               IN THE SUPREME COURT OF IOWA
                              No. 09–1411

                        Filed September 16, 2011


STATE OF IOWA,

      Appellee,

vs.

JUDITH RENAE UTTER,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Jones County, Douglas S.

Russell, Judge.



      A defendant seeks further review of a court of appeals decision

preserving her ineffective-assistance-of-counsel claim for postconviction

relief proceedings.   DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED
WITH INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.



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

Attorney General, Phillip W. Parsons, County Attorney, and Connie S.

Ricklefs and Emily A. Stork, Assistant County Attorneys, for appellee.
                                         2

WIGGINS, Justice.

         A defendant claims she did not enter her guilty plea voluntarily

and intelligently; therefore, she requests that we vacate her plea. The

court of appeals analyzed the issue and preserved her claim for a

postconviction relief proceeding. On further review, we determined that

we could address the issue, vacate her plea, and remand the case for

further proceedings. On remand, the court shall dismiss the information

pursuant to Iowa Rule of Criminal Procedure 2.33(2)(a).

         I. Background Facts and Proceedings.

         On April 3, 2009, Monticello police dispatched an officer to the

residence of Judith Renae Utter, after receiving a report of a disturbance.

Upon arriving, the officer observed an underage drinking party in

progress.       The officer spoke to several of the party’s attendants and

learned Utter had allegedly purchased and supplied alcohol to the group.

On April 10 the officer issued Utter a citation and complaint for providing

alcoholic beverages to a person under the legal age in violation of Iowa

Code section 123.47 (2009). 1 Utter signed the citation and complaint,

gave a $300 unsecured appearance bond, and agreed to report to the

Jones County courthouse on May 6. The citation and complaint were
filed on April 22.

         On May 6 Utter appeared in court and pled not guilty to the charge

of supplying alcohol to a person under the legal age.               The court set

June 10 as the date for a bench trial. On June 10 Utter and the State

appeared for trial. The court entered an order stating, “Parties appear for

trial.    This matter is charged as a serious misdemeanor.                  Trial is

cancelled.      Defendant was arraigned for an initial appearance on an

         1For
            purposes of Iowa Code section 123.47, under the “legal age” means persons
under the age of twenty-one. Iowa Code § 123.3(19) (2009).
                                       3

indictable offense.” The court then set a preliminary hearing for June 24

and released Utter on her own recognizance.

      On June 12 the State filed a trial information and minutes of

testimony formally charging Utter with the crime of supplying alcohol to

a person under the legal age.      The trial information stated, “The said

defendant on or about the 3rd day of April, 2009, in Jones County, Iowa

did   knowingly   or   intentionally   purchase    and   supply   alcohol    to

individuals under the legal age.” The minutes named two minors and

included the statement, “Utter purchased and supplied alcohol to the

group of individuals under the legal age.” (Emphasis added.)

      Subsequently,     the   court    ordered   Utter   to   appear   for   an

arraignment on June 26.          On June 16 the court approved Utter’s

application for the appointment of counsel and appointed a public

defender as her counsel. On June 26 Utter pled not guilty to the charge

against her and demanded a speedy trial pursuant to Iowa Rule of

Criminal Procedure 2.33(2)(b).

      The court originally set the jury trial for July 27. However, at the

pretrial conference the court reset the trial for August 24. On August 14

Utter withdrew her previous plea of not guilty and pled guilty.          Utter

indicated that she had reached a plea agreement with the State in which

she would pay a $500 fine in monthly installments of $50 in exchange

for pleading guilty. She also waived her right to file a motion in arrest of

judgment and requested the court impose its sentence immediately. The

court approved Utter’s written waiver of rights and plea of guilty.

Accordingly, the court imposed the $500 fine and added a thirty-two

percent surcharge and a $270.64 restitution payment, which Utter was

to pay in monthly installments of $50.
                                       4

      Utter appealed, arguing her trial counsel provided ineffective

assistance by failing to file a motion to dismiss the charge based on the

State’s violation of Iowa’s speedy indictment rule.         We transferred the

case to the court of appeals. The court of appeals affirmed the district

court’s judgment and preserved Utter’s ineffective-assistance-of-counsel

claim for possible postconviction relief proceedings.          The court found

Utter’s trial counsel breached an essential duty by failing to file a motion

to dismiss based upon the State’s violation of the speedy indictment rule,

but could not determine if prejudice resulted due to the inadequacy of

the record on direct appeal. Utter filed an application for further review,

which we granted.

      II. Issue.

      We   must     decide   whether    trial   counsel    provided   ineffective

assistance by allowing Utter to plead guilty despite the fact that the State

failed to issue a speedy indictment pursuant to Iowa Rule of Criminal

Procedure 2.33(2)(a).

      III. Scope of Review.

      We generally review a defendant’s challenge to a guilty plea for

correction of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa

2010). However, because Utter claims her guilty plea resulted from her

trial counsel’s ineffective assistance, a constitutional claim, our review is

de novo. Id.; see also State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010)

(“Ineffective-assistance-of-counsel claims have their basis in the Sixth

Amendment to the United States Constitution.”). We normally preserve

ineffective-assistance-of-counsel      claims    for      postconviction   relief

proceedings.    State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010).

Nonetheless, we will consider the merits of these claims on direct appeal
                                    5

as long as the record is adequate. Id. We believe the record is adequate

in this case.

      IV. Discussion and Analysis.

      A. Generally. A defendant’s plea of guilty is a serious act that he

or she must do voluntarily, knowingly, and intelligently with an

awareness of the relevant circumstances and consequences.           Hill v.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208–09

(1985); Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468–

69, 25 L. Ed. 2d 747, 756 (1970); State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006).    Whether a defendant’s guilty plea was intelligently made

depends, in part, on whether the defendant was properly advised by

competent counsel.     Brady, 397 U.S. at 756, 90 S. Ct. at 1473, 25

L. Ed. 2d at 760–61. “It is well established that a defendant’s guilty plea

waives all defenses and objections which are not intrinsic to the plea.”

State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). This means

      [w]hen a criminal defendant has solemnly admitted in open
      court that he is in fact guilty of the offense with which he is
      charged, he may not thereafter raise independent claims
      relating to the deprivation of constitutional rights that
      occurred prior to the entry of the guilty plea. He may only
      attack the voluntary and intelligent character of the guilty
      plea . . . .

Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36

L. Ed. 2d 235, 243 (1973).

      One way a defendant can intrinsically challenge the voluntary and

intelligent nature of his or her guilty plea is to prove “the advice he [or

she] received from counsel in connection with the plea was not within the

range of competence demanded of attorneys in criminal cases.” Carroll,

767 N.W.2d at 642; accord Lockhart, 474 U.S. at 56–57, 106 S. Ct. at

369, 88 L. Ed. 2d at 208–09; Tollett, 411 U.S. at 266–67, 93 S. Ct. at
                                     6

1608, 36 L. Ed. 2d at 243; Zacek v. Brewer, 241 N.W.2d 41, 50 (Iowa

1976).    In Carroll, we recognized that all categories of ineffective-

assistance-of-counsel claims can potentially survive a guilty plea.

Carroll, 767 N.W.2d at 644. We stated,

       Only through a case-by-case analysis will a court be able to
       determine whether counsel in a particular case breached a
       duty in advance of a guilty plea, and whether any such
       breach rendered the defendant’s plea unintelligent or
       involuntary.
Id.

       On appeal, Utter claims her trial counsel failed to perform an

essential duty by failing to file a motion to dismiss based on the State’s

violation of the speedy indictment rule. She claims her trial counsel’s

failure worked to her actual and substantial disadvantage because the

court would have dismissed the charge against her based upon the

State’s speedy indictment violation. Inherent in Utter’s argument is the

claim that her trial counsel’s failure to file a motion to dismiss caused
her to improvidently plead guilty to a charge that the State would have

otherwise been barred from pursuing had her counsel performed

effectively.

       Accordingly, we must determine whether Utter’s trial counsel

breached an essential duty prior to her guilty plea and whether this

breach rendered her plea unintelligent or involuntary. Id. As with all

ineffective-assistance-of-counsel   claims,   Utter   must   establish   her

counsel failed to perform an essential duty and prejudice resulted from

such failure. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Carroll, 767 N.W.2d at 644.

Utter must prove both elements by a preponderance of the evidence.

Straw, 709 N.W.2d at 133.
                                   7

      B. Failure to Perform an Essential Duty. Utter must prove her

trial counsel “made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” in

order to establish her counsel failed to perform an essential duty.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We

begin with the presumption that counsel performed competently and

measure counsel’s performance objectively, “by determining whether

counsel’s assistance was reasonable, under prevailing professional

norms, considering all the circumstances.” Vance, 790 N.W.2d at 785

(quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)) (internal

quotation marks omitted). Because Utter’s trial counsel has no duty to

pursue a meritless issue, we must first consider whether the State

violated the speedy indictment rule. Carroll, 767 N.W.2d at 645.

      Iowa’s speedy indictment rule ensures the enforcement of the

United States and Iowa Constitutions’ speedy trial guarantees, which

assure the prompt administration of justice while allowing an accused to

timely prepare and present his or her defense. State v. Wing, 791 N.W.2d

243, 246–47 (Iowa 2010). Iowa’s speedy indictment rule provides:

      It is the public policy of the state of Iowa that criminal
      prosecutions be concluded at the earliest possible time
      consistent with a fair trial to both parties. . . .

             a. 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.
Iowa R. Crim. P. 2.33(2)(a).

      Under this rule, the forty-five-day period begins to run when the

accused is “arrested for the commission of a public offense.” Id. Iowa

Code section 805.1(4) provides, “The issuance of a citation in lieu of
                                        8

arrest shall be deemed an arrest for the purpose of the speedy indictment

requirements of rule of criminal procedure 2.33(2)(a), Iowa court rules.”

Iowa Code § 805.1(4).        On April 10, 2009, the officer issued Utter a

citation and complaint for supplying alcohol to a person under the legal

age. Therefore, the forty-five-day window in which the State could indict

Utter for this crime began to run on April 11. See Iowa Code § 4.1(34)

(recognizing, in computing time, the first day is excluded).

         Beginning on April 11, the State had forty-five days to indict Utter

for supplying alcohol to a person under the legal age. This forty-five-day

window for indictment closed on May 25. The State did not indict Utter

until June 12, eighteen days later, when it filed its trial information. See

Iowa R. Crim. P. 2.5(5) (“The term ‘indictment’ embraces the trial

information . . . .”); accord State v. Rains, 574 N.W.2d 904, 910 (Iowa

1998); State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997); see also

State v. Schuessler, 561 N.W.2d 40, 41–42 (Iowa 1997) (recognizing the

term “found” in rule 2.33(2)(a) means approved by the court and filed).

Thus, absent a showing by the State that it had good cause for the delay

or that Utter waived her right to a speedy indictment, the State violated

the speedy indictment rule.

         Utter did not waive, but rather demanded, her right to a speedy

trial.   The State does not claim it had good cause for failing to indict

Utter     within   the   forty-five   days   mandated   by   rule   2.33(2)(a).

Consequently, we find Utter’s underlying claim has merit because the

State violated the speedy indictment rule.       The failure of the State to

comply with rule 2.33(2)(a) requires absolute dismissal of the charge and

prohibits the State from reindicting Utter on the same offense. State v.

Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008).
                                       9

      Next, we must consider whether Utter’s trial counsel failed to

perform an essential duty by failing to file a motion to dismiss the charge

against her due to the State’s violation of Iowa’s speedy indictment rule.

In measuring counsel’s performance, we have relied on the Iowa Rules of

Professional Conduct. Vance, 790 N.W.2d at 786. Rule 32:1.1 requires

an attorney to represent his or her clients competently. Iowa R. Prof’l

Conduct 32:1.1.     Competent representation includes “inquiry into and

analysis of the factual and legal elements of the problem, and use of

methods     and   procedures     meeting    the   standards   of     competent

practitioners. It also includes adequate preparation.” Id. cmt. [5]. In

criminal matters, a competent practitioner must be aware of and

vigilantly protect his or her client’s speedy trial rights.        See State v.

Schoelerman, 315 N.W.2d 67, 71–72 (Iowa 1982) (“A normally competent

attorney who undertakes to represent a criminal defendant should either

be familiar with the basic provisions of the criminal code, or should make

an effort to acquaint himself with those provisions which may be

applicable . . . .”); see also State v. Clary, 596 N.E.2d 554, 558 (Ohio Ct.

App. 1991) (“Assuredly, the responsibilities of counsel extend to

protecting the client’s speedy trial rights.”).

      Thus, to provide reasonably competent representation when a

criminal defendant asserts his or her speedy trial rights, counsel must

ensure that the State abides by the time restrictions established in Iowa

Rule of Criminal Procedure 2.33. Counsel’s failure to do so amounts to a

failure to perform an essential duty.      Cf. State v. Bearse, 748 N.W.2d

211, 217 (Iowa 2008) (holding an attorney failed to perform an essential

duty by not objecting to a breached plea agreement); Meier v. State, 337

N.W.2d 204, 207 (Iowa 1983) (holding an attorney’s performance fell

below the range of normal competency because he gave the defendant
                                    10

inaccurate legal advice, which the defendant relied on in waiving trial

and pleading guilty). Accordingly, we hold Utter’s trial counsel failed to

perform an essential duty by failing to file a motion to dismiss based on

the State’s violation of the speedy indictment rule and, thereafter,

permitting Utter to plead guilty after the speedy indictment time expired.

      C. Resulting Prejudice.     To prove prejudice resulted from trial

counsel’s failure to perform an essential duty, an accused must establish

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

the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.       To do so, the

accused “need only show that the probability of a different result is

sufficient to undermine confidence in the outcome.” Palmer, 791 N.W.2d

at 850 (quoting State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003))

(internal quotation marks omitted).      This means, to prove prejudice,

Utter must establish that “but for counsel’s breach of duty, [she] would

not have pled guilty and would have elected instead to stand trial.”

Carroll, 767 N.W.2d at 644.

      The State claims the record is inadequate to decide this issue

because it is unclear whether trial counsel’s failure to file a motion to

dismiss was based upon “some off-the-record agreement” with the State

or, instead, was a defense strategy.     Utter claims her trial counsel’s

failure to file a motion to dismiss prejudiced her because there was a

reasonable probability that the court would have dismissed the trial

information based on the State’s violation of the speedy indictment rule.

She further claims she did not voluntarily and intelligently plead guilty

because her counsel did not advise her the court would have to dismiss

the information under rule 2.33(2)(a).
                                    11

      The remedy for a violation of the speedy indictment rule is an

absolute dismissal of the charge with prejudice and a complete bar from

reindicting the defendant again on the same offense and lesser-included

offenses thereof. Dennison, 571 N.W.2d at 494; see also Abrahamson,

746 N.W.2d at 273 (requiring dismissal for violation of speedy trial right).

However, the State may still bring charges involving other offenses,

which arise from the same incident or episode as the previously charged

offense.   State v. Lies, 566 N.W.2d 507, 508–09 (Iowa 1997); State v.

Sunclades, 305 N.W.2d 491, 494 (Iowa 1981).          For purposes of the

speedy indictment rule, two offenses are the same if they “are in

substance the same, or of the same nature, or same species, so that the

evidence which proves one would prove the other.” State v. Moritz, 293

N.W.2d 235, 239 (Iowa 1980) (quoting State v. Stewart, 223 N.W.2d 250,

251   (Iowa   1974)) (internal   quotation   marks   omitted).     But see

Abrahamson, 746 N.W.2d at 275–76 (applying a different test where the

two charges were not based on different statutes but, instead,

constituted two alternative ways of committing the same offense under a

single statute).

      We have established the State violated the speedy indictment rule.

Therefore, had Utter’s trial counsel properly filed a motion to dismiss, the

court would have dismissed the trial information, and the State would

have been absolutely barred from prosecuting Utter for supplying alcohol

to persons under the legal age in violation of Iowa Code section 123.47.

The only way trial counsel’s failure to file a motion to dismiss could have

possibly constituted a tactical or strategic decision would have been if

counsel had reached an agreement with the State, such that the State

would have forgone charging Utter with additional offenses arising from

the same incident in exchange for Utter’s waiver of the State’s failure to
                                   12

comply with the speedy indictment rule and guilty plea. See, e.g., State

v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (recognizing claims of

ineffective assistance involving strategic decisions must be examined in

light of all circumstances).

      The State argues that Utter may have pled guilty and waived her

speedy indictment rights in exchange for the State not filing additional

charges against her pertaining to the other minors who were drinking at

the party. The State then claims that we should preserve this issue for

an ineffective-assistance-of-counsel claim. We agree that the State had

the right to charge Utter with separate violations of section 123.47 for

each minor who drank alcohol at the party. See, e.g., State v. Gilliland,

252 Iowa 664, 668, 108 N.W.2d 74, 76 (1961) (holding a 1958 statute

prohibiting the service of beer to a minor allowed the State to charge the

defendant with separate crimes for each minor served).         Under the

unique facts of this case, however, when Utter pled guilty on August 14,

the State was precluded from bringing those additional charges.

      The information as filed by the State on June 12 did not charge

Utter with separate crimes for each minor drinking at the party. The first

page of the information stated that the State based Utter’s violation of

section 123.47 on the facts that she “did knowingly or intentionally

purchase and supply alcohol to individuals under the legal age.”

(Emphasis added.) The minutes attached to the information stated the

witnesses would testify that multiple minors were observed drinking

alcohol provided by Utter. The State charged Utter with one violation of

section 123.47 for supplying alcohol to the group of minors at the party,

rather than separate violations for supplying alcohol to each minor. This

was an acceptable way of charging Utter.      See State v. Duncan, 312

N.W.2d 519, 523 (Iowa 1981) (holding the State could charge the
                                    13

defendant with one count of burglary for breaking into a marina and a

boat because “prosecutors have long been allowed to allege facts in the

alternative to meet the contingencies of proof”).

        The State could have established a violation of section 123.47 by

proving Utter knowingly or intentionally purchased and supplied alcohol

to any individual attending the party who was under the legal age. That

single charge was subject to dismissal under rule 2.33(2)(a) on the day

Utter pled guilty.   If the court dismissed the information under rule

2.33(2)(a), the State would have been precluded from bringing the same

charges again. Because the State chose to charge Utter with one offense

for all individuals drinking at the party, it could not charge her later

under section 123.47 for a specific individual drinking at the party.

Therefore, Utter would not have had a reason to plead guilty in exchange

for not filing additional charges. Moreover, if Utter knew the court would

have had to dismiss the information and that the State could not

recharge, it is axiomatic that she would not have pled guilty.

        Therefore, we find Utter would not have pled guilty if she had

known the court was required to dismiss the information under rule

2.33(2)(a) and the State could not charge her with any other violation of

section 123.47 arising out of the underage drinking party at her home.

Consequently, she did not enter into the plea voluntarily or intelligently.

Thus,    a   reasonable   probability    exists   that,   but   for   counsel’s

unprofessional errors, the result of the proceeding would have been

different.

        V. Disposition.

        Utter did not enter her guilty plea voluntarily or intelligently;

therefore, we vacate her plea and remand the case for further
                                   14

proceedings.    On remand, the court shall dismiss the information

pursuant to rule 2.33(2)(a).

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT     JUDGMENT      REVERSED        AND   CASE   REMANDED        WITH

INSTRUCTIONS.

      All justices concur except Mansfield, J., who takes no part.
