                 IN THE SUPREME COURT OF IOWA
                              No. 13–1615

                          Filed April 17, 2015

                        Amended June 12, 2015


STATE OF IOWA,

      Appellee,

vs.

JOHN PENN-KENNEDY,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, Todd A.

Hensley, Judge.



      The State seeks further review of a court of appeals decision

reversing defendant’s conviction for OWI finding the prosecution violated

the speedy indictment rule.      DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.



      Robert D. Tiefenthaler of Tiefenthaler Law Office, P.C., Sioux City,

for appellant.



      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant

Attorney General, Patrick Jennings, County Attorney, and Jacklyn Fox,

Assistant County Attorney, for appellee.
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CADY, Chief Justice.

      In this appeal, we revisit the scope and application of the speedy

indictment rule.   The issue presented is whether this rule applies to

require the dismissal of a prosecution for the crime of operating while

intoxicated that arose from an arrest and prosecution for the crime of

public intoxication when the defendant reasonably believed he had also

been arrested for the crime of operating while intoxicated. The district

court held that the speedy indictment rule did not require a dismissal of

the subsequent prosecution for the crime of operating while intoxicated.

We transferred the case to the court of appeals, which reversed the

decision of the district court. On further review, we vacate the decision

of the court of appeals and affirm the decision of the district court. We

hold that the speedy indictment rule is not triggered for a prosecution of

a public offense by an arrest that resulted in an earlier prosecution of a

separate public offense arising from the same incident.

      I. Background Facts and Proceedings.

      During the frigid early morning hours of January 19, 2012,

Sioux City police officers responded to a report of an intoxicated man

leaving a restaurant and preparing to operate his motor vehicle parked

outside the restaurant.      When officers arrived, they found John

Penn-Kennedy, a Nebraska resident, sitting behind the steering wheel of

his vehicle in the parking lot with the motor running. After questioning

Penn-Kennedy, one of the officers entered the restaurant to interview the

person who made the report. Two other officers remained outside with

Penn-Kennedy. During this time, Penn-Kennedy told the officers he had

driven to the restaurant from a bar and planned to drive home.           An

officer administered two field sobriety tests and a preliminary breath test.

Penn-Kennedy failed the tests.
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        Without informing Penn-Kennedy he was under arrest, the officers

handcuffed him and transported him to the police station.                    As the

arresting officer was walking him into the station, Penn-Kennedy fell and

injured his foot.     The injury was severe enough that the officer

transported him from the station to the hospital.              At the hospital, the

officer read Penn-Kennedy his Miranda rights and invoked implied-

consent procedures to obtain a body specimen for testing to determine

his alcohol concentration level. The officer requested a blood test for this

purpose.     Penn-Kennedy refused the test, but consented to provide a

urine sample.       After obtaining the urine sample, the officer told

Penn-Kennedy he was under arrest for public intoxication in violation of

Iowa Code section 123.46 (2011). Penn-Kennedy was then transported

back to the station and booked for public intoxication.                 A criminal

complaint for public intoxication was filed, and a prosecution for the

offense followed. Penn-Kennedy was released from custody following an

initial appearance.

        On February 17, the police received the toxicology report on the

urine    sample   provided       by   Penn-Kennedy.           The   report   showed

Penn-Kennedy had an alcohol concentration level at the time of his arrest

in excess of the legal limit to operate a motor vehicle.

        On May 18, the State filed a criminal complaint charging

Penn-Kennedy with the crime of operating while intoxicated (OWI) in

violation of Iowa Code section 321J.2.            The complaint arose from the

same incident that resulted in the public intoxication arrest 120 days

earlier. An arrest warrant was issued, followed by an initial appearance

on the complaint before a magistrate on July 31.

        On   August   7,   the    State   filed   a   trial   information    against

Penn-Kennedy charging him with OWI. The public intoxication charge
                                     4

was still pending, and the parties agreed to consolidate it with the OWI

charge for the purposes of trial. Penn-Kennedy then filed a motion to

dismiss the trial information.     He claimed the State was required to

indict him under the speedy indictment rule for operating while

intoxicated within forty-five days of his arrest on January 19 because he

maintained a reasonable belief he had been arrested for OWI at the time.

The district court denied the motion.

        At a stipulated bench trial, Penn-Kennedy was found guilty of OWI,

first offense. The public intoxication charge was dismissed.

        Penn-Kennedy appealed from the judgment and sentence for OWI.

The sole claim raised on appeal is that the trial court erred in failing to

dismiss the case under the speedy indictment rule. We transferred the

case to the court of appeals. It found the speedy indictment rule for the

prosecution of the crime of OWI was triggered by the arrest for public

intoxication because the State did not have probable cause to arrest him

for public intoxication, only OWI.       It concluded the officers did not

observe the essential facts to support the public intoxication charge and

could    only   have arrested   Penn-Kennedy     for   the   crime    of   OWI.

Consequently,     it   concluded   the   State   was   required      to    indict

Penn-Kennedy for OWI within forty-five days of the arrest and held the

district court erred in failing to dismiss the prosecution.       We granted

further review.

        II. Standard and Scope of Review.

        We review the district court’s interpretation of the speedy

indictment rule, Iowa Rule of Criminal Procedure 2.33(2)(a), for errors at

law. State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997) (per curiam).

“We are bound by the findings of fact of the district court if they are
                                      5

supported by substantial evidence.” State v. Wing, 791 N.W.2d 243, 246

(Iowa 2010).

       III. Application of Speedy Indictment Rule.

       The right to a speedy trial in Iowa is derived from both our State

and Federal Constitutions and is more specifically defined under the

Iowa Rules of Criminal Procedure.         See id.   It is aligned with the

venerable public policy of this state 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).

       Iowa Rule of Criminal Procedure 2.33(2) divides a criminal

prosecution into three segments and imposes a time limitation for each.

The first segment pertains to the filing of an indictment and is also

known as the speedy indictment rule.         “[T]he court must order the

prosecution to be dismissed” if “an indictment is not found against the

defendant within 45 days” of an arrest.      Id. r. 2.33(2)(a).   The second

segment pertains to the trial. “[T]he court must order the indictment to

be dismissed” if the defendant is not “brought to trial within 90 days

after indictment.” Id. r. 2.33(2)(b). The prosecution must be dismissed if

these time limitations are not observed unless good cause is shown or

the right has been waived.      Id. r. 2.33(2)(a)–(b).   The third segment

pertains to the entire case. “All criminal cases must be brought to trial

within one year after the defendant’s initial arraignment . . . unless an

extension is granted by the court, upon a showing of good cause.” Id.

r. 2.33(2)(c).

       As with all three segments of the speedy trial rule, the 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
                                     6

maintain a fair process. Wing, 791 N.W.2d at 246–47 (quoting State v.

Delockroy, 559 N.W.2d 43, 46 (Iowa Ct. App. 1996)). In particular, the

speedy indictment rule protects these objectives during the time period

provided to file an indictment in a criminal case. Yet, an indictment is

not normally the initial charging instrument brought against an accused

that   commences    the   criminal   prosecution.     Instead,   a   criminal

prosecution is commenced upon the filing of the first charging

instrument, including the filing of a “complaint.” Iowa Code § 804.1 (“A

criminal proceeding may be commenced by the filing of a complaint

before a magistrate.”); see id. § 801.4(7) (defining a “criminal proceeding”

as “a proceeding in which a person is accused of a public offense”); id.

§ 801.4(13) (defining a “prosecution” as “the commencement, including

the filing of a complaint, and continuance of a criminal proceeding”). The

speedy indictment time period, however, does not begin with the

commencement of the prosecution but with an arrest. Wing, 791 N.W.2d

at 247. An arrest is the triggering event to commence the forty-five-day

time period to file an indictment under the rule, supplanting the previous

version of the rule’s use of the date of prosecution as the trigger. Id.; see

also id. at 255 (Cady, J., dissenting) (explaining the “held to answer”

language from the previous version of the rule related to the initial court

appearance).

       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.          This approach is

largely due to the procedure and protocol police are required to follow in

making an arrest. See generally Iowa Code ch. 804. An arresting officer

“must inform the person to be arrested of the intention to arrest,” the
                                          7

reason for the arrest, and his or her identity as a police officer.                Id.

§ 804.14.    The officer must also require the person to submit to the

officer’s custody. Id. The officer is then required to take the arrested

person before a committing magistrate for an initial appearance without

unnecessary delay. Id. §§ 804.21(1), .22; Iowa R. Crim. P. 2.2(1). The

period of time between the arrest and the initial appearance normally

must not exceed twenty-four hours.            Iowa R. Crim. P. 2.1(2)(d).       This

narrow time frame relates to the broader right to a speedy trial, but is

more associated with the rights afforded persons following an arrest,

including the right to be informed of the accusations responsible for the

arrest.     See Iowa Const. art. I, § 10 (describing rights of persons

accused); Iowa Code ch. 804 (regulating arrests); Iowa R. Crim. P. 2.2

(describing initial court proceedings). The initial appearance requires a

complaint to be filed if the person was arrested without a warrant and for

the person to be informed of the charges and be given a copy of the

complaint. 1 Iowa R. Crim. P. 2.2(1)–(2).

       While the complaint commences a criminal prosecution, no person

may be held to answer for a public offense greater than a simple

misdemeanor without the additional presentation of a grand jury
indictment or a trial information. Iowa Const. art. I, § 11 (“[N]o person

shall be held to answer for [a criminal offense for which the maximum

imprisonment exceeds 30 days], unless on presentment or indictment

. . . .”); Iowa Code § 903.1(1)(a) (“For a simple misdemeanor, . . . [t]he


        1An arrest can occur with or without a warrant. Iowa Code § 804.7. An arrest

warrant is issued by a magistrate based on a complaint and affidavit filed before the
magistrate that supports probable cause for the arrest. Id. § 804.1. When a police
officer makes an arrest without a warrant, the complaint must be filed with the
magistrate in conjunction with the initial appearance. Id. § 804.22; see Iowa R. Crim.
P. 2.2(1).
                                    8

court may order imprisonment not to exceed thirty days . . . .”). Thus, a

criminal prosecution for an indictable offense must include the filing of

an indictment or trial information, and the speedy indictment rule

addresses the time frame during which this constitutional mandate must

take place over the course of the prosecution. See Iowa R. Crim. P. 2.4(2)

(“Criminal offenses other than simple misdemeanors may be prosecuted

to final judgment either on indictment or on information . . . .”); id.

r. 2.33(2)(a).

      Generally, the speedy indictment rule’s time frame is sufficiently

clear to guide the prosecutor in filing a timely indictment and protect the

right of the accused to a speedy indictment, but confusion may occur

concerning the point in time when a police encounter with a member of

the public transforms into an arrest. See Wing, 791 N.W.2d at 248–49.

This uncertainty, in turn, can also hinder the arrest and prosecution

from proceeding hand in hand. See State v. Davis, 525 N.W.2d 837, 838,

840–41 (Iowa 1994) (finding violation of speedy indictment rule in case in

which police officers had completed citation and complaint forms, but

released defendant without filing them with the court to delay

prosecution).    The two events become detached when 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. See Delockroy, 559 N.W.2d at 45–46 (finding arrest when

defendant was taken into police custody and transported to station

following a search of the home but was released without charges after a

third party negotiated a deal for himself and defendant).     Without the

filing of a complaint and an initial appearance following a warrantless
                                           9

arrest, no court procedure exists to provide notice to the county attorney

to file an indictment.       If law enforcement officers later pursue the

prosecution against a person under this circumstance, a question arises

whether the speedy indictment rule requires the indictment to be filed

within forty-five days of the time when the person reasonably believes he

was arrested.

      This question was the subject of our decision in Wing, 791 N.W.2d

at 244.   In that case, the defendant was indicted for possession of

marijuana with intent to deliver approximately five months after a

roadside search by police of a motor vehicle he occupied disclosed a brick

of marijuana in the trunk.            Wing, 791 N.W.2d at 244–46.                He

acknowledged ownership of the drugs at the scene and was handcuffed

and placed in the backseat of a patrol car.             Id. at 245.    He was later

released from custody, however, after he expressed an interest in

cooperating with law enforcement in various drug investigations. Id. The

defendant was not taken before a magistrate for an initial appearance.

Instead, the encounter ended after police drove him to his home,

conducted   a     consent    search   of       the   premises,   and   reached   an

understanding with him to discuss further his cooperation in future drug

investigations.    Id.      Five months later, a criminal complaint for

possession of marijuana with intent to deliver was filed against the

defendant. Id. at 245–46. The prosecutor then filed a trial information

charging the same crime approximately three weeks later.                Id. at 246.

We held the speedy indictment rule was violated because a reasonable

person in the defendant’s position would have believed he was arrested

at the roadside encounter, and this arrest triggered the running of the

speedy indictment rule. Id. at 252–53.
                                    10

      Penn-Kennedy seeks to apply the Wing rule in this case. See id.

He claims he reasonably believed he was arrested for OWI during his

police encounter on January 19, 2012, and the speedy indictment rule

was violated when the indictment for OWI was not timely filed following

the arrest. He claims the Wing rule applies to preclude the prosecution

of all crimes a person reasonably believes can be the basis for the arrest

if that belief is formed before the police inform the person of the specific

crime of arrest and prosecution is commenced on that crime. See id.

      The Wing rule is tied to the objectives served by the right to a

speedy indictment. Even though no immediate prosecution followed the

perceived warrantless arrest under the circumstances in Wing, the arrest

nevertheless triggered the anxiety and other pitfalls of a suspended

prosecution sought to be ameliorated by the speedy indictment rule. Id.

at 246–47, 252–53 (recognizing a purpose of the speedy indictment rule

is to relieve the person of the anxiety associated with a suspended

prosecution).

      In this case, the objectives of the speedy indictment rule were not

similarly implicated. Penn-Kennedy may have experienced anxiety and

other pitfalls by waiting to be indicted for OWI, but not because the

prosecution was suspended awaiting the indictment. Instead, the pitfalls

faced by Penn-Kennedy were implicated by the power of the prosecutor or

grand jury to bring a separate indictment charging a different criminal

offense any time within the statute-of-limitations period.     See State v.

Combs, 316 N.W.2d 880, 882 (Iowa 1982) (indicating the state is not

required to bring all charges in a single prosecution); see also Iowa Code

ch. 802 (establishing limitations on actions ranging from one year to no

limit based on the crime).       This consequence was not within the

protections afforded by the speedy indictment rule. It is a consequence
                                    11

faced by all persons accused of crimes and is protected by the statute of

limitations applicable to most crimes. Id. § 802.3 (setting limitations for

most felonies and aggravated and serious misdemeanors at three years).

      The speedy indictment rule serves to protect against the pitfalls

associated with a suspended prosecution. The rule does not impinge on

the power of the prosecutor to select the crime to be prosecuted. See

Dennison, 571 N.W.2d at 497 (noting it is beneficial to limit the rule to

the crime for which the person was arrested and not require a

prosecution to commence before crucial evidence is available to the

prosecutor on other charges). Thus, the reasonable-person rule used to

determine the time of a warrantless arrest in Wing is narrow and limited

to those cases in which an arrest is not promptly followed by any

prosecution. Wing, 791 N.W.2d at 252–53.

      We staked out this approach early in our analysis of the speedy

indictment rule following the 1978 changes to its present language. In

State v. Sunclades, we said that the forty-five-day period to bring an

indictment applies only to the public offense for which the defendant was

arrested and any lesser included offenses. 305 N.W.2d 491, 494 (Iowa

1981).   We specifically held that the time period did not apply “to all

offenses arising from the same incident or episode.”        Id.   Thus, in

Sunclades, the speedy indictment rule applied only to the initial charge

of attempted murder for which the defendant was arrested and not the

later-filed separate charges of going armed with intent and assault while

participating in a felony that arose out of the same incident. Id. at 494–

95; see also State v. Eichorn, 325 N.W.2d 95, 96–97 (Iowa 1982) (holding

a subsequently filed burglary charge was not precluded by the speedy

indictment rule when the forty-five days had run for a robbery charge

arising out of the same incident); Combs, 316 N.W.2d at 882–83 (holding
                                     12

a theft charge arising out of the same facts as a tried charge of false use

of a financial instrument was permissible). Moreover, public intoxication

cannot be a lesser included offense of OWI, as the presence of an

intoxicated person in a “privately owned motor vehicle either on the

public street or in the public parking lot” is not considered to be public

for purposes of the offense, and the submission to police authority upon

removal from the vehicle is not voluntary and cannot support the

volitional element of the general-intent crime. State v. Lake, 476 N.W.2d

55, 56–57 (Iowa 1991).      Thus, public intoxication and OWI are not

sufficiently related for the arrest for one offense to serve as the speedy

indictment trigger for the other offense.

      In this case, unlike Wing, the prosecution following the arrest was

not suspended or delayed by the failure of the State to proceed to an

initial appearance based on a complaint charging a public offense.

Instead, the State pursued a criminal prosecution for public intoxication,

a simple misdemeanor that did not require an indictment, and

Penn-Kennedy was in no different position than all other defendants who

face the possibility of multiple criminal prosecutions arising out of the

same episode.      See Dennison, 571 N.W.2d at 493, 497 (charging OWI

after arrest for open container and revoked license); State v. Lies, 566

N.W.2d 507, 509 (Iowa 1997) (per curiam) (charging conspiracy as a

separate offense rather than a lesser included offense of burglary).

Furthermore, the state ultimately selects the charges to be prosecuted,

not the accused.

      Finally, the speedy indictment rule does not look behind the

charge identified in the complaint filed in conjunction with an arrest to

make sure it is supported by probable cause. The rule only relies on the

arrest as a triggering mechanism. A separate rule of criminal procedure
                                   13

exists that allows an arrested person to challenge the arrest prior to the

filing of an indictment and to seek a dismissal of the complaint if not

supported by probable cause to believe the crime charged was committed

or the defendant committed it. See Iowa R. Crim. P. 2.2(4).

      IV. Conclusion.

      Accordingly, the district court properly denied the motion to

dismiss filed by Penn-Kennedy. We vacate the decision of the court of

appeals and affirm the judgment and sentence of the district court.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.
