                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1444
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD STEVEN LESTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Steven W. Guiter,

District Associate Judge.



      A criminal defendant appeals his conviction after being found guilty of

operating while intoxicated, arguing the State violated his right to speedy trial.

REVERSED AND REMANDED.



      Jeremy L. Merrill of Lubinus Law Firm, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Special

Counsel, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

      Chad Lester appeals his conviction after being found guilty of operating

while intoxicated (OWI). He argues the State violated his right to speedy trial

and, therefore, the district court abused its discretion in denying his motion to

dismiss on speedy trial grounds. We agree and find the district court’s failure to

dismiss Lester’s charge constituted an abuse of discretion. We reverse Lester’s

conviction and remand for dismissal.

I. Background Facts and Proceedings

      On November 4, 2014, the State charged Lester by trial information with

OWI, first offense, in violation of Iowa Code section 321J.2 (2013). Also on

November 4, 2014, Lester submitted a written arraignment and plea of not guilty,

in which he demanded speedy trial pursuant to Iowa Rule of Criminal Procedure

2.33(2)(b). The district court set a pretrial conference date of December 9, 2014,

and ordered that Lester have a substance-abuse evaluation on file with the court

within thirty days as a term of his release. On December 9, 2014, the district

court continued proceedings to January 6, 2015, and again ordered Lester to

obtain a substance-abuse evaluation.

      On January 6, 2015, Lester and his attorney appeared for a pre-trial

conference as ordered. The district court scheduled dates for the final pretrial

conference and trial. Although the record does not contain a transcript of the

proceedings that took place that day, Lester and his attorney apparently agreed
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to the dates that were set by the court.1            The final pretrial conference was

scheduled for March 27, 2015; trial was scheduled for April 23, 2015.

       On January 14, 2015, Lester filed a motion to suppress, alleging the

consent he gave to law enforcement was not valid because he impermissibly

signed an implied consent form in red ink. The State filed a resistance to the

motion two days later.        Lester’s motion to suppress was denied as facially

insufficient on February 13, 2015, following a hearing held on February 10, 2015.

       The parties jointly moved to continue the final pretrial conference from

March 27, 2015, to March 31, 2015. Then, on April 13, 2015, Lester filed a

motion to dismiss his criminal charge, alleging the State had violated his right to

a speedy trial. In the motion, Lester noted he had filed his written arraignment on

November 4, 2014, but had not been brought to trial within the ninety-day

timeframe established under rule 2.33(2)(b).            The State filed a resistance to

Lester’s motion, arguing the delay was justified because Lester had failed to

obtain a court-ordered substance-abuse evaluation and also because Lester’s

unsuccessful motion to suppress was pending when the ninety-day cutoff came

and went.

       A hearing was held on Lester’s motion to dismiss on April 14, 2015.

Lester briefly summarized his position. The State did the same but made the

additional argument that the trial date had been scheduled for a date outside the



1
  We use the term “agreed to” in deference to the district court’s oral recitation of facts in
its order regarding Lester’s motion to dismiss. Because we have no document signed by
Lester agreeing to the scheduled dates, nor any actual record of what transpired at the
January 6, 2015 pretrial conference, we have no definitive record whether the trial date
was discussed and agreed to by Lester and his counsel, or if the trial date was
scheduled by court administration and simply not objected to.
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ninety-day period—while still within the ninety-day period—with the “input, advice

and consent” of Lester. Following the State’s argument, the district court ruled

from the bench as follows:

               The court has reviewed the file, the motion, and the
      resistance. The court finds that there is good cause for exceeding
      the ninety days in this case on January 6, 2015, and the defendant
      and his attorney were personally present in court and agreed to the
      entry of an order for final pretrial conference on March 27 and the
      trial date of April 23.
               The court finds that good cause exists that the ninety days
      was waived by the defendant’s actions on January 6, 2015. In
      further support there’s—in further support there’s been a number of
      hearings since the January 6 date all leaving in place the April 23
      trial date.
               The motion to suppress was filed. The same day it was
      filed, the court scheduled—set an order for the parties to inform the
      court of a date for the motion to suppress so any waiver or cause to
      go over the ninety days the court finds was at the respondent’s
      actions or consent so, therefore, the court is going to deny the
      motion[] to dismiss.

Following the hearing, the district court issued an order denying Lester’s motion

to dismiss “for reasons stated on the record and reasons set forth in [the] State’s

resistance.”

      On April 21, 2015, defense counsel filed a motion to continue the April 23,

2015 trial date. The district court reset the trial for May 21, 2015. On May 12,

2015, defense counsel filed a motion to withdraw, citing a fundamental

breakdown in the attorney-client relationship. The district court allowed defense

counsel to withdraw and rescheduled trial for June 18, 2015, in order to allow

Lester’s new defense counsel time to prepare.

      Lester waived his right to trial by jury and was found guilty by trial on the

minutes on June 18, 2015.

      Lester now appeals.
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II. Standard of Review

       “We review a trial court’s ruling on a motion to dismiss based on speedy-

trial grounds for an abuse of discretion.” State v. Winters, 690 N.W.2d 903, 907

(Iowa 2005). The district court’s discretion narrows when speedy trial grounds

are at issue. Id. “The discretion of the trial court to avoid dismissal is limited to

the exceptional circumstance where the State carries the burden of showing

good cause for delay.” State v. Hines, 225 N.W.2d 156, 160–61 (Iowa 1975).

III. Discussion

       Iowa Rule of Criminal Procedure 2.33(2)(b) provides:

              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.

Under rule 2.33(2)(b), “a criminal charge must be dismissed if the trial does not

commence within ninety days from the filing of the charging instrument ‘unless

the State proves (1) defendant’s waiver of speedy trial, (2) delay attributable to

the defendant, or (3) ‘good cause’ for the delay.’” Winters, 690 N.W.2d at 908

(citation omitted). The only factor we consider when determining if good cause

existed is the reason for the delay. Id. “The burden of proving an exception to

the rule’s deadline rests squarely with the State.” State v. Miller, 637 N.W.2d

201, 204 (Iowa 2001).

       It is not disputed Lester demanded speedy trial on November 4, 2014.

Nor is it disputed Lester was not brought to trial within ninety days of the filing of

the trial information. Thus, we need only determine whether the district court was

correct in finding waiver or good cause existed to excuse the delay and allow
                                         6


Lester’s criminal charge to survive dismissal. Lester argues the district court

abused its discretion in determining his failure to obtain a substance abuse

evaluation established good cause for the delay. Second, Lester argues the

district court abused its discretion when it determined the delay was attributable

to his unsuccessful motion to suppress and other actions. Third, he argues the

district court abused its discretion in finding he waived his right to a speedy trial

by acquiescing to a trial date after the ninety-day deadline.

       The district court’s statements on the record indicate it denied Lester’s

motion to dismiss primarily because it concluded Lester waived his right to a

speedy trial when, on January 6, 2015, he agreed to the April 23, 2015 trial date

and thereafter remained silent as to the date that had been set. However, the

Iowa Supreme Court has “emphasized that mere acquiescence in setting a trial

date is not sufficient to lead to a waiver of speedy trial rights.” State v. Taylor,

___ N.W.2d ___, ___, 2016 WL 3354424, at *4 (Iowa 2016). This is so because

the State, not the defendant, “has the responsibility for bringing the defendant to

trial within the specified period.” State v. Phelps, 379 N.W.2d 384, 387 (Iowa Ct.

App. 1985).       The State must show “an intentional relinquishment or

abandonment of a known right or privilege” to prove waiver. Taylor, 2016 WL

3354424, at *4 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Acquiescence in the setting of a trial date beyond the speedy trial period is but

one factor “which may be considered in determining whether a defendant has

waived his speedy trial rights.” Phelps, 379 N.W.2d at 387. “The determinative

issue . . . is whether sufficient additional circumstances were present . . . to
                                           7

compel a finding of waiver.” State v. Zaehringer, 306 N.W. 2d 792, 795 (Iowa

1981).

         We find the additional circumstances necessary to constitute waiver were

lacking in this case. Aside from agreeing to the April 23, 2015 trial date, Lester

did nothing to suggest he meant to intentionally relinquish his right to a speedy

trial. Neither his failure to obtain the court-ordered substance-abuse evaluation

nor his filing of a motion to suppress amounted to the kind of active participation

in delay that has led to findings of waiver in other cases. See, e.g., Zaehringer,

306 N.W.2d at 795–96 (where the record showed the defendant’s “active

utilization of the entire schedule fixed by the court” included numerous motions

filed after the expiration of the speedy trial deadline, leading our supreme court to

conclude it was “obvious defendant neither desired nor was prepared for a

speedy retrial”).

         As to the substance-abuse evaluation, we note Lester appears never to

have obtained such an evaluation but eventually stood trial anyway, indicating

that his failure to comply with the court’s order was not a circumstance that

necessitated delay of trial. The absence of a substance-abuse evaluation does

not amount to an additional circumstance compelling a finding of waiver. Lester’s

motion to suppress was filed on January 14, 2015, nineteen days before the

speedy trial deadline of February 2, 2015.2 Trial had already been scheduled for

April 23, 2015, another eighty days past the deadline. Lester’s filling of a single


2
 At the hearing on Lester’s motion to dismiss, his counsel incorrectly stated the ninety-
day period expired on February 6, 2015. On appeal, Lester incorrectly asserts the ninety
days elapsed on February 3, 2015. We disregard these minor computational errors
because they do not affect our ultimate decision.
                                         8


motion prior to the expiration of the speedy trial deadline had no effect on the

date of his already-scheduled trial and, thus, did not constitute active

participation in delaying his trial.

       The State argues we should find waiver here because Lester did more

than merely acquiesce to the April 23, 2015 trial date—he and his counsel were

present in court when the trial date was chosen and agreed to it, despite their

knowledge it was well after the speedy trial cutoff. We believe this argument is

foreclosed by the Iowa Supreme Court’s recent decision in State v. Taylor. 2016

WL 3354424, at *7. In that case, after the ninety-day cutoff had already passed,

a criminal defendant and her attorney agreed not only to a trial date beyond the

speedy trial deadline, but also to a proffer agreement where the defendant would

testify at another trial that would not be proceeding for “a number of months.” Id.

at *1–2. Under those facts, the two dissenting justices in Taylor echoed the

State’s argument here:

       Under our precedent, “mere acquiescence” means “a failure to
       object to a trial date beyond the period for speedy [ ]trial.” Here we
       have much more than a failure to object. Instead, as the trial court
       found, [the defendant] with the assistance of counsel verbally
       agreed to the timeframe in which her trial would occur and then
       signed off on the transcript of this verbal agreement.

Id. at *10 (first alteration in original) (citation omitted). The majority viewed the

situation differently, finding, “What the State really argues is not waiver, but mere

acquiescence. The State suggests that by not objecting earlier, [the defendant]

acquiesced in a later trial date. . . . But our caselaw rejects mere acquiescence

as a basis for waiver of speedy trial rights.”     Id. at *7.   Our supreme court

determined an agreement made by a defendant and her counsel to a trial date
                                         9


beyond the speedy trial deadline, plus an agreement to make a proffer for

purposes of a plea agreement, qualifies as “mere acquiescence.” Given that

holding, we cannot find Lester waived his right to a speedy trial on the facts now

before us.

        The State also argues, however, that even if we do not find waiver, then

Lester’s agreement to the trial date and his motion to suppress constituted good

cause for delay. We disagree. The State has not shown adequate reason why

this case—an OWI charge with only three witnesses listed in the State’s minutes

of evidence—necessitated a trial date one-hundred-and-seventy days after the

trial information was filed.

        Even if we assume, without deciding, the State is correct that the time

spent by the district court ruling on Lester’s motion to suppress constituted good

cause for delaying his trial beyond the ninety-day cutoff, the State still has not

shown good cause for the remaining delay. The district court denied the motion

to suppress on February 13, 2015, well in advance of the April 23, 2015 trial

date.    Resolution of a pending motion to suppress has been held to justify

continuing a trial from a date within the ninety-day deadline to a date outside the

deadline. See Miller, 637 N.W.2d at 204–05 (“In [one case], for example, the

defendant’s filing of a motion to suppress thirty days after the trial date was set,

and only three days prior to trial, justified good cause for a continuance beyond

the speedy-trial deadline.     Similarly, where multiple defendants’ motions to

suppress were filed one week before trial, this court found no abuse in the trial

court’s discretion to continue a trial six days beyond the deadline ‘to permit

resolution of the suppression motions, which might have been dispositive of the
                                          10


cases.’” (citations omitted)).     However, the State has offered no authority to

suggest a motion to suppress filed nineteen days before the speedy trial deadline

constitutes good cause to justify the already-scheduled trial date of April 23,

2015—eighty days past the deadline and sixty-nine days after the district court

issued its ruling on the motion.

       Because the State violated Lester’s right to a speedy trial, we reverse his

conviction and remand to the district court to dismiss the trial information.

       REVERSED AND REMANDED.
