                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2075
                             Filed October 14, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEYAWNA LEANETT TAYLOR,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Defendant appeals her convictions for driving while barred and selling her

services in a sex act. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Stephen H. Holmes, County Attorney, and Shean Fletchall, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Defendant Deyawna Taylor appeals her convictions for driving while

barred and selling her services in a sex act, claiming they should be dismissed

on speedy trial grounds. Taylor waived her right to a speedy trial when she

entered into a proffer agreement with the State after the ninety-day speedy trial

deadline had passed and she was aware the criminal proceedings against her

would be postponed until after she testified in the trial of a codefendant. We

preserve for possible postconviction proceedings her claim of ineffective

assistance due to counsel’s failure to promptly file a motion to dismiss on speedy

trial grounds. We affirm Taylor’s convictions.

       I.     Background Facts & Proceedings

       The State filed a trial information in Story County on July 28, 2014,

charging Taylor with driving while barred, in violation of Iowa Code section

321.561 (2013), an aggravated misdemeanor, and selling her services in a sex

act, in violation of section 725.1, an aggravated misdemeanor.

       Taylor’s arraignment was scheduled for August 11, 2014, but she did not

appear, and a warrant was issued for her arrest. No further action occurred in

the case until October 29, 2014, when the State requested that Taylor be

transported from the Mitchellville Correctional Facility in order to appear for

arraignment.1 Taylor filed a written arraignment on November 12, 2014.




1
  On July 29, 2014, the day after the trial information was filed in this case, Taylor was
arrested in Polk County. At the time of her scheduled arraignment in Story County, she
was in custody in Polk County. She was subsequently transferred from the Polk County
jail to the Mitchellville Correctional Facility.
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       On the same day, November 12, 2014, Taylor also entered into a

Memorandum of Understanding in which she agreed to cooperate and testify in

the trial of a codefendant, which was expected to take place within a few months,

and in exchange certain concessions would be made by the State.2                   At the

proffer meeting, defense counsel asked if Taylor could go ahead and file guilty

pleas to two simple misdemeanors at that time, with the understanding the State

would dismiss the charges for aggravated misdemeanors.                   The prosecutor

requested Taylor not file the guilty pleas until after she had testified at the

codefendant’s trial because the testimony was an integral part of the agreement.

At the time the Memorandum of Understanding was signed, it was clear to all the

parties that the criminal prosecution against Taylor would remain pending until

after she had testified in the codefendant’s trial, which was expected to take

place in a few months.

       On December 8, 2014, Taylor filed a motion to dismiss for lack of a

speedy trial. She argued she had not been tried within ninety days after the trial

information was filed, as required by Iowa Rule of Criminal Procedure 2.33. The

State claimed Taylor waived her right to a speedy trial by entering into the

Memorandum of Understanding.            It also asserted that by seeking dismissal

based on speedy trial grounds, Taylor violated the terms of the agreement.

       After a hearing the court denied the motion to dismiss, stating:



2
  The Memorandum of Understanding is not included in the record. A transcript was
prepared from the meeting when the agreement was signed. Although the transcript as
a whole is also not part of the record in this case, parts of the transcript were read into
the record at the hearing on Taylor’s motion to dismiss and therefore provide some
evidence of the terms of the agreement and the matters discussed at the proffer
meeting.
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             I think what the file here really shows it 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. I’m not going to second guess counsel’s
      decision. 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 without signing—or without filing a
      motion to dismiss for lack of speedy trial or even discussing that.
             Now, the defendant filed her motion to dismiss for lack of
      speedy trial on December 8th of 2014. So I think what happened
      was she waived speedy trial on November 12 of 2014, and
      acquiesced to going past the speedy trial date before that by
      signing the proffer.

      Taylor waived her right to a jury trial, and the case was tried to the court

based upon the minutes of evidence. The court found her guilty of driving while

barred and selling her services in a sex act. She was sentenced to two years in

prison on each charge, to be served consecutively. Taylor now appeals, claiming

the charges against her should have been dismissed on speedy trial grounds.

      II.    Speedy Trial

      A.     Taylor contends the district court abused its discretion in denying

her motion to dismiss on speedy trial grounds. She claims the court erred by

finding she had waived her right to a speedy trial by entering into the

Memorandum of Understanding. Taylor points out that when she entered into

the agreement, on November 12, 2014, the ninety-day speedy trial period had

already expired on October 26, 2014. She argues the terms of the agreement

were not sufficient to waive her speedy trial rights because the speedy trial

deadline had expired before she entered into the agreement.
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       Our review is for the correction of errors at law.        State v. Miller, 637

N.W.2d 201, 204 (Iowa 2001). “The trial court’s discretion to avoid dismissal . . .

is circumscribed by the limited exceptions to the rule’s mandate.” Id. Ultimately,

then, the issue is whether the district court abused its limited discretion. Id.

       Iowa Rule of Criminal Procedure 2.33(2)(b) provides:

              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.

Criminal charges should be dismissed if the speedy trial deadlines have been

surpassed “unless the defendant has waived speedy trial, the delay is

attributable to the defendant, or other ‘good cause’ exists for the delay.” State v.

Miller, 637 N.W.2d 201, 204 (Iowa 2001). The concept of “good cause” focuses

on only one factor—the reason for the delay. Id. at 205.

       Even when a person does not expressly waive the right to a speedy trial,

the person may impliedly waive the right by delaying trial, such as filing a motion

to continue. See State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981). Also, “a

defendant may not actively, or passively, participate in the events which delay his

or her trial and then later take advantage of that delay to terminate the

prosecution.” State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct. App. 1992). 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.

       When a person enters a guilty plea the person waives all challenges to the

charge based on speedy trial claims. See State v. McGee, 211 N.W.2d 267, 268
                                          6


(Iowa 1973) (“We hold that defendant waived delay in trial by pleading guilty.”);

see also State v. Burgess, 639 N.W.2d 564, 567 (Iowa 2001) (stating a guilty

plea waives challenges to a charge based on statute-of-limitations or speedy

indictment grounds). Here, Taylor was prepared to file guilty pleas on November

12, 2014, which shows she was willing to waive her speedy trial objections at that

time.

        Moreover, where a delay is the result of negotiations between the

defendant and the State, there may be good cause for the delay. Ruiz, 496

N.W.2d at 792; see also State v. Stanley, 351 N.W.2d 539, 540 (Iowa Ct. App.

1984) (finding one factor supporting good cause for delay was defendant’s

decision not to participate in further plea negotiations). The prosecutor argued

Taylor was involved in discussions before she entered into the agreement to

testify against her codefendant, which would provide good cause for at least part

of the delay.

        We find the district court did not err in concluding, “the defendant

acquiesced to that waiver of speedy trial when she signed a proffer on November

12 of 2014.” In addition, the court did not err in finding Taylor “acquiesced to

going past the speedy trial date before that by signing the proffer.”

        B.      On appeal, Taylor has presented a proposal for a bright-line rule for

postexpiration waiver of speedy trial rights. She asserts that after the speedy

trial deadline has passed the State should be required to establish the defendant

received a benefit in exchange for waiving the violation of the speedy trial rights.

This issue was not raised before the district court, and we conclude it has not

been preserved for our review. See State v. Wilson, 573 N.W.2d 248, 251 (Iowa
                                        7


1998) (stating issues are preserved when they are considered and ruled upon by

the district court).

       III.    Ineffective Assistance

       A.      Taylor asserts that if we find her motion for dismissal on speedy

trial grounds was not timely because it was raised after the ninety-day speedy

trial deadline had passed, this was due to ineffective assistance of counsel. We

have not determined Taylor’s motion for speedy trial was untimely but considered

her speedy trial claim on the merits. We therefore do not address her claim of

ineffective assistance of counsel on this ground.

       B.      Taylor also claims she received ineffective assistance because

defense counsel did not promptly file a motion to dismiss on speedy trial grounds

once the ninety-day speedy trial deadline passed.          Generally, claims of

ineffective assistance of counsel are considered in postconviction relief

proceedings. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). We resolve such

claims on direct appeal only if the record is adequate to address the claim. Id.

We conclude the record is not adequate to address this issue on direct appeal.

We determine the issue should be preserved for possible postconviction

proceedings.

       AFFIRMED.
