State of Iowa v. James Nicholson ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0320
Filed May 26, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES NICHOLSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, Mary Ann Brown,
Judge.
A defendant appeals his conviction for maintaining a premises for drugs.
AFFIRMED.
William (Bill) Monroe of Law Office of William Monroe, Burlington, for
appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Special Counsel,
for appellee.
Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2
TABOR, Judge.
James Nicholson appeals his conviction for maintaining a premises for
drugs. He asserts a violation of his right to a speedy indictment and the due
process guarantee against prosecutorial delay. Because Nicholson failed to
preserve error on his claims, we affirm his conviction.
A procedural history will help frame his issues. In fall 2016, police executed
a search warrant at Nicholson’s home and discovered marijuana plants. Nicholson
was arrested and charged with manufacture of marijuana, possession with intent
to deliver marijuana, and failure to affix a drug tax stamp, in criminal case number
FECR007424. The court dismissed those charges in July 2018 on speedy trial
grounds. Five months later, the State filed a trial information charging Nicholson
with the current offense. See Iowa Code § 124.402(1)(e) (2016). This charge
arose from evidence collected in the same fall 2016 search.
On December 11, 2018, the county sheriff served Nicholson with a copy of
the trial information and order setting arraignment for January 2, 2019. The sheriff
did not arrest Nicholson. Nicholson requested appointed counsel, which the court
ordered. The court continued the arraignment to January 16, then to January 30,
then to February 6. On that third date, Nicholson filed a written plea of not guilty
and demanded a speedy trial. Two days later, he waived speedy trial and moved
to continue the February 12 trial date. The court granted the continuance.
3
In March, Nicholson challenged the search warrant in a motion to
suppress.1 The court denied his suppression motion in June and scheduled trial
for October. On the State’s motion, the court continued the trial for a month. The
State asked for another continuance in November. The court denied that motion,
reasoning, “This case has been on file for 11 months. It is time to bring it to a
close.” But two days later, the court reconsidered: “For good cause shown and
without objection by the defendant, the trial in this matter is continued.” The court
ordered: “Counsel for the parties shall contact the case coordinator and obtain a
trial date that meets the requirements of the speedy trial rules. . . . The court will
not continue this trial again.”
True to its word, the court held a jury trial in January 2020. Before jury
selection, the State moved to delete language from the trial information. It had
charged that Nicholson “did unlawfully and willfully keep any premises for
possessing and manufacturing a [s]chedule I controlled substance.” The State
asked to remove the words “and manufacturing” from the charging document. The
defense agreed the statute did not reflect the manufacturing language. But the
defense objected to the amendment, arguing it had “no way of knowing” whether
the judge approved the information based on the inclusion of manufacturing. The
court allowed the deletion. The jury found Nicholson guilty as charged. The court
sentenced him to one year incarceration and suspended all but thirty days.
1 The motion was inadvertently filed under the previous case number,
FECR007424, but “recast” into the new case.
4
Nicholson appeals, raising two issues.2 First, Nicholson argues the district
court should have dismissed the charge for maintaining a premises for drugs
because the State violated his right to a speedy indictment.3 He asserts this
prosecution stemmed from the fall 2016 arrest and his initial appearance in that
case triggered the speedy-indictment clock. Nicholson recognizes his argument
may clash with State v. Williams, 895 N.W.2d 856, 865 (Iowa 2017), which held an
“arrest” for speedy-indictment purposes is complete “[o]nce the arrested person is
before the magistrate” for an initial appearance. But he argues the analysis in
Williams is flawed.4 Second, Nicholson contends the State caused an
impermissible delay in the prosecution, which inhibited his defense.5
The State argues Nicholson waived his claims by not urging them at trial.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided
2 In his brief, Nicholson makes several references to the right to a speedy trial. But
he does not present an argument that the State violated the ninety-day rule. See
Iowa R. Crim. P. 2.33(2)(b). Thus, we do not read his brief as raising a separate
claim under that subparagraph.
3 The speedy-indictment rule states:
When an adult is arrested for the commission of a public
offense, . . . 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.
Iowa R. Crim. P. 2.33(2)(a).
4 Nicholson asked our supreme court to retain this appeal to reconsider
Williams. But the court transferred the case to us.
5 Nicholson refers to a due process violation, but he does not cite the constitutional
provisions protecting that right. See State v. Isaac, 537 N.W.2d 786, 788 (Iowa
1995) (citing U.S. Const. amend. XIV, § 1 and Iowa Const. art. I, § 9). He instead
cites the constitutional speedy-trial provisions. See U.S. Const. amend. VI and
Iowa Const. art. I, § 10.
5
by the district court before we will decide them on appeal.”). Anticipating the
State’s waiver argument, Nicholson offers two excuses for not preserving
error. First, he points to his effort to overturn Williams. He contends that because
the district court had to follow Williams, a motion to dismiss would have been
futile. He relies on a passage from that case, suggesting “it would make little sense
to require a party to argue existing law should be overturned before a court without
the authority to do so.” See Williams, 895 N.W.2d at 860 n.2. His reliance is
misplaced. That footnote addressed the appellee-State’s decision to argue in the
supreme court for reversal of existing case law when it did not do so in the district
court. That footnote does not allow an appellant-defendant to seek dismissal for
the first time on appeal.
Alternatively, Nicholson maintains we should consider error preserved
because trial counsel objected to amending the trial information to delete the word
manufacturing—a remnant of the prior case. According to Nicholson,
the issue of this prior case was something the [t]rial [c]ourt
considered and took into account in this case and therefore error as
to whether the [t]rial [c]ourt should have summarily dismissed this
case as violating [a]ppellant’s right to speedy indictment under Iowa
Rule of Criminal Procedure 2.33(2) should be considered as
preserved.
But the district court’s awareness of the earlier prosecution does not relieve
Nicholson from the burden of preserving error. True, a district court may apply to
dismiss a prosecution on its own motion under rule 2.33(2). But it must afford both
sides fair notice of its intent to do so. Cf. State v. Brumage, 435 N.W.2d 337, 340
(Iowa 1989) (discussing dismissals “in furtherance of justice”). Yes, the district
court mentioned speedy-trial concerns in setting the trial date. But it did not
6
consider dismissing under the speedy-indictment rule. And Nicholson did not bring
that issue to the court’s attention when it could have taken corrective action. See
State v. Krogmann, 804 N.W.2d 518, 524 (Iowa 2011). Nor did he argue the
prosecution was so delayed that it inhibited his defense. “We cannot ‘review’ an
issue unless it was raised in the trial court.” State v. Holbrook, 261 N.W.2d 480,
482 (Iowa 1978); see also Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012). Because we have nothing to review, we affirm the conviction.
AFFIRMED.