IN THE COURT OF APPEALS OF IOWA
No. 15-1819 Filed August 17, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
EARL OTTO PEDERSEN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Ann M. Gales,
District Associate Judge.
A defendant challenges the judgment entered upon his plea of guilty to
operating while intoxicated, second offense. AFFIRMED.
Jack B. Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ. 2
TABOR, Judge.
Earl Pedersen appeals the judgment entered upon his plea of guilty to
operating while intoxicated (OWI), second offense. Pedersen argues his trial
counsel was ineffective in failing to move to dismiss the charge based on a
violation of his right to a speedy trial. Because the record is inadequate to decide
the merits of the speedy-trial issue, we affirm Pedersen’s conviction and preserve
the claim for possible postconviction-relief proceedings.
I. Background Facts and Proceedings
On September 10, 2014, the State charged Earl Pedersen by trial
information with OWI, second offense, an aggravated misdemeanor, in violation
of Iowa Code sections 321J.1 and 321J.2 (2013) and operating while revoked, a
serious misdemeanor, in violation of section 321J.21. Pedersen filed a written
arraignment and plea of not guilty on September 18. At this time, Pedersen
posted bond and waived his right to a speedy trial within ninety days. The court
conditioned Pedersen’s pretrial release upon his supervision by the Third Judicial
District Department of Corrections. The court ordered Pedersen to refrain from
alcohol consumption and required him to wear a SCRAMx monitoring bracelet 1 at
his own expense.
On October 8, 2014, the State filed an application for revocation of terms
of pretrial release on grounds Pedersen “had alcohol in his body consistently
from 9/26/14-9/29/14” and tampered with his monitoring bracelet. The court
issued an arrest warrant. At the hearing on the State’s application, which took
1 A private contractor, Innovative Monitoring Systems, attaches the ankle bracelet and maintains the modem and other equipment used to monitor the offender’s alcohol use while released from custody. 3
place on October 27, the court modified the conditions of Pedersen’s release,
ordering Pedersen to return the monitoring bracelet and post a $500 cash bond
before his discharge from jail.
At Pedersen’s pretrial conference on November 19, 2014, the court
ordered a continuance of the trial at Pedersen’s request. The court reset the
pretrial conference for January 6, 2015; but for reasons not explained in the
record, the court did not include a new trial date in the order.
Two days later, the State filed its second application for revocation,
alleging Pedersen had missed three appointments with the Department of
Corrections in the month of November. Again, the court issued an arrest
warrant.
For the next nine months, the case remained dormant. The date of
Pedersen’s pretrial conference came and went without mention in the court’s
docket. We find no filing indicating whether Pedersen appeared or that the
pretrial conference took place at all. In fact, the next activity in the case after the
issuance of the warrant was not until September 9, 2015, when the State filed an
addendum to its November 21, 2014 application for revocation to include
Pedersen’s arrest on a new charge in Polk County. The Kossuth County Sheriff
served Pedersen with the November 2014 warrant shortly thereafter.
On September 29, 2015, under an agreement with the State, Pedersen
signed a plea of guilty to the second-offense OWI charge. Pederson filed the
plea with the court on October 5.2 The court sentenced Pedersen in accordance
2 Under the agreement, the State dismissed the operating-while-revoked charge. 4
with the agreement on October 25 after finding Pedersen intelligently and
voluntarily entered his guilty plea. Pedersen filed his appeal four days later.
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011). Generally, we preserve ineffective-
assistance claims for postconviction-relief proceedings. Id. We will do so
regardless of our estimation of the claim’s “potential viability.” State v. Johnson,
784 N.W.2d 192, 198 (Iowa 2010). Only if we find the development of the factual
record would not be useful to decide an ineffective-assistance claim will we
address it on direct appeal. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
III. Analysis
Pedersen argues his trial counsel was ineffective in allowing him to enter a
plea of guilty before moving to dismiss the prosecution on grounds the State
violated Pedersen’s right to a speedy trial. To succeed on his ineffective-
assistance claim, Pedersen must show both: (1) his counsel failed to perform an
essential duty and (2) this failure resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). In general, by pleading guilty, a
defendant waives all objections to the criminal proceedings against him, including
ineffective-assistance claims. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
But a defendant may effectively challenge a guilty plea on ineffective-assistance
grounds if “the advice he [or she] received from counsel in connection with the
plea was not within the range of competence demanded of attorneys in criminal
cases.” Utter, 803 N.W.2d at 651 (quoting Carroll, 767 N.W.2d at 642). 5
Under Iowa Rule of Criminal Procedure 2.33(2)(c): “All criminal cases
must be brought to trial within one year after the defendant’s initial arraignment
pursuant to rule 2.8 unless an extension is granted by the court, upon a showing
of good cause.” In determining whether good cause exists, the decisive issue is
the reason for the delay. State v. Elder, 868 N.W.2d 448, 453 (Iowa Ct. App.
2015). Specifically, we consider “whether events that impeded the progress of
the case . . . were attributable to the defendant or to some other good cause for
delay.” State v. Campbell, 714 N.W.2d 622, 628 (Iowa 2006). This heavy
burden of showing a good-cause exception to the one-year speedy-trial deadline
rests with the State. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001).
Pedersen argues his counsel failed to perform an essential duty by not
moving to dismiss on speedy-trial grounds when Pedersen was not brought to
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IN THE COURT OF APPEALS OF IOWA
No. 15-1819 Filed August 17, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
EARL OTTO PEDERSEN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Ann M. Gales,
District Associate Judge.
A defendant challenges the judgment entered upon his plea of guilty to
operating while intoxicated, second offense. AFFIRMED.
Jack B. Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ. 2
TABOR, Judge.
Earl Pedersen appeals the judgment entered upon his plea of guilty to
operating while intoxicated (OWI), second offense. Pedersen argues his trial
counsel was ineffective in failing to move to dismiss the charge based on a
violation of his right to a speedy trial. Because the record is inadequate to decide
the merits of the speedy-trial issue, we affirm Pedersen’s conviction and preserve
the claim for possible postconviction-relief proceedings.
I. Background Facts and Proceedings
On September 10, 2014, the State charged Earl Pedersen by trial
information with OWI, second offense, an aggravated misdemeanor, in violation
of Iowa Code sections 321J.1 and 321J.2 (2013) and operating while revoked, a
serious misdemeanor, in violation of section 321J.21. Pedersen filed a written
arraignment and plea of not guilty on September 18. At this time, Pedersen
posted bond and waived his right to a speedy trial within ninety days. The court
conditioned Pedersen’s pretrial release upon his supervision by the Third Judicial
District Department of Corrections. The court ordered Pedersen to refrain from
alcohol consumption and required him to wear a SCRAMx monitoring bracelet 1 at
his own expense.
On October 8, 2014, the State filed an application for revocation of terms
of pretrial release on grounds Pedersen “had alcohol in his body consistently
from 9/26/14-9/29/14” and tampered with his monitoring bracelet. The court
issued an arrest warrant. At the hearing on the State’s application, which took
1 A private contractor, Innovative Monitoring Systems, attaches the ankle bracelet and maintains the modem and other equipment used to monitor the offender’s alcohol use while released from custody. 3
place on October 27, the court modified the conditions of Pedersen’s release,
ordering Pedersen to return the monitoring bracelet and post a $500 cash bond
before his discharge from jail.
At Pedersen’s pretrial conference on November 19, 2014, the court
ordered a continuance of the trial at Pedersen’s request. The court reset the
pretrial conference for January 6, 2015; but for reasons not explained in the
record, the court did not include a new trial date in the order.
Two days later, the State filed its second application for revocation,
alleging Pedersen had missed three appointments with the Department of
Corrections in the month of November. Again, the court issued an arrest
warrant.
For the next nine months, the case remained dormant. The date of
Pedersen’s pretrial conference came and went without mention in the court’s
docket. We find no filing indicating whether Pedersen appeared or that the
pretrial conference took place at all. In fact, the next activity in the case after the
issuance of the warrant was not until September 9, 2015, when the State filed an
addendum to its November 21, 2014 application for revocation to include
Pedersen’s arrest on a new charge in Polk County. The Kossuth County Sheriff
served Pedersen with the November 2014 warrant shortly thereafter.
On September 29, 2015, under an agreement with the State, Pedersen
signed a plea of guilty to the second-offense OWI charge. Pederson filed the
plea with the court on October 5.2 The court sentenced Pedersen in accordance
2 Under the agreement, the State dismissed the operating-while-revoked charge. 4
with the agreement on October 25 after finding Pedersen intelligently and
voluntarily entered his guilty plea. Pedersen filed his appeal four days later.
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011). Generally, we preserve ineffective-
assistance claims for postconviction-relief proceedings. Id. We will do so
regardless of our estimation of the claim’s “potential viability.” State v. Johnson,
784 N.W.2d 192, 198 (Iowa 2010). Only if we find the development of the factual
record would not be useful to decide an ineffective-assistance claim will we
address it on direct appeal. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
III. Analysis
Pedersen argues his trial counsel was ineffective in allowing him to enter a
plea of guilty before moving to dismiss the prosecution on grounds the State
violated Pedersen’s right to a speedy trial. To succeed on his ineffective-
assistance claim, Pedersen must show both: (1) his counsel failed to perform an
essential duty and (2) this failure resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). In general, by pleading guilty, a
defendant waives all objections to the criminal proceedings against him, including
ineffective-assistance claims. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
But a defendant may effectively challenge a guilty plea on ineffective-assistance
grounds if “the advice he [or she] received from counsel in connection with the
plea was not within the range of competence demanded of attorneys in criminal
cases.” Utter, 803 N.W.2d at 651 (quoting Carroll, 767 N.W.2d at 642). 5
Under Iowa Rule of Criminal Procedure 2.33(2)(c): “All criminal cases
must be brought to trial within one year after the defendant’s initial arraignment
pursuant to rule 2.8 unless an extension is granted by the court, upon a showing
of good cause.” In determining whether good cause exists, the decisive issue is
the reason for the delay. State v. Elder, 868 N.W.2d 448, 453 (Iowa Ct. App.
2015). Specifically, we consider “whether events that impeded the progress of
the case . . . were attributable to the defendant or to some other good cause for
delay.” State v. Campbell, 714 N.W.2d 622, 628 (Iowa 2006). This heavy
burden of showing a good-cause exception to the one-year speedy-trial deadline
rests with the State. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001).
Pedersen argues his counsel failed to perform an essential duty by not
moving to dismiss on speedy-trial grounds when Pedersen was not brought to
trial within one year of the initial arraignment and by instead allowing Pedersen to
plead guilty. Pederson emphasizes the record does not show he actually missed
a scheduled court date because his trial was never rescheduled after it was
originally continued. He contends he was prejudiced by counsel’s failure
because, had he known of the speedy-trial claim, he would not have pleaded
guilty and the State would have been barred from pursuing the charges against
him.
The State responds that Pedersen cannot show a breach of duty because
the record indicates the trial delay was attributable to Pedersen’s voluntary
absence and evasion of law enforcement. The State argues the speedy-trial
claim was meritless, so Pedersen’s attorney had no duty to raise it. In the 6
alternative, the State maintains the issue should be preserved for postconviction-
relief proceedings.
We find the sparse record in this matter is not sufficient to evaluate
counsel’s performance. The record is silent on the State’s ability to show good
cause for the delay in bringing Pedersen to trial, particularly the adequacy of the
State’s efforts to execute the outstanding arrest warrant. See generally State v.
Jentz, 853 N.W.2d 257, 271 (Iowa Ct. App. 2013) (noting State’s duty to provide
defendant a speedy trial does not require “it play a game of hide-and-go-seek
with him” (quoting State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975))). As
counsel has no duty to raise a meritless issue, the postconviction court must
decide if the State could show good cause for the delay in Pedersen’s trial. Cf.
Carroll, 767 N.W.2d at 645–46 (discussing merits of suppression issue).
Accordingly, we affirm Pedersen’s conviction and preserve his ineffective-
assistance claim for possible postconviction-relief proceedings.
AFFIRMED.