                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1370
                                 Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY ALLEN MUNDY,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Odell G. McGhee,

District Associate Judge.



      Discretionary review of the order denying the defendant’s motion to

suppress evidence as untimely. REVERSED AND REMANDED.



      Jamie Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and Joseph D. Crisp, Assistant

County Attorney, for appellee.




      Considered by Danilson, C.J., McDonald, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MCDONALD, J.

      This matter comes before the court on defendant Anthony Mundy’s

application for discretionary review of an order denying as untimely his motion to

suppress evidence obtained after an allegedly illegal search of a hotel room

occupied by Mundy and his fiancée. The supreme court granted the application

and transferred the matter to this court. Mundy contends the trial court abused

its discretion in not finding good cause to extend the time for filing his motion to

suppress. We reverse and remand.

      The State charged Mundy by trial information filed on June 26, 2013, with

possession of a controlled substance, second offense. He was arraigned on

June 27. The office of the public defender initially was appointed to represent

Mundy; however, both the adult public defender and then the juvenile public

defender withdrew from the representation due to a conflict of interest. On July

18, the trial court appointed Jamie Hunter to represent Mundy, and she filed her

appearance the next day. On August 1, Mundy waived his right to a speedy trial.

Without objection, the trial court set a pretrial conference for August 8 and

rescheduled trial from August 19 to September 16.

      On August 16, counsel filed the motion to suppress at issue. Iowa Rule of

Criminal Procedure 2.11(4) provides that motions to suppress shall be filed “no

later than 40 days after arraignment.”       It is undisputed that the motion to

suppress was not timely filed in accord with rule 2.11(4).        In the motion to

suppress, counsel asserted good cause existed to extend the deadline for filing

pretrial motions, citing her recent appointment and the fact her representation of
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the defendant was complicated, including four total cases and fifteen separate

counts.   The State resisted the motion on the merits, on the ground Mundy

lacked standing, and on the ground the motion was untimely. In a written order,

the court denied the motion to suppress as untimely. The court declined to reach

the merits of what it deemed “the monumental substantive issues.”

      The failure to timely file a motion to suppress “shall constitute waiver

thereof, but the court, for good cause shown, may grant relief from such waiver.”

Iowa R. Crim. P. 2.11(3). “What constitutes good cause for an untimely motion to

suppress is a discretionary decision of the trial court.” State v. Eldridge, 590

N.W.2d 734, 736 (Iowa Ct. App. 1999). “Factors considered in the application of

this standard include the adequacy of the defendant’s reasons for failure to

comply with applicable rules of procedure and whether the State was prejudiced

as a result.” Id. The trial court must weigh the defendant’s interest in a full and

fair trial against the State’s interest in avoiding unfair surprise and unnecessary

delay while also recognizing the sanctions imposed by rule 2.11 should not be

imposed lightly. See id. We review the trial court’s decision for an abuse of

discretion. See id. We will not find an abuse of discretion unless the trial court’s

action was clearly untenable or unreasonable. See id.

      Mundy argues his case is nearly identical to State v. Jordan, 779 N.W.2d

751, 755 (Iowa 2010). In Jordan, the defendant’s counsel withdrew and new

counsel was appointed eleven days after the forty-day period for pretrial motions

and notices of defenses had expired. See 779 N.W.2d at 753. Almost one

month after being appointed, counsel filed a notice of defense, a request for
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appointment of an expert at State expense, and a request for an extension of

time to file pretrial motions and notices of defense. Id. The district court denied

the motion for an extension of time, concluding a change in counsel or trial

strategy did not constitute good cause. Id. at 754. The case proceeded to trial,

and Jordan was convicted.       Id.     On appeal, the supreme court concluded

“Jordan’s untimely motion did not amount to unfair surprise, an unnecessary

delay, or cause other prejudice to the State.” Id. The court explained trial was

not imminent at the time Jordan filed the motion and the State thus had

opportunity to prepare without prejudice to its case. The court also explained

“[t]he appointment of new counsel . . . provided adequate grounds for the court to

excuse the late filing.” Id. While the Jordan court recognized “the appointment of

new counsel will not always constitute good cause,” it also concluded “a relevant

factor to consider when evaluating the existence of good cause is the length of

time an attorney has been involved in the case.” Id. A finding of good cause was

also supported, the court reasoned, because new counsel was only the second

counsel appointed, “not his sixth or seventh, which would evidence an intent to

cause delay.” Id. Further supporting a finding of good cause for delay, newly

appointed counsel “filed the contested motions within a month.” Id. Finally, the

Jordan court concluded the district court’s determination was incomplete.

Specifically, the “district court did not consider whether the State would be

prejudiced by the late filing and gave little weight to Jordan’s justifications for

missing the motion deadline.”     Id.    Concluding the district court abused its

discretion in not finding good cause to extend the deadline and finding such
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decision was not harmless error, the supreme court reversed the conviction and

remanded the case. Id. at 756.

       We agree that Jordan is dispositive of the question presented. Counsel in

this case was appointed only after the public defender withdrew due to a conflict

of interest.   This supports a finding the defendant is not attempting to delay

prosecution. As in Jordan, counsel here filed the contested motion within one

month of being appointed. At the suppression hearing, counsel stated that it took

several meetings with Mundy, as well as review of the numerous police reports,

trial informations, surveillance videos, and other filings in all of Mundy’s pending

cases to determine there were grounds to suppress in this particular case.

Counsel also stated that she filed the motion when it became apparent there

were grounds for such a motion. Given the nature of the appointment, including

the related cases and numerous counts, counsel was reasonably diligent in

pursuing the motion. At the time counsel filed the motion to suppress, Mundy

had already waived his right to speedy trial, and the trial court already had

scheduled trial for a later date without objection. There is no indication that the

motion to suppress constituted surprise or the timing of the motion resulted in

prejudice to the State’s case.     Indeed, the State did not argue surprise or

prejudice to the trial court and does not do so on appeal. Instead the State

focuses solely on the reasons for the delay. While that might be appropriate in

some circumstances, it is not here.
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       Most important, and similar to Jordan, the trial court in this case did not

consider all relevant factors. In denying the motion to suppress as untimely, the

trial court focused solely on the reason for delay:

       [I]n this case, the failure to timely file the motion to suppress is not
       supported by facts that fulfill the requirement for a waiver for good
       cause. Counsel was appointed early and could have made a
       motion to modify the time requirements even though she was
       dealing with notices of defense and other motions similar in nature.
       Counsel and defendant had ample time, notice, and the necessary
       facts to file a timely motion to suppress.

Neither the court’s order, nor its statements during the suppression hearing show

the court considered surprise to the State, the potential for unnecessary delay in

the proceedings, or prejudice resulting from the untimely filed motion. In short,

the trial court failed to conduct the “balancing test” of “carefully weighing the

interest of the defendant in a full and fair trial against the interests of avoiding

surprise and delays” as required by Jordan and Eldridge.

       Weighing Mundy’s interest in a full and fair trial against the State’s interest

in avoiding surprise and unnecessary delays, we conclude the trial court abused

its discretion in not finding good cause for extending the filing deadline and

denying Mundy’s motion to suppress on procedural grounds. This is particularly

true where the State does not even argue that the motion constituted surprise or

resulted in prejudice. The sanction of rule 2.11 should not be applied so lightly.

See Jordan, 779 N.W.2d at 755.

       A further consideration militates in favor of finding good cause for delay.

“It is the public policy of this state that litigation should be final at the earliest

possible date.” State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009). The failure to

timely file a motion to suppress could give rise to an ineffective-assistance-of
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counsel claim in the event Mundy were convicted. See State v. Rhiner, 352

N.W.2d 258, 261, 264 (Iowa 1984) (holding failure to timely file a motion to

suppress that the court should have granted is cause for an ineffective-

assistance-of-counsel claim and a reversal of the verdict).        Public policy and

judicial economy favor avoiding additional litigation in the form of postconviction

relief proceedings to determine the merits of the motion to suppress that could

have been ruled on by the trial court. See Ortiz, 766 N.W.2d at 250 (“To avoid

additional litigation in this matter the court did the proper thing by considering the

motion rather than waiting for its merits to be determined in a postconviction relief

proceeding.”). This is not to say the specter of a looming ineffective-assistance-

of-counsel claim excuses non-compliance with the rule 2.11. But where, as here,

the State does not articulate any reason for disallowing the untimely filed motion

other than mere non-compliance, the interests of judicial economy should be a

factor in the trial court’s consideration.

       We are unable to resolve the merits of Mundy’s motion to suppress

because it was not decided by the district court. See Eldridge, 590 N.W.2d at

737 (citing State v. Hrbek, 336 N.W.2d 431, 437 (Iowa 1983)). Because we have

determined good cause supported Mundy’s untimely motion to suppress, the trial

court’s contrary ruling is reversed. This case is remanded for consideration of

the motion on the merits and further proceedings.

       REVERSED AND REMANDED.
