State of Iowa v. Deaonsy Smith Jr.

IN THE SUPREME COURT OF IOWA
No. 19–2011

Submitted November 17, 2020—Filed April 9, 2021

STATE OF IOWA,

Appellant,

vs.

DEAONSY SMITH JR.,

Appellee.

Appeal from the Iowa District Court for Dubuque County, Monica L.

Zrinyi Wittig, Judge.

The State appeals the dismissal of a trial information based on

prefiling delay. REVERSED AND REMANDED.

Mansfield, J., delivered the opinion of the court in which Waterman,

McDonald, Oxley, and McDermott, JJ., joined in full and Christensen,

C.J., joined as to all but division III.E. Christensen, C.J., filed an opinion
concurring specially in division III.E. Appel, J., filed an opinion concurring

in part and dissenting in part.

Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant

Attorney General, C.J. May, County Attorney, and Brigit A. Barnes,

Assistant County Attorney, for appellant.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy,

Assistant Appellate Defender, for appellee.
 2

MANSFIELD, Justice.

When does prosecutorial delay in arresting and formally charging

someone amount to a due process violation? By late December 2017, law

enforcement had focused on a specific individual as the person who had

likely committed a robbery. Yet the police did not file a criminal complaint

against him until August 2018. In addition, they did not serve the arrest

warrant until September 2019. The individual was serving a prison

sentence on other charges, and although he tried to force a resolution of

the robbery case, the county attorney declined to have him arrested or

formally charged. This delay, for which the county attorney offered no

reason or excuse, led the district court to dismiss the trial information in

October 2019, after it finally was filed. The State appealed.

On appeal, we echo the district court’s frustration with the

unexplained delay in this case. However, we conclude the State’s delay

did not violate the speedy indictment rule because that rule is triggered

only when the defendant is arrested and held to answer. We also conclude

the State’s delay did not violate due process because the defendant failed

to show actual prejudice. Accordingly, with some reluctance, we reverse

the dismissal of this case and remand for further proceedings.
I. Facts and Procedural Background.

At 11:30 p.m. on December 8, 2017, M.B. stopped her automobile

in front of the apartment building where she lived in Dubuque. While

sitting in her automobile, M.B. noticed a man standing in front of the

building. The man waved his hands at M.B. to get her attention. The man

started to talk to M.B. through the passenger side window. After a few

moments, the man opened her passenger side door, got into the vehicle,

and shut the door. Once inside, the man asked M.B. for money to feed his

grandchildren. M.B. reluctantly gave him twenty dollars. The man
 3

demanded more. M.B. refused to give him more money. At this point, the

man became angry and told her that he had a gun and threatened to rape

and shoot her.

The man took M.B.’s purse, emptied it, and forced her to drive to a

local ATM. At the ATM, M.B. withdrew $200 for the man. Next, the man

demanded M.B. return to her apartment complex and show him exactly

where she lived. Upon their arrival, M.B. was instructed to park at the

rear of the apartment buildings. The man revived his threats to rape and

kill M.B. if she reported this incident to the police. In efforts to hamper

M.B. from following him, he made her “pull down her pants so she couldn’t

follow him out of the vehicle.” The man exited from the car and fled the

area.

Later, the police were contacted, and an investigation ensued.

Surveillance footage from the ATM confirmed M.B.’s version of events and

her general description of the man who had robbed her. Police also

obtained camera footage that depicted a similar-looking man earlier that

evening entering and leaving a residence where he had offered to sell a

video game. Upon reviewing this footage, a police officer recognized the

man on video as Deanosy Smith, Jr., from a prior encounter.
On December 22, Smith was taken into custody on a different

matter. Although M.B. was not able to identify Smith in a photographic

lineup, his overall appearance, his mumbling speech pattern, and his teeth

were consistent with M.B.’s description. A book lamp was in Smith’s

possession at the time he was arrested and booked, similar to the one M.B.

described to police as having been in her purse.

On August 7, 2018, a Dubuque police officer filed a criminal

complaint alleging Smith had committed robbery in the second degree in

violation of Iowa Code section 711.3 (2018). On that same day, the district
 4

court issued an arrest warrant. The August 2018 arrest warrant was not

served at that time.

Instead, on February 8, 2019, Smith—who had learned of the

warrant—filed a written arraignment and plea of not guilty from the Fort

Dodge Correctional Facility, where he was incarcerated on other charges.

On the arraignment form, Smith checked a box indicating his demand for

a speedy trial.

On February 13, the Dubuque County District Court rebuffed

Smith’s filing, stating it would take no action because “the State has not

filed a Trial Information” and “arraignment is premature.” The court said

it would “address Defendant when he has appeared on the warrant.”

On February 21, Smith filed an application for appointment of

counsel. He explained that he was still incarcerated and that his

“knowledge of the law is very limited, the issues presented are very

complex and the resources in the prison law library [are] limited.” Again,

on March 5, the district court entered an order indicating it would not act

on the filing. The court said it would “address the application and appoint

Defendant counsel when he appears on the warrant.”

Later that month, Smith wrote a letter to the court again asserting
his rights to a speedy trial under the Iowa Rules of Criminal Procedure and

the Fifth Amendment to the U.S. Constitution. The letter concluded, “The

Defendant is requesting that an attorney be appointed and that he’ll be

transported to the Dubuq[u]e County Court as soon as possible so this

matter may be cleared up.”

Upon receiving the letter, the district court issued a March 27 order

again taking no action. The order noted that Smith was in custody at the

Fort Dodge Correctional Facility and that “the State is aware of his

whereabouts and is free to seek an order for transport.”
 5

On April 5, Smith filed a motion to dismiss “for lack of due process.”

The motion reiterated, “The Defendant wishes to be transported and to be

heard in this case immediately and to have a speedy trial in this case.”

This motion too was denied. The court explained, “As the Court has

previously noted, once Defendant is brought before the Court to appear on

the warrant, proper action will be taken.”

On August 12, Smith filed a motion to dismiss the detainer that had

been apparently placed upon him months ago. Smith’s filing attached a

copy of a January 25 Iowa Department of Corrections’ (DOC) letter

confirming the detainer’s existence and the DOC’s plans to notify the

Dubuque police department approximately thirty days before Smith’s

release.1 Smith asserted that the failure to file an information within six

months rendered the detainer invalid under Iowa Code section 906.14(3).

This time, the district court appointed counsel, who promptly filed

an additional motion to dismiss for speedy trial and speedy indictment

violations. The motion asserted that (1) Smith’s “whereabouts . . . have

been known for over 6 months,” (2) that Smith’s written waiver of formal

arraignment was effectively an appearance, (3) that the State had failed to

indict Smith within the required forty-five days, and (4) that Smith’s
“detainer has had an effect on his potential parole date.”

The State responded to Smith’s motion to dismiss the detainer on

September 12. The State acknowledged that Iowa Code section 906.14

requires a detainer filed against a prisoner to be supported by an

indictment or information within six months, and requires the detainer to

be held invalid and disregarded for parole purposes if not supported within

six months by an indictment or information. See Iowa Code § 906.14(2),

1According to the letter, Smith’s sentence was tentatively scheduled to expire on
August 16, 2021.
 6

(3). The State conceded that the six-month deadline had passed and that

the parole board “may thus disregard the detainer.” Yet, the State also

asserted that this should have no effect on the State’s ability to pursue

criminal charges against Smith for his alleged robbery of M.B.

That same day, September 12, Smith was transported from the Fort

Dodge Correctional Facility to the Dubuque County courthouse for a late

afternoon hearing on his motion to dismiss. At that time, Smith was

served with the arrest warrant. Following the hearing, the State filed a

resistance to Smith’s motion to dismiss.

On September 17, the State filed a trial information charging Smith

with second-degree robbery as a habitual offender.

On October 31, the district court entered a written order dismissing

the case. The district court quoted Iowa Rule of Criminal Procedure

2.33(2)(a), which requires the indictment or information to be filed within

forty-five days of arrest, but primarily based its conclusion on due process

grounds. As the court put it,

The Defendant argues that his due process rights have
been violated and his Fifth Amendment Rights are implicated.
The Defendant asserts the delay was unconscionable. The
Defendant was writing to the Court to notify the State where
he was and that he wanted to address the allegations. His
efforts put the State on notice to arrest him where he could be
found, to wit: the State’s Correctional Facility. There is
spoliation of evidence now. Witnesses’ memories have faded
now. His ability to assert an alibi has been extinguished. His
ability to defend the allegations has been compromised or
even destroyed due to the delay.

The State had the Defendant in custody within a week of
the events occurring. The State had buccal swabs. The State
had the Defendant’s clothing. The state had traffic cam video.
The State had evidence from a bank ATM record to corroborate
the allegation that the Defendant made the named victim take
her to her bank and withdraw money. The State offered no
reason why the complaint was not filed in December of 2017.
It offered no justification for waiting to file the complaint eight
(8) months later. It offered no excuse for not having the
 7
warrant executed while the Defendant was in the custody of
the Director of Adult Corrections.

The court concluded that Smith’s “Fifth Amendment rights have been

violated” and “[h]is speedy trial rights have also been violated.”

The State appealed, and we retained the appeal.

II. Standard of Review.

We review de novo the district’s court determination that Smith’s

constitutional right to due process was violated. State v. Trompeter, 555

N.W.2d 468, 470 (Iowa 1996). “We review interpretations of the speedy

indictment rule for errors at law.” State v. Williams, 895 N.W.2d 856, 860
(Iowa 2017). We are bound by the district court’s findings of fact if they

are supported by substantial evidence. Id. We review a dismissal in the

furtherance of justice under rule 2.33(1) for abuse of discretion. State v.

Piper, 663 N.W.2d 894, 901 (Iowa 2003), overruled on other grounds by

State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010).

III. Legal Analysis.

A. Speedy Indictment. Iowa Rule of Criminal Procedure 2.33(2)

states,

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. Applications for
dismissals under this rule may be made by the prosecuting
attorney or the defendant or by the court on its own motion.

Furthermore, with respect to the filing of the indictment or information,

the rule provides,

When an adult is arrested for the commission of a public
offense, or, in the case of a child, when the juvenile court
enters an order waiving jurisdiction pursuant to Iowa Code
section 232.45, and an indictment is not found against the
defendant within 45 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.
 8

Id. r. 2.33(2)(a).

State v. Williams, 895 N.W.2d 856, provides the most recent

definition of how courts are to apply the speedy indictment rule. In

Williams, the defendant was initially taken into police custody, Mirandized,

and questioned about a reported rape. Id. at 858. However, the defendant

was soon released and over a year passed before the defendant was

formally arrested on a charge of sexual abuse in the second degree and

made an initial appearance. Id. at 858–59. Several days later, the State

filed its trial information. Id. at 859. Like Smith, the defendant in Williams

submitted a motion to dismiss for violation of his speedy indictment rights.

Id. We concluded that the defendant’s motion was properly denied,

reasoning that the defendant had not been arrested for rule 2.33(2)(a)

purposes until a formal arrest had occurred that led to his making an

initial appearance:

Arrest for the purposes of the speedy indictment rule
requires the person to be taken into custody in the manner
authorized by law. The manner of arrest includes taking the
arrested person to a magistrate. The rule is triggered from the
time a person is taken into custody, but only when the arrest
is completed by taking the person before a magistrate for an
initial appearance.

Id. at 867.

While an arrest warrant for Smith had been issued in August 2018

for the alleged robbery of M.B., it was not served on Smith at that time,

and he did not make an initial appearance on that charge. The fact that

Smith may have been in custody for other reasons is irrelevant. See id. at

867–68 (Mansfield, J., concurring specially) (discussing the distinction
between a statutory arrest and Fourth Amendment custody); State v.

Gathercole, 553 N.W.2d 569, 572 (Iowa 1996) (en banc) (holding that even

transporting an extradited defendant from Utah to Iowa did not trigger the
 9

speedy indictment rule because an arrest within the meaning of Iowa Code

chapter 804 was required). Smith’s argument resembles an unsuccessful

argument asserted in State v. Waters, 515 N.W.2d 562 (Iowa Ct. App.

1994). There, the court of appeals ruled the defendant had not been

arrested for speedy indictment purposes just because he was already in

jail in a different county on a different matter. Id. at 566 (“[T]he forty-five

day time period for indictment commences upon the arrest for the offense

charged in the existent proceedings.”)

Smith is unable to distinguish these authorities, and we hold there

was no violation of rule 2.33(2)(a).

B. Due Process Under the United States Constitution. In the

district court, Smith couched his constitutional claim exclusively in terms

of due process. The district court agreed with Smith and ruled that his

due process rights under the Fifth Amendment were violated.

We believe that ruling was in error. Due process does impose some

limits on how long the State can wait to prosecute someone. But to obtain

dismissal on this ground, the defendant must show actual prejudice. See

Trompeter, 555 N.W.2d at 471. In State v. Trompeter, the State determined

that a juvenile had committed two separate sexual assaults. Id. at 469. It
offered to allow the juvenile to plead guilty to one count of third-degree

sexual assault. Id. When the juvenile declined, the State pursued one of

the incidents and obtained an adjudication of delinquency while the

juvenile was sixteen. Id. Two years later, when he had turned eighteen,

the State filed a trial information charging him with second-degree sexual

abuse in the other incident. Id. The district court found a due process

violation, reasoning that “the State’s actions in ‘[o]ffering to plea bargain

the charge away, then holding it over the defendant’s head for three years,

then charging him on his eighteenth birthday’ constituted ‘unjustifiable
 10

government conduct’ or was based on an ‘illegitimate prosecutorial

motive,’ and a violation of Trompeter’s due process rights.” Id. at 470

(alteration in original). We affirmed on appeal. Id. at 471.

In Trompeter, we summarized the applicable law as follows:

There is no constitutional right to be arrested and
charged at the precise moment probable cause comes into
existence. But if the government delays filing charges to
intentionally “gain [a] tactical advantage over the accused,”
the defendant’s due process rights are implicated.

To prove a pre-accusatorial delay violated due process,
the defendant must show: (1) the delay was unreasonable;
and (2) the defendant’s defense was thereby prejudiced. A
defendant must prove both of these elements to prevail.
Prejudice to the defendant must be actual; the defendant
cannot rely on mere general claims of prejudice. The length
of the delay, and any valid reason for it, must be balanced
against the resulting prejudice against the defendant.

Id. at 470 (alteration in original) (citations omitted) (quoting United States

v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465 (1971)).

Our court found a due process violation in Trompeter because the

State had intentionally undermined the juvenile justice process. Id. at

471. Presumably, the juvenile court was aware of both offenses when it

selected the facility for the juvenile to be committed following his
delinquency adjudication. Id. Yet the prosecutor intentionally kept one of

the two criminal charges in his back pocket so he could bring it later if he

wanted. Id.

The delay [in bringing charges in the other incident] was
admittedly undertaken so that the full force of adult criminal
court could later be brought to bear on a sixteen year old,
who—but for the delay—would experience only juvenile court.

Id.

In our jurisprudence in this area, we have emphasized that

“generalized claims of prejudice” are insufficient. State v. Brown, 656
 11

N.W.2d 355, 363 (Iowa 2003). As State v. Brown points out, “To prevail on

a claim that such a delay violated due process, a defendant has the heavy

burden of proving both (1) the defendant’s defense suffered actual

prejudice due to a delay in prosecution and (2) the delay causing such

prejudice was unreasonable.” Id.

Our emphasis on actual prejudice has been unwavering. See State

v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987) (finding no due process

violation in a twenty-month delay in bringing charges against the

defendant over his participation in a prison riot and specifically noting a

lack of actual prejudice); State v. Hall, 395 N.W.2d 640, 643 (Iowa 1986)

(“If the defendant is asserting witnesses are missing as a result of the

delay, he must show the witness would have provided material evidence

for the defense.”); State v. Williams, 264 N.W.2d 779, 783 (Iowa 1978)

(“Actual prejudice must be both alleged and proved.”). Brown highlights

that actual prejudice is a necessary threshold in the due process analysis,

and failure to establish actual prejudice should end the inquiry. 656

N.W.2d at 363 & n.6.

In State v. Edwards, which we quoted and cited with approval in

Brown, 656 N.W.2d at 363, the court of appeals declined to find a due
process violation when the State waited twenty-one months after

identifying the defendant as the seller of drugs to bring formal charges.

571 N.W.2d 497, 501–02 (Iowa Ct. App. 1997). The court found a lack of

actual prejudice, explaining,

Generalized assertions of loss of memory, loss of
witnesses, or loss of evidence are insufficient to establish
actual prejudice. These types of claims generally fall within
the ambit of protection provided by the statute of limitations.
To establish actual prejudice, a defendant must show loss of
evidence or testimony has meaningfully impaired his ability to
present a defense.
 12

Id. at 501 (citations omitted); see also United States v. Marion, 404 U.S. at

322, 92 S. Ct. at 464 (noting that “[t]he law has provided other

mechanisms to guard against possible as distinguished from actual

prejudice resulting from the passage of time between crime and arrest or

charge” and characterizing the statute of limitations as “the primary

guarantee against bringing overly stale criminal charges”); Williams, 264

N.W.2d at 783 (“We start with the premise any prosecution within the

statute of limitations is timely . . . .”).2

On our de novo review of this constitutional claim, we are not

persuaded that Smith established actual prejudice. Smith and his counsel

were given the opportunity to present testimony at the hearing on the

motion to dismiss, and instead chose only to present argument. As

Smith’s attorney stated candidly,

I think the delay has been purposeful. It’s been to his
detriment. Exactly what detriment, I don’t know at this point,
because I’ve not been able to meet that much with Mr. Smith
regarding any possible defense he may have. It’s in part
because I just met with him today, because I’m not certain,
without being able to prepare or not, whether or not he might
say something inappropriate, as far as testifying today.

While the district court referred to “spoliation” and “faded memories”
in its ruling, it did so in general terms. These kinds of generalized claims

do not establish a due process violation. See Brown, 656 N.W.2d at 363.

Likewise, the district court’s observations that the State offered “no

excuse” or “no justification” for its delay—while accurate and somewhat

troubling—do not put the burden in the right place. They do not account

for Smith’s initial obligation to show that he was actually prejudiced. See
id. & n.6; see also State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998)

2The statute of limitations for indictable offenses requires an indictment or
information to be filed within a certain time period of the offense, typically three years.
See Iowa Code § 802.3.
 13

(finding that six months of unexplained delay did not violate due process

when the defendant did not show actual prejudice).

On appeal, Smith advances an argument that the State’s delay

denied him an “opportunity” for concurrent sentences. Smith’s theory is

that if the State had moved forward earlier on the second-degree robbery

charge involving M.B., he could have argued that any sentence on that

robbery, if he were convicted, should run concurrent with the existing

sentence he was already serving.3

We have said that if the defendant establishes that a delay “was

occasioned solely to avoid the possibility of concurrent sentencing, we

would not condone such a late prosecution.” State v. Sunclades, 305

N.W.2d 491, 495 (Iowa 1981) (emphasis added), overruled on other grounds

in Williams, 895 N.W.2d 856. In Trompeter, we explained in detail how a

prosecutor’s decision to delay charging the defendant resulted in exposure

to the adult criminal justice system that the defendant would not

otherwise have had. 555 N.W.2d at 471.

Smith has made no such showing.4 Smith has not demonstrated

that the State delayed prosecuting the robbery case solely to avoid

3The record is somewhat sketchy, but it indicates that Smith was serving a
sentence for a burglary of some kind at the Fort Dodge facility when he filed his motions
asking to address the alleged robbery of M.B. The record also indicates that Smith had
two prior third-degree burglary convictions, one from 2012 and the other from 2016. (As
noted above, when the State got around to charging Smith for the robbery, it sought a
habitual offender enhancement.) The record also indicates that Smith had prior
probation violations and a charge of voluntary absence from custody. Finally, the record
indicates that Smith was taken into custody “on an unrelated matter” approximately two
weeks after allegedly robbing M.B. This unrelated matter could have been a probation or
parole violation. Smith self-reported that he “has an extensive criminal history.”
4The concurrence in part and dissent in part claims there is an issue of error
preservation. We disagree. Smith moved to dismiss the prosecution on due process
grounds and was granted a hearing on his motion. At the hearing, Smith was asked
about and given the opportunity to demonstrate prejudice. This would include any
sentencing-related prejudice. Smith failed to show prejudice, a failure that we conclude
 14

concurrent sentences. Nor has he demonstrated that any sentence on the

robbery if he were convicted would likely have been imposed so as to be

concurrent with his existing sentence. The district court did not mention

even a possibility of concurrent sentences in its dismissal order below.

A somewhat comparable case is State v. Clemons, in which the Ohio

Court of Appeals found no due process violation and reversed a trial court’s

dismissal of an indictment. 2 N.E.3d 930, 935–36 (Ohio Ct. App. 2013).

The state issued an arrest warrant for the defendant in August 2009 but

did not arrest him on the warrant or indict him until March 2011 upon

his release from prison on other charges. Id. at 932. The court determined

that the defendant’s claims of possible prejudice due to the faded

memories of witnesses and the lost opportunity for concurrent sentences

were insufficient. Id. at 935–36. Although the state seemingly

“mishandled Clemons’s case,” the court reasoned that “because Clemons

failed to present evidence of substantial prejudice, the state has no burden

of producing evidence of a justifiable reason for the 20-month

preindictment delay.” Id. at 936.

Another fairly similar case is Commonwealth v. Butler, 949 N.E.2d

936 (Mass. App. Ct. 2011), aff’d, 985 N.E.2d 377 (Mass. 2013). In 1991,
a criminal complaint was filed charging the defendant with rape and

burglary and an arrest warrant was issued. Id. at 937. However, the

defendant was not arrested or brought to court on these charges until

1998. Id. at 937. In the meantime, the defendant had been convicted and

sent to prison on other charges. Id. The defendant was notified of the

outstanding warrant and signed a form requesting that the district court

provide him with a speedy trial. Id. at 938. Yet his request “was never

is fatal to his claim. Having failed to demonstrate prejudice, Smith is not entitled to
another hearing to again try to demonstrate prejudice.
 15

docketed and no action was taken” until years later when the defendant

was released from custody. Id. After finding no speedy trial violation, the

court quoted precedent requiring a showing of “actual prejudice” at a

minimum for a due process violation and observed that “[t]he defendant

does not challenge the motion judge’s finding that his due process claim

is without merit.” Id. at 942.5

In State ex rel. Knotts v. Facemire, the West Virginia Supreme Court

overruled its own precedent and decided as follows:

Courts are uniformly in agreement that actual prejudice must
be proven to advance a due process claim for preindictment
delay. Accordingly, we hold that in order to maintain that
preindictment delay violates the Due Process Clause of the
Fifth Amendment to the U.S. Constitution and Article III,
Section 10 of the West Virginia Constitution, the defendant
must show actual prejudice.

678 S.E.2d 847, 854 (W. Va. 2009) (citation omitted); see also 41

Am. Jur. 2d Indictments and Informations § 56, at 739 (2015) (“Where a

defendant fails to show actual substantial prejudice in alleging a violation

of due process based on a preindictment delay, the inquiry ends, and the

reasons for the delay need not be addressed.”).

5See also U.S. v. Madden, 682 F.3d 920, 929–30 (10th Cir. 2012) (citing numerous
cases holding that a lost chance for concurrent sentences is too speculative to establish
prejudice for due process purposes); State v. Keliiheleua, 95 P.3d 605, 610 (Haw. 2004)
(“[L]ost opportunities for concurrent sentencing, parole, and loss of parental rights, as
asserted [t]herein, do not affect a defendant’s ability to present an effective defense, and
thus, do not constitute actual substantial prejudice to a defendant’s due process right to
a fair trial.”); (second alteration in original) (quoting State v. Higa, 74 P.3d 6, 12
(Haw. 2003)); Jones v. State, 607 P.2d 116, 117 (Nev. 1980) (per curiam) (“[T]here is
nothing in the record which suggests that the state deliberately delayed filing charges in
order to gain a tactical advantage. The loss of the possibility of an additional two years
of concurrent time is not sufficient prejudice to establish a denial of due process.”); State
v. Rice, 57 N.E.3d 84, 91–92 (Ohio Ct. App. 2015) (citing numerous cases for the
proposition that “the theoretical and speculative loss of the opportunity for the defendant
to serve the sentence on the pending charge concurrently with the sentence in another
case” is insufficient prejudice to establish a due process violation).
 16

For the reasons stated, the trial information should not have been

dismissed on due process grounds without a showing of actual prejudice.

C. Due Process Under the Iowa Constitution. On appeal, Smith

asks us to overlook the absence of prejudice by adopting a different,

“totality of the circumstances” standard under the Iowa Constitution’s due

process clause. See Iowa Const. art. I, § 9. There is a potential concern

whether this issue has been preserved. Smith argued only “due process”

below. He cited only Trompeter and Brown, which mention exclusively the

United States Constitution and contain no references to the Iowa

Constitution. The district court’s ruling mentioned only the Fifth

Amendment. Cf. State v. Coleman, 890 N.W.2d 284, 286 (Iowa 2017)

(“[W]hen a party brings a constitutional claim but fails to identify whether

the party is proceeding under the Iowa or the Federal Constitution, claims

under both the Iowa and the Federal Constitutions are preserved.”); see

also id. at 303 (Waterman, J., dissenting) (“[L]ess has become more.”).

In any event, as the State points out, we have previously required

actual prejudice for preindictment delay claims under both the federal and

the Iowa Constitutions. See State v. Isaac, 537 N.W.2d 786, 788 (Iowa

1995). In State v. Isaac, we rejected both federal and state due process
claims and explained,

Isaac does not present any evidence as to how the delay
in charging him was unreasonable or how it actually
prejudiced him. He says only that “his ability to present a
defense has been hindered with the passage of time.
Memories are not as clear and finding witnesses becomes
more and more difficult.”

This vague allegation does not suffice to support a due
process challenge. . . .

Isaac makes no showing that the State delayed to gain
a tactical advantage over him. We will not fill this void in the
evidence by presuming otherwise.
 17
Nor does Isaac present any evidence as to how the delay
actually prejudiced him. . . .

We conclude the court could not have sustained Isaac’s
motion to dismiss on due process grounds.

Id. Therefore, even if a state constitutional claim were duly raised below,

we would not reach a different result under our precedent.

D. Speedy Trial. We now turn to speedy trial. At the end of its

dismissal order, the district court said that Smith’s “speedy trial rights

have also been violated.” It is not entirely clear what the district court

meant by this isolated statement. Smith did not allege below a
constitutional speedy trial violation under the Sixth Amendment or article

I, section 10 of the Iowa Constitution. He did allege, in a conclusory way,

that rule 2.33(2)(b) had been violated. We agree with the State that the

sentence in the district court’s order was at most a finding of a rule

violation.

On our review, we find no violation of rule 2.33(2)(b). That rule is

triggered by the filing of an indictment or information, which had not yet

occurred. Accordingly, the dismissal order cannot be sustained on this

ground.

E. Dismissal in the Furtherance of Justice. Finally, Smith
argues in his appellate brief that we can sustain the dismissal of this case

under rule 2.33(1). This rule provides,

The court, upon its own motion or the application of the
prosecuting attorney, in the furtherance of justice, may order
the dismissal of any pending criminal prosecution, the
reasons therefor being stated in the order and entered of
record, and no such prosecution shall be discontinued or
abandoned in any other manner. Such a dismissal is a bar to
another prosecution for the same offense if it is a simple or
serious misdemeanor; but it is not a bar if the offense charged
be a felony or an aggravated misdemeanor.
 18

Nobody raised this ground below, and it clearly was not a basis for

the district court’s order. In fact, we have said that rule 2.33(1) does not

apply to a dismissal on the defendant’s motion. State v. Lasley, 705

N.W.2d 481, 492 (Iowa 2005). We have also said that “dismissal will not

be an appropriate remedy in the overwhelming majority of cases.” Piper,

663 N.W.2d at 903. In addition, before a district court may exercise its

sua sponte dismissal authority under rule 2.33(1), it must afford both

sides fair notice of its intention to do so. State v. Brumage, 435 N.W.2d

337, 340 (Iowa 1989). In State v. Brumage, we also approved New York

precedent that this dismissal authority “should be ‘exercised sparingly’

and only in that ‘rare’ and ‘unusual’ case where it ‘cries out for

fundamental justice beyond the confines of conventional consideration.’ ”

Id. (quoting People v. Insignares, 491 N.Y.S.2d 166, 175 (N.Y. App. Div.

1985) (per curiam)). We further held that “our trial court should dismiss

only after considering the substantive rights of the defendant and the

interests of the state.” Id. at 341. In other words, a balancing of relative

interests was required, including such matters as

(1) weight of the evidence of guilt or innocence; (2) nature of
the crime involved; (3) whether defendant is or has been
incarcerated awaiting trial; (4) whether defendant has been
sentenced in a related or similar case; (5) length of such
incarceration; (6) possibility of harassment; (7) likelihood of
new or additional evidence at trial; (8) effect on the protection
to society in case the defendant should actually be guilty;
(9) probability of greater incarceration upon conviction of
another offense; (10) defendant’s prior record; (11) the
purpose and effect of further punishment; and (12) any
prejudice resulting to defendant by the passage of time.
 19

Id. (quoting State v. Lundeen, 297 N.W.2d 232, 236 (Iowa Ct. App. 1980)).

The district court did not engage in such balancing here. On this appeal,

we cannot sustain the district court’s dismissal order under rule 2.33(1).6

***

We have long recognized that the defendant’s incarceration is not a

sufficient justification for failing to bring the defendant to trial on other

charges. See Hottle v. District Court, 233 Iowa 904, 910, 11 N.W.2d 30, 33

(1943). The State seems to have disregarded that precept here. Yet we

must also be mindful of the United States Supreme Court’s admonition:

[T]he Due Process Clause does not permit courts to abort
criminal prosecutions simply because they disagree with a
prosecutor’s judgment as to when to seek an indictment.
Judges are not free, in defining “due process,” to impose on
law enforcement officials our “personal and private notions” of
fairness and to “disregard the limits that bind judges in their
judicial function.”

United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 2049 (1977)

(quoting Rochin v. California, 342 U.S. 165, 170, 72 S. Ct. 205, 209 (1952)).

In the end, we cannot allow our disappointment with prosecutorial foot-

dragging to push the law in a direction where it will not go.

IV. Conclusion.
For the foregoing reasons, we reverse the district court’s order

dismissing this case and remand for further proceedings consistent with

this opinion.

REVERSED AND REMANDED.

All justices concur except Christensen, C.J., who concurs specially

in division III.E, and Appel, J., who concurs in part and dissents in part.

6The special concurrence suggests that a strong case exists for dismissal pursuant
to rule 2.33(1). The majority of this court has reached no such conclusion.
 20

#19-2011, State v. Smith

CHRISTENSEN, Chief Justice (concurring specially).

Though I agree with the majority, I write separately regarding

Deaonsy Smith’s Iowa Rule of Criminal Procedure 2.33(1) claim to remind

district courts that we have an obligation to monitor similar situations,

correctly apply rules to ensure fairness to all parties when necessary, and

ensure that the pretrial process in each case is just and efficiently

managed. Cf. In re Carstensen, 316 N.W.2d 889, 893 (Iowa 1982) (“A judge

should diligently discharge his administrative responsibilities, maintain

professional competence in judicial administration, and facilitate the

performance of the administrative responsibilities of other judges and

court officials.” (quoting Iowa Code of Judicial Conduct Canon 3(B)(1)));

Chief Justice John G. Roberts, Jr., 2015 Year-End Report on the Federal

Judiciary 10–11 (2015), https://www.supremecourt.gov/publicinfo/year-

end/2015year-endreport.pdf [https://perma.cc/8ELX-W38X] (“Judges

must be willing to take on a stewardship role, managing their cases from

the outset rather than allowing parties alone to dictate the scope of

discovery and the pace of litigation. Faced with crushing dockets, judges

can be tempted to postpone engagement in pretrial activities. Experience
has shown, however, that judges who are knowledgeable, actively engaged,

and accessible early in the process are far more effective in resolving cases

fairly and efficiently, because they can identify the critical issues,

determine the appropriate breadth of discovery, and curtail dilatory

tactics, gamesmanship, and procedural posturing.”).

This case can only be described as a series of unfortunate events.

The State had Smith in its custody on unrelated charges within a week of

the crime at issue, yet without explanation, it delayed actually arresting

Smith for twenty-one months—eight of which occurred between the alleged
 21

crime and the filing of the criminal complaint and another thirteen of

which passed between the criminal complaint and Smith’s arrest. During

that twenty-one-month period, Smith attempted to resolve the case

multiple times by filing a written arraignment and plea of not guilty (which

the district court rejected because no trial information had been filed),

filing an application for appointed counsel (denied), writing a letter

addressed to the court explaining his situation that again asked for

appointment of counsel to facilitate a speedy trial (also denied), and filing

multiple motions to dismiss (all denied). The district court largely ignored

the situation by continually denying Smith’s requests until it finally

appointed him counsel on August 22, 2019, and set a hearing. Perhaps

motivated by the district court’s acknowledgment of Smith’s case, the State

finally served an arrest warrant on Smith on September 12, 2019, and filed

a trial information charging Smith on September 17, 2019, for events that

allegedly occurred in 2017.

Although the State did not file a trial information until September

2019, the district court was aware of Smith’s frustration and unsuccessful

attempts to get the court’s attention much earlier. As discussed in division

III.A of the majority’s opinion, I agree an arrest is necessary to trigger
speedy indictment. And of course the filing of a trial information officially

opens the courthouse doors and makes the case an official part of the

docket. But when a person repeatedly seeks the attention of the court as

Smith did in this case, it is incumbent upon the court to take reasonable

steps to provide fundamental assistance. I understand that motion-day

dockets are chock-full of more cases than time allots and that our courts

are frequently understaffed on those whirlwind days; however, it takes just

a few short moments to review a motion filed by an incarcerated, self-

represented litigant and determine whether perhaps a hearing should be
 22

set rather than summarily dismissing repeated filings by the same

individual. In this case, the judge who referred to the State’s lack of

attention as “unconscionable” and dismissed Smith’s case is the same

judge who summarily denied one of Smith’s prior applications for court-

appointed counsel.

Smith’s case seems to epitomize the sort of “rare” and “unusual”

case worth dismissing in the furtherance of justice under rule 2.33(1)

because it “cries out for fundamental justice beyond the confines of

conventional consideration.” State v. Brumage, 435 N.W.2d 337, 340 (Iowa

1989) (quoting People v. Insignares, 491 N.Y.S.2d 166, 175 (N.Y. App. Div.

1985)). Unfortunately for Smith, though, I must join the majority in

reversing the district court’s dismissal because the district court failed to

follow the proper procedure. To correctly dismiss Smith’s case upon its

own motion under rule 2.33(1), the district court simply had to provide the

parties with “fair notice of its intention to do so” and “a full hearing . . . to

permit them to argue the merits of dismissal” along with the reasons

supporting the dismissal in the furtherance of justice in its order. State v.

Lundeen, 297 N.W.2d 232, 235 (Iowa Ct. App. 1980); Iowa R. Crim. P.

2.33(1). Had the district court followed rule 2.33(1), its intended outcome
(dismissal) may have survived appellate scrutiny for some of the same

reasons the district court cited in its order.

As the majority enumerates, State v. Brumage sets out several

interests for the district court to balance in those rare cases that may

warrant dismissal in the furtherance of justice under rule 2.33(1). See

Brumage, 435 N.W.2d at 341. While the district court in this case did not

discuss rule 2.33(1) in its order or provide any indication that it was relying

on this rule in dismissing Smith’s case, its rationale for the dismissal

shows the court at least unintentionally considered some of these
 23

interests. For example, the district court discussed the evidence of Smith’s

guilt, noting,

The State had the Defendant in custody within a week
of the events occurring. The State had buccal swabs. The
State had the Defendant’s clothing. The [S]tate had traffic
cam video. The State had evidence from a bank ATM record
to corroborate the allegation that the Defendant made the
named victim take her to her bank and withdraw money.

The district court’s rationale also incorporates other factors for

consideration, explaining:

There is spoliation of evidence now. Witnesses’ memories
have faded now. His ability to assert an alibi has been
extinguished. His ability to defend the allegations has been
compromised or even destroyed due to the delay.

. . . The State offered no reason why the complaint was
not filed in December of 2017. It offered no justification for
waiting to file the complaint eight (8) months later. It offered
no excuse for not having the warrant executed while the
Defendant was in the custody of the Director of Adult
Corrections

. . . The delay was unconscionable based on the facts
recited herein.

Of course, some of these factors, like the evidence of Smith’s guilt in

this case, cut against dismissal in this case. That does not mean a full
balancing of all relative interests could not still result in dismissal. In any

event, I am not saying a dismissal of Smith’s case would have been

appropriate under rule 2.33(1), nor will I analyze all of the Brumage factors

to build such a case. Perhaps the State did have a legitimate reason for

the delay, but we are only left to speculate because the district court failed

to develop the proper record through notice and a hearing on this issue.

Based on the information before us, albeit limited, this appears to be a

strong case for dismissal in the furtherance of justice but for the court’s

failure to follow rule 2.33(1).
 24

The alleged crime at issue in this case occurred in 2017. Here we

are in 2021, and this seemingly straightforward criminal case still has yet

to be resolved. “ ‘Justice delayed is justice denied,’ and regardless of the

antiquity of the problem and the difficulties it presents, the courts and the

bar must do everything possible to solve it.” Dep’t of Gen. Servs. v. R.M.

Boggs Co., 336 N.W.2d 408, 410 (Iowa 1983) (quoting Gray v. Gray, 128

N.E.2d 602, 606 (Ill. App. Ct. 1955)).

In spite of what appears to be a strong case for dismissal by the

court sua sponte, I must regrettably join the majority’s reversal of the

district court’s dismissal order because the district court did not follow

rule 2.33(1). In situations like this, courts cannot join in the game of kick

the can and then feign surprise that the can ended up miles away.
 25

#19–2011, State v. Smith

APPEL, Justice (concurring in part and dissenting in part).

I concur in part and dissent in part.

I. Introduction.

A. Constitutional Dimension of Speedy-Trial-Type Issues. In

dealing with significant constitutional claims, it is helpful to begin with a

general understanding of the nature of the constitutional provision and

the interests that it protects. At the outset, it should be recognized that

in this case, although we deal with constitutional nuance (hopefully), we

are not considering mere legal technicalities. As noted by the United

States Supreme Court, the right to a speedy trial is “one of the most basic

rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S.

213, 226, 87 S. Ct. 988, 995 (1967).

Speedy trial provisions serve multiple purposes. As noted by the

United States Supreme Court, the purposes include lessening the time of

incarceration of a person prior to trial, reducing the pretrial impairment of

liberty of a defendant who has been released on bail, and limiting the

possibilities that long delay will impair the ability of an accused to defend

himself. See United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776
(1966).

Specifically, we deal with a person who is imprisoned but who has

not been brought to trial expeditiously. As noted by the Supreme Court:

[T]he possibilities that long delay will impair the ability of an
accused to defend himself’ are markedly increased when the
accused is incarcerated in another jurisdiction. Confined in a
prison, perhaps far from the place where the offense covered
by the outstanding charge allegedly took place, his ability to
confer with potential defense witnesses, or even to keep track
of their whereabouts, is obviously impaired. And, while
‘evidence and witnesses disappear, memories fade, and events
lose their perspective,’ a man isolated in prison is powerless
 26
to exert his own investigative efforts to mitigate these erosive
effects of the passage of time.

Smith v. Hooey, 393 U.S. 374, 379–389, 89 S. Ct. 575, 578 (1969) (footnote

omitted) (quoting Note, Effective Guaranty of a Speedy Trial for Convicts in

Other Jurisdictions, 77 Yale L.J. 767, 769 (1968)). These observations

apply not only specifically to speedy trial claims but also to due process

and rule-based claims designed to ensure that criminal charges against a

defendant are promptly resolved.

B. Overview of Claims Raised in This Case. At the outset, it is

important to distinguish among the claims presented in this case.
Deaonsy Smith’s first claim is raised under Iowa Rule of Criminal

Procedure 2.33(2). This is a rule designed to implement speedy trial

principles in Iowa. The rule declares that “[i]t 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.” Id.

The rule has two time limitations. The rule provides that an adult

“arrested for the commission of a public offense” should be indicted within

forty-five days “unless good cause to the contrary is shown or the

defendant waives [speedy indictment].” Id. r. 2.33(2)(a). The rule further
provides that “a defendant indicted for a public offense” who has not

waived the right to a speedy trial shall “be brought to trial within 90 days”

of the indictment unless good cause is shown. Id. r. 2.33(2)(b). The

remedy for breach of the deadlines under the rule is dismissal. Id. at

2.33(2)(a)–(b).

A second type of claim raised by Smith relates to his constitutional

claim that the preaccusatorial delay in bringing formal charges against

him violated due process of law. The United States Supreme Court

elaborated on this type of due process claim in United States v. Marion,
 27

404 U.S. 307, 313–26, 92 S. Ct. 455, 459–66 (1971), and United States v.

Lovasco, 431 U.S. 783, 788–797, 97 S. Ct. 2044, 2048–2052 (1977). As

will be seen below, in order to establish a due process violation related to

prosecutorial delay, most lower courts have required a defendant show

that some kind of prejudice arose from the delay and that the delay was

unreasonable under the circumstances. The contours of each of these two

prongs are not well established. There is, for example, some question

regarding what exactly constitutes sufficient prejudice and, if sufficient

prejudice is found, how the reason for the delay is analyzed to determine

if a violation is present. On appeal, Smith asserts that his due process

rights were violated under both the Fifth Amendment and article I, section

9, of the Iowa Constitution.

A third type of claim raised by Smith is a constitutional claim based

on speedy trial concepts arising from the delay between his “arrest” and

his trial. The leading speedy trial cases of the United States Supreme

Court under the Sixth Amendment are Barker v. Wingo, 407 U.S. 514, 92

S. Ct. 2182 (1972), and its progeny. Barker announced a four factor test

for considering speedy trial challenges, the four factors to be considered

are: (1) the length of the delay, (2) the State’s reason for the delay, (3)
whether the defendant demanded a speedy trial, and (4) prejudice against

the defendant. Id. at 530, 92 S. Ct. at 2192. There is a substantial body

of state and federal law applying speedy trial concepts. On appeal, Smith

claims that his speedy trial rights were violated under both the Sixth

Amendment and article I, section 10, of the Iowa Constitution.

Although they are related, due process and speedy trial claims have

different features. For example, in most of the caselaw, prejudice is

required for a due process violation, while prejudice may be presumed as

a result of lengthy delays under speedy trial concepts. Because of the
 28

difficult challenge of showing prejudice, enforcement of due process

concepts may be more difficult for a defendant than enforcement of speedy

trial rights.

The due process and speedy trial clauses are, of course, open

textured and subject to plausible alternative interpretations. Courts are

thus left with interpretive choices rather than inexorable constitutional

commands in applying them. Under both clauses, courts have

traditionally utilized multi-factor tests with some ambiguity as to their

application. We should thus be very careful not to announce sweeping

statements on the law in the absence of full-blown advocacy and well

developed records.

A fourth question presented in this appeal is whether, aside from all

of the complicated constitutional arguments, the district court has the

inherent power to dismiss the action under Iowa Rule of Criminal

Procedure 2.33(1). This rule vests the district court with discretion to

dismiss criminal actions “in the furtherance of justice.” Id.

II. Speedy Indictment Under Iowa Rule of Criminal Procedure
2.33(2).

Iowa Rule of Criminal Procedure 2.33(2) provides a rule-based
framework for speedy trial issues. The rule declares that “[i]t 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.” Id. The

rule generally provides, among other things, that “[w]hen an adult is

arrested for the commission of a public offense,” an indictment must be

found within forty-five days. Id. r. 2.33(2)(a).

The majority correctly notes that in the 4–3 decision of State v.

Williams, 895 N.W.2d 856, 867 (Iowa 2017), the court announced a new

approach to the speedy indictment rule. The history of Iowa’s speedy trial
 29

rule is discussed at length in both the majority and minority opinions. Id.

at 860–67; id. at 870–73 (Hecht, J., dissenting). Prior to January 1, 1978,

the deadline for indictment provided in the Iowa Code ran from the date a

person was “held to answer.” See Iowa Code § 795.1 (1975); Williams, 895

N.W.2d at 860 (majority opinion). A new rule was promulgated, however,

which declared that the triggering point was the “arrest” of the offender for

the crime, not the date a person was held to answer. See State v. Schmitt,

290 N.W.2d 24, 26–27 (Iowa 1980), overruled on other grounds in Williams,

895 N.W.2d 856. Obviously, for those concerned with text, the change

from “held to answer” to “arrest” was significant. In State v. Schmitt, we

recognized the change in language and held that the time for a speedy trial

under the statute (and later under the court rule) ran from the time of the

“arrest,” as it is commonly understood, not from proceedings where a

defendant was “held to answer” under prior law. Id. Thirty years later, we

reaffirmed the existing approach in State v. Wing, 791 N.W.2d 243, 247–

52 (Iowa 2010), overruled on other grounds in Williams, 895 N.W.2d 856.

In Williams, the 4–3 majority took a different course. The majority

overturned Schmitt and Wing and essentially returned the law to its pre-

1978 state. Williams, 895 N.W.2d at 866. Under Williams, an “arrest”
does not occur until a defendant is arrested on a charge and taken to a

magistrate for an initial appearance. Id. at 867. I joined the court opinion

in Wing and Justice Hecht’s dissent in Williams. Under Williams, however,

it is clear that Smith’s claim for violation of Iowa Rule Civil Procedure

2.33(2) fails.

But in dissent, Justice Hecht observed that “a perverse incentive

arises for law enforcement officers to delay prosecutions—conduct that is

antithetical to the important goals of speedy trials.” Id. at 872 (Hecht, J.,

dissenting). The prosecution can delay triggering speedy trial rights under
 30

the new Williams approach by simply withholding court processes over

which the prosecution has complete control.

Having provided the State with the unilateral power to control the

timing of the event which triggers speedy trial considerations, it is critical

that this court provide meaningful oversight of the exercise of that

unilateral power. We cannot vest the State with the unilateral power to

determine the timing of triggering events for speedy trial rights and simply

walk away.

And there are troublesome potential scenarios. Suppose, for

instance, police investigate two crimes against a defendant. The

prosecutor proceeds on the first crime but using his discretion does not

initiate proceedings on the second crime until after the defendant served

his prison sentence arising from the first offense. Such a unilateral

approach by the prosecutor would deprive the defendant of an opportunity

to seek to have the sentences for the crimes run concurrently. Thus,

through unilateral action, the prosecutor has the capability of assuming

the role of judge by deciding that concurrent sentences are not available

simply through delaying “arrest” on the second crime until the prison

sentence on the first crime is served. See Hooey, 393 U.S. at 378, 89 S.
Ct. at 577 (describing the problem).

Such an approach would be anathema to speedy trial values. But I

must concede that such a process would not violate Iowa Rule of Criminal

Procedure 2.33(2) as reconfigured by this court in Williams, where facts

don’t matter as long as the formal filing of a charge has not occurred. But

while relief is not available under the rule as presently interpreted, that

does not foreclose a district court judge from, on a proper record,

exercising discretion to dismiss a charge in the furtherance of justice

under Iowa Rule of Criminal Procedure 2.33(1).
 31

III. Federal Due Process Claim Based on Preaccusatorial Delay.

A. Introduction. On Smith’s due process claim of excessive

preaccusatorial delay in violation of the Fifth Amendment of the United

States Constitution, the federal courts have generally adopted a two-part

test. First, a defendant claiming preaccusatorial delay must make a

showing of actual prejudice. Second, the delay must be unreasonable.

However, there are a number of troublesome issues behind the ordinary

formulation. What is “actual prejudice”? And what is the substantive

content of the second prong related to reasons for the delay? And how

does the first prong relate to the second prong?

B. Impact of Preaccusatorial Delay: Generalized Claim of

Spoliation and Faded Memories at Trial. Smith claims that the

inordinate delay in this case impacted his ability to present a defense at

trial. In terms of showing particularized prejudice at a subsequent trial

caused by preaccusatorial delay, the defendant faces a difficult challenge.

For example, although we know that memory never improves over time,

and always degrades, how does the defendant demonstrate what he cannot

remember or show what a witness has forgotten due to the passage of

time?
Yet, in contrast to cases involving speedy trial considerations, the

federal preaccusatory caselaw is unforgiving on this point. Under the

federal caselaw, a particularized showing of specific impact on the trial is

generally required. See Marion, 404 U.S. at 322, 92 S. Ct. at 464. I am

not sure this particularized principle is entirely correct or should always

be applicable, but I agree with the majority, as I must, that under the

federal preaccusatory due process caselaw, a generalized claim of

“spoliation” or “faded memories” is inadequate. I therefore concur with the
 32

majority on the federal due process issue related to the impact of the delay

on trial.

C. Impact of Preaccusatorial Delay: Possibility of Consecutive

Sentences.

1. Issue preservation. The majority addresses the troublesome

scenario raised in the introduction to this opinion, namely, whether Smith

may claim that the preaccusatorial delay amounted to a due process

violation because it deprived him of the possibility of consecutive

sentences for his separate crimes. This issue was not presented to the

district court below but is raised on appeal. The majority chooses to

bypass issue preservation and address the merits of the claim. The

majority canvasses the record on an issue not raised in the district court

and declares, with conviction, that the record is inadequate to support the

unraised claim. It is not surprising, however, that the record is deficient

on a claim not raised. Instead of addressing the merits on what is a

difficult issue with several troublesome aspects, I would follow our issue

preservation precedents and decline to address it. See, e.g., State v.

Prusha, 874 N.W.2d 627, 629–30 (Iowa 2016). Because of the majority’s

disposition, however, I address the question on the merits.
2. Sunclades and Trompeter. The majority makes a number of

choices in this case based upon the apparent authority of State v.

Sunclades, 305 N.W.2d 491 (Iowa 1981), overruled on other grounds in

Williams, 895 N.W.2d 856, and State v. Trompeter, 555 N.W.2d 468 (Iowa

1996). In my view, these cases do not inform the issue very much, and to

the extent they do, they cut against the majority’s approach.

In Sunclades, the court stated as an illustrative example that “[h]ad

[the] defendant established that the preindictment delay was occasioned

solely to avoid the possibility of concurrent sentencing, we would not
 33

condone such a late prosecution.” 305 N.W.2d at 495. From this brief

sentence, the majority discovers a broad rule of law: in order to show

actual prejudice from preaccusatorial delay arising from the lost

opportunity for concurrent sentences, the defendant bears the burden of

proving that the “sole” reason of the delay was avoiding the possibility of

concurrent sentencing and must show it is “likely” that a concurrent

sentence would have been imposed by a sentencing court if the

opportunity was presented.

First, the statement in Sunclades was dicta. Here is the claim

advanced in Sunclades according to the court:

Defendant contends that his indictment on the charges
at issue constitutes a denial of due process because the
sequence of events violated his sixth-amendment right to
effective assistance of counsel and, therefore, his ability to
intelligently exercise his fifth-amendment right against self-
incrimination. He asserts that, in advising a client during
trial, counsel has a right to assume that no further charges
will be filed after the client testifies, and if the State is allowed
to indict and try a defendant and subsequently indict the
defendant on other charges arising from the same incident,
the defendant would be inhibited from testifying for fear that
the State would use the testimony to bring additional charges.

Id. at 494. That’s it. So the question of whether actual prejudice may
arise from the lost opportunity to seek a concurrent sentence was not

presented in the case.

Further, unlike the majority, the Sunclades court said the defendant

must establish that the prosecution’s delay was to avoid “the possibility of

concurrent sentenc[es].” Id. at 495 (emphasis added). It did not, like the

majority says today, declare that the defendant must show that a

concurrent sentence is “likely.” The majority is thus not applying

Sunclades but is choosing to give the wrench another turn by replacing

the term “possibility” with “likely.” That is a big difference.
 34

As the majority observes, the Sunclades observation was quoted in

Trompeter, 555 N.W.2d at 471. In Trompeter, this court held that the

preaccusatorial delay of three years to permit the prosecution to try the

defendant as an adult violated due process. Id. at 469, 471. The Trompeter

court emphasized, however, that it was undisputed that the purpose of the

delay was to permit trial of the defendant as an adult. Id. at 469. In

Trompeter, the passing language in Sunclades about a delay that was

“solely” occasioned by vindictiveness was merely an example. Id. at 471.

It did not establish a nearly impossible test. Id. Further, like the

Sunclades dicta, the district court observed that many courts have held

that the “delay to avoid the possibility of concurrent sentencing is not a

legitimate reason for delay.” Id. (emphasis added). Like Sunclades, the

Trompeter court utilized the concept of “possibility” and not the “likely”

language employed by the majority. Id. The majority thus departs from

the explicit language used by Trompeter as well as the language in

Sunclades.

In addition, again looking to the language of the cases, Trompeter

declares that to prove preaccusatorial delay violated due process, the

defendant must show, among other things, that the delay was
“unreasonable.” Id. at 470. “Unreasonable” is a broad term that may be

proved in a number of different ways. The majority in this case requires

that if a defendant is actually prejudiced by being deprived of concurrent

sentences, it must prove that the prosecution’s sole reason for the delay

was avoiding concurrent sentences. But the general framework

established in Trompeter permits the defendant more broadly to show that

the delay was “unreasonable.” Id.; see also State v. Isaac, 537 N.W.2d 786,

788 (Iowa 1995). Thus, the majority chooses to give the caselaw one more

hard turn of the wrench.
 35

In short, there are a number of unresolved problems lurking behind

the question of whether a defendant has established a preaccusatorial due

process problem arising from the loss of the possibility of concurrent

sentences. First, does the defendant have the burden of showing that it

was “likely” that a court would have provided concurrent sentences if there

had been no preaccusatorial delay on the second charge? Second, who

has the burden of showing the reason for the preaccusatorial delay? Third,

must the defendant prove that prosecutorial delay is the “sole” reason for

the delay? And fourth, must a defendant show that the “sole” motivation

was prosecutorial desire to prevent concurrent sentencing?

3. Analysis of the impact of preaccusatorial delay on concurrent

sentences. On the first question, there is some authority for the

proposition in the majority opinion that a defendant must make some kind

of showing that he would have received concurrent sentences but for the

delay. But that seems a very difficult task. How do you show that a highly

discretionary choice is “likely”? It probably depends upon the facts of the

crimes but also depends upon what is turned up in a presentence report

and upon the sentencing philosophy of a particular judge.

As a result, I would apply the “possibility” language of Sunclades
and Trompeter and find that the possibility of receiving concurrent

sentences is sufficient to establish actual prejudice and require further

inquiry into the prosecution’s reason for the delay. There is ample support

for this approach in the caselaw. See, e.g., Turner v. State, 545 S.W.2d

133, 138–39 (Tex. Crim. App. 1976) (“[The defendant] was deprived of the

possibility of receiving a sentence at least partially concurrent with his

federal sentence . . . .”); State v. Simon, 928 P.2d 449, 451 (Wash. Ct. App.

1996) (characterizing as prejudice “a lost ability to serve partially

concurrent sentences”); Hadley v. State, 225 N.W.2d 461, 467 (Wis. 1975)
 36

(“[E]ven though a defendant is otherwise detained, the failure to have a

pending charge brought to trial completely eliminates the possibility that

concurrent sentences could be imposed.”). Of course, a defendant does

not prevail by showing that he lost an opportunity for concurrent

sentences, the defendant is only entitled to advance the inquiry into the

second element of preaccusatorial due process, namely, the reasons for

the delay.

On the second question related to reasons for the delay, I would first

consider who has the burden of proof on the issue. While the defendant

has the burden of proof generally on a preaccusatorial due process claim,

in my view, on the question of the reason for the preaccusatorial delay, the

prosecution has at least the burden of production, namely, to provide the

court with a reason for the preaccusatorial delay. See, e.g., United States

v. Claxton, 766 F.3d 280, 294–95 (3d Cir. 2014) (holding that the burden

of showing reason for delay rests with government); United States v. Banks,

761 F.3d 1163, 1183 (10th Cir. 2014) (same); Bailey v. State, 78 So.3d

308, 321 (Miss. 2012) (en banc) (holding that when a defendant shows

presumptively prejudicial delay, the burden shifts to state to show reason

for delay). If the prosecution stands mute, an inference may be drawn
against the government. The notion of putting the burden of production

on the State is reasonable, as ordinarily the defendant does not have

information related to the reasons for preaccusatorial delay within his

control. See, e.g., United States v. New York, New Haven, & Hartford R.R.,

355 U.S. 253, 256 n.5, 78 S. Ct. 212, 214 n.5 (“The ordinary rule, based

on considerations of fairness, does not place the burden upon a litigant of

establishing facts peculiarly within the knowledge of his adversary.”); cf.

Breese v. City of Burlington, 945 N.W.2d 12, 23 (Iowa 2020) (“Given the

function of the state-of-the-art defense, placing the burden on the party
 37

challenging the defense is illogical because the defendant will normally

have access to information regarding when the improvement was made.”).

Once the prosecution has met its burden of production, the defense

would be entitled to seek to establish that the purpose of the delay was

unreasonable or that, as a matter of fact, the purpose of the delay was

something other than that stated by the prosecution. Although not

directly addressed, the majority opinion appears to put the entire burden

on the defendant. That seems quite unfair.

Third, the question arises as to what amounts to “unreasonable”

delay. Trompeter, 555 N.W.2d at 470. Is the defendant required to prove

that the delay was specifically designed to defeat his ability to seek

concurrent sentences? Or, does it suffice to show that the reason for the

delay was “unreasonable,” caused by negligence, or, perhaps, simply

without good reason? In my view, the broader view is appropriate. While

the desire to cut off the possibility of concurrent sentences is a bad reason

for delay, there are other equally bad reasons. The majority chooses to

narrow the approach, but this makes little sense to me.

In my view, the best approach to the question of what amounts to

an unreasonable delay is a three-step process. First, the court determines
whether “actual prejudice” is present. Next, the court determines the

reason for the delay. Finally, the court balances the actual prejudice

against the reasons for the delay to determine the outcome of the issue.

Under this formulation, although vindictive motivation of the prosecution

might be very compelling in the balancing, it is not required.

Fourth, the question arises that if there is prosecutorial motivation

to deprive a defendant of the opportunity for concurrent sentences,

whether that motivation must be the “sole” reason for the delay. This

requirement reminds one of the endless debating on the issue of sole
 38

proximate cause in tort. See generally John G. Phillips, The Sole Proximate

Cause “Defense”: A Misfit in the World of Contribution and Comparative

Negligence, 22 S. Ill. U. L.J. 1 (1997) (discussing various elaborate issues

related to sole proximate cause). We can, if we choose, incorporate that

debate into the bosom of our constitutional jurisprudence, but I am

distinctly disinclined.

In any event, an attentive read of the Sunclades dicta reveals that it

does not purport to establish a requirement or threshold of motivation but

only provides a clear, safe example of when preaccusatorial delay would

unquestionably lead to a violation of due process. See Sunclades, 305

N.W.2d 494–95. The dicta was not designed to establish an outer

boundary of the claim. Instead, the dicta states an obvious example of a

case well within the outer boundary of the reach of due process that, as a

matter of law, presents a due process violation that does not turn on the

facts or circumstances of a particular case, does not require any balancing

of the cause of delay against actual prejudice, and simply presents the

clearest of due process violations.

I have also burrowed into cases in our vast computer library to test

the proposition that the “sole” motivation for the preaccusatorial delay
must be preventing a defendant from the possibility of obtaining

concurrent sentences. I did not find supportive authority for the “sole”

cause theory.

In any event, I would certainly not adopt it. The State cannot prevail

on a preaccusatorial delay claim by throwing in a dash of negligence, or a

dime of cost savings, or an observation of how busy the prosecutor’s office

is, or assertions that one cumulative witness remained to be interviewed,

to defeat an otherwise valid preaccusatory due process claim.
 39

So, as they say, “it’s complicated.” I do not agree with the multiple

choices made by the majority on the preaccusatorial delay resulting in loss

of the opportunity to obtain concurrent sentences. I would not answer the

questions, however, as the issue was not presented to the district court

and has not been preserved. See Prusha, 874 N.W.2d at 629–30. But, if

we are to consider the question, I dissent on the merits of the majority

approach and would remand the case to the district court for further

proceedings consistent with this opinion.

IV. State Due Process Claim Based on Preaccusatorial Delay.

On appeal, Smith presses a due process claim under article I,

section 9, of the Iowa Constitution. Before the district court, he did not

argue that prejudice arose from the loss of opportunity for concurrent

sentences or from adverse impact on parole. As noted above, those claims

are not properly before us. So, the majority offers its views on an issue

not raised in the district court and not substantially briefed on appeal in

order to close the door to future litigation on the issue.

A. Impact of Preaccusatorial Delay: Generalized Spoliation and

Faded Memories.

1. Preservation question. With respect to the general claims of
prejudice arising out of delay of trial, the record reveals that Smith in a

pro se pleading made a generic claim of “due process.” Then, in argument

before the district court, his counsel made reference to two cases involving

preaccusatorial due process: Trompeter, 555 N.W.2d 468, and State v.

Brown, 656 N.W.2d 355 (Iowa 2003). Both Trompeter and Brown deal

solely with violation of due process due to preaccusatorial delay under the

United States Constitution. See id.

We have correctly stated that a generic reference to due process

preserves claims under both the Iowa and Federal Constitution. See State
 40

v. Coleman, 890 N.W.2d 284, 286–87 (Iowa 2017); State v. Harrington, 805

N.W.2d 391, 393 n.3 (Iowa 2011) (quoting King v. State, 797 N.W.2d 565,

571 (Iowa 2011)). Although a generic claim of due process is sufficient to

raise a claim under both the State and Federal Constitutions, the citation

only to authority applying federal law means that, for the purposes of the

case, the substantive standards of the State and Federal Constitutions are

deemed to be the same, with the court reserving the right to apply the

standard in a different fashion. See Coleman, 890 N.W.2d at 286–87; State

v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011); State v. Bruegger, 773

N.W.2d 862, 883 (Iowa 2009).

We have no occasion in this case to decide whether a different

standard might apply under the Iowa Constitution as the issue was not

raised or litigated in this case. The issue also was not litigated in State v.

Isaac, 537 N.W.2d 786. Isaac’s seven-page brief makes no argument that

the due process provision of article I, section 9, of the Iowa Constitution

should be interpreted differently than the federal counterpart.

The issue was not presented, was not litigated, and was not decided

in Isaac. In short, like here, the defendant in Isaac did not claim that a

different standard should be applied under the Iowa Constitution. Isaac
was decided in an era where the parties and this court often simply

assumed that State and Federal Constitution required identical

approaches. See State v. Ochoa, 792 N.W.2d 260, 264–67 (Iowa 2010)

(discussing the history of the analysis by Iowa courts of federal and Iowa

constitutional provisions). Because the issue of whether the state

constitution should be interpreted differently from the Constitution of the

United States was not contested in Isaac, any narrative in Isaac implying

an analogous interpretation is not binding authority on the unlitigated

issue. See Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553,
 41

614–15 (Iowa 2017) (Appel, J., concurring in part and dissenting in part)

(providing citations for the proposition that where the parties agree that a

legal principle is applicable, the legal principle is binding on the parties

but is not a precedent precluding alternate interpretations).

And, the issue of whether the Iowa Constitution should be

interpreted differently was never presented to the district court. As a

result, under our established precedent, the issue of whether to apply a

different standard was not preserved. See, e.g., Prusha, 874 N.W.2d at

629–30. The majority thus offers its considered judgment on the different

standard issue without the issue being preserved below.

2. Merits. The federal standards for prejudice in this type of claim

are quite strenuous. Even reserving the right to apply the federal standard

differently under the Iowa Constitution, I cannot see a path for Smith to

prevail on this issue. In particular, applying federal standards outlined

earlier in this opinion, see Marion, 404 U.S. at 322, 92 S. Ct. at 64, a claim

of spoliation must have some support in the record beyond a declaration

of counsel. On the issue of faded memories, whether actual prejudice has

been shown on that ground would be dependent upon a totality of

circumstances that considers, among other things, the length of the delay,
the nature of the available evidence, and the complexity of the issues. See

id. But while trial courts should keep in mind that a witness cannot

remember what they have forgotten, a defendant must do more than

merely assert the conclusion that memories have faded. I would leave

open, however, the question which was not presented in this case, namely,

whether we should depart from federal standards in evaluating prejudice

in cases involving due process claims arising from preaccusatorial delay.
 42

B. Impact of Prosecutorial Delay on Consecutive Sentences.

The discussion of this issue under my analysis of the Federal Constitution

should apply here with equal force and is incorporated by reference here.

V. Constitutional Speedy Trial.

The Sixth Amendment and article I, section 10, of the Iowa

Constitution provide that an accused is entitled to a speedy trial. These

claims are separate from, though related to, claims under Iowa Rule of

Criminal Procedure 2.33(2)(a) and subsection (b), which are designed to

implement speedy trial rights. On appeal, Smith contends that that he

was denied speedy trial when the criminal complaint was filed in August

2018 but he was not arrested and formally charged until September 2019.

Under federal law, the Sixth Amendment speedy trial protections are

triggered only by arrest, formal indictment, or information. See Marion,

404 U.S. at 320, 92 S. Ct. at 463. But a number of state supreme courts

have interpreted the triggering event differently. See, e.g., Jacobson v.

Winter, 415 P.2d 297, 300 (Idaho 1966); People v. Mitchell, 825 N.E.2d

1241, 1244–45 (Ill. App. Ct. 2005); Commonwealth v. Butler, 985 N.E.2d

377, 710–13 (Mass. 2013).

On the speedy trial issues, the majority finds that the issues were
not preserved. I agree. Therefore, the question of whether we should follow

federal precedent, consider the approach of other states, or even develop

our own approach, is left open for another day.

VI. Potential Dismissal Under Iowa Rule of Criminal Procedure
2.33(1).

Iowa Rule of Criminal Procedure 2.33(1) provides “[t]he court, upon

its own motion or the application of the prosecuting attorney, in the

furtherance of justice, may order the dismissal of any pending criminal
 43

prosecution.” On appeal, Smith suggests that the order of dismissal may

be sustained as a dismissal in furtherance of justice under the rule.7

The problem here is there is nothing in the record to suggest that

the district court was asked to rely on the rule or did, in fact, rely upon

the rule. No party cited the rule in their papers before the district court.

The rule was not discussed at the hearing. And the rule is not mentioned

at all in the district court order. Under the circumstances, there is no

basis for this court to rule on an issue that was not presented below.

Textualists will note that the language of Iowa Rule of Criminal

Procedure 2.33(1) is broad and unqualified. We have stated that review of

dismissals in furtherance of justice is reviewable only for abuse of

discretion. See State v. Lundeen, 297 N.W.2d 232, 235 (Iowa 1980). At

the same time, we have generally suggested that the power should be used

sparingly. State v. Brumage, 435 N.W.2d 337, 340 (Iowa 1989). Yet, there

is a vein in the law suggesting that the rule may be utilized in cases

involving prosecutorial misdeeds. State v. Swartz, 541 N.W.2d 533, 540

(Iowa Ct. App. 1995) (en banc). There is a lot of running room here for

development of the law in a case where the issues were properly developed

below.
But, before a district court may dismiss under the rule, the district

court must provide the parties with notice, allow the parties to develop the

record they desire, and state on the record the reason why the district

court is granting dismissal in the furtherance of justice. In this case, we

do not know what kind of record could be made by the defendant or the

7It should be noted that dismissals granted by the district court “in the
furtherance of justice” under rule 2.33(1) are dismissals without prejudice if the
underlying offense is a felony or aggravated misdemeanor. Iowa R. Crim. Pro. 2.33(1). In
this case, Smith is charged with the offense of robbery in the second degree, a class “C”
felony. Iowa Code § 711.3. Yet, the statute of limitations for a Class “C” felony is three
years. Iowa Code § 802.3.
 44

State or what kind of reasoned discussion might be presented by the

district court. In particular, in a hearing under rule 2.33(1), the district

court might well require the State to explain the reason for prosecutorial

delay and not permit the turtle approach on the issue.

The cases in other jurisdictions dealing with dismissals in

furtherance of the interest of justice counsel caution with respect to broad

statements made without a fully developed record. Courts in other

jurisdictions have declared that cases may be dismissed in the furtherance

of justice as a result of prosecutorial delay. For example, in People v.

Jayson, the court declared that “[w]e are of the opinion that a trial court,

on its own motion, has [the] power . . . to dismiss an indictment in the

interests of justice, where the trial has been unduly delayed by the District

Attorney.” 295 N.Y.S.2d 378, 379 (N.Y. App. Div. 1968). In Brown v. Town

of Henrietta, the trial court dismissed a case in the furtherance of justice

where the compelling factor was delay in prosecution. 459 N.Y.S.2d 996,

998–99 (N.Y. Sup. Ct. 1983). In State v. Michielli, the Supreme Court of

Washington dismissed in the interest of justice a case where delay was

designed to harass the defendant. 937 P.2d 587, 594–96 (Wash. 1997)

(en banc). In Pueblo v. Montezuma Martinez, the court held that a seventy-
nine-day delay in holding a preliminary hearing was not enough for

granting a motion to dismiss, but the court warned that another delay

might produce a different answer. 5 P.R. Offic. Trans. 988, 991–92 (P.R.

1977).

These cases, of course, are fact specific, involve somewhat different

legal frameworks, and do not precisely parallel this case. But they do

counsel caution before we make sweeping statements on the unpreserved

issues. Although the majority suggests that it declines to go where the law
 45

will not allow it to travel, the cogent opinion of the Chief Justice and the

cases cited above demonstrate that there are other approaches.

Before making any interpretive choices, I would remand the “in

furtherance of justice” question to the district court for the hearing

required by the rule and the development of a full record. There was no

hearing on the “in furtherance of justice” question, and although many

facts are known, we don’t know what else might be developed. I would

prefer a full district court record before broadly opining on the issues

lurking on the potentially very important “in the furtherance of justice”

issue.

VII. Conclusion.

The majority opinion in this case chooses to address unpreserved

issues and, after making that choice, chooses to employ a cramped,

knuckled approach to the substantive law. On the unpreserved issues,

the majority chooses to paint with a broad brush designed to preempt

future due process or speedy trial challenges on the minimalist record

developed in this case. In my view, the discussion of unpreserved issues

is conclusory, does not address the nuances of the law, and is overbroad.

As a result, for the reasons expressed above, I concur in the result
to the extent I agree with the majority on the issues that were actually

preserved. I dissent, however, from the majority’s disposition of the

unpreserved issues on the merits.