                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0111
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SLOAN DANIEL JANSSEN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.



      The defendant appeals his conviction and sentence for possession of

marijuana. CONVICTION AND SENTENCE VACATED AND REMANDED.



      Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Kelli Huser,

Assistant Attorneys General, John Criswell, County Attorney, and R. Alexander

Crabb, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       The defendant Sloan Janssen was convicted of possession of marijuana,

first offense, in violation of Iowa Code section 124.401(5) (2013), and sentenced

to two days’ incarceration in the Warren County Jail. On appeal, he contends the

district court abused its discretion in denying his motion to dismiss the charge

against him for failure to timely bring him to trial.       He also challenges the

sufficiency of the evidence.

       The record reflects the State charged the defendant by trial information

filed on April 28, 2014, with possession of marijuana, first offense. On May 29,

Janssen filed his written arraignment and plea of not guilty. On July 15, the court

entered an order setting a pretrial conference date of July 22 and setting trial for

August 21. The speedy-trial deadline was July 28, 2014. The prosecutor and

defense counsel had some plea discussions on or near the day of the scheduled

pretrial conference. Subsequently, the prosecutor requested the district court

enter an order setting a plea and sentencing hearing for August 5, which the

district court did. Trial remained set for August 21. The defendant did not file a

waiver of his right to speedy trial.

       The defendant filed his motion to dismiss the charge against him on July

30, 2014. At the hearing on the motion, the prosecutor made a professional

statement regarding the motion. The prosecutor stated he was not involved in

the case until July 14 and was unaware the established trial date was beyond the

speedy-trial period, “I did not notice at that time that the trial date fell beyond the
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speedy trial deadline. I didn’t catch it, and I’m not going to hide from that fact.”

Later in the hearing, he continued:

       I said earlier that I wasn’t going to run from the fact that the July 15
       order set the trial outside of the speedy trial deadline. And I won’t
       do that: I didn’t catch it in time, and I don’t know if I would have
       caught it, Your Honor, if we had not agreed to resolve the case on
       July 22, and we had confirmed the case for trial for August 21, I
       can’t say with certainty that I would have caught it in time.

The district court denied the motion to dismiss. The district court concluded the

defendant was not present during the pretrial conference when a potential plea

and sentencing hearing was set for August 5 and, thus, the “cause for the delay

is attributable to the defendant.” The matter was tried to the district court on the

minutes on November 5, 2014. The district court found the defendant guilty and

subsequently entered a judgment and sentence.

       We review the district court’s ruling on a motion to dismiss for a speedy-

trial violation for abuse of discretion. State v. Winters, 690 N.W.2d 903, 907

(Iowa 2005).     The district court’s discretion is narrow when a speedy-trial

violation is at issue. See id. “The discretion to avoid dismissal in a criminal case

is limited to the exceptional circumstance where the State carries its burden of

showing good cause for the delay. This is the circumscribed discretion in review

on appeal.” Id. at 907-08 (citations omitted) (internal quotation marks omitted).

       Iowa Rule of Criminal Procedure 2.33(2)(b) provides “the defendant must

be brought to trial within ninety 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
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unless the State proves (1) defendant’s waiver of speedy trial, (2) delay

attributable to the defendant, or (3) ‘good cause’ for the delay.” Winters, 690

N.W.2d at 908 (citations omitted) (internal quotation marks omitted). Good cause

focuses on the reason for the delay. See State v. Nelson, 600 N.W.2d 598, 601

(Iowa 1999). “Surrounding circumstances bear on the inquiry only to the extent

they relate directly to the sufficiency of the reason itself.” Id. “‘If the reason for

the delay is sufficient the other factors are not needed. If the reason for the delay

is insufficient the other factors will not avail to avoid dismissal.’” Id. (citation

omitted). The State bears the burden of establishing dismissal is not proper.

See Winters, 690 N.W.2d at 907-08.

       The State argues the delay here was attributable to the defendant

because the parties reached a plea agreement and agreed to set the date for

plea and sentencing beyond the ninety-day speedy-trial date.              See State v.

LeFlore, 308 N.W.2d 39, 41 (Iowa 1981) (holding defense counsel may waive the

defendant’s right to speedy trial); State v. Weber, No. 12-0621, 2013 WL 988924,

at *3 (Iowa Ct. App. Mar. 13, 2013) (holding agreements to continue case for

guilty plea proceedings constituted delay attributable to the defendant); State v.

Warmuth, 532 N.W.2d 163, 166 (Iowa Ct. App. 1995) (“Once a defendant

indicates the choice to forego trial by . . . advising the State that a plea of guilty is

forthcoming, the case is removed from the trial calendar and the State

discontinues trial preparations.”).    The record belies the State’s claim a plea

agreement was reached and the delay should be attributable to the defendant.

The defendant did not waive his right to speedy trial. The defendant was not
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present during the plea discussion.    On July 23, 2014, the prosecutor sent

defense counsel an email stating: “I put together a proposed Written Plea of

Guilty and Judgment Order/Record entry for Janssen. Take a look and let me

know what you think. If it looks good, maybe we can do this on paper and save

you a trip down here.” (Emphasis added.) Janssen’s counsel represented to the

court that he had not yet met with his client at the time of plea negotiation and

had no authority to enter into any plea agreement. The email and Janssen’s

counsel’s statement establish only that the State had made a plea offer that the

defendant’s counsel had not yet presented to his client. Further, this is not a

case in which the parties were aware of the speedy-trial deadline and implicitly

agreed to continue the proceedings beyond the deadline. As the prosecutor

stated, he simply was unaware of the deadline. Under these circumstances, we

conclude the State did not meet its burden of establishing delay attributable to

the defendant.

      The State also argues, in the alternative, if there was no plea agreement,

then there was good cause to extend the speedy-trial deadline. The State relies

on State v. Lamar, 224 N.W.2d 252 (Iowa 1974), for the proposition that ongoing

plea negotiations between the parties may constitute good cause for delay.

Lamar is distinguishable.    In Lamar, defense counsel represented to the

prosecutor the parties had reached a plea agreement and the prosecutor

believed trial would not be necessary.     Id. at 253-54.   Here, there was no

evidence of any such representation. Cf. State v. Higgins, No. 01-1285, 2002
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WL 31016491, at *1-2 (Iowa Ct. App. Sept. 11, 2002) (holding the State

established good cause where the defendant communicated intent to accept plea

agreement). Instead, the parties had only a preliminary discussion regarding a

plea offer not yet communicated to the defendant. Further, Janssen’s counsel

told the prosecutor he had not yet spoken with his client. Unlike Lamar, the State

did not rely on any representation made by the defendant or his counsel. Under

these circumstances, the prosecutor should have insisted the defendant sign a

waiver of his speedy-trial right or should have ensured the defendant’s right to

speedy trial was honored. He did not do so because, as he stated during the

hearing on the motion to dismiss, he did not notice the speedy-trial violation

because of his late involvement in the case. This is simply a case of inadvertent

error. The risk of error is borne by the State; the defendant has no duty to bring

himself to trial. See Nelson, 600 N.W.2d at 602.

      We conclude the State failed to meet its burden in establishing the delay

in bringing the defendant to trial was attributable to the defendant or the delay

was for good cause. “And, because every rule of limitation sets an arbitrary date

beyond which ‘certain actions cannot be brought or certain rights cannot be

enforced,’ a procedural deadline cannot be escaped merely by showing it has

been violated ‘only a little bit.’” State v. Miller, 637 N.W.2d 201, 205 (Iowa 2001)

(quoting State v. Goff, 244 N.W.2d 579, 582 (Iowa 1976)). We conclude the

district court thus abused its discretion in denying the defendant’s motion to
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dismiss. Because we reverse on the motion to dismiss, we need not address the

sufficiency of the evidence. We vacate the defendant’s conviction and sentence

and remand this matter for entry of dismissal with prejudice of the charge.

      CONVICTION AND SENTENCE VACATED AND REMANDED.
