                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1874
                                 Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LC DEWAYNE JOHNSON JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.



       LC Dewayne Johnson Jr. appeals from his conviction for possession of a

controlled substance, third offense, claiming his right to a speedy trial was violated.

AFFIRMED.



       Christopher Kragnes, Sr., Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

         LC Dewayne Johnson Jr. appeals his conviction for possession of a

controlled substance, third offense, claiming his right to a trial within ninety days of

the trial information was violated. We find Johnson’s right to a speedy trial was not

violated. We affirm the decision of the district court.

         The State charged Johnson with possession of a controlled substance, third

offense, by trial information filed on May 6, 2018.1 Ninety-two days later, on August

6, Johnson moved to dismiss his case asserting the State violated Iowa Rule of

Criminal Procedure 2.33(2)(b) in failing to bring him to trial within ninety days of

the trial information. A hearing was held the next day. Finding no violation of the

rule, the district court denied Johnson’s motion to dismiss. After a recess in the

proceedings, Johnson waived a jury trial and consented to a trial on the minutes.

The court adjudged Johnson guilty as charged and sentenced him to prison.

Johnson appeals.

         Rule 2.33(2)(b) provides that, unless waived, “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.” The rule

applies to charges brought by trial information as the term “indictment” embraces

the trial information and the term “found” means approved by the court and filed.

See State v. Utter, 803 N.W.2d 647, 653 (Iowa 2011), overruled on other grounds

by Schmidt v. State, 909 N.W.2d 778, 790 (Iowa 2018). The ninety-day rule is

among the rule provisions dictating the timing of certain events in the progress of



1   All dates are 2018.
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a criminal case. Due process under the Iowa and United States Constitutions

requires speedy progress of criminal cases, but neither document sets forth a

specific time frame for satisfaction of due process. See U.S. Const. amend. VI;

Iowa Const. art. 1, § 10. Rule 2.33(2)(b) is, by its terms, a rule of “public policy”

intending to assure the timely disposition of criminal cases. Under rule 2.33(2)(b),

if a defendant’s trial does not start within ninety days after the filing of the charging

instrument, the charge must be dismissed 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. Taylor, 881 N.W.2d 72, 76 (Iowa 2016); State v. Campbell, 714

N.W.2d 622, 627-28 (Iowa 2006).          “Delay attributable to the defendant may

constitute good cause preventing the State from carrying out its obligation to bring

the defendant to trial in a timely manner.” State v. Elder, 868 N.W.2d 448, 453

(Iowa Ct. App. 2015). A defendant “may not actively, or passively, participate in

the events which delay his[/her] trial and then later take advantage of that delay to

terminate the prosecution.” State v. Finn, 469 N.W.2d 692, 694 (Iowa 1991).

       Motions to dismiss based on a claimed violation of speedy trial rights are

reviewed for an abuse of discretion. State v. Winters, 690 N.W.2d 903, 907 (Iowa

2005). When reviewing the grounds for a delay of speedy trial, the discretion the

district court is allowed narrows to the determination of good cause under rule

2.33(2)(b). Id. However, regarding the procedural application of rules of speedy

trial, our review is for correction of errors at law. State v. Miller, 637 N.W.2d 201,

204 (Iowa 2001).

       Johnson asserts that because his case was tried ninety-three days after the

filing of the trial information, his speedy trial rights were violated, thus warranting
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dismissal.2 But here, the record shows delay attributable to Johnson and good

cause. On May 21, a pretrial conference was set for July 6 and trial was set for

July 10. Johnson’s trial counsel was allowed to withdraw, and his new trial counsel

appeared on June 27. A pretrial conference order was entered on July 11 stating:

“This matter is set for further proceedings and/or for sentencing at the request of

the defendant. Plea Hearing is scheduled on 07/19/2018.” Then on July 24, the

court entered an order setting a pretrial conference for August 3 and a jury trial for

August 7. The August 3 pretrial conference order states: “This matter shall remain

set for trial. If an agreement is reached disposing of the case prior to trial, counsel

shall advise the presiding criminal judge . . . .”

       A hearing on Johnson’s motion to dismiss was held on August 7. In denying

Johnson’s motion to dismiss, the district court noted:

              Counsel, in reviewing this case and the motion yesterday, the
       facts are clear that Mr. Johnson did set this matter for a plea. I
       believe it was off the trial docket and on the plea docket for
       approximately two weeks, and then at the time of his plea it was
       returned back to the trial docket.

2 Johnson asserted to the district court that the August 7th trial date was “3 days
past [his] speedy Trial Demand and rights.” The trial information was filed on May
6. The ninetieth day fell on Saturday, August 4th. The Iowa legislature has
declared the proper method of computing deadlines:
              In computing time, the first day shall be excluded and the last
       included, unless the last falls on Sunday, in which case the time
       prescribed shall be extended so as to include the whole of the
       following Monday. However, when by the provisions of a statute or
       rule prescribed under authority of a statute, the last day for the
       commencement of an action or proceedings . . . falls on a
       Saturday . . . , the time shall be extended to include the next day
       which the office of the clerk of court . . . is open . . . .
Iowa Code § 4.1(34) (2018). We interpret this to mean that when a rule 2.33
deadline falls on a Saturday, the deadline is extended to the next day the court is
open for business. So, the deadline to start Johnson’s trial proceedings would
have been Monday, August 6. Therefore, the August 7 trial was held one day late,
not three.
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Then, relying on State v. Warmuth, 532 N.W.2d 163 (Iowa Ct. App. 1995), the

district court concluded the ninety-day period began anew when Johnson changed

his mind and decided to proceed to trial and not plead guilty. Further, the court

noted even if Warmuth did not restart the clock, the speedy trial deadline would

have run on August 4, and since that was a Saturday, under section 4.1(34) the

deadline was extended to Monday the 6th. The court concluded good cause, i.e.

plea negotiations, existed for a one-day delay to August 7. We agree with the

district court’s analysis.

       In Warmuth, the defendant advised she intended to enter a guilty plea. 532

N.W.2d at 164. The case was moved from the trial calendar, and a date set for

the guilty plea hearing. Id. Warmuth’s plea was not accepted at the plea hearing

because she would not admit to all the elements of the crime. Id. The case was

reset for trial. Id. Later, Warmuth moved to dismiss claiming the ninety-day speedy

trial period had elapsed before the rescheduled trial date. Id. at 165. The district

court denied the motion finding “the speedy trial rule, measured from July 29, had

not been violated because ninety days had not elapsed at the time [Warmuth] filed

her October 20 motion to dismiss.” Id. On appeal, Warmuth recognized the rule

“that if a defendant enters a guilty plea, and subsequently withdraws the guilty plea,

the State must try the case within ninety days after withdrawal of the guilty plea.”

Id.; accord State v. Clark, 351 N.W.2d 532, 535 (Iowa 1984); State v. Belieu, 314

N.W.2d 382, 384 (Iowa 1982). But she argued “that rule should not apply to her

for she did not withdraw her guilty plea as was the case in Clark.” Warmuth, 532

N.W.2d at 165-66.       Because her guilty plea was not accepted by the court,
                                           6

Warmuth contended “she did not derivatively waive her right to a speedy trial.” Id.

at 166. This court disagreed, concluding the consequences under the facts were

substantially similar to the withdrawal of a guilty plea. Id.

       Once a defendant indicates the choice to forego trial by entering a
       guilty plea or advising the State that a plea of guilty is forthcoming,
       the case is removed from the trial calendar and the State
       discontinues trial preparations. There is little, if any, need for either
       the State or the defendant to prepare for trial.

Id. This court held:

       [T]he right to speedy trial may be reinstated by the withdrawal of the
       guilty plea or by the court’s determination the guilty plea cannot be
       accepted. However, a new ninety-day period will then commence
       from the date of withdrawal or the date the court declined to accept
       the defendant’s plea of guilty on the grounds the defendant failed to
       admit necessary elements of the charged offense.

Id.

       The case at hand is very similar to another case we previously decided. In

Holmes, the defendant did not waive his right to speedy trial and the case was set

for trial. State v. Holmes, No. 06-0708, 2007 WL 913849, at *1 (Iowa Ct. App. Mar.

28, 2007). At the final pretrial conference, Holmes asked that the matter be set for

further proceedings because he planned to plead guilty. Id. The case was set for

plea proceedings and later (apparently after plea negotiations broke down) Holmes

asked for the case to be set for trial. Id. His motion to dismiss based on speedy

trial grounds was denied and on appeal he contended his trial counsel were

ineffective. Id. at *1-2. Following Clark, Belieu, and Warmuth, this court found that

when Holmes asked for the case to be set for trial, thus withdrawing his previous

commitment to enter a guilty plea, a new ninety-day period began to run at that

time. Id. at *2. We concluded Holmes’s right to a speedy trial was not violated.
                                          7

Id. at *3. Similarly, we find that when Johnson’s case was reset for trial by the July

24 order, after the plea negotiation obviously broke down, the ninety-day clock

began to run at that time. The August 7 trial was held well within the new ninety-

day period and we conclude there was no speedy-trial violation.

       In any event, even if the original ninety-day clock was not restarted, the

State met its burden to show good cause for a one-day delay.

      Good cause focuses on only one factor: the reason for the delay. Yet
because any delay cannot be evaluated entirely in a vacuum, we also consider
surrounding circumstances such as the length of the delay, whether the defendant
asserted his right to a speedy trial, and whether prejudice resulted from the delay.

State v. McNeal, 897 N.W.2d 697, 704 (Iowa 2017) (cleaned up). “[M]ost, if not

all, cases justifying reversal based on speedy-trial violations involve delays

numbering weeks or months, not days.” State v. Miller, 637 N.W.2d 201, 205 (Iowa

2001). As the district court observed,

       [I]n reviewing this case and the motion yesterday, the facts are clear
       that Mr. Johnson did set this matter for a plea. I believe it was off the
       trial docket and on the plea docket for approximately two weeks, and
       then at the time of his plea it was returned back to the trial docket.

Plea negotiations can constitute good cause for a trial delay past the speedy-trial

deadline. Taylor, 881 N.W.2d at 79 (citing State v. LaMar, 224 N.W.2d 252, 254

(Iowa 1974)). After all, there is necessarily a suspension of trial preparations when

the parties believe the case will be resolved on a guilty plea. And Johnson does

not claim any resulting prejudice. In reviewing the circumstances, we conclude the

district court did not abuse its discretion in finding good cause for the delay.
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       We conclude there was no speedy-trial violation under rule 2.33(2(b). We

affirm the district court’s ruling denying Johnson’s motion to dismiss, and we affirm

Johnson’s judgment and sentence.

       AFFIRMED.
