Opinion
No. 1-856 / 01-0543.
Filed February 6, 2002.
Appeal from the Iowa District Court for Black Hawk County, JON C. FISTER And TODD A. GEER, Judges.
The defendant appeals from his convictions and sentences for possession of cocaine base with intent to deliver, second offense, possession of marijuana, third offense, and interference with official acts. AFFIRMED.
Linda Del Gallo, State Appellate Defender, James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jack Lammers, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Larry Wilson appeals from his convictions for possession of cocaine base with intent to deliver, second offense, in violation of Iowa Code sections 124.401(1)(c) and 124.411 (1999), possession of marijuana, third offense, in violation of section 124.401(5), and interference with official acts, in violation of section 719.1. He contends trial counsel provided ineffective assistance in failing to move to dismiss the charges based on the violation of his Sixth Amendment speedy trial rights. Because we conclude counsel breached no duty in failing to move to dismiss on this ground, we affirm.
I. Background Facts and Proceedings.
Wilson contends trial counsel breached a duty to move to dismiss the charges based on the violation of his constitutional right to a speedy trial. Because dates and times are essential to this question, we lay out a timeline of the proceedings below. On January 14, 2000, police arrested Larry Wilson and on January 25, 2000, the State charged him with two drug counts and one interference count. The trial was originally set for March 28, 2000. On March 6, 2000, Wilson moved to suppress certain evidence, and the court later denied the motion while resetting the trial date for April 11, 2000. The court granted Wilson's motion for continuance and set trial for May 2, 2000. On that day, the court ruled on Wilson's motion in limine and again rescheduled the trial date, this time for May 30, 2000. The court subsequently continued the trial at least four times on Wilson's motion and the trial finally began on August 15. However, on August 18, the trial court granted Wilson's motion for mistrial and set a new trial date for September 19, 2000.
On August 31, 2000, the court granted Wilson's motion to continue and set the second trial for October 31, 2000. On October 27, 2000, the court granted the State's motion to continue and reset trial for November 21, 2000. On November 17, the court granted Wilson's motion to continue and scheduled trial for November 28, 2000. On November 22, 2000, the court granted the State's second motion to continue and set trial for December 5, 2000. On December 1, 2000, the court continued the trial until December 12, 2000, upon Wilson's request. On December 7, 2000, the court granted the State's request and continued the trial until January 9, 2001. That second trial then took place from January 9, 2001, until January 12, 2001. Following that trial, the jury found Wilson guilty of all three counts. Wilson appeals from these convictions.
II. Standard of Review.
We review Wilson's claim of ineffective assistance of counsel de novo. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987).
III. Merits.
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.
To establish a claim of ineffective assistance of counsel, Wilson 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). To prove the first prong, he must overcome the presumption counsel was competent and show counsel's performance was not within the range of normal competency. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). To prove the second prong, he must show counsel's failure worked to his actual and substantial disadvantage so that a reasonable possibility exists that but for counsel's error the trial result would have been different. Id.
Wilson does not raise a speedy trial claim under Iowa Rule of Criminal Procedure 27(2)(b), but rather, only challenges counsel's effectiveness based on his failure to raise a constitutional speedy trial claim under the Sixth Amendment to the United States Constitution. Such a constitutional claim is analyzed differently than a challenge under the rule. In evaluating a constitutional challenge to the right to a speedy trial, we must employ the analysis laid out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101, 116 (1972). The Barker court devised a balancing test that involves consideration of (1) the length of the delay, (2) the reasons for the delay, (3) whether the accused asserted the right to speedy trial, and (4) whether prejudice is shown. Id.
Analytically, we must divide this question into two time frames: (1) that between the filing of the trial information and the first trial, and (2) that period running between the mistrial and the retrial. See United States v. Castellana, 461 F. Supp. 233, 239 (M.D.Fla. 1978) (dividing speedy trial question between accusation to trial period and mistrial to present period); See also State v. Wright, 234 N.W.2d 99, 102 (Iowa 1975) (stating that the constitutional guaranty of a speedy trial provides protection in a retrial situation).
Regarding the period between the filing of the trial information and the mistrial in this case, we find not more than seventy-three days of delay were attributable to the State. This time frame attributable to the State runs from the filing of the trial information (January 25, 2000) through the date on which Wilson requested his first continuance (April 7, 2000). The balance of the delays must be charged to Wilson himself, the bulk of which was due to his multiple motions for continuance.
Regarding the period between the mistrial and the subsequent retrial, we find not more than eighty-eight days should be attributed to the State. This span includes the date mistrial was granted until the date retrial was initially rescheduled, September 19, 2000. It also accounts for the time delays due to at least three motions to continue made by the State. Once again, the remainder of the delay must be charged to Wilson for his various motions for continuance.
Although this speedy trial claim is brought as a constitutional challenge rather than a challenge to it's rule-based counterpart, we still find it important to note that both periods of delay attributable to the State are less than that required for dismissal under Iowa Rule of Criminal Procedure 27(2)(b). Under that rule, an indictment must be dismissed if trial is not held within ninety days after that indictment is found.
In Barker, the Supreme Court recognized that the "length of delay is to some extent a triggering mechanism" for the application of its balancing test, which we laid out above. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116 (1972). Until the delay reaches the level of presumptive prejudice, it is not necessary to inquire into the other factors that go into the balance. Id. We conclude the delays of not more than seventy-three and eighty-eight days, which we find attributable to the State, do not rise to that level requiring a full application of the four-factor balancing test. We believe this is particularly true where, as here, both trials occurred within the ninety-day deadlines allowed by our speedy trial rule. See State v. Phelps, 379 N.W.2d 384, 386 (Iowa 1985) (noting that the speedy trial rule is narrower and more restrictive than the constitutional right to a speedy trial). The delays were not constitutionally unreasonable.
Furthermore, we note that even if we were to proceed to the Barker balancing test, we would reject Wilson's constitutional speedy trial argument. First, the two delays were not unduly lengthy. See State v. Butler, 243 N.W.2d 232, 233 (Iowa 1976) (concluding 102 day delay did not deprive defendant of a speedy trial in applying statutory delay standards). The reasons for the delays attributable to the State were neutral, and not intended to deliberately delay the trial to Wilson's detriment. Finally, we conclude Wilson's naked assertions of prejudice are insufficient. Something more than the ordinary anxiety and normal concern experienced by any defendant, by virtue of his or her status as an accused, is required to establish prejudice. United States v. Shepherd, 511 F.2d 119, 123 (5th Cir. 1975).
We conclude counsel breached no duty in failing to move to dismiss based on the alleged violation of Wilson's constitutional speedy trial rights. We therefore hold trial counsel did not provide ineffective assistance and affirm the convictions.
AFFIRMED.