                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0993
                               Filed July 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMERIOUS LANIER SMITH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler (plea) and Bradley J. Harris (sentencing), Judges.



      Appeal from a guilty plea to possession of marijuana with intent to

distribute. AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant County

Attorney, Stephanie Koltookian, Legal Intern, Thomas J. Ferguson, County

Attorney, and Brad P. Walz, Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

       Jamarious Smith appeals from the judgment and sentence following his

guilty plea to possession of marijuana with intent to distribute. He contends the

court erred in not dismissing the case for violation of his speedy-indictment and

speedy-trial rights. Smith also contends his attorney rendered constitutionally

ineffective assistance in failing to file a motion to dismiss and motion to suppress

evidence.

                                          I.

       On January 30, 2012, Smith was a passenger in a car stopped by police.

During the traffic stop, the police ordered the driver out of the vehicle and into the

officers’ vehicle after the officers determined the driver’s license was revoked. At

about the same time, Smith began making furtive movements around his

waist/crotch area and in his coat pocket. An officer positioned near the driver’s

side of the vehicle told Smith to stop and to put his hands where the officer could

see them. When the officer looked away, Smith resumed making the furtive

movements toward his waist area. The officer, who feared Smith had a weapon

in his pants, drew his gun and again ordered Smith to stop.

       An officer positioned on the passenger side of the vehicle then asked

Smith if he had anything illegal on him. Smith did not answer. When the officer

asked a second time, Smith said “yes,” pointed to his waist/crotch area, and

asked if he could remove it. Due to concerns for their own safety, the officers

told Smith “no.”   The officers handcuffed Smith while he was in the vehicle.

While handcuffing him, the officers noted a strong smell of marijuana emanating
                                            3



from Smith’s waist area. The officers removed Smith from the vehicle and patted

him down. The officers found a large bag of marijuana “concealed in the upper

portion of Smith’s center waist area.”

          Following questioning at the police station, Smith was released with

charges and citations pending. On October 1, the State filed a trial information

charging Smith with possession of marijuana with intent to distribute.             On

February 28, 2013, Smith entered a guilty plea. Following sentencing on May 23,

Smith filed this appeal.

                                            II.

          Smith argues the court erred in not dismissing this case on speedy-

indictment or speedy-trial grounds.        The statutory speedy indictment right is

found in Iowa Rule of Criminal Procedure 2.33(2)(a), which provides: “When an

adult is arrested for the commission of a public offense . . . and an indictment is

not found against the defendant within 45 days, the court must order the

prosecution to be dismissed, unless good cause to the contrary is shown or the

defendant waives the defendant’s right thereto.” Rule 2.33(2)(b) sets forth the

defendant’s speedy trial right:

          If a defendant indicted for a public offense has not waived the
          defendant’s right to a speedy trial the defendant must be brought to
          trial within 90 days after indictment is found or the court must order
          the indictment to be dismissed unless good cause to the contrary
          be shown.

The State did not file its charging instrument within forty-five days of Smith’s

arrest.     Nor did the State bring Smith to trial within ninety days of filing its

charging instrument.
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       We review the court’s actions here for correction of errors at law. Iowa R.

App. P. 6.907. “[I]ssues must ordinarily be both raised and decided by the district

court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002). Smith did not raise the issue in district court; error was

thus not preserved. See State v. Walker, 236 N.W.2d 292, 294 (Iowa 1975)

(“Defendants waived the right to assert error here by failing to raise their alleged

speedy trial right below.”). Further, the district court had no duty to address the

issue sua sponte. See Iowa R. Crim. P. 2.33(2); Walker, 236 N.W.2d at 294;

State v. Myers, 215 N.W.2d 262, 264 (Iowa 1974) (rejecting argument that the

trial court had a duty to raise speedy indictment on its motion and concluding the

contrary rule “would inevitably thrust the duties of defense counsel on trial court,

in every action, and require the court to know the myriad of crucial dates in all of

the criminal cases within its jurisdiction”).

                                           III.

       We next address Smith’s several claims of ineffective assistance of

counsel.    Ineffective-assistance-of-counsel claims typically are addressed in

postconviction relief proceedings where the record can be more fully developed.

See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). When such claims are

presented on direct appeal, however, the “court may decide the record is

adequate to decide the claim or may choose to preserve the claim for

determination under chapter 822.” Iowa Code § 814.7(3) (2013). We review

claims of ineffective assistance of counsel de novo. See Castro v. State, 795

N.W.2d 789, 792 (Iowa 2011).
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       To establish a claim for ineffective assistance of counsel, Smith has the

burden of establishing “(1) his trial counsel failed to perform an essential duty,

and (2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006). Failure to prove either element is fatal to the claim. See State v.

Graves, 668 N.W.2d 860, 869 (Iowa 2003). To prove counsel failed to perform

an essential duty, Smith must establish his counsel’s representation dropped

below an objective standard of reasonableness. See Hinton v. Alabama, 134 S.

Ct. 1081, 1088 (2014). Regarding prejudice, the ultimate inquiry is whether trial

counsel’s allegedly deficient performance caused a complete “breakdown in the

adversary process” such that the conviction is unreliable.        See Strickland v.

Washington, 466 U.S. 668, 687 (1984). This requires the defendant to establish

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Lamasters v. State, 821

N.W.2d 856, 866 (Iowa 2012).

                                         A.

       Smith contends his attorney should have moved to dismiss the case on

speedy-indictment and speedy-trial grounds.       The remedy for violation of the

defendant’s speedy-indictment or speedy-trial right is dismissal of the charge with

prejudice and prohibition against the reinstatement or refilling of an information or

indictment charging the same offense. Thus, the failure to ensure the State

abided by rule 2.33(2), absent evidence of some strategic decision to forego the

right, is a failure to perform an essential duty necessarily resulting in prejudice.
                                           6



See Ennenga v. State, 812 N.W.2d 696, 706–08 (Iowa 2012); State v.

Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008).

       The State contends Smith’s rights were not violated because there is

evidence in the record establishing good cause for the delay and establishing

some of the delay was attributable to Smith. The State also intimates Smith may

have waived his right to speedy trial at some point during the proceedings, but

the waiver was not part of the record due to Smith’s unexpected appeal following

his guilty plea and sentencing. The State’s argument and evidence, at this point,

consists of speculation and conjecture. While there may be logical explanations

for the delay in filing the trial information, for the delay in proceeding to trial, and

for Smith’s counsel’s failure to pursue a motion to dismiss, those explanations

are not apparent or reasonably inferred from this record.           Both the attorney

charged with providing ineffective assistance and the State should have the

opportunity to develop a better record to respond to Smith’s claim. See State v.

Biddle, 652 N.W.2d 191, 203 (Iowa 2002). This is particularly true with respect to

development of the record establishing “good cause,” which is a highly fact-

intensive inquiry. See State v. O’Bryan, 522 N.W.2d 103, 106 (Iowa Ct. App.

1994). Accordingly, we preserve this claim for postconviction relief proceedings

under chapter 822. See Iowa Code § 814.7(3); State v. Bearse, 748 N.W.2d

211, 219 (Iowa 2008).

                                          B.

       Smith argues his counsel should have moved to suppress the marijuana

found on Smith’s person on the ground the traffic stop was unlawful. A law
                                        7



enforcement officer is justified in stopping a vehicle when the officer observes a

traffic violation, no matter how minor. See State v. Louwrens, 792 N.W.2d 649,

651 (Iowa 2010). Two officers following the car in which Smith was a passenger

witnessed the car weaving across the line dividing the lanes. The officers also

believed Smith was not wearing his seat belt. The erratic driving and the officer’s

reasonable belief Smith was not wearing his seat belt are each sufficient

justification for the traffic stop. See Iowa Code §§ 321.445(2), 482; State v.

Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996) (holding traffic stop was lawful

where officer initiated stop due to inability to observe whether occupants were

wearing seatbelts). Smith’s attorney had no duty to file a motion to challenge a

lawful roadside detention. See State v. Soboroff, 798 N.W.2d 1, 9 (Iowa 2011)

(holding an attorney has no duty to pursue a meritless issue). Smith’s claim thus

fails.

                                        C.

         Smith contends his trial counsel should have filed a motion to suppress

statements Smith made to police during the traffic stop and the physical evidence

found as a result of those statements on the ground the statements and physical

evidence were obtained in violation of Smith’s Miranda rights. See Miranda v.

Arizona, 384 U.S. 436, 478-79 (1966). Smith contends the officers found the

marijuana only as a result of Smith responding “yes” to the question of whether

he had anything illegal on him. He further contends he was prejudiced because

the marijuana should have been suppressed as the fruit of the unMirandized

response. In their respective briefs, the parties only address the issue of whether
                                        8



Smith was subject to “custodial interrogation” at the time the statements were

made. We need not address that issue. Even assuming a Miranda violation

occurred, Smith’s ineffective assistance of counsel claim, as articulated here, is

without merit.

       First, the facts do not support the claim. There is nothing in the record

supporting the proposition the police discovered the marijuana only as a result of

Smith’s statement. Smith’s furtive movements and failure to heed warnings to

cease the movements prompted the officers to arrest Smith and conduct a pat-

down search. While placing handcuffs on Smith, the officers smelled marijuana

on Smith, which spurred the need for additional investigation.       In short, the

officers would have inevitably discovered the large bag of marijuana with or

without Smith’s statement. See Minnesota v. Dickerson, 508 U.S. 366, 375-76

(1993) (noting an officer who feels an object during a lawful pat-down search,

“whose contour and mass makes its identity immediately apparent” may seize

the contraband just as under the plain-view exception); State v. Riley, 501

N.W.2d 487, 489 (Iowa 1993) (holding furtive movements alone may justify a pat-

down search).

       Second, the law does not support the claim. Even if a Miranda violation

occurred, the suppression of physical evidence obtained as a result of an

unMirandized statement is not a recognized Miranda remedy:

       [T]he Miranda rule is a prophylactic employed to protect against
       violations of the Self-Incrimination Clause. The Self-Incrimination
       Clause, however, is not implicated by the admission into evidence
       of the physical fruit of a voluntary statement. Accordingly, there is
       no justification for extending the Miranda rule to this context. And
       just as the Self-Incrimination Clause primarily focuses on the
                                         9



      criminal trial, so too does the Miranda rule. The Miranda rule is not
      a code of police conduct, and police do not violate the Constitution
      (or even the Miranda rule, for that matter) by mere failures to warn.
      For this reason, the exclusionary rule articulated in cases such as
      Wong Sun does not apply.

United States v. Patane, 542 U.S. 630, 636-37 (2004). Counsel had no duty to

file a meritless motion. See Soboroff, 798 N.W.2d at 9.

      Finally, Smith’s argument misapprehends the nature of the prejudice

requirement.   As above-noted, Smith argues he was prejudiced because the

district court should have suppressed physical evidence in response to counsel’s

motion. As also above-noted, the argument is wrong. More important, however,

Smith does not raise the relevant inquiry.        In the context of a guilty plea

proceeding, to establish prejudice, Smith must demonstrate absent counsel’s

error he would have insisted on going to trial. See Irving v. State, 533 N.W.2d

538, 541 (Iowa 1995). A conclusory assertion he would have insisted on going to

trial is not enough to show prejudice.       Instead, the record must show that a

reasonable person in the defendant’s position would have insisted on going to

trial in the absence of the alleged error. Here, Smith made numerous statements

during interrogation at the police station after receiving Miranda warnings

admitting he possessed marijuana with the intent to sell it. He described in great

detail how he acquired the product, how much he was selling, and how much

money he was making each week. There was overwhelming evidence of guilt.

Our review of the record convinces us there is no reasonable probability Smith

would have insisted on going to trial. See id. at 541. It also convinces us that if

Smith had insisted on going to trial, the outcome would not have been different.

Smith cannot demonstrate prejudice.
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                                IV.

For the foregoing reasons, we affirm Smith’s conviction and sentence.

AFFIRMED.
