                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1992
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TASHA NICOLE COMSTOCK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



      A defendant appeals her conviction for third-degree theft on speedy-

indictment grounds. REVERSED AND REMANDED FOR DISMISSAL.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2


TABOR, Judge.

        Tasha Nicole Comstock appeals her conviction for theft in the third degree

on speedy-indictment grounds. Comstock contends the State violated Iowa Rule

of Criminal Procedure 2.33(2)(a) by waiting 269 days after her initial appearance

to file its trial information. Because we find Comstock was arrested when she

appeared in court and waived a preliminary hearing and the State did not file its

trial information within forty-five days of that appearance, we reverse Comstock’s

conviction and remand for dismissal of the trial information.

I.      Facts and Prior Proceedings

        On August 23, 2005, a sergeant with the Waverly Police Department filed

a criminal complaint accusing Comstock of third-degree theft. The complaint

alleged Comstock had presented four checks written on a closed bank account to

a Waverly Wal-Mart in May 2005. A magistrate issued a summons ordering

Comstock to appear and answer the theft charge, and Comstock did so on

October 14. Comstock also applied for counsel and waived a preliminary hearing

at her October 14 appearance. After Comstock signed an agreement providing

she would not leave Iowa without the written consent of the court, would keep her

attorney apprised of her whereabouts, and would personally appear in court for

all required hearings, the court released her on her own recognizance without

bond.

        Nearly nine months later, on July 10, 2006, the State filed a trial

information charging Comstock with aggravated-misdemeanor theft, in violation

of Iowa Code sections 714.1 and 714.2 (2005). Comstock failed to appear for
                                           3


her arraignment, and the court issued a warrant for her arrest on August 7, 2006.

She was not arrested on the outstanding warrant until January 2015.

       On March 27, 2015, Comstock filed a motion to dismiss, alleging a

speedy-indictment violation. In resistance, the State did not attempt to show

good cause for the delay. Instead, the State cited State v. Mahan, 483 N.W.2d 1,

1–2 (Iowa 1992), in support of its contention Comstock had not been arrested

before the State filed its trial information and, because no arrest occurred, the

speedy-indictment rule had not been triggered. Adopting the State’s rationale,

the district court denied Comstock’s motion to dismiss.            On November 18,

Comstock waived her right to a jury trial and agreed to a trial on the minutes of

testimony. Following trial, the court found Comstock guilty.

II.    Scope and Standard of Review

       We review the district court’s interpretation of rule 2.33(2)(a) for correction

of legal error.1 State v. Penn-Kennedy, 862 N.W.2d 384, 386 (Iowa 2015). If the

fact-findings are supported by substantial evidence, we are bound by them. Id.




1
  The Federal and Iowa Constitutions both guarantee a general right to a speedy trial.
See U.S. Const. amend. VI; Iowa Const. art. I, § 10. In addition, intentional pre-
indictment delay by the State implicates a defendant’s right to due process. See U.S.
Const. amend. V; Iowa Const. art. I, § 10. Although Comstock mentions a violation of
her constitutional rights on appeal, she does not make any specific argument on this
issue. See EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Auth., 641 N.W.2d
776, 785 (Iowa 2002) (holding random reference to a claim of error, without elaboration
or citation to authority, is inadequate to raise an issue on appeal). And, as the State
observes, Comstock failed to preserve error on a constitutional challenge because she
failed to raise that claim before the trial court. See Meier v. Senecaut, 641 N.W.2d 532
537 (Iowa 2002) (“It is fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”). Therefore, to the extent Comstock raises a constitutional claim, we decline to
address it.
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III.   Analysis

       Our legislature prefaced the speedy-indictment rule with a broad policy

declaration: “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.” Iowa R. Crim. P. 2.33(2). The substance of the speedy-indictment rule

immediately follows:

              When an adult is arrested for the commission of a public
       offense . . . and an indictment is not found against the defendant
       within [forty-five] 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); see also Iowa R. Crim. P. 2.5(5) (“The term

‘indictment’ embraces the trial information, and all provisions of law applying to

prosecutions on indictments apply also to informations . . . .”). The speedy-

indictment rule serves to “relieve an accused of the anxiety associated with a

suspended prosecution and provide reasonably prompt administration of justice.”

State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010) (quoting State v. Delockroy,

559 N.W.2d 43, 46 (Iowa Ct. App. 1996)). Moreover, it helps prevent the serious

harm that arises from the “impairment of the accused’s defense due to

diminished memories and loss of exculpatory evidence.”          Id. at 247 (quoting

State v. Olson, 528 N.W.2d 651, 654 (Iowa Ct. App. 1995)). Consistent with the

nature of these policy considerations, a violation of the speedy-indictment rule

results in an “absolute dismissal, . . . prohibiting reinstatement or refiling of an

information or indictment charging the same offense.” Ennenga v. State, 812

N.W.2d 696, 701 (Iowa 2012) (quoting State v. Abrahamson, 746 N.W.2d 270,

273 (Iowa 2008)).
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       In this case, we are asked to decide whether a person who is issued a

citation and summons by a magistrate has been “arrested” within the meaning of

rule 2.33(2)(a) when—in compliance with the summons—that person makes an

initial appearance in court and waives a preliminary hearing.             To guide our

interpretation, we examine the statutory definitions of “arrest” and the line of

cases establishing the constructive-arrest doctrine under rule 2.33(2)(a).

       In the late 1970s, our legislature rewrote the speedy-indictment rule to

start the clock at the time of arrest. See Wing, 791 N.W.2d at 247 (discussing

history of the speedy-indictment rule). Before that rewrite, the speedy-indictment

period commenced when a person was “held to answer” for a public offense, a

phrase “defined to mean being held to answer by a preliminary examination or

waiver of same.”       See State v. Schmitt, 290 N.W.2d 24, 27 (Iowa 1980)

(comparing “held to answer” language with “arrested”).

       Cases immediately following the legislature’s revision construed the term

“arrest” narrowly, limited to the definitions in Iowa Code sections 804.5,2 804.14,3

and 805.1(4).4 See id. at 26–27 (citing section 804.5 and defining “arrested” as

“being physically taken into custody in the manner authorized by law”); see also

2
  Section 804.5 provides: “Arrest is the taking of a person into custody when and in the
manner authorized by law, including restraint of the person or the person’s submission to
custody.”
3
  Section 804.14(1) provides:
                A person making an arrest must inform the person to be arrested
        of the intention to arrest the person, the reason for arrest, and that the
        person making the arrest is a peace officer, if such be the case, and
        require the person being arrested to submit to the person’s custody,
        except when the person to be arrested is actually engaged in the
        commission of or attempt to commit an offense, or escapes, so that there
        is no time or opportunity to do so.
4
  Section 805.1(4) provides: “The issuance of a citation in lieu of arrest shall be deemed
an arrest for the purpose of the speedy indictment requirements of rule of criminal
procedure 2.33(2)(a) . . . .”
                                        6

Mahan, 483 N.W.2d at 1–2 (limiting “constructive arrest doctrine” to issuance of a

citation in lieu of arrest under Iowa Code section 805.1(4)). But in 2010, the

court adopted the current framework, holding a defendant has been arrested for

speedy-indictment purposes 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.” See Wing, 791 N.W.2d at 249.

      Comstock argues she was officially arrested when she “submitted to the

jurisdiction of the court” on October 14, 2005, at the time of her initial

appearance. Citing Wing’s reasonable-person standard, she contends:

             A reasonable person placed in the same situation would
      assume that one had been “arrested” for a charge when a
      magistrate or judge informs them of what they have been charged
      with and that person is required to sign and acknowledge rules of
      release from “custody” and face further contempt findings should
      she not follow the “orders of the court.”

The State counters Comstock was never arrested, relying on Mahan, in which

the court found the issuance of a citation by a magistrate was not a constructive

arrest under our speedy-indictment rule. See 483 N.W.2d at 2.

      After examining the case law defining the scope of an arrest under the

speedy-indictment rule, we find the situation before us does not fit neatly within

the established framework. The circumstances here differ from Wing; we are not

deciding if police interaction with Comstock amounted to an arrest, rather we are

concerned about her submission to custody at the time of the initial appearance.

Under the rule’s former “held to answer” language, the October 2005 hearing—in

which Comstock appeared in court and waived a preliminary hearing—would

have triggered the speedy-indictment rule and the trial information the State filed
                                        7

269 days later would have been untimely.         See State v. Montgomery, 232

N.W.2d 525, 526–27 (Iowa 1975). We conclude the legislature intended the

same result under the “arrested” language in the present version of our speedy-

indictment rule.

       The definition of arrest contemplates that “the taking of a person into

custody” may be accomplished either by “restraint of the person” or by “the

person’s submission to custody.” See Iowa Code § 804.5. An arrest requires

“an assertion of authority and purpose to arrest followed by submission of the

arrestee.” State v. Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992) (quoting

California v. Hodari D., 499 U.S. 621, 626 (1991)).

       Here, the State asserted its authority over Comstock by issuing a

summons to appear in court served by a Floyd County deputy sheriff. Attached

to the summons was the criminal complaint signed by a peace officer.       The

summons notified Comstock that failure to appear may constitute a crime. The

summons also cited Iowa Code section 804.1, which provides, “If the person

named in the citation is actually served as provided herein and willfully fails

without good cause to appear as commanded by the citation, the person shall be

guilty of a simple misdemeanor and the magistrate may issue a warrant of arrest

for the offense originally charged.”

       Comstock submitted to custody by appearing in court and answering the

charge against her. According to the express terms of her signed “agreement for

release upon own recognizance,” the magistrate only released Comstock from

custody after she agreed to certain conditions. Accordingly, we find Comstock
                                        8


was “arrested” on October 14, 2005, either under section 804.5 or, as Comstock

asserts, under Wing’s reasonable-person standard.

      This interpretation is consistent with the overall broadening of protections

that resulted from the legislature’s use of the term “arrest” in our speedy-

indictment rule. Generally, the term “arrest” has the effect of triggering the rule

earlier than under the former “held to answer” language. As the court explained

in Penn-Kennedy:

      Normally, the date of an arrest and the date of prosecution follow
      hand in hand. Thus, even though the date of arrest triggers the
      requirement to file an indictment, the arrest date is usually very
      close in time to the date that commences the prosecution. . . . The
      period of time between the arrest and the initial appearance
      normally must not exceed twenty-four hours.

862 N.W.2d at 388. But as recognized in Wing, sometimes an arrest may occur

much sooner than twenty-four hours before a court appearance, and in those

situations, the speedy-indictment rule may be triggered weeks, or even months,

earlier than under the previous rule. See 791 N.W.2d at 252–53 (finding arrest

occurred five months before filing of criminal complaint); see also Penn-Kennedy,

862 N.W.2d at 388–89 (describing situation in which “a person reasonably

believes a warrantless arrest has occurred during an encounter with police, while

police assume the encounter ultimately ended without an arrest and with the

release of the person from police custody without being taken before a

magistrate for the initial appearance” as triggering speedy-indictment rule). This

overall expansion in protection further reinforces our determination Comstock’s

initial appearance and waiver of a preliminary hearing were sufficient to trigger

the speedy-indictment rule.
                                            9


       Moreover, this holding best effectuates the policy considerations

underpinning the speedy-indictment rule.           The manner in which Comstock

submitted to custody—following the magistrate’s issuance of a citation and

summons—did not diminish the speedy-indictment policy concerns, such as the

importance of relieving the anxiety associated with a suspended prosecution and

of providing reasonably prompt resolution of criminal charges that arose after

Comstock submitted to the authority of the court and answered to the criminal

charge against her. See Wing, 791 N.W.2d at 246.

       Finally, we disagree with the State that Mahan controls our resolution of

this matter. The Mahan court determined a citation issued by a magistrate was

not a constructive arrest under our speedy-indictment rule but, because the trial

information was filed less than forty-five days after the defendant’s initial court

appearance, did not reach the issue of whether the defendant’s initial court

appearance could trigger the rule. See 483 N.W.2d at 2. Our holding today does

not disturb this determination; it simply reaches the question left unanswered in

Mahan.5

       Because the State did not file its trial information within forty-five days of

Comstock’s October 2005 hearing and failed to show good cause for the delay,

we reverse Comstock’s conviction and remand to the district court for dismissal.

       REVERSED AND REMANDED FOR DISMISSAL.




5
  We recognize some language in Mahan supports the State’s position. See, e.g., 483
N.W.2d at 1 (“The problem that has arisen in the present case stems from the fact that
the defendant never was arrested prior to the filing of the trial information.”). But that
language is dicta and not essential to Mahan’s holding. Moreover, we are skeptical of
Mahan’s continued vitality following Wing, 791 N.W.2d at 249.
