Opinion
No. 5-752 / 04-1996
Filed December 7, 2005
Appeal from the Iowa District Court for Tama County, Stephen C. Gerard II, District Associate Judge (motion), and Douglas S. Russell, Judge (trial and sentencing).
Michael Wayne Young appeals the district court's judgment denying his motion for a new trial. AFFIRMED.
Michael Young, Tama, pro se, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, and Brent D. Heeren, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Michael Wayne Young appeals the district court's judgment denying his motion for a new trial. Specifically, he argues that his trial was in violation of both his statutory and his constitutional speedy trial rights. He claims (1) he was not given notice of his pretrial date, his trial date, or his failure to appear and (2) his bail was not forfeited. We affirm.
I. Background Facts and Proceedings
Young was arrested for assaulting an officer on February 20, 2004. He was released on bail on February 23. The State filed a trial information charging him with serious assault on a peace officer in violation of Iowa Code sections 708.1, 708.3A, and 708.3A(4) (2003) on March 30. Young was arraigned on April 20. Later on April 20, the court filed an arraignment order. The order set Young's pretrial conference for May 4 and his trial for May 17. A notation on the order indicates it was mailed to Young on April 20. Young filed a discovery request and notice of an affirmative defense on April 28. On May 4, Young failed to appear for his pretrial conference. The court issued an arrest warrant on May 10. Young's ninety-day speedy trial period expired on June 28. On August 2, Young was arrested when he appeared at the courthouse to inquire about his case. He was released on his previous bond. He filed a motion to have the case dismissed due to violation of his speedy trial rights. The district court denied the motion. The supreme court denied his interlocutory appeal. His jury trial began, and he was found guilty, on October 18. Young appeals.
Notice of this formal arraignment was sent to Young at his home address. He personally appeared at the arraignment.
II. Standard of Review
Young alleges violations of both his statutory and constitutional speedy trial rights. We review his statutory claim for correction of errors at law. State v. Olson, 528 N.W.2d 651, 653 (Iowa 1995). It is, however, within the trial court's discretion to refuse to dismiss a case under several exceptions to the speedy trial rule. Id. Therefore, our ultimate review of the statutory speedy trial claims is for abuse of discretion. Id.
We review Young's constitutional claims de novo. In re Detention of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). Young urges us to use a plain error review. Plain error review is used when a court reviews a constitutional claim that has not been preserved. State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978). Iowa does not recognize such a rule. State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct.App. 1997). It is well-settled in our courts that constitutional claims, like any other claim, must be preserved for appellate review. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987); Johnson, 272 N.W.2d at 484, (Iowa 1978). Because Young's claim has been properly preserved, there is no need to re-address our rule on plain error review.
III. Merits
Young claims his right to a speedy trial was violated because he was not tried until eight months after his arrest. He claims he failed to appear at the originally appointed date because he failed to receive notice of (1) his pretrial and trial dates and (2) his own failure to appear. He also argues that if he failed to appear, the district court was bound to both forfeit his bail and send his surety notice of the forfeiture. We address each of his arguments in turn.
Iowa Rule of Criminal Procedure 2.33, Article I, section 10 of the Iowa Constitution, and the Sixth Amendment to the United States Constitution all guarantee an individual the right to a speedy trial. Olson, 528 N.W.2d at 653. We have held that the protections in rule 2.33 are more stringent than those guaranteed by the Constitution. State v. Nelson, 600 N.W.2d 598, 600 (Iowa 1999). Rule 2.33(2)( b) states:
If a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order indictment to be dismissed unless good cause to the contrary be shown.
Under the rule, the court must dismiss an indictment unless (1) the defendant waives the right; (2) the delay is attributable to the defendant or (3) there is "good cause" for the delay. Nelson, 600 N.W.2d at 600.
In this case, Young failed to appear. Because his reasons for not appearing allege fault with the State, we address them before returning to his speedy trial claim. We must determine whether his failure to appear may constitute good cause for the State's delay in trying him. See State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975) ("[d]elay attributable to the defendant may constitute good cause preventing the State from carrying out its obligation [to provide a speedy trial]").
First, Young claims he never received notice of his pretrial or trial date. A notation in the corner of his arraignment order creates a presumption that the order was indeed mailed to him. See Liberty Mutual Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 858 (Iowa 1984) (noting that proof of mailing rests on proof of the practice of mailing in the clerk's office). In order to show he failed to receive notice, Young must rebut the presumption that notice was served when the clerk mailed the order. Young's mere assertion he did not receive notice is not enough to rebut this presumption.
Second, Young argues that he should have been sent notice of his failure to appear. He also argues that his bail should have been forfeited. We suspect Young is pursuing the court's decision not to forfeit his bail because, if his bail had been forfeited, his surety (his father who lived at the same address) would have received further notice. Both of his arguments are unpersuasive. Under Iowa Code section 811.6, when a defendant fails to appear, "the court must direct an entry of the failure to be made of record, and the undertaking of the defendant's bail, or the money deposited, is thereupon forfeited." The section goes on to describe the notice that must be given to the defendant's surety before bail is forfeited. Iowa Code § 811.6.
While the language of the statute is mandatory in its terms, the decision to pursue forfeiture of bail is discretionary. We come to this conclusion because (1) forfeiture is a separate action and (2) previous case law indicates forfeiture is within the court's discretion. First, forfeiture is a separate civil action, not a part of the criminal proceeding. Thus, it is within the court's or the prosecution's discretion whether to institute the proceedings. See State v. Iowa Dist. Court, 568 N.W.2d 505, 508 (Iowa 1997) ("[t]he decision whether to prosecute, and if so on what charges, is a matter ordinarily within the discretion of the duly elected prosecutor"). Finally, our case law instructs it is within the court's discretion to enter judgment for the amount of the bail on the forfeiture. State v. Cain, 608 N.W.2d 793, 795 (Iowa 2000); State v. Costello, 489 N.W.2d 735, 738 (Iowa 1992); State v. Shell, 242 Iowa 260, 264, 45 N.W.2d 851, 854 (1951). Further, "[t]he purpose of the criminal law is to secure the punishment of criminals, and not to have the state profit financially by the collection of a judgment on a forfeited bail bond." State v. Thomason, 226 Iowa 1057, 1066, 285 N.W. 636, 640 (1939) (quoting Bruntlett v. Carroll County, 193 Iowa 875, 884, 188 N.W. 142, 145 (1921)).
In this case, rather than forfeit Young's bail, the district court entered an order of failure to appear pursuant to section 811.7. Under that section, no notice is required. We find no abuse of discretion in the district court's choice. Thus, to answer Young's argument, it is not necessary to either send a failure to appear notice or institute forfeiture proceedings.
We therefore return to Young's speedy trial claim. Because he cannot show any good reason why he failed to appear, we conclude the delay is attributable to him. "The State's duty to provide a defendant a speedy trial does not require that it play a game of hide-and-go-seek with him." Lyles, 225 N.W.2d at 126. Young's failure to appear constitutes good cause for the State's delay in trying him. See id. AFFIRMED.