                       IN THE COURT OF APPEALS OF IOWA

                                 No. 4-014 / 13-0011
                                 Filed May 14, 2014

BOE ADAMS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

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

Neary, Judge.



       Petitioner appeals from an order denying his application for postconviction

relief. AFFIRMED.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney

General, Patrick Jennings, County Attorney, and James D. Loomis, Assistant

County Attorney, for appellee.



       Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

       On July 14, 2009, the State filed a twenty-count trial information charging

Boe Adams with robbery in the second degree, identity theft, forgery, credit card

fraud, and ongoing criminal conduct. On March 1, 2011, Adams pleaded guilty to

one count of theft in the first degree, in violation of Iowa Code section 714.2(1)

(2009), and ongoing criminal conduct, in violation of section 706A.2(4). He was

sentenced to a term of incarceration of ten years on the former offense and

twenty-five years on the latter offense, said sentences to be served consecutive

to each other, for a total term of incarceration not to exceed thirty-five years. On

December 9, 2011, following an unsuccessful direct appeal, Adams filed an

application   for   postconviction   relief        and   an   amended   application   for

postconviction relief pursuant to Iowa Code chapter 822. Adams contended his

trial counsel was constitutionally ineffective for failing to move to dismiss the trial

information on speedy trial grounds. The district court denied Adams’ application

for postconviction relief. The district court found that Adams waived his right to

speedy trial. The district court further found that any delay was for good cause.

This appeal followed.

                                              I.

       “Under both the State and Federal Constitutions, ineffective-assistance-of-

counsel claims are reviewed de novo.” Ennenga v. State, 812 N.W.2d 696, 701

(Iowa 2012). To establish a claim for ineffective assistance of counsel, Adams

must show “(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
                                          3



Failure to prove either element is fatal to an ineffective-assistance claim. See

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). With respect to the prejudice

prong, the ultimate inquiry is whether trial counsel’s allegedly deficient

performance caused a complete “breakdown in the adversary process” such that

the conviction is unreliable. See Strickland v. Washington, 466 U.S. 668, 687

(1984).    This requires the defendant to establish “‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Lamasters v. State, 821 N.W.2d 856,

866 (Iowa 2012) (quoting Strickland, 466 U.S. at 694).

                                          II.

       “In criminal matters, a competent practitioner must be aware of and

vigilantly protect his or her client’s speedy trial rights.” State v. Utter, 803 N.W.2d

647, 653 (Iowa 2011). The statutory speedy trial right is set forth in the Iowa

Rules of Criminal Procedure. Rule 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.

“Under this rule, a criminal charge must be dismissed if the trial does not

commence within ninety days from the filing 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.” State v. Winters, 690 N.W.2d

903, 908 (Iowa 2005) (citations and quotation marks omitted).           Because the

remedy for violation of the defendant’s speedy trial right is dismissal of the
                                           4



charge or charges with prejudice, prohibiting reinstatement or refilling of an

information or indictment charging the same offense or offenses, the failure to

ensure the State abided by the time restrictions found in rule 2.33(2), absent

evidence of some strategic decision to forego the right, is a failure to perform an

essential duty necessarily resulting in prejudice. See Ennenga, 812 N.W.2d at

706-08; State v. Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008).

       Before turning to the merits of Adams’ claim, it is necessary to discuss the

procedural history of this case in some detail. The State filed its trial information

on July 14, 2009. At arraignment, Adams pleaded not guilty to the charges and

asserted his right to speedy trial. Pursuant to rule 2.33, the State was required to

bring Adams to trial by October 12, 2009—90 days after the trial information was

filed. See Iowa R. Crim. P. 2.33(2)(b).

       On September 29, 2009, Adams’ trial counsel filed a motion to determine

Adams’ competency to stand trial.         The following day, September 30, 2009,

Adams filed a motion to continue trial that included a speedy trial waiver signed

by Adams. In pertinent part, the motion stated:

       It is the opinion of the undersigned counsel that the Defendant
       likely is not competent to proceed. A motion to that effect was filed
       on September 29, 2009, but as of this writing, the Court . . . has not
       indicated that [it] will suspend the instant proceedings, thus, the
       matter remains on the trial docket for October 6, 2009. In the event
       that the Court does suspend the instant proceedings, this motion is
       moot and should be considered as being withdrawn.

The last paragraph of the motion contained the speedy trial waiver signed by

Adams:

       I, Boe Wayne Adams, the Defendant herein, hereby waive my right
       to speedy trial so that my attorney will have sufficient time to
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      conduct an investigation into my mental health status which may
      result in a defense that could be asserted in my case. I have been
      advised that I can refuse to waive this important right. All of my
      questions have been answered to my satisfaction by my attorney
      and I have decided to waive my right to speedy trial at this time.

Immediately preceding Adams’ waiver was the following paragraph:

      There is the additional concern of the right to speedy trial as has
      been demanded by the Defendant. At the present time, the
      undersigned counsel is of the opinion that the Defendant likely is
      not competent to proceed. As such, there is a lack of confidence in
      the validity of any decision by the Defendant, including any decision
      concerning speedy trial. The Court will note that the Defendant has
      executed a waiver of speedy trial below. Logically, if the Defendant
      is not competent to proceed, then the waiver is without validity, but
      if the Defendant is competent at this time to proceed, then the
      waiver is valid. Of course, if the Court suspends the proceedings
      under § 812.3, the issue of speedy trial is avoided.

      On October 1, 2009, the court found probable cause to believe Adams

was not competent and suspended further proceedings. At the hearing the court

stated: “I’m suspending the proceedings so that a competency hearing can be

set . . . . I know your client’s incarcerated. He’s waived speedy trial, but I still

want to keep this moving along.” Adams’ counsel did not attempt to correct or

clarify the court’s statement regarding waiver of Adams’ speedy trial right. It

should be noted the court’s October 1 order was only a probable cause

determination made pursuant to Iowa Code section 812.3. Although the statute

provides that the defendant is entitled to a final hearing on competency within

fourteen days of arriving at a facility for the performance of a psychiatric

evaluation, see Iowa Code § 812.4(1), Adams was detained for more than one

year on the probable cause determination without final hearing. Adams does not

challenge the legality of that detention. By statute, the speedy trial period was
                                         6



tolled between the time of the probable cause determination and the final hearing

on competency. See Iowa Code § 812.4(1) (“Pending the hearing, no further

proceedings shall be taken under the complaint or indictment and the

defendant’s right to a speedy indictment and speedy trial shall be tolled until the

court finds the defendant competent to stand trial.”).

       In October 2010, more than one year after the probable cause

determination, the court held a hearing to determine competency. On November

5, 2010, the district court found Adams competent to stand trial and set trial for

November 30, 2010. Momentarily setting aside the issue of waiver and good

cause, accounting for statutory tolling pursuant to section 812.4, to comply with

rule 2.33, the State was required to bring Adams to trial within ten days after the

competency finding, or by November 15, 2010. Adams’ counsel did not object to

the court setting the trial date beyond the speedy trial deadline. Based on our

review of the trial record and the postconviction record, it appears that all the

attorneys in this case erroneously believed the ninety-day speedy trial period

began anew upon the ruling that Adams was competent to stand trial.

       On November 12, 2010, the State filed a motion to continue trial, stating

that both prosecutors assigned to Adams’ case were unavailable on the trial

date. In support of its motion, the State also explained it needed additional time

to notify and serve approximately thirty trial witnesses. The State asked for trial

to be set for January 25, 2011. Adams’ trial counsel did not resist the motion.

On November 18, 2010, the court granted the State’s motion to continue. The

court’s order stated that Adams’ counsel had another trial scheduled for the
                                          7



previously-scheduled date that had to be tried because of speedy trial limitations.

The court also noted the prosecutors were unavailable on the previously-

scheduled trial date. The court set trial for January 25, 2011, and all of the

attorneys signed the order without objection.       On January 7, 2011, Adams’

counsel waived speedy trial on behalf of Adams until April 1, 2011, to investigate

potential mental health defenses. Ultimately, on March 1, 2011, Adams pleaded

guilty to an amended charge of first-degree theft and ongoing criminal conduct. It

is undisputed that the State did not bring Adams to trial within the original speedy

trial deadline of November 15, 2010. The only questions presented are whether

Adams waived his speedy trial right or whether there was good cause for the

delay.

         We first address the issue of waiver. “[T]he State, not the defendant, has

the responsibility for bringing the defendant to trial within the specified period.”

State v. Phelps, 379 N.W.2d 384, 387 (Iowa Ct. App. 1985). The defendant may

affirmatively waive his right to speedy trial.    See Iowa R. Crim. P. 2.33(2)(b)

(providing that defendant has a right to a speedy if the defendant “has not

waived” the right); State v. Hinners, 471 N.W.2d 841, 845-46 (Iowa 1991)

(holding district court did not err in overruling motion to dismiss on the single

ground that defendant signed a written waiver of his speedy trial right). The mere

“failure of an accused to affirmatively assert his speedy trial rights does not

amount to a waiver of those rights.” Ennenga, 812 N.W.2d at 701. Likewise, the

mere acquiescence to a trial date beyond the speedy trial deadline, standing

alone, is insufficient to constitute waiver.     See Phelps, 379 N.W.2d at 387.
                                           8



“[H]owever, . . . acquiescence in the setting of a trial date beyond the speedy trial

period is a factor which may be considered in determining whether a defendant

has waived his speedy trial rights.” Id.

         The parties do not dispute that Adams filed a written waiver of his speedy

trial right on September 30, 2009, as part of his motion to continue. Instead, the

parties dispute the legal effect of the motion and waiver. The motion provides:

“In the event that the Court does suspend the instant proceedings, this motion is

moot and should be considered as being withdrawn.”            Adams contends the

motion to continue and waiver were both conditional on the court not suspending

proceedings pursuant to chapter 812.           Because the court did suspend

proceedings, Adams argues, the motion and waiver are both withdrawn. The

State argues the waiver is independent of the motion. In other words, the State

contends only the motion was withdrawn but the waiver remained valid. We

agree with Adams that the plain language of the motion provides that it and the

waiver “should be considered as being withdrawn.”              Adams erroneously

concludes, however, that his waiver only tolled the speedy trial period until such

time as the waiver was withdrawn. This erroneous assumption is fatal to his

claim.

         Controlling authority holds that the speedy trial period starts anew

following the withdrawal of a valid waiver. See State v. Hamilton, 309 N.W.2d

471, 475 (Iowa 1981) (“We therefore hold as a rule of this court that when a

waiver of the right to a speedy trial is withdrawn, the defendant must be tried

within ninety days from the date of withdrawal unless good cause to the contrary
                                         9



be shown.”); see also State v. Lilienthal, No. 03-2082, 2004 WL 2002500, at *2

(Iowa Ct. App. Sept. 9, 2004) (same). Thus, even crediting Adams’ theory that

his waiver was withdrawn at the time court suspended proceedings pursuant to

chapter 812, the speedy trial period started anew on that same date, or October

1, 2009. The speedy trial period was then immediately tolled pursuant to chapter

812 until the district court ruled on the competency issue on November 5, 2010.

The State was thus required to bring Adams to trial within ninety days of

November 5, 2010, or by February 3, 2011. Prior to that deadline, however,

Adams filed a second waiver of his speedy trial right to pursue mental health

defenses. He does not claim that the second waiver was invalid. Accordingly,

the speedy trial deadline was never reached in this matter—even when crediting

Adams’ legal theory regarding the withdrawal of the motion and waiver. Adams’

trial counsel had no duty to file a motion to dismiss because it would have been

without merit.    See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)

(“[C]ounsel has no duty to raise an issue that has no merit.”).

       Even absent the motion and waiver filed on September 30, 2009, we

would still find a valid waiver of Adams’ speedy trial right under the unique facts

and circumstances of this case. At the time proceedings were suspended, there

would have been ten days remaining in the speedy trial period absent waiver.

Upon proceedings commencing more than one year later, the district court set

trial outside the speedy trial period. Defendant and his counsel acquiesced to

the new trial date. Defendant and his counsel did not resist further continuances

to resolve the matter. Indeed, in January 2011, Adams filed a second waiver to
                                         10



continue his investigation of mental health defenses.                 Under similar

circumstances, our courts have found waiver through acquiescence:

       It is clear from the record that the district court was led to believe
       defendant’s speedy trial rights could properly be measured from the
       date of the filing of the new information. The defendant was
       present, was aware of the assumption under which the district court
       was assigning the case for trial, and acquiesced in that date without
       bothering to advise the court that he believed his speedy trial rights
       were properly to be measured from the date of the procedendo. It
       was within this framework that the district court, in an earnest
       attempt to satisfy defendant’s speedy trial rights, assigned the case
       for trial thirteen days beyond the time that defendant now claims
       the period allowed for retrial expired. We hold that under the
       circumstances the defendant clearly acquiesced in the trial date
       selected by the district court and may not now claim that it was in
       contravention of his statutory speedy trial rights.

State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987).

       We also conclude the district court did not err in finding good cause for

any delay, to the extent there was a delay. “[G]ood cause focuses on only one

factor: the reason for the delay.”     Winters, 690 N.W.2d at 908. (citation and

quotations marks omitted). “The attending circumstances ‘bear on the inquiry

only to the extent they relate directly to the sufficiency of the reason itself.’” Id.

(citation omitted).   “Surrounding circumstances include: (1) the length of the

delay, (2) whether the defendant asserted his or her right to a speedy trial, and

(3) whether prejudice resulted from the delay.” Id. “However, [i]f the reason for

the delay is insufficient, the other factors will not avail to avoid dismissal.” Id.

(citation and quotation marks omitted) (alteration in original). The Iowa Supreme

Court has noted:

       Yet, the reason for the delay cannot be evaluated entirely in a
       vacuum. The surrounding circumstances bear on the focal point of
       the inquiry, that is, the reason for the delay. The surrounding
                                        11



      circumstances often include matters that will seem familiar: length
      of delay, whether the defendant asserted his right to a speedy trial,
      and whether he was prejudiced by the delay. But, considered only
      as surrounding circumstances, these matters are important, if at all,
      only insofar as they bear on the sufficiency of the reason itself. The
      shortness of the period, the failure of the defendant to demand a
      speedy trial, and the absence of prejudice are legitimate
      considerations only insofar as they affect the strength of the reason
      for delay. This means that, to whatever extent the delay has been
      a short one, or the defendant has not demanded a speedy trial, or
      is not prejudiced, a weaker reason will constitute good cause. On
      the other hand, if the delay has been a long one, or if the defendant
      has demanded a speedy trial, or is prejudiced, a stronger reason is
      necessary to constitute good cause.

State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). Ultimately, “[t]he decisive

inquiry in these matters should be whether events that impeded the progress of

the case and were attributable to the defendant or to some other good cause for

delay served as a matter of practical necessity to move the trial date beyond the

initial ninety-day period required by the rule.” State v. Campbell, 714 N.W.2d

622, 628 (Iowa 2006).

      When the court determined Adams was competent to proceed on

November 5, 2010, it set trial for November 30, 2010, which would have been

fifteen days past the expiration of Adams’ speedy trial rights. Adams did not

object to setting trial past the speedy trial deadline. The State filed a motion to

continue on November 12, 2010, three days prior to the expiration of Adams’

speedy trial rights.   As a matter of practical necessity, the State needed to

continue the trial date because it could not timely prepare the case for trial. This

is not a situation where the State was unable to prepare due to a lack of

diligence, which would not constitute good cause. Here, the proceedings had

been suspended for over one year due to the court’s probable cause
                                         12



determination on competency. The competency proceeding was drawn out. It is

unreasonable to assume the State could be prepared to prosecute a twenty-

count information involving over thirty witnesses in the allotted time period when

the case sat dormant for over one year—witnesses move; memories fade. Given

the substantial delay in the proceedings, the complexity of the case, and Adams’

acquiescence to continuing trial, we conclude the State has established good

cause for any delay. See State v. Smith, 573 N.W.2d 14, 18 (Iowa 1997) (stating

“[a] defendant may not claim a violation of his speedy trial rights when he has

acquiesced in the trial date set by the district court”); State v. Orte, 541 N.W.2d

895, 898 (Iowa Ct. App. 1995) (“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.”).

                                         III.

       For the foregoing reasons, we find the district court did not err in denying

Adams’ application for postconviction relief.

       AFFIRMED.
