IN THE COURT OF APPEALS OF IOWA
No. 15-1992
Filed January 11, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TASHA NICOLE COMSTOCK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
A defendant appeals her conviction for third-degree theft on speedy-
indictment grounds. REVERSED AND REMANDED FOR DISMISSAL.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge.
Tasha Nicole Comstock appeals her conviction for theft in the third degree
on speedy-indictment grounds. Comstock contends the State violated Iowa Rule
of Criminal Procedure 2.33(2)(a) by waiting 269 days after her initial appearance
to file its trial information. Because we find Comstock was arrested when she
appeared in court and waived a preliminary hearing and the State did not file its
trial information within forty-five days of that appearance, we reverse Comstock’s
conviction and remand for dismissal of the trial information.
I. Facts and Prior Proceedings
On August 23, 2005, a sergeant with the Waverly Police Department filed
a criminal complaint accusing Comstock of third-degree theft. The complaint
alleged Comstock had presented four checks written on a closed bank account to
a Waverly Wal-Mart in May 2005. A magistrate issued a summons ordering
Comstock to appear and answer the theft charge, and Comstock did so on
October 14. Comstock also applied for counsel and waived a preliminary hearing
at her October 14 appearance. After Comstock signed an agreement providing
she would not leave Iowa without the written consent of the court, would keep her
attorney apprised of her whereabouts, and would personally appear in court for
all required hearings, the court released her on her own recognizance without
bond.
Nearly nine months later, on July 10, 2006, the State filed a trial
information charging Comstock with aggravated-misdemeanor theft, in violation
of Iowa Code sections 714.1 and 714.2 (2005). Comstock failed to appear for
3
her arraignment, and the court issued a warrant for her arrest on August 7, 2006.
She was not arrested on the outstanding warrant until January 2015.
On March 27, 2015, Comstock filed a motion to dismiss, alleging a
speedy-indictment violation. In resistance, the State did not attempt to show
good cause for the delay. Instead, the State cited State v. Mahan, 483 N.W.2d 1,
1–2 (Iowa 1992), in support of its contention Comstock had not been arrested
before the State filed its trial information and, because no arrest occurred, the
speedy-indictment rule had not been triggered. Adopting the State’s rationale,
the district court denied Comstock’s motion to dismiss. On November 18,
Comstock waived her right to a jury trial and agreed to a trial on the minutes of
testimony. Following trial, the court found Comstock guilty.
II. Scope and Standard of Review
We review the district court’s interpretation of rule 2.33(2)(a) for correction
of legal error.1 State v. Penn-Kennedy, 862 N.W.2d 384, 386 (Iowa 2015). If the
fact-findings are supported by substantial evidence, we are bound by them. Id.
1
The Federal and Iowa Constitutions both guarantee a general right to a speedy trial.
See U.S. Const. amend. VI; Iowa Const. art. I, § 10. In addition, intentional pre-
indictment delay by the State implicates a defendant’s right to due process. See U.S.
Const. amend. V; Iowa Const. art. I, § 10. Although Comstock mentions a violation of
her constitutional rights on appeal, she does not make any specific argument on this
issue. See EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Auth., 641 N.W.2d
776, 785 (Iowa 2002) (holding random reference to a claim of error, without elaboration
or citation to authority, is inadequate to raise an issue on appeal). And, as the State
observes, Comstock failed to preserve error on a constitutional challenge because she
failed to raise that claim before the trial court. See Meier v. Senecaut, 641 N.W.2d 532
537 (Iowa 2002) (“It is fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”). Therefore, to the extent Comstock raises a constitutional claim, we decline to
address it.
4
III. Analysis
Our legislature prefaced the speedy-indictment rule with a broad policy
declaration: “It is the public policy of the state of Iowa that criminal prosecutions
be concluded at the earliest possible time consistent with a fair trial to both
parties.” Iowa R. Crim. P. 2.33(2). The substance of the speedy-indictment rule
immediately follows:
When an adult is arrested for the commission of a public
offense . . . and an indictment is not found against the defendant
within [forty-five] days, the court must order the prosecution to be
dismissed, unless good cause to the contrary is shown or the
defendant waives the defendant’s right thereto.
Iowa R. Crim. P. 2.33(2)(a); see also Iowa R. Crim. P. 2.5(5) (“The term
‘indictment’ embraces the trial information, and all provisions of law applying to
prosecutions on indictments apply also to informations . . . .”). The speedy-
indictment rule serves to “relieve an accused of the anxiety associated with a
suspended prosecution and provide reasonably prompt administration of justice.”
State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010) (quoting State v. Delockroy,
559 N.W.2d 43, 46 (Iowa Ct. App. 1996)). Moreover, it helps prevent the serious
harm that arises from the “impairment of the accused’s defense due to
diminished memories and loss of exculpatory evidence.” Id. at 247 (quoting
State v. Olson, 528 N.W.2d 651, 654 (Iowa Ct. App. 1995)). Consistent with the
nature of these policy considerations, a violation of the speedy-indictment rule
results in an “absolute dismissal, . . . prohibiting reinstatement or refiling of an
information or indictment charging the same offense.” Ennenga v. State, 812
N.W.2d 696, 701 (Iowa 2012) (quoting State v. Abrahamson, 746 N.W.2d 270,
273 (Iowa 2008)).
5
In this case, we are asked to decide whether a person who is issued a
citation and summons by a magistrate has been “arrested” within the meaning of
rule 2.33(2)(a) when—in compliance with the summons—that person makes an
initial appearance in court and waives a preliminary hearing. To guide our
interpretation, we examine the statutory definitions of “arrest” and the line of
cases establishing the constructive-arrest doctrine under rule 2.33(2)(a).
In the late 1970s, our legislature rewrote the speedy-indictment rule to
start the clock at the time of arrest. See Wing, 791 N.W.2d at 247 (discussing
history of the speedy-indictment rule). Before that rewrite, the speedy-indictment
period commenced when a person was “held to answer” for a public offense, a
phrase “defined to mean being held to answer by a preliminary examination or
waiver of same.” See State v. Schmitt, 290 N.W.2d 24, 27 (Iowa 1980)
(comparing “held to answer” language with “arrested”).
Cases immediately following the legislature’s revision construed the term
“arrest” narrowly, limited to the definitions in Iowa Code sections 804.5,2 804.14,3
and 805.1(4).4 See id. at 26–27 (citing section 804.5 and defining “arrested” as
“being physically taken into custody in the manner authorized by law”); see also
2
Section 804.5 provides: “Arrest is the taking of a person into custody when and in the
manner authorized by law, including restraint of the person or the person’s submission to
custody.”
3
Section 804.14(1) provides:
A person making an arrest must inform the person to be arrested
of the intention to arrest the person, the reason for arrest, and that the
person making the arrest is a peace officer, if such be the case, and
require the person being arrested to submit to the person’s custody,
except when the person to be arrested is actually engaged in the
commission of or attempt to commit an offense, or escapes, so that there
is no time or opportunity to do so.
4
Section 805.1(4) provides: “The issuance of a citation in lieu of arrest shall be deemed
an arrest for the purpose of the speedy indictment requirements of rule of criminal
procedure 2.33(2)(a) . . . .”
6
Mahan, 483 N.W.2d at 1–2 (limiting “constructive arrest doctrine” to issuance of a
citation in lieu of arrest under Iowa Code section 805.1(4)). But in 2010, the
court adopted the current framework, holding a defendant has been arrested for
speedy-indictment purposes when “a reasonable person in the defendant’s
position would have believed an arrest occurred, including whether the arresting
officer manifested a purpose to arrest.” See Wing, 791 N.W.2d at 249.
Comstock argues she was officially arrested when she “submitted to the
jurisdiction of the court” on October 14, 2005, at the time of her initial
appearance. Citing Wing’s reasonable-person standard, she contends:
A reasonable person placed in the same situation would
assume that one had been “arrested” for a charge when a
magistrate or judge informs them of what they have been charged
with and that person is required to sign and acknowledge rules of
release from “custody” and face further contempt findings should
she not follow the “orders of the court.”
The State counters Comstock was never arrested, relying on Mahan, in which
the court found the issuance of a citation by a magistrate was not a constructive
arrest under our speedy-indictment rule. See 483 N.W.2d at 2.
After examining the case law defining the scope of an arrest under the
speedy-indictment rule, we find the situation before us does not fit neatly within
the established framework. The circumstances here differ from Wing; we are not
deciding if police interaction with Comstock amounted to an arrest, rather we are
concerned about her submission to custody at the time of the initial appearance.
Under the rule’s former “held to answer” language, the October 2005 hearing—in
which Comstock appeared in court and waived a preliminary hearing—would
have triggered the speedy-indictment rule and the trial information the State filed
7
269 days later would have been untimely. See State v. Montgomery, 232
N.W.2d 525, 526–27 (Iowa 1975). We conclude the legislature intended the
same result under the “arrested” language in the present version of our speedy-
indictment rule.
The definition of arrest contemplates that “the taking of a person into
custody” may be accomplished either by “restraint of the person” or by “the
person’s submission to custody.” See Iowa Code § 804.5. An arrest requires
“an assertion of authority and purpose to arrest followed by submission of the
arrestee.” State v. Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992) (quoting
California v. Hodari D., 499 U.S. 621, 626 (1991)).
Here, the State asserted its authority over Comstock by issuing a
summons to appear in court served by a Floyd County deputy sheriff. Attached
to the summons was the criminal complaint signed by a peace officer. The
summons notified Comstock that failure to appear may constitute a crime. The
summons also cited Iowa Code section 804.1, which provides, “If the person
named in the citation is actually served as provided herein and willfully fails
without good cause to appear as commanded by the citation, the person shall be
guilty of a simple misdemeanor and the magistrate may issue a warrant of arrest
for the offense originally charged.”
Comstock submitted to custody by appearing in court and answering the
charge against her. According to the express terms of her signed “agreement for
release upon own recognizance,” the magistrate only released Comstock from
custody after she agreed to certain conditions. Accordingly, we find Comstock
8
was “arrested” on October 14, 2005, either under section 804.5 or, as Comstock
asserts, under Wing’s reasonable-person standard.
This interpretation is consistent with the overall broadening of protections
that resulted from the legislature’s use of the term “arrest” in our speedy-
indictment rule. Generally, the term “arrest” has the effect of triggering the rule
earlier than under the former “held to answer” language. As the court explained
in Penn-Kennedy:
Normally, the date of an arrest and the date of prosecution follow
hand in hand. Thus, even though the date of arrest triggers the
requirement to file an indictment, the arrest date is usually very
close in time to the date that commences the prosecution. . . . The
period of time between the arrest and the initial appearance
normally must not exceed twenty-four hours.
862 N.W.2d at 388. But as recognized in Wing, sometimes an arrest may occur
much sooner than twenty-four hours before a court appearance, and in those
situations, the speedy-indictment rule may be triggered weeks, or even months,
earlier than under the previous rule. See 791 N.W.2d at 252–53 (finding arrest
occurred five months before filing of criminal complaint); see also Penn-Kennedy,
862 N.W.2d at 388–89 (describing situation in which “a person reasonably
believes a warrantless arrest has occurred during an encounter with police, while
police assume the encounter ultimately ended without an arrest and with the
release of the person from police custody without being taken before a
magistrate for the initial appearance” as triggering speedy-indictment rule). This
overall expansion in protection further reinforces our determination Comstock’s
initial appearance and waiver of a preliminary hearing were sufficient to trigger
the speedy-indictment rule.
9
Moreover, this holding best effectuates the policy considerations
underpinning the speedy-indictment rule. The manner in which Comstock
submitted to custody—following the magistrate’s issuance of a citation and
summons—did not diminish the speedy-indictment policy concerns, such as the
importance of relieving the anxiety associated with a suspended prosecution and
of providing reasonably prompt resolution of criminal charges that arose after
Comstock submitted to the authority of the court and answered to the criminal
charge against her. See Wing, 791 N.W.2d at 246.
Finally, we disagree with the State that Mahan controls our resolution of
this matter. The Mahan court determined a citation issued by a magistrate was
not a constructive arrest under our speedy-indictment rule but, because the trial
information was filed less than forty-five days after the defendant’s initial court
appearance, did not reach the issue of whether the defendant’s initial court
appearance could trigger the rule. See 483 N.W.2d at 2. Our holding today does
not disturb this determination; it simply reaches the question left unanswered in
Mahan.5
Because the State did not file its trial information within forty-five days of
Comstock’s October 2005 hearing and failed to show good cause for the delay,
we reverse Comstock’s conviction and remand to the district court for dismissal.
REVERSED AND REMANDED FOR DISMISSAL.
5
We recognize some language in Mahan supports the State’s position. See, e.g., 483
N.W.2d at 1 (“The problem that has arisen in the present case stems from the fact that
the defendant never was arrested prior to the filing of the trial information.”). But that
language is dicta and not essential to Mahan’s holding. Moreover, we are skeptical of
Mahan’s continued vitality following Wing, 791 N.W.2d at 249.