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State v. Lamont

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)

Opinion

No. 2-1036 / 02-0636.

Filed February 28, 2003.

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

Montgomery Lamont appeals following his guilty pleas to carrying a concealed a weapon and possession of marijuana. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Gary Kendall and Charles Kenville, Assistant County Attorneys, for appellee.

Considered by Huitink, P.J., and Mahan and Hecht, JJ.


Montgomery Lamont appeals from the judgment and sentence entered upon his guilty pleas to carrying a concealed weapon, in violation of Iowa Code section 724.4(1) (2001), and possession of marijuana, in violation of section 124.401(5). He contends his trial counsel was ineffective in failing to file a motion to dismiss based on the violation of his right to a speedy trial. See Iowa R.Crim.P. 2.33(2). On our de novo review, see State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987), we affirm.

To establish a claim of ineffective assistance of counsel, Lamont must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). Claims of ineffective assistance of counsel raised on direct appeal are ordinarily reserved for post-conviction proceedings to allow full development of the facts surrounding counsel's conduct. See State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). We will resolve the claim on direct appeal, however, when the record adequately presents the issues. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). We believe this is such a case.

A brief timeline is in order. Lamont was charged in two separate trial informations on December 20, 2001, with carrying a concealed weapon, delivery of a controlled substance, and two counts of possession of marijuana. On January 9, 2002, Lamont failed to appear for an arraignment in case number AGCR161402 (carrying a concealed weapon and one count of possession of marijuana) and a bench warrant issued. On January 29, 2002, that bench warrant was recalled, but Lamont failed to appear for a pre-trial conference on January 31 in case number FECR1650828. He did appear for an arraignment on February 14 in case number ACGR161402, but did not surrender to authorities on the bench warrant until March 12. Finally, he pled guilty to possession of marijuana and carrying a concealed weapon in case number AGCR161402 and a separate count of possession of marijuana in case number FECR160828 on April 17.

As noted, Lamont contends trial counsel provided ineffective assistance by failing to move to dismiss the charges in case number AGCR161402 based on speedy trial grounds. Iowa Rule of Criminal Procedure 2.33(2)( b) generally requires the State to bring a defendant to trial within ninety days after the indictment unless good cause to the contrary is shown. Dismissal is required for failure to comply with the ninety-day deadline unless (1) the defendant has waived speedy trial, (2) the delay is attributable to the defendant, or (3) other good cause exists for the delay. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001).

Because the trial informations were filed on December 20, 2001, Lamont's speedy trial deadline would have run on March 20, 2002. However, the twenty days between Lamont's failure to appear on January 9, 2002, for arraignment and the subsequent cancellation of the bench warrant, must be attributable to Lamont. See State v. Keys, 535 N.W.2d 783, 787 (Iowa Ct.App. 1995). Moreover, we conclude the additional delay of fifteen days between his failure to appear at the January 31 pre-trial conference and the February 14 arraignment in AGCR161402 must be attributable to Lamont. Thus, the total of at least thirty-five days of delay attributable to Lamont would extend the speedy trial deadline to April 22. Lamont pleaded guilty prior to that on April 17.

Lamont concedes this delay is attributable to him.

Accordingly, we conclude counsel did not provide ineffective assistance in failing to move to dismiss on speedy trial grounds because such a motion would have been without merit. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998) ("Trial counsel is not incompetent in failing to pursue a meritless issue."). We affirm the convictions and sentences.

AFFIRMED.


Summaries of

State v. Lamont

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)
Case details for

State v. Lamont

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. MONTGOMERY CARL LAMONT…

Court:Court of Appeals of Iowa

Date published: Feb 28, 2003

Citations

662 N.W.2d 374 (Iowa Ct. App. 2003)