                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0038
                               Filed November 9, 2016


ROSS CASHEN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Delaware County, Monica L.

Ackley, Judge.



      Applicant appeals the district court decision denying his application for

postconviction relief. AFFIRMED.




      Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

        Ross Cashen appeals the district court ruling denying his application for

postconviction relief. We find Cashen has not shown he received ineffective

assistance due to defense counsel’s failure to file a timely motion to dismiss for

lack of a speedy indictment or failure to explain the sex offender registry

requirements. We affirm the district court.

        I.      Background Facts & Proceedings

        On April 25, 2007, a complaint was filed in Delaware County accusing

Cashen of sexual abuse in the second degree. The complaint alleged Cashen

had engaged in sex acts with his eleven-year-old step-sister.        A warrant for

Cashen’s arrest was issued on the same day. Cashen was in jail in Marshall

County, on unrelated charges, at the time.

        The arrest warrant was executed and returned on April 14, 2008. Cashen

posted bail on April 15, 2008. After agreeing to a delay, he made his initial

appearance and filed a request for the appointment of an attorney on April 21,

2008.    A trial information was filed on May 12, 2008, charging Cashen with

second-degree sexual abuse, a class “B” felony.

        On October 12, 2009, Cashen filed a motion to dismiss the trial

information on the ground it had not been filed within forty-five days after he was

arrested, in violation of Iowa Rule of Criminal Procedure 2.33(2)(a). The State

resisted the motion, claiming Cashen had been arrested on April 11, 2008, and

the trial information, filed on May 12, 2008, had been filed within forty-five days.

The district court denied the motion to dismiss, finding it was not timely under

rule 2.11(4).
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       Cashen entered into a plea agreement in which he agreed to plead guilty

to lascivious acts with a child, in violation of Iowa Code section 709.8(2) (2007), a

class “D” felony. He was sentenced to a term of imprisonment not to exceed five

years. Cashen’s conviction was affirmed on appeal. State v. Cashen, No. 10-

0490, 2011 WL 3689144, at *5 (Iowa Ct. App. Aug. 24, 2011).

       Cashen filed an application for postconviction relief on September 27,

2012. He claimed he received ineffective assistance because defense counsel

did not file a timely motion to dismiss based on rule 2.33(2)(a).            After a

postconviction hearing, the district court denied Cashen’s request for

postconviction relief, finding, “The trial information was filed 28 days after Cashen

was first arrested.” Cashen now appeals.

       II.    Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the applicant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       III.   Ineffective Assistance

       A.     Cashen claims he received ineffective assistance because defense

counsel did not file a timely motion to dismiss on speedy indictment grounds.

Rule 2.33(2)(a) provides, “When an adult is arrested for a public offense . . . and

an indictment is not found against the defendant within 45 days, the court must
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order the prosecution to be dismissed, unless good cause to the contrary is

shown or the defendant waives the right thereto.” “The indictment can be in the

form of a trial information.” Ennenga, 812 N.W.2d at 702; see also Iowa R. Crim.

P. 2.5(5).

       “[T]he speedy indictment rule serves to ‘relieve an accused of the anxiety

associated with’ the suspension of a prosecution, provide for the ‘reasonably

prompt administration of justice,’ prevent the loss of evidence, and maintain a fair

process.” State v. Penn-Kennedy, 862 N.W.2d 384, 387 (Iowa 2015) (citation

omitted). The speedy indictment time period begins to run when a person is

arrested. State v. Wing, 791 N.W.2d 243, 247 (Iowa 2010). An “arrest” occurs

for purposes of rule 2.33(2)(a) when “a reasonable person in the defendant’s

position would have believed an arrest occurred, including whether the arresting

officer manifested a purpose to arrest.” Id. at 249. “A person must be in the

custody of county authorities of the county issuing the arrest warrant for a person

to be under ‘arrest’ in that county.” State v. Waters, 515 N.W.2d 562, 566 (Iowa

Ct. App. 1994). Whether a person has been “arrested” must be determined on a

case-by-case basis. Wing, 791 N.W.2d at 248.

       Cashen relies upon a Manchester Police Department arrest report dated

April 24, 2007. At the postconviction hearing, Cashen stated while he was in the

Marshall County jail, “I had the jailers come in, and hand me a piece of paper,”

which he believed was the Delaware County arrest warrant. Cashen stated he

believed this was soon after he was brought back to jail on April 19, 2007.

       Officer Rick Carnicle of the Manchester Police Department testified the

arrest report was prepared on April 24, 2007, but Cashen was not arrested at
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that time. Officer Carnicle testified it was a common practice of the department

to prepare an arrest report at the same time as an arrest warrant, whether the

person was actually arrested at the time or not. Mary Kleinschrodt, the police

records administrator, testified an arrest report could be created for someone

who was not actually arrested in order to get their information into the computer

system. Looking at Cashen’s arrest report, Kleinschrodt stated Cashen could not

have been arrested on April 24, 2007, because the date was previous to the date

on the warrant. The State also presented a print-out from Iowa Courts Online,

which showed the criminal complaint and arrest warrant were filed on April 25,

2007, then no further activity occurred until the warrant was returned on April 14,

2008.

        The district court considered this evidence and concluded Cashen’s

argument was “not supported by the docketing record or the filings.” The court

stated,

        The credible evidence is that [Cashen] was arrested and made his
        initial appearance in Delaware County on April 21, 2008.
        Therefore, if a motion to dismiss had been filed, it would have
        appropriately been denied as the Delaware County Attorney
        complied with his obligation to file the trial information timely.
                 Cashen could not prove he was prejudiced as a result of his
        first attorney’s failure to file the motion to dismiss.

        We agree with the district court’s conclusions. The evidence does not

support Cashen’s claim the prosecution should have been dismissed because

more than forty-five days passed between the date he was arrested and the date

the trial information was filed. Because a timely motion to dismiss pursuant to

rule 2.33(2)(a) would have been denied, Cashen is unable to show he received

ineffective assistance due to defense counsel’s failure to file a timely motion.
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See State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (“Counsel does not fail to

perform an essential duty by failing to raise a meritless objection.”).

         B.    On appeal, Cashen claims he received ineffective assistance

because defense counsel did not explain to him that he would be required to

register as a sex offender for the rest of his life.      During the postconviction

hearing, Cashen stated at the time he entered his guilty plea he was required to

register as a sex offender for ten years, but the law had changed since then and

“they” were telling him he now had to register for life. The prosecutor then stated

since Cashen’s claim involved an issue which arose after his conviction, he

needed to bring it in a separate proceeding. Cashen stated, “All right.” The

district court did not address the issue in its ruling, although the court specifically

stated Cashen was given the opportunity to raise all of the issues he wanted to

raise.

         Cashen has the burden to show by a preponderance of the evidence

counsel was ineffective. See McKettrick, 480 N.W.2d at 55. Cashen did not

testify as to what he was told by defense counsel concerning the sex offender

registry. Also, by his testimony at the hearing, it appears his complaint does not

refer to something that happened during the time he was represented by defense

counsel, but rather is based on something that occurred later. We conclude

Cashen has not met his burden to show he received ineffective assistance on

this ground.

         We affirm the decision of the district court denying Cashen’s application

for postconviction relief.

         AFFIRMED.
