               IN THE SUPREME COURT OF IOWA
                              No. 14–2075

                           Filed June 17, 2016

                       Amended August 31, 2016


STATE OF IOWA,

      Appellee,

vs.

DEYAWNA LEANETT TAYLOR,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Story County, Stephen P.
Van Marel, District Associate Judge.


      A defendant in a criminal case seeks further review after the court
of appeals affirmed her convictions, arguing that the district court erred
in rejecting her claim of a speedy trial violation. DECISION OF COURT
OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED
AND REMANDED.


      Mark C. Smith, State Appellate Defender, Joseph A. Fraioli,
Assistant Appellate Defender (until withdrawal), then Bradley M. Bender,
Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Alexandra Link, Assistant
Attorney General (until withdrawal), Stephen H. Holmes, County
Attorney, and Shean Fletchall, Assistant County Attorney, for appellee.
                                      2

APPEL, Justice.

      In this case, we consider whether the State failed to prove waiver

or good cause to avoid a speedy trial violation. Deyawna Taylor moved

for dismissal of the charges against her on speedy trial grounds a few

days prior to her scheduled trial.     The State resisted, claiming Taylor

impliedly waived her right to speedy trial by agreeing to a proffer

agreement after the speedy trial deadline had passed. In the alternative,

the State argued the assertion of speedy trial rights two days before the

scheduled trial was untimely.      The State further argued it had good

cause for the delay because the defendant was incarcerated in Iowa and

did not appear for her arraignment.

      The district court denied Taylor’s motion to dismiss on speedy trial

grounds.     Taylor was subsequently convicted of the pending charges.

The court of appeals upheld the conviction, and we granted further

review. For the reasons expressed below, we reverse and remand to the

district court for dismissal of the case.

      I. Procedural and Factual Background.

      On July 28, 2014, the State charged Deyawna Taylor with one

count of driving while barred in violation of Iowa Code section 321.561

(2013) and one count of prostitution in violation of Iowa Code section

725.1.     Arraignment was scheduled for August 11.       Taylor failed to

personally appear for arraignment because she was incarcerated in Polk

County on unrelated charges. The district court then issued an order for

a warrant.

      On October 29 the State moved to have Taylor transported from

the Mitchellville correctional facility to Story County for arraignment on

the charges involved in this case.     Taylor was not arraigned, however,

until November 12. Trial was set for December 16. The State asserts
                                      3

that it entered into a proffer agreement with Taylor on November 12.

Under the proffer agreement, the charges against Taylor would be

reduced if Taylor agreed to cooperate in the prosecution of another

defendant.

      On December 8, Taylor filed a motion to dismiss. Taylor asserted

that the State failed to try Taylor’s case within ninety days of filing the

trial information. The district court held a hearing on December 10. The

district court opened the hearing by stating that it was the burden of the

State to show good cause why the defendant was not brought to trial

within ninety days of the filing of the trial information.

      The State began the hearing with a professional statement by

counsel that it was not until it filed a motion to transport Taylor from

Mitchellville—on October 29—that the State realized the defendant was,

in fact, incarcerated at Mitchellville.    The State then called Assistant

Story County Attorney Tiffany Meredith as a witness. She testified there

were conversations with defense counsel on November 12 “to complete

the proffer agreement.” Although the discussion was conducted in the

presence of a court reporter and Meredith reviewed the transcript prior to

the hearing, the transcript of the proffer discussions was not introduced

at the hearing. According to Meredith, the conversation revolved around

a couple of different items, with the majority of the discussion focusing

on the length of time it would take for the trial to begin in which Taylor

was to testify. Meredith testified that she was not the prosecutor in the

case and therefore,

      I didn’t know if speedy trial had not been waived. So[, in
      discussing the length of time until Taylor was to testify,] I
      didn’t specifically use the word “speedy trial”, but I did point
      out that it was going to take a number of months for [the
      other trial] to proceed . . . .
                                     4

      Taylor did not present evidence at the hearing. Defense counsel

did, however, refer to a letter filed with the court dated September 30,

2014, indicating that Polk County had advised the Story County Sheriff’s

Office of Taylor’s arrest in Polk County and asked the court to take

judicial notice of the Polk County filings in the cases against Taylor.

      In arguing against dismissal, the State argued that whether good

cause for delay exists depends exclusively on the reason for the delay.

The State maintained, however, that courts will consider a weaker reason

for delay to be sufficient depending on the resolution of a multifactored

test including the shortness of the period of the delay, the failure of the

defendant to demand speedy trial, and the absence of prejudice. Here,

the State argued, the good cause for the delay was Taylor’s incarceration

in another county and her assent to a delay in the form of making the

proffer agreement with the State.

      The court questioned the State about its good cause argument.

The district court stated it was the court’s understanding that when Polk

County arrests someone against whom there is an outstanding warrant

elsewhere, Polk County sends a teletype to the other county regarding

the arrest.   The State responded that while “[i]t’s possible that the

sheriff’s office received [the teletype], our office [the county attorney’s

office] did not.” The district court responded that the State should be

careful with the argument, because “if the sheriff’s office knew, the State

knew.”

      The State continued its argument, noting

      [t]he defense counsel was contacted even prior to being
      brought here and an offer to testify against [the other
      defendant] was presented, and that, I think, suggests that
      the defendant could have had the opportunity to waive
      speedy trial or demand speedy trial.
                                     5

As a result, the State argued that Taylor “acquiesced to this proffer

agreement.”

      At the close of the hearing, the court ruled on the motion to

dismiss.   The court stated that even though the speedy trial deadline

may have “technically ran,” Taylor acquiesced to that waiver of speedy

trial when she signed the proffer agreement on November 12. The court

noted that there was a great deal of discussion about the delay that

would result from the proffer agreement and that the court was not going

to second-guess counsel.     The district court ruled that Taylor “waived

speedy trial on November 12 of 2014, and acquiesced to going past the

speedy trial date before that by signing the proffer.”

      Taylor then waived her right to a trial by jury and a trial on the

minutes was held later that day. The court found Taylor guilty of driving

while barred and prostitution. The court sentenced Taylor to two years

imprisonment on each count, to be served concurrently, and a fine of

$625 per count with costs.

      Taylor appealed and we transferred the case to the court of

appeals. The court of appeals affirmed Taylor’s convictions. She applied

for further review, which we granted.      She asserts the State failed to

bring her to trial within the speedy trial deadline. She argues that she

did not waive her speedy trial rights, that there was not good cause for

the delay, and that her assertion of her speedy trial rights was timely.

      II. Standard of Review.

      We review a district court’s ruling on a motion to dismiss on

speedy trial grounds for abuse of discretion.        State v. Winters, 690

N.W.2d 903, 907 (Iowa 2005). “When speedy trial grounds are at issue,

however, the discretion given to the district court narrows.” Id. Statutes

and rules implementing the right to a speedy trial receive “a liberal
                                     6

construction, designed to effectuate [their] purpose” of protecting citizens’

liberty.   21A Am. Jur. 2d Criminal Law § 930, at 187 (2016); accord

Winters, 690 N.W.2d at 907–08.

       III. Discussion.

       A. Legal Framework for Speedy Trial. Article I, section 10 of the

Iowa Constitution guarantees the right to a speedy trial.                This

constitutional command is implemented by Iowa Rule of Criminal

Procedure 2.33(2) (2013). See Ennenga v. State, 812 N.W.2d 696, 701

(Iowa 2012). This rule provides in relevant part:

       Speedy Trial. 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. Applications
       for dismissals under this rule may be made by the
       prosecuting attorney or the defendant or by the court on its
       own motion.

              ....

             b. 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.

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

       We have held that under the rule, a criminal charge must be

dismissed if trial is not commenced within ninety days 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 (quoting State v. Nelson, 600 N.W.2d

598, 600 (Iowa 1999)).      The burden of showing an exception to the

speedy trial deadline “rests squarely with the State.” State v. Miller, 637

N.W.2d 201, 204 (Iowa 2001). The state at all times carries its burden—

there is no requirement that the defendant show prejudice as a result of
                                    7

the delay. Ennenga, 812 N.W.2d at 705; State v. Sassman, 226 N.W.2d

808, 809 (Iowa 1975).

      We require diligence from those seeking to prove good cause. Cf.

State v. Campbell, 714 N.W.2d 622, 628–29 (Iowa 2006) (finding good

cause when the state showed the multiple actions of the defendant that

resulted in the delay of trial); Winters, 690 N.W.2d at 909–10 (finding no

showing of good cause despite the state presenting evidence of

defendant’s pro se pretrial motions, discovery requests, and a joint trial

with a codefendant because there was no evidence why these normal

events caused the delay).    Even when the state does not intentionally

cause the delay, inaction in pursuing a defendant weighs against a

finding of good cause. See United States v. Jenkins, 701 F.2d 850, 853–

54, 856–58 (10th Cir. 1983), overruled on other grounds by Batson v.

Kentucky, 476 U.S. 79, 93 & n.16, 106 S. Ct. 1712, 1720–21 & n.16, 90

L. Ed. 2d 69, 84–85 & n.16 (1986); see also State v. Lybarger, 263

N.W.2d 545, 547–48 (Iowa 1978), superseded by rule, 1976 Iowa Acts

ch. 1245, ch. 2, § 1301 (changing speedy trial period from sixty to ninety

days), as recognized in State v. Zaehringer, 306 N.W.2d 792, 794–95

(Iowa 1981). Similarly, the state must show diligence in apprehending a

defendant who is out of the jurisdiction. See Jenkins, 701 F.2d at 853–

54, 856–57; United States v. Salzmann, 548 F.2d 395, 403–04 (2d Cir.

1976) (Feinberg, J., concurring).

      The required showing of good cause under rule 2.33(2) is more

stringent than its constitutional counterpart. Miller, 637 N.W.2d at 204.

We have repeatedly rejected the multifactor balancing test of Barker v.

Wingo, 407 U.S. 514, 530–32, 92 S. Ct. 2182, 2192–93, 33 L. Ed. 2d

101, 117–18 (1972), which considers length of delay, reason for delay,

demand, and prejudice. See, e.g., Miller, 637 N.W.2d at 204; Nelson, 600
                                       8

N.W.2d at 600; State v. Olsen, 528 N.W.2d 651, 654 (Iowa Ct. App.

1995); State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1988). The good-

cause test under our speedy trial rules relies only on one factor: the

reason for the delay. Miller, 637 N.W.2d at 205; Petersen, 288 N.W.2d at

335. “[I]f the reason for the delay is insufficient, other factors will not

avoid dismissal.” Ennenga, 812 N.W.2d at 706; accord State v. O’Bryan,

522 N.W.2d 103, 106 (Iowa Ct. App. 1994).

      Our precedents also disfavor using generalities in establishing

good cause.     For instance, generalized clerical difficulties are not

sufficient. Sassman, 226 N.W.2d at 809. Further, general statements

about court congestion are insufficient. State v. Bond, 340 N.W.2d 276,

279 (Iowa 1983). In evaluating good cause for court congestion, we have

required a showing of specific circumstances arising out of unique,

nonrecurring events which create a particular scheduling problem. Id. at

279–80. The state’s bare assertion that it needed more time to prepare

for trial is not sufficient to support a finding of good cause. Winters, 690

N.W.2d at 909. Under our cases, good cause to avoid speedy trial must

be rooted in facts, not conclusions.

      Further, we have emphasized that mere acquiescence in setting a

trial date is not sufficient to lead to a waiver of speedy trial rights.

Zaehringer, 306 N.W.2d at 795. The failure of an accused affirmatively to

“assert . . . speedy trial rights does not amount to a waiver of those

rights.”   Ennenga, 812 N.W.2d at 701; accord State v. Gorham, 206

N.W.2d 908, 912 (Iowa 1973).

      We have held, however, that acquiescence may be a factor in

determining waiver. See Zaehringer, 306 N.W.2d at 795. In Zaehringer,

we found waiver when the defendant not only failed to assert speedy trial

rights but actively engaged in extensive use of the entire schedule set by
                                     9

the court, including numerous motions filed after the expiration of the

speedy trial deadline.     Id. at 795–96.     We concluded that under the

circumstances, the defendant “actively participated in the events which

delayed his retrial but later sought to take advantage of that delay to

terminate the prosecution.” Id. at 796.

      Instead, we have emphasized that in order to show waiver, the

state must satisfy the demanding test of Johnson v. Zerbst, 304 U.S. 458,

464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938). See Gorham,

206 N.W.2d at 911. In order to show waiver, there must be a showing of

“an intentional relinquishment or abandonment of a known right or

privilege.”   Id. (quoting Zerbst, 304 U.S. at 464, 58 S. Ct. at 1023, 82

L. Ed. at 1466).

      Dismissal of charges on speedy trial grounds is an “absolute

dismissal”—a discharge with prejudice—if at least one of the exceptions

has not been established. Ennenga, 812 N.W.2d at 701 (quoting State v.

Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008)); see Miller, 637 N.W.2d

at 206. Whether the delay is great or small, dismissal under our rule is

required unless the state carries its burden to show that the defendant

waived speedy trial, that the delay was attributable to the defendant, or

other “good cause” exists for the delay. Miller, 637 N.W.2d at 205–06.

      B. Did the State Meet Its Burden in Showing Good Cause for

the Delay?      We first consider whether the State met its burden in

showing good cause for the delay.           The argument presented to the

district court was that Taylor did not appear for her arraignment because

she had been arrested by the State on other charges and incarcerated in

Polk County.       The State further asserts that it did not know of her

presence in the Mitchellville correctional facility until October 29, two

days after the expiration of the speedy trial deadline on October 27.
                                       10

         The State, however, offered no evidence to support its position

other than the fact that it was not aware that Taylor was in state custody

on other charges until after the speedy trial deadline had passed. There

was no evidence to indicate whether the State diligently sought to locate

Taylor. The State conceded it was possible that Polk County contacted

the Story County sheriff when it arrested Taylor and found there was an

outstanding warrant in Story County, but the State asserted that the

sheriff is not the office of the county attorney.

         The question of whether incarceration in the same state is good

cause to avoid speedy trial deadlines is not a new question. The cases

have been collected in an American Law Reports annotation. See R.P.D.,

Annotation, Constitutional or Statutory Right of Accused to Speedy Trial as

Affected by His Incarceration for Another Offense, 118 A.L.R. 1037

(originally published 1939), Westlaw. As set forth by the annotation,

         The general rule, followed in the majority of the states and in
         the Federal courts, is that, under a constitutional provision
         guaranteeing to accused a speedy trial, and under statutes
         supplementing the constitutional provision and enacted for
         the purpose of rendering it effective, and prescribing the time
         within which accused must be brought to trial after
         indictment, a sovereign may not deny an accused person a
         speedy trial even though he is incarcerated in one of that
         sovereign’s penal institutions under a prior conviction and
         sentence in a court of that sovereign.

Id. When in the custody of the state, the state and not the defendant has

the power and authority over the defendant to bring the defendant to

court.

         Clearly, in this case, the State did not meet its burden of showing

good cause for the delay. The State did not present any evidence to show

due diligence in attempting to locate Taylor and it could not deny that

Polk County contacted the Story County sheriff upon Taylor’s arrest in

Polk County in light of the outstanding Story County warrant. The State
                                      11

simply claims a generalized and even implausible communication

problem. See, e.g., Winters, 690 N.W.2d at 909 (finding ordinary pretrial

motions not good cause for delay); Bond, 340 N.W.2d at 279 (rejecting

generalized “court congestion” as good cause for delay); Sassman, 226

N.W.2d at 809 (holding an “administrative breakdown”—a shortage of

secretarial help—was not good cause for delay). On this record, the State

failed to meet its burden in showing good cause arising from Taylor’s

incarceration in Polk County.

      C. Did the State Meet Its Burden in Showing that Taylor

Waived Her Right to a Speedy Trial?

      1. Implied waiver through plea bargain. We begin by recognizing

that in the speedy trial context, we have repeatedly adopted the Zerbst

test for waiver. See Gorham, 206 N.W.2d at 911. That is, in order to

waive speedy trial rights, the defendant must do so knowingly and

intelligently.   Id.   The standard for a showing of waiver is high.    Id.;

accord Zerbst, 304 U.S. at 464, 58 S. Ct. at 1023, 82 L. Ed. at 1466.

      That said, a criminal defendant may waive the right to a speedy

trial if the required showing is made. A plea bargain may provide a basis

for waiver of the speedy trial right. State v. Utter, 803 N.W.2d 647, 654–

55 (Iowa 2011).        Further, intensive use of the extended schedule for

purposes of trial preparation may suggest a waiver of speedy trial rights.

Zaehringer, 306 N.W.2d at 795–96.

      Here, however, the State offered no evidence to meet its burden of

demonstrating waiver through the proffer agreement in this case. There

is authority for the proposition that the government assumes the risk of

dismissal due to delay when it enters into a plea bargain in which

testimony in another case is part of the consideration. United States v.

Roberts, 515 F.2d 642, 647 (2d Cir. 1975) (holding government may seek
                                     12

faithful performance of agreement to cooperate, but “should do so

mindful of the risks which it . . . assumes of dismissed indictments for

unconstitutional delay”).

      We have, nonetheless, recognized that in some circumstances

negotiations toward obtaining a guilty plea may constitute good cause

when negotiations were underway prior to speedy trial expiring and

concluding after speedy trial expired. State v. La Mar, 224 N.W.2d 252,

254 (Iowa 1974). In La Mar, the plea negotiations extended over more

than a two-week period, with the state under the impression there would

be a guilty plea. Id. at 253. As a result, and in reliance on the presumed

success of the negotiations, the case was not set for trial. Id.

      Here, however, there was no such reliance. The State offered no

evidence there were negotiations prior to the expiration of the speedy trial

deadline on October 27. Indeed, the evidence the State did offer suggests

that the negotiation occurred after the speedy trial deadline had elapsed.

There is no evidence in the record to suggest that the time required to

conduct negotiations in this case on November 12 caused the setting of a

trial date in violation of speedy trial requirements. The requirements had

already been breached.

      It might be possible to support a waiver argument on charges

barred by speedy trial if the proffer agreement provided a benefit to

Taylor on other timely charges that might be pending. Utter, 803 N.W.2d

at 655. But the State offered no such evidence. The evidence offered by

the State suggested that the only charges reduced were those for which

the speedy trial deadline had already, in the district court’s words,

“technically ran.” Further, the State offered no evidence that it and the

defendant discussed waiver of the speedy trial deadline on the pending

charges in this case as a term or condition of the proffer agreement.
                                     13

      Indeed, the State emphasized that the county attorney negotiating

the proffer agreement did not know the speedy trial status of the case.

The State offered no evidence that there was any communication between

the defendant, the defendant’s attorney, or the State prior to the passing

of the speedy trial deadline on October 27. Clearly, the State failed to

show the defendant knowingly and intelligently waived speedy trial rights

as part of the alleged proffer agreement in this case.

      What the State really argues is not waiver, but mere acquiescence.

The State suggests that by not objecting earlier, Taylor acquiesced in a

later trial date.   The district court also found acquiescence.   But our

caselaw rejects mere acquiescence as a basis for waiver of speedy trial

rights. Zaehringer, 306 N.W.2d at 796.

      2. Timeliness.     The State has not shown waiver because of

untimely assertion of speedy trial. We have held that a defendant may

waive his right to a speedy trial if the issue is raised after a verdict is

returned unless the defendant is not represented by counsel and not

admitted to bail during the course of the proceedings. State v. Paulsen,

265 N.W.2d 581, 585 (Iowa 1978).           We have never found waiver,

however, in a pretrial context solely upon the timing of the filing of a

motion to dismiss on speedy trial grounds.

      D. Ineffective Assistance.     In the alternative, Taylor claims her

counsel was ineffective for failing to insist on enforcement of the speedy

trial deadline and allowing her to enter into a proffer agreement with the

State. See Utter, 803 N.W.2d at 653. We need not reach this question in

light of our holding in this case.
                                    14

      IV. Conclusion.

      For the above reasons, the decision of the court of appeals is

vacated, the decision of the district court is reversed, and the case

remanded to the district court for dismissal of all charges.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.

      All justices concur except Mansfield and Waterman, JJ., who

dissent.
                                    15

                                                 #14–2075, State v. Taylor

MANSFIELD, Justice (dissenting).

      I would affirm.   I agree with the district court and the court of

appeals that Taylor waived her right to a speedy trial under Iowa Rule of

Criminal Procedure 2.33(2)(b) (2013).    The majority’s treatment of this

issue suffers from two flaws. First, it ignores relevant facts—specifically,

the facts that the district court and court of appeals relied on in finding

waiver. Second, it is conceptually unsound because it confuses the legal

issue of whether Taylor’s counsel may have been ineffective with the legal

issue of whether Taylor waived speedy trial. Accordingly, I respectfully

dissent.

      The court’s approach to the facts of this case is, in my view, unfair

to the trial court and the State. However, it will have no repercussions

beyond this case. The legal problems with this decision may be more

lasting. By holding, in effect, that a defendant’s counseled waiver of a

right is not enforceable as knowing and voluntary unless the State shows

that the waiver was in the defendant’s best interests, this court creates a

new and unneeded complication in criminal procedure.

      I. The District Court Correctly Found that Taylor’s Signed
Proffer Agreement Amounted to a Waiver of Speedy Trial.

      The dispositive question on appeal is whether the signed

agreement between Taylor and the State amounted to a waiver of speedy

trial. When that agreement was entered into on November 12, 2014, the

State was also pursuing criminal charges against the foreign student

who had allegedly paid Taylor for sex.      The agreement served several

purposes.   First, it enabled Taylor to reduce her pending charges to

simple misdemeanors.     Second, it required Taylor’s cooperation in the

case against the other defendant. Third, the agreement made clear that
                                     16

no disposition of Taylor’s case could occur for a few months because,

among other things, an interpreter would need to be arranged for the

other defendant’s trial.

      Unfortunately, the State did not make the actual agreement part of

the record. However, at the December 10 motion to dismiss hearing, the

State did introduce testimonial evidence as to what the agreement said.

Thus, we still know the agreement’s essentials.

      At the hearing, a prosecutor testified that on November 12, she

met with Taylor and Taylor’s counsel in the presence of a court reporter

to complete a proffer agreement. She explained that a transcript of the

verbal discussions was prepared. The prosecutor referred to and quoted

from that transcript in her testimony.           She also testified that the

transcript was signed by both parties to memorialize the actual

agreement.

      The prosecutor further testified that the agreement required the

other defendant’s trial to proceed first with Taylor testifying for the State.

Taylor’s case would remain pending, and after the completion of the

other defendant’s trial, Taylor would be permitted to plead guilty to two

simple misdemeanors in lieu of the pending more serious charges. The

prosecutor added,

      I didn’t specifically use the word ‘speedy trial,’ but I did point
      out that it was going to take a number of months for [the
      other defendant’s] case to proceed, and I made it very clear
      that [Taylor] would have to cooperate with the State for this
      proffer agreement to go forward.

      Additionally,   the   prosecutor    read   aloud   the   following

quotation from the signed transcript:

           Q. [By the prosecutor]     Ms. Taylor, you’ve had a
      moment to discuss with your attorney now, do you still want
      to move forward with this agreement? A. Yes.
                                      17
            Q. Knowing that it could take a few months for these
      cases to be resolved? Is that a yes? A. Yes.

             Q. Thank you.

      On this basis, the district court found that Taylor had waived her

right to a speedy trial:

      Well, what the record shows is that speedy trial would have
      ran 90 days after the Trial Information was filed on July
      28th, 2014, which would have been about October 25th of
      2014. The defendant then was here in Story County on
      November 12, 2014, where she signed a proffer to testify
      against the other part of this case, the person who hired her,
      and in exchange it sounds like she is going to plead to two
      simple misdemeanor offenses and was actually willing to file
      those guilty pleas on November 12, 2014.

             I think what the file here really shows is that even
      though a speedy trial had maybe technically ran on the 25th
      of October, the defendant acquiesced to that waiver of
      speedy trial when she signed a proffer on November 12 of
      2014. There are multiple reasons why maybe she didn’t
      want to file a motion to dismiss for speedy trial at that
      time . . . . It might have been that counsel wasn’t for sure
      that the motion to dismiss would be granted for lack of
      speedy trial. She wanted to take advantage of the plea
      agreement. There was lots of discussion it sounds like about
      the delay, so the defendant and her attorney knew there
      would be a delay if she signed the proffer, and she signed the
      proffer anyway . . . .

      The court of appeals affirmed. That court explained, “At the time
Taylor entered into the agreement, she was aware the trial would be

further delayed until after the trial of her codefendant, thus impliedly

waiving her right to a speedy trial by agreeing to a delay in the

proceedings.”

      According to rule 2.33(2)(b),

      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.

Iowa R. Crim. P. 2.33(2)(b).
                                    18

Waiver is thus one of three exceptions to the mandatory ninety-day

speedy-trial deadline embodied in rule 2.33. “Under our rule, if trial does

not commence within ninety days from indictment, dismissal is

compelled unless the State proves (1) defendant’s waiver of speedy trial,

(2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.”

State v. Nelson, 600 N.W.2d 598, 600 (Iowa 1999).

      Here the State met its burden of establishing waiver. Of course,

“[t]he failure of an accused to affirmatively assert his speedy trial rights

does not amount to a waiver of those rights.”       Ennenga v. State, 812

N.W.2d 696, 701 (Iowa 2012). However, in this case the defendant did

much more than stand by and do nothing. She entered into a signed

agreement on November 12 to resolve the pending charges against her by

testifying against the other defendant and pleading guilty to two simple

misdemeanors. This was with the clear understanding and agreement

on the record that “it could take a few months for these cases to be

resolved.” Although this court’s task would be considerably easier if the

State had introduced the actual proffer agreement into evidence at the

December 10 hearing, I agree with the district court and the court of

appeals that the existing record is sufficient to establish the defendant

waived the speedy-trial deadline.

      By analogy, in State v. Johnson, defense counsel agreed to a trial

date that was beyond the time limitation of 180 days in the Interstate

Agreement on Detainers (IAD). 770 N.W.2d 814, 822 (Iowa 2009). There

was no waiver of the IAD deadline per se, and (unlike here) the defendant

was not present for and did not personally enter into the agreement

regarding the new trial date. See id. at 822–23. Nonetheless, we found

that “under the circumstances of th[e] case the district court correctly

concluded Johnson waived the right to be tried within 180 days by
                                          19

agreeing to a trial date outside of the 180-day time limitation.”               Id. at

823.

         Taylor was personally present and signed off on a trial date that

was going to be “a few months” away. This November 12 on-the-record

agreement went well beyond “mere acquiescence.”                       See State v.

Zaehringer, 306 N.W.2d 792, 796 (Iowa 1981) (finding that where the

defendant went beyond merely failing to object to a trial date beyond the

speedy-trial deadline and also filed various pretrial motions, this was

more than mere acquiescence and operated as a waiver).

         The majority finds that “the State offered no evidence to meet its

burden of demonstrating waiver through the proffer agreement in this

case.”     This conclusion cannot be squared with the record discussed

above.

         Furthermore, unlike the majority, I would not penalize the district

court for using the word “acquiesced” in its findings. True, we have said

that “mere acquiescence” is not enough to establish waiver. See id. at

795. Yet we have also said that speedy trial was not violated when the

defendant “clearly acquiesced in the trial date selected by the district

court.” State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987). Thus, if we

are going to split hairs, “acquiescence” is not a problem—“mere

acquiescence” is. Under our precedent, “mere acquiescence” means “a

failure to object to a trial date beyond the period for speedy []trial.”

Zaehringer, 306 N.W.2d at 796. Here we have much more than a failure

to object. Instead, as the trial court found, Taylor 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. 1


         1Not
           all rights require the same form of waiver. For example, the right to speedy
trial may be waived by defense counsel on the defendant’s behalf without the
                                         20
     II. Ineffective Assistance of Counsel Is a Separate Issue from
Waiver.

       The majority tries to backstop its position on waiver by citing to
several things the State did not show at the December 10 hearing. For

example, the majority criticizes the State for failing to show plea

negotiations had commenced prior to the expiration of the original

speedy trial deadline. The majority further criticizes the State for failing

to show Taylor received a net benefit for waiving speedy trial.

       This approach confuses two issues—(1) whether there was a waiver

of speedy trial and (2) whether Taylor’s counsel rendered effective

assistance in consenting to the waiver. If the record supports a waiver,

as it does here, it is not the State’s burden to show that the waiver was a

good deal for the defendant.            Rather, we generally preserve such

questions for postconviction-relief proceedings (PCR) where the defendant

can raise an ineffective-assistance-of-counsel claim. Lack of information

is a reason to preserve the claim, not to decide it today.

       For example, an after-the-fact waiver might have been a reasonable

strategic choice because the State would have been able to show good

cause for extension of the speedy trial deadline if pressed to do so.

Moreover, even if with hindsight the State would not have been able to

show good cause, the waiver might have been a reasonable defense

option after considering the plea offered (here two simple misdemeanors)

and the risk that a motion to dismiss for failure to comply with speedy

trial would not have been successful. Or the waiver might have been a

reasonable decision in light of the possibility that other charges could




______________________
defendant’s express consent. See State v. McPhillips, 580 N.W.2d 748, 756 (Iowa 1998);
State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981).
                                           21

have been filed against Taylor even if these charges were dismissed. 2

The point is: Without a PCR record, we do not know.

       “In determining whether an attorney failed in performance of an

essential duty, we avoid second-guessing reasonable trial strategy.”

Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).                “Normally, cases

involving      issues   of   trial   strategy   and   tactical   decisions    require

postconviction proceedings to develop the record adequately.”                State v.

Hopkins, 860 N.W.2d 550, 556 (Iowa 2015).

       In short, the majority wrongly shifts the burden to the State to

validate the waiver by proving there would have been good cause for a

trial delay even if there had been no waiver.               This turns ineffective

assistance of counsel on its head, forcing the State to prove that Taylor’s

counsel was effective, instead of requiring Taylor to prove she was

ineffective.    See, e.g., State v. McPhillips, 580 N.W.2d 748, 754 (Iowa

1998) (noting that the defendant “has the burden to prove” “counsel

failed in an essential duty, and . . . prejudice resulted from counsel’s

error”). The majority presumes that Taylor’s counsel was ineffective in

agreeing to the waiver and then forces the State to prove otherwise.

       The majority cites Utter as describing the circumstances under

which a speedy trial waiver might be valid.               See State v. Utter, 803

N.W.2d 647 (Iowa 2011).              In fact, Utter was an ineffective-assistance

case, not a waiver case.         See id. at 651.      In Utter, we found that the

record was adequate for us to hold on direct appeal that the defendant’s

trial counsel had rendered ineffective assistance of counsel by failing to

file a motion to dismiss after the State had violated the speedy

indictment rule. Id. at 654–55. We said,

       2The  record before us indicates that the other defendant had admitted to paying
Taylor for sex on another occasion a few days earlier.
                                    22
      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 comply with the speedy indictment rule and
      guilty plea.

Id. at 654. Significantly, under the “unique facts” of the Utter case, the

State was precluded from bringing additional charges. Id. at 655.

      Utter is distinguishable here.      Unlike in Utter, the record is

inadequate for us to determine that good cause for extension of the

deadline was absent and therefore that a “violation” of the rule had

already occurred as of the date of the alleged ineffective assistance (here

November 12). See id. at 654. In addition, on this record one cannot

rule out the possibility the State could have brought additional charges

against Taylor.

      I am troubled by the court’s heightening of the requirements to

prove waiver.     Even though the defendant was represented by counsel

and both the defendant and counsel agreed to a future trial date outside

the speedy trial deadline, the court has set aside this agreement because

the State failed to prove the agreement was in the defendant’s best

interests. Yet the very purpose of defense counsel is to insure that the

defendant’s interests are protected. And we have a separate remedy of

ineffective assistance when defense counsel fails to do this.

      For the foregoing reasons, I respectfully dissent.

      Waterman, J., joins this dissent.
