenable or to an extent clearly unreasonable.’” State v. Walker,

___ N.W.2d ___, ___, 2019 WL 6222902, at *2 (Iowa 2019) (quoting State v.

Tipton, 897 N.W.2d 653, 690 (Iowa 2017)).

       A hearing was held less than a week before trial, at which Overstreet waived

his right to a jury trial and requested a bench trial. At the hearing, Overstreet

demanded his trial date remain set—he noted he did not want a jury trial but stated
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he would proceed with the scheduled jury trial if waiver would result in his trial

being delayed. The court assured him trial to the bench would proceed on the day

previously scheduled for jury trial. After the court accepted the jury trial waiver,

defense counsel advised the court she had previously told Overstreet she would

be filing a motion to suppress but she ultimately failed to do so. She added she

would not have time to do so with the looming trial date and repeated Overstreet

did not want his trial continued. The court essentially asked Overstreet if he would

like a continuance so he could have more time to file a motion to suppress.

Overstreet responded “All I’m saying is she should have done it. I’m not answering

no more questions as far as that.” Then, the morning of trial, defense counsel

advised the court Overstreet changed his mind. She requested a continuance of

trial and the scheduling of a suppression hearing. The State resisted, noting the

timelines had expired and defense counsel had been appointed to represent

Overstreet several months before trial. Considering the timelines and having

“review[ed] the case in preparation for trial,” the court denied the motion.

       Upon our review, we are unable to conclude the court’s discretionary

decision was clearly unreasonable or based on clearly untenable grounds or

reasons. See id. The court was not provided with a concrete reason for the delay

or any indication of what the basis for the motion to suppress would be. We affirm

the district court’s denial of the motion to continue.

       In any event, even if the court had abused its discretion in denying the

motion to continue, Overstreet only argues on appeal that one suppression

argument was meritorious. This brings us to his ineffective-assistance-of-counsel

claim. If it lacks merit, then any abuse of discretion in denying the motion to
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continue was harmless. See State v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009),

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 &

n.3 (Iowa 2016).

       Overstreet claims his attorneys rendered ineffective assistance in failing to

move for suppression of evidence obtained following the traffic stop on the basis

that the stop was pretextual and therefore in violation of article I, section 8 of the

Iowa Constitution. We review both constitutional issues and claims of ineffective

assistance of counsel de novo. State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019).

Overstreet “must establish by a preponderance of the evidence that ‘(1) his trial

counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting State v.

Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v. Washington, 466

U.S. 668, 687 (1984). We “may consider either the prejudice prong or breach of

duty first, and failure to find either one will preclude relief.” State v. McNeal, 897

N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa

2015)). A failure to register meritless arguments or motions does not amount to

ineffective assistance of counsel. See Lilly, 930 N.W.2d at 390; State v. Tompkins,

859 N.W.2d 631, 637 (Iowa 2015).

       Our supreme court recently declined to overrule longstanding precedent

holding that pretextual stops are permissible under the Iowa Constitution. See

State v. Brown, 930 N.W.2d 840, 846–54 (Iowa 2019); see also State v. Haas, 930

N.W.22d 699, 702 (Iowa 2019) (describing the Brown decision to be “consistent

with precedent in Iowa”). Had the argument been raised before the district court,

the court would have been required to follow said precedent, which forecloses
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Overstreet’s argument under the facts of his case. We find counsel was under no

duty to pursue the meritless argument and Overstreet was not prejudiced.

      We conclude the district court did not abuse its discretion in denying

Overstreet’s motion to continue and Overstreet’s attorneys were not ineffective as

alleged. We affirm Overstreet’s convictions.

      AFFIRMED.
