IN THE COURT OF APPEALS OF IOWA
No. 15-0888 Filed October 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
KIRSTEN MARIE CARNEY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Kristen Carney appeals her convictions for drug-related charges.
AFFIRMED.
G. Brian Weiler, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Heard by Danilson, C.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
GOODHUE, Senior Judge.
Kristen Carney was found guilty of eleven counts of drug-related charges.
Carney appeals. We affirm.
I. Background Facts and Proceedings
Carney’s vehicle was stopped by the police on October 8, 2013, based on
their knowledge that her operator’s license had been suspended. Her car was
searched, and numerous bottles of prescription pills, as well as multiple paper
prescriptions for the pills, were found. A search warrant was obtained for
Carney’s home, and more prescribed pills—as well as 113 paper prescriptions—
were found, some of which law enforcement determined had been forged.
On October 9, a complaint was filed that included six drug-related
charges, which were alleged to have taken place on October 8, 2013. On
November 13, the State moved to dismiss the charges “in the interest of justice,”
alleging, “New information has come to light regarding the defendant’s
involvement in obtaining additional fraudulent prescriptions” and “subpoenas
have been issued to gather documentation reflecting further criminal acts
committed by the defendant.” The motion to dismiss was granted on the same
day it was filed, based on the assertions of the State and without any type of
hearing or notice to Carney.
On March 20, 2014, the State filed a trial information charging Carney with
fifteen drug-related offenses. Carney filed a motion to dismiss for violation of her
speedy-trial and speedy-indictment rights, as well as her due-process rights to be
heard on the initial dismissal. She maintained the State should be barred from
refiling the charges. A motion to suppress certain evidence was filed with the 3
notice to dismiss. Both requests were denied, but the motion to suppress was
not included in Carney’s brief on appeal.
An evidentiary hearing on the motion to dismiss the new charges was
held. Four of the original fifteen counts were dismissed by the State for various
reasons. The parties then stipulated that Carney would go to trial before the
court on the basis of the minutes of evidence attached to the trial information.
Carney was found guilty on all eleven counts remaining.
Carney contends the State did not establish the prior dismissal was made
in the interest of justice but was instead filed to evade the speedy-trial deadline.
Carney also contended the dismissal of the prior charges without notice to her
was a denial of her due-process rights.
II. Issue Preservation
The State does not contest error preservation as to either issue.
III. Issues Presented
A. Whether Dismissal Was Made in the Interest of Justice or to Evade the Speedy-Trial Rights
1. Scope of Review
Our review of a State’s motion to dismiss the original charge under the
authority of Iowa Rule of Criminal Procedure 2.33(1) is for an abuse of discretion.
See State v. Brummage, 435 N.W.2d 337, 341 (Iowa 1989) (citing what was then
rule 27(1)). An abuse of discretion exists only when the court’s discretion is
exercised on grounds clearly untenable or unreasonable. Id.
Our review of the motion to dismiss the second charge for lack of speedy
trial or speedy indictment is for errors of law. State v. Lyrek, 385 N.W.2d 248, 4
250 (Iowa 1986). As such, we are bound by the findings of fact made by the trial
court if supported by substantial evidence. Id.
2. Discussion
Dismissal of a criminal charge can be made in the “furtherance of justice”
if the reasons are stated in the order. Iowa R. Crim. P. 2.33(1). Such a dismissal
is not a bar to a subsequent prosecution if the offense charged is an aggravated
misdemeanor or a felony. Id. This is true even if the new charge is identical to
the original charge and no new evidence has been obtained or other charges
filed, as long as the dismissal was filed in good faith. State v. Knox, 464 N.W.2d
445, 446 (Iowa 1990). Each of the charges for which Carney was found guilty is
either an aggravated misdemeanor or a felony. However, if the dismissal of the
October charge was to avoid dismissal under the speedy-trial rules rather than in
the “interests of justice,” felonies and aggravated misdemeanors are also barred.
See State v. Moritz, 293 N.W.2d 235, 238 (Iowa 1980) (citing State v. Johnson,
217 N.W.2d 609, 612 (1974)). To hold otherwise would drain the speedy-trial
rights of an accused of any meaning. See Johnson, 217 N.W 2d at 612.
The State requested the motion to dismiss based on the belief there were
additional fraudulent prescriptions. The State asked for dismissal without
prejudice pending further investigation. The “furtherance of justice” for purposes
of the rule has been defined to include facilitating the State in gathering
additional evidence. State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984). The
State did do further investigation, and other charges were filed. Subpoenas were
issued, and the records of all prescriptions filled by various pharmacies for
Carney was obtained. The physicians who allegedly wrote the prescriptions 5
were interviewed. One of the doctors denied Carney was ever a patient in his
practice. The second doctor eventually found time to be interviewed and went
through the written prescriptions obtained from the pharmacy on an individual
basis to determine which ones she had signed and which ones had been forged.
The district court, in refusing to dismiss the March 20 trial information,
applied the abuse of discretion standard to the original dismissal and found the
court did not abuse its discretion in granting the motion to dismiss. The trial court
specifically found, “The State was not acting in bad faith and had a valid reason
to dismiss the case.” The trial court’s finding of fact is supported by substantial
evidence.
B. Denial of Due-Process Rights
Denial-of-due-process claims are reviewed de novo. State v. Neiderbach,
837 N.W.2d 180, 190 (Iowa 2013).
Carney contends her due-process rights were violated when the original
charge was dismissed without notifying her prior to dismissal. The rule permitting
the prosecution to dismiss a case in the “furtherance of justice” with the court’s
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IN THE COURT OF APPEALS OF IOWA
No. 15-0888 Filed October 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
KIRSTEN MARIE CARNEY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Kristen Carney appeals her convictions for drug-related charges.
AFFIRMED.
G. Brian Weiler, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Heard by Danilson, C.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
GOODHUE, Senior Judge.
Kristen Carney was found guilty of eleven counts of drug-related charges.
Carney appeals. We affirm.
I. Background Facts and Proceedings
Carney’s vehicle was stopped by the police on October 8, 2013, based on
their knowledge that her operator’s license had been suspended. Her car was
searched, and numerous bottles of prescription pills, as well as multiple paper
prescriptions for the pills, were found. A search warrant was obtained for
Carney’s home, and more prescribed pills—as well as 113 paper prescriptions—
were found, some of which law enforcement determined had been forged.
On October 9, a complaint was filed that included six drug-related
charges, which were alleged to have taken place on October 8, 2013. On
November 13, the State moved to dismiss the charges “in the interest of justice,”
alleging, “New information has come to light regarding the defendant’s
involvement in obtaining additional fraudulent prescriptions” and “subpoenas
have been issued to gather documentation reflecting further criminal acts
committed by the defendant.” The motion to dismiss was granted on the same
day it was filed, based on the assertions of the State and without any type of
hearing or notice to Carney.
On March 20, 2014, the State filed a trial information charging Carney with
fifteen drug-related offenses. Carney filed a motion to dismiss for violation of her
speedy-trial and speedy-indictment rights, as well as her due-process rights to be
heard on the initial dismissal. She maintained the State should be barred from
refiling the charges. A motion to suppress certain evidence was filed with the 3
notice to dismiss. Both requests were denied, but the motion to suppress was
not included in Carney’s brief on appeal.
An evidentiary hearing on the motion to dismiss the new charges was
held. Four of the original fifteen counts were dismissed by the State for various
reasons. The parties then stipulated that Carney would go to trial before the
court on the basis of the minutes of evidence attached to the trial information.
Carney was found guilty on all eleven counts remaining.
Carney contends the State did not establish the prior dismissal was made
in the interest of justice but was instead filed to evade the speedy-trial deadline.
Carney also contended the dismissal of the prior charges without notice to her
was a denial of her due-process rights.
II. Issue Preservation
The State does not contest error preservation as to either issue.
III. Issues Presented
A. Whether Dismissal Was Made in the Interest of Justice or to Evade the Speedy-Trial Rights
1. Scope of Review
Our review of a State’s motion to dismiss the original charge under the
authority of Iowa Rule of Criminal Procedure 2.33(1) is for an abuse of discretion.
See State v. Brummage, 435 N.W.2d 337, 341 (Iowa 1989) (citing what was then
rule 27(1)). An abuse of discretion exists only when the court’s discretion is
exercised on grounds clearly untenable or unreasonable. Id.
Our review of the motion to dismiss the second charge for lack of speedy
trial or speedy indictment is for errors of law. State v. Lyrek, 385 N.W.2d 248, 4
250 (Iowa 1986). As such, we are bound by the findings of fact made by the trial
court if supported by substantial evidence. Id.
2. Discussion
Dismissal of a criminal charge can be made in the “furtherance of justice”
if the reasons are stated in the order. Iowa R. Crim. P. 2.33(1). Such a dismissal
is not a bar to a subsequent prosecution if the offense charged is an aggravated
misdemeanor or a felony. Id. This is true even if the new charge is identical to
the original charge and no new evidence has been obtained or other charges
filed, as long as the dismissal was filed in good faith. State v. Knox, 464 N.W.2d
445, 446 (Iowa 1990). Each of the charges for which Carney was found guilty is
either an aggravated misdemeanor or a felony. However, if the dismissal of the
October charge was to avoid dismissal under the speedy-trial rules rather than in
the “interests of justice,” felonies and aggravated misdemeanors are also barred.
See State v. Moritz, 293 N.W.2d 235, 238 (Iowa 1980) (citing State v. Johnson,
217 N.W.2d 609, 612 (1974)). To hold otherwise would drain the speedy-trial
rights of an accused of any meaning. See Johnson, 217 N.W 2d at 612.
The State requested the motion to dismiss based on the belief there were
additional fraudulent prescriptions. The State asked for dismissal without
prejudice pending further investigation. The “furtherance of justice” for purposes
of the rule has been defined to include facilitating the State in gathering
additional evidence. State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984). The
State did do further investigation, and other charges were filed. Subpoenas were
issued, and the records of all prescriptions filled by various pharmacies for
Carney was obtained. The physicians who allegedly wrote the prescriptions 5
were interviewed. One of the doctors denied Carney was ever a patient in his
practice. The second doctor eventually found time to be interviewed and went
through the written prescriptions obtained from the pharmacy on an individual
basis to determine which ones she had signed and which ones had been forged.
The district court, in refusing to dismiss the March 20 trial information,
applied the abuse of discretion standard to the original dismissal and found the
court did not abuse its discretion in granting the motion to dismiss. The trial court
specifically found, “The State was not acting in bad faith and had a valid reason
to dismiss the case.” The trial court’s finding of fact is supported by substantial
evidence.
B. Denial of Due-Process Rights
Denial-of-due-process claims are reviewed de novo. State v. Neiderbach,
837 N.W.2d 180, 190 (Iowa 2013).
Carney contends her due-process rights were violated when the original
charge was dismissed without notifying her prior to dismissal. The rule permitting
the prosecution to dismiss a case in the “furtherance of justice” with the court’s
approval does not require any notice to the accused when the dismissal is
requested by the prosecution. Iowa R. Crim. P. 2.33(1). However, if the
dismissal is proposed by the court, then a fair opportunity for each side to be
heard must be afforded. Brummage, 351 N.W.2d at 340.
Carney was given the opportunity to be heard on the initial dismissal when
she moved to dismiss the new charges that are before us for review. It is the 6
alleged refiling or new filing of charges that is Carney’s real complaint, not the
dismissal of the October 8 charges. Carney had the opportunity to object to the
March 20 filing and did so by filing a motion to dismiss the new charges.
Carney also relies on the Iowa Rules of Criminal Procedure to support her
claim she should have received notice of the motion. She cites rule 2.27(1),
which requires a defendant to be present at all pretrial proceedings. If a motion
to dismiss is not granted, it cannot prejudice the defendant in any way. If the
motion to dismiss is granted, there is no case pending once the motion has been
granted. Once again, the defendant’s rights have not been prejudiced.
Carney also cites rule 2.34(2), which requires all motions in a criminal
action be served in the same manner as civil actions. Carney notes that Iowa
Rule of Civil Procedure 1.442(1) requires that “every written motion including one
which may be heard ex parte” requires service on the other party. However,
there is one clear exception. Iowa Rule of Civil Procedure 1.943 provides that a
plaintiff may dismiss a petition “without order of court . . . at any time up until ten
days before the trial is scheduled to begin.” There is not even a requirement of
court approval when a civil petition is dismissed by the plaintiff.
“The due process protection in prosecutorial delay cases is available to a
defendant to make sure the State will not employ tricks to gain an advantage
over a defendant.” State v. Isaac, 537 N.W.2d 786, 788 (Iowa 1995). To raise a
due-process claim, Carney must show the delay was unreasonable and actually
prejudicial. See id. She has shown neither. The hearing was held pursuant to
her motion, and she had a full opportunity to press her claim, as stated
previously. Carney can hardly object to the dismissal of the initial charge. In 7
reality, her objection is to the new charge. The trial court’s denial of the motion to
dismiss is affirmed.