                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1822
                               Filed April 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAWN MICHAEL ELDER JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lee (South) County, John G. Linn,

Judge.



      Shawn Michael Elder Jr. appeals his conviction for manufacture of more

than five grams of methamphetamine. REVERSED AND REMANDED.



      Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, and Michael P. Short, County Attorney, for appellee.



      Considered by Danilson, C.J., Bower, J., and Miller, S.J.*

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



MILLER, S.J.

      Shawn Michael Elder Jr. appeals his conviction for manufacture of more

than five grams of methamphetamine.           He contends the trial court erred in

granting the State’s motion to continue trial beyond one year after arraignment

and denying his related motion to dismiss. We reverse Elder’s conviction and

remand for dismissal of the charge.

I.    Background Facts and Proceedings.

      Resolution of the issue before us requires a detailed recitation of the

procedural history of this case.      Proceedings were initiated when the State

charged Elder with various drug-related crimes on October 16, 2012. Elder filed

a written arraignment on November 5, 2012, and entered a plea of not guilty.

Trial was set for Tuesday, January 8, 2013.

      A pretrial conference was held on December 17, 2012. The court entered

an order the same day, confirming the January 8, 2013 trial date and stating

Elder demanded his right to a speedy trial.

      On December 18, 2012, the State filed additional minutes of evidence

naming five additional witnesses for trial. The next day Elder waived his right to

a speedy trial and moved for his first continuance, citing his need to depose the

newly-named witnesses and defense counsel’s absence from the country from

December 22, 2012 to January 4, 2013. Trial was continued to Tuesday, March

19, 2013.
                                           3



        The State moved to consolidate Elder’s case with that of Tiffany Rae

Mitchell. The motion was heard on January 22, 2013. That same day the court

consolidated the cases.

        Elder sought his second continuance at a pretrial conference held on

February 25, 2013.        The State did not resist the motion, and trial was

rescheduled for Tuesday, April 23, 2013.

        Trial was not reached as scheduled on April 23 because a “higher priority”

case was scheduled for trial the same day. On May 9, 2013, the court entered

an order setting trial for Friday, June 14, 2013. On June 7, 2013, the court,

which had been notified by the State of a purported error in the trial date in the

May 9 order, changed the trial date to Tuesday, June 11, 2013.

        On June 10, 2013, Elder filed a third request for continuance. His motion

noted the apparent error in the trial date set in the May 9 order, stated no

subpoenas had been issued, and informed the court that defense counsel was

scheduled to be in other hearings on June 12, 13, and 14, 2013, “all of which

were scheduled before May 9, 2013.”1 Trial was continued to Tuesday, July 23,

2013.

        Elder filed a fourth request for continuance on June 24, 2013, stating his

attorney would be out of the country on the scheduled July trial date. He also

noted that his June 11, 2013 motion to reopen the record and reconsider the

court’s December 13, 2012 ruling on his motion to suppress had not yet been



1
 No explanation appears in the record as to why, if before May 9 defense counsel had a
hearing or hearings in another case or cases scheduled for June 14, the conflict with the
June 14 trial date in this case was not raised before the June 10 motion.
                                          4



ruled upon. Although the State filed an objection to the motion to continue, it

thereafter withdrew its objection and the court continued the trial to Tuesday,

August 20, 2013.

        Following a pretrial conference held on August 5, 2013, the court

confirmed the August 20, 2013 trial date. On August 12, 2013, the court denied

Elder’s renewed motion to suppress.

        On August 16, 2013, Elder filed his fifth motion to continue, noting that his

attorney was scheduled to be in trial on a different matter from August 20 to

August 30, 2013. Trial was then continued again, until Tuesday, September 24,

2013.

        A pretrial hearing was held on September 16, 2013, at which time the

court expressed its concern about counsel concurrently representing Elder and

his co-defendant, Mitchell. The court continued trial to Tuesday, October 22,

2013, to allow for an October 14, 2013 hearing on the potential conflict of interest

in joint representation.   The court provided that if trial was not reached on

October 22, the trial would be held on November 13, 2013.

        On October 8, 2013, the State moved to continue trial beyond one year,

asserting this case had been scheduled for trial on seven occasions, noting Elder

had requested and received five continuances, and stating that two times the

case had not been reached for trial “because a case of higher priority was

scheduled for trial.”2 The court granted the motion on October 9, 2013. In doing




2
  The State’s motion asserted that another case had been scheduled for trial on
September 24, 2013, but it had “scheduled that morning of trial” after the State had
                                          5



so the court stated its belief that it need not determine “who or where to attribute

the delay to in this case” but instead needed to determine “why is it we’re in the

position we are now.”     It found “the State has demonstrated good cause to

extend this case beyond the one-year limitation set forth in Iowa Rule of Criminal

Procedure 2.23(2)(c).” In doing so it relied on “the case history”; “the pressing

demands presented the County Attorney”; “the docket that this county uniquely

presents”; “the pressing demands of defense counsel, based on some of the

scheduling conflicts because of other cases defense counsel was required to

attend to”; and “the pretrial preparation, the motions filed by the defendant.”

       On October 9, 2013, Elder moved to sever his trial from Mitchell’s. The

court granted that motion on October 21, 2013. No trial was held on October 22,

2013, as scheduled, apparently because of a conflict with another trial scheduled

for that same day.

       On November 12, 2013, Elder moved to dismiss for violation of the one-

year speedy-trial rule.   The court denied the motion on November 13, 2013,

noting that it had granted an extension of the one-year deadline in its October 9

order and stating its continued belief that “good cause” existed to continue trial

beyond the one-year deadline. The court added to its earlier ruling a conclusion

that the number of continuances that had been sought by the defense resulted in

“any delay beyond one year [being] attributable to the defendant.”

       On November 13, 2013, Elder waived his right to a jury trial and a bench

trial was held. The court found Elder guilty of manufacture of more than five


“called off its witnesses” in this case. We presume the State intended to say that the
other case had “settled that morning of trial.”
                                          6



grams of methamphetamine. On that same date the court sentenced Elder to a

term of imprisonment and to pay a fine. Elder appeals.

II.    The Issue(s) on Appeal.

       Elder asserts:

       THE TRIAL COURT ERRED IN GRANTING THE MOTION TO
       CONTINUE BEYOND ONE YEAR AND IN FAILING TO GRANT
       THE MOTION TO DISMISS.

Elder argues that although he did request continuances, including continuances

of the July and August 2013 trial dates, the trial could have been held in

September or October. He argues that the State has not met its burden to prove

an exception to the one-year speedy trial requirement.

       The State asserts:

       The District Court Properly Found Good Cause Existed To Extend
       Defendant’s Trial Beyond The One-Year Deadline.[3]

III.   Scope and Standards of Review.

       Our scope of review is for correction of errors at law. Iowa R. App. P.

6.907; State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001); State v. Finn, 469

N.W.2d 692, 693 (Iowa 1991). We apply an abuse-of-discretion standard. State

v. Winters, 690 N.W.2d 903, 907 (Iowa 2005); State v. Nelson, 600 N.W.2d 598,

601 (Iowa 1999).        When speedy-trial rights are at issue, the district court’s

discretion narrows. Winters, 690 N.W.2d at 907. “The trial court’s discretion to

avoid dismissal under [Iowa Rule of Criminal Procedure 2.33] is circumscribed by


3
  The State does not appear to resist Elder’s argument that the district court erred in
concluding that any delay beyond one year was attributable to Elder. Although we
therefore arguably need not address that question, in the event we have misread the
State’s brief we choose to address it. For the reasons discussed below, we conclude
the record does not support the court’s conclusion on this point.
                                          7



the limited exceptions to the rule’s mandate.        So, the question ultimately is

whether the trial court properly exercised—or abused—its limited discretion

under the rule.” Miller, 637 N.W.2d at 204 (citations omitted).

IV.    Merits.

       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.” This rule establishes an “outer limit” for trial, comparable to a

statute of limitations. State v. Mary, 401 N.W.2d 239, 241 (Iowa Ct. App. 1986).

“In determining whether there is good cause for a delay, we focus only on one

factor, the reason for the delay.     The attending circumstances bear on that

inquiry only to the extent they relate to the sufficiency of the reason itself.” State

v. Campbell, 714 N.W.2d 622, 628 (Iowa 2006) (citations omitted).

       Delay attributable to the defendant may constitute good cause preventing

the State from carrying out its obligation to bring the defendant to trial in a timely

manner. State v. Keys, 535 N.W.2d 783, 787 (Iowa Ct. App. 1995). A defendant

“may not actively, or passively, participate in the events [that] delay his trial and

then later take advantage of that delay to terminate the prosecution.” Finn, 469

N.W.2d at 694. A defendant who actively participates in events which delay his

retrial cannot take advantage of the delay to terminate prosecution. State v.

Zaehringer, 306 N.W.2d 792, 796 (Iowa 1981)

       Although waiver is not expressly mentioned in rule 2.33(2)(c), because the

right to a speedy trial is personal to a defendant a defendant may waive the right
                                         8



to trial within one year. State v. Rodriguez, 511 N.W.2d 382, 383 (Iowa 1994);

State v. Magnuson, 308 N.W.2d 83, 85 (Iowa 1981).

         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. Cf. Winters, 690 N.W.2d at 908 (holding that such exceptions exist for

the ninety-day deadline of Iowa Rule of Criminal Procedure 2.33(2)(b)). The

burden of showing an exception to a speedy-trial deadline “rests squarely on the

State.” Miller, 637 N.W.2d at 204 (stating such is the burden in a rule 2.33(2)(b)

ninety-day speedy-trial case). The State’s burden is a heavy one. Mary, 401

N.W.2d at 241.

         Elder was not tried until eight days beyond the one year after his

arraignment. He did not waive his right to be tried within one year. The district

court was therefore required to dismiss the charge against Elder unless the State

proved (1) the delay of trial beyond one year was attributable to Elder, or (2)

other good cause existed for the delay beyond one year. See Miller, 637 N.W.2d

at 204.

         “Delay attributable to the defendant may include whatever passage of time

is reasonably necessary to act upon the defendant’s motion.” State v. Hart, 703

N.W.2d 768, 772 (Iowa Ct. App. 2005) (citations and quotation marks omitted).

Elder did file a motion on June 11, 2013. That motion was disposed of on August

12, 2013, almost three months before the end of the one-year trial deadline and

cannot constitute delay beyond one year attributable to Elder or to other good

cause.
                                              9



       In January 2013 the State, not Elder, sought and secured consolidation of

Elder’s case with that of Mitchell. On September 16, 2013, the court expressed

its concern about a possible conflict of interest if defense counsel represented

both. On October 9, 2013, Elder filed a motion to sever trials. No resistance by

the State appears in the record. The motion was not submitted and granted until

October 21, 2013, apparently as an uncontested, routine matter.4                         This

uncontested motion, filed four weeks before the one-year deadline, and the

court’s ruling on the motion, filed two weeks before the deadline, do not

constitute delay beyond one year that is attributable to Elder or to other good

cause. See, e.g., Nelson, 600 N.W.2d at 601 (stating that although a defendant

“must accept the time reasonably necessary for careful deliberation and ruling on

dispositive motions,” this “is not to say a defendant who files a timely motion

thereby forfeits the right to be tried without lengthy and unexplained delay”); see

also Miller, 637 N.W.2d at 206 (reversing conviction and remanding for dismissal

where the trial court’s ruling on a motion “came down with a week to spare”

before expiration of a ninety-day speedy-trial deadline).

       Additional grounds cited by the trial court as “good cause” in sustaining

the State’s motion to continue trial beyond one year are equally unconvincing. 5

These reasons included the pressing demands of the county attorney and


4
   Nothing in the record, other than perhaps the fact the State had already sought and
secured an order continuing trial beyond one year, indicates why in the absence of any
resistance by the State the motion could not have been sustained as a consent matter at
a substantially earlier date than October 21.
5
   That motion and the ruling sustaining it came four weeks before the expiration of the
one-year period. In its ruling the court relied entirely upon matters it cited as constituting
“good cause” and made no mention of delay attributable to Elder other than “motions
filed by the defendant,” a ground which we have rejected.
                                        10



defense counsel and the scheduling conflicts of defense counsel.         However,

nothing in the record shows that either the prosecuting attorney or defense

counsel was unavailable for trial after September 24, 2013 (or, for that matter,

after defense counsel’s late-August trial) and before the one year expired.

      The district court also cited “the case history” and “the docket that this

county uniquely presents.” However, at the time of the court’s ruling on the

motion to continue beyond one year, nothing in the “case history” prevented trial

in the four weeks remaining before the one-year deadline. “Prior cases teach

that the general press of court business is insufficient to avoid dismissal under a

speedy-trial rule, even for a busy judge sitting in a high-volume court.” Miller,

637 N.W.2d at 205 (citing and quoting Nelson, 600 N.W.2d at 602). “When the

State contends ‘court congestion’ is the reason for delay, the trial court must

distinguish between chronic court congestion and specific circumstances arising

out of unique, non-recurring events which create a particular scheduling

problem.”   State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983).            The record

contains no evidence of such unique, non-recurring events, and strongly

suggests nothing more than chronic court congestion.        Nor does the record

contain any explanation of why other matters should have taken precedence over

Elder’s case in the week of October 28, 2013, still within one year of Elder’s

arraignment.   See State v. Leonard, 240 N.W.2d 690, 692-93 (Iowa 1976)

(noting, in reversing a conviction and remanding for dismissal on speedy-trial

grounds the absence of an explanation as to why other matters took precedence
                                             11



over Leonard’s trial). Under the record presented, the county’s docket cannot

justify the denial of Elder’s right to a timely trial.

       As noted above, in its November 13, 2013 ruling denying Elder’s motion to

dismiss, the court added to its earlier ruling a conclusion that the number of

continuances sought by the defense resulted in delay beyond one year being

attributable to Elder. However, the last continuance sought by Elder continued

trial to September 24, 2013, with six weeks remaining available thereafter in

which to bring the case to trial. Further, in considering whether a delay beyond a

speedy-trial deadline warrants dismissal of the prosecution, it is not appropriate

to identify the amounts of time related to events that are believed to have

impeded progress of the case, attribute those events to the defendant, and then

extend the deadline by a like number of days. Campbell, 714 N.W.2d at 628.

Instead,

       [t]he decisive inquiry in these matters should be whether events
       that impeded the progress of the case and were attributable to the
       defendant . . . serve as a matter of practical necessity to move the
       trial date beyond the initial . . . period required by the rule.

Id. The record discloses no events attributable to Elder that “serve as a matter of

practical necessity” to move the trial date in this case beyond the one-year

deadline.

       Two final points deserve brief mention. First, the pattern of continuances

in this case—always for four, five, or six weeks, and always into a subsequent

month—strongly suggests a “regular” trial schedule for cases such as this, a

schedule which was adhered to even at the cost of Elder’s right to a trial within
                                            12



one year.6 Such scheduling has been rejected as a reason for denying a right to

speedy trial. See generally Miller, 637 N.W.2d at 204-06.

       Second, “[w]e have emphasized the obligation of the district court to give

priority to the use of judicial resources in disposing of criminal cases because of

the speedy trial requirement of [the statutory predecessor of our present criminal

procedure speedy trial rules].” Iowa Civil Liberties Union v. Critelli, 244 N.W.2d

564, 570 (Iowa 1976). When a speedy-trial deadline approaches, extra ordinary

measures may be required.           Criminal cases must be disposed of promptly

throughout a district, “even at the cost of deferring civil cases throughout the

district if necessary.” State v. Wright, 234 N.W.2d 99, 104 (Iowa 1975). Further,

in the case of docket congestion or unusual workloads an additional judge or

judges may be assigned in order to accommodate speedy-trial cases. See, e.g.,

Leonard, 240 N.W.2d at 693 (recognizing, in reversing a conviction and

remanding for dismissal on speedy trial grounds, that the chief judge has the

authority to assign judges of the district to accommodate unusual workloads, and

noting the lack of a showing that the chief judge was requested to do so). Here,

as in Leonard, the record contains no indication of any such action.

V.     Conclusion and Disposition.

       Elder did not waive his right to be tried within one year of his arraignment.

The history in this case reveals that after numerous delays were sought and

secured by Elder’s requests for continuance, delays after October 9, 2013, were


6
  The district court’s pretrial ruling of September 16, 2013, provided that if trial was not
reached on October 22 (within the one year and with two weeks remaining before
expiration of the one-year deadline), trial would be held November 13, 2013 (eight days
after expiration of the one year since arraignment).
                                           13



attributable to the court and the State. The State has not met its “heavy burden”

to show that delay attributable to Elder or other “good cause” required continuing

trial beyond one year. We conclude the district court abused its discretion in

ordering trial continued beyond one year from Elder’s arraignment and

subsequently denying his motion to dismiss for violation of his right to trial within

one year. We therefore reverse Elder’s conviction and remand to the district

court for dismissal of the trial information.

       REVERSED AND REMANDED.
