Ross Cashen, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0038
Filed November 9, 2016
ROSS CASHEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Delaware County, Monica L.
Ackley, Judge.
Applicant appeals the district court decision denying his application for
postconviction relief. AFFIRMED.
Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Ross Cashen appeals the district court ruling denying his application for
postconviction relief. We find Cashen has not shown he received ineffective
assistance due to defense counsel’s failure to file a timely motion to dismiss for
lack of a speedy indictment or failure to explain the sex offender registry
requirements. We affirm the district court.
I. Background Facts & Proceedings
On April 25, 2007, a complaint was filed in Delaware County accusing
Cashen of sexual abuse in the second degree. The complaint alleged Cashen
had engaged in sex acts with his eleven-year-old step-sister. A warrant for
Cashen’s arrest was issued on the same day. Cashen was in jail in Marshall
County, on unrelated charges, at the time.
The arrest warrant was executed and returned on April 14, 2008. Cashen
posted bail on April 15, 2008. After agreeing to a delay, he made his initial
appearance and filed a request for the appointment of an attorney on April 21,
2008. A trial information was filed on May 12, 2008, charging Cashen with
second-degree sexual abuse, a class “B” felony.
On October 12, 2009, Cashen filed a motion to dismiss the trial
information on the ground it had not been filed within forty-five days after he was
arrested, in violation of Iowa Rule of Criminal Procedure 2.33(2)(a). The State
resisted the motion, claiming Cashen had been arrested on April 11, 2008, and
the trial information, filed on May 12, 2008, had been filed within forty-five days.
The district court denied the motion to dismiss, finding it was not timely under
rule 2.11(4).
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Cashen entered into a plea agreement in which he agreed to plead guilty
to lascivious acts with a child, in violation of Iowa Code section 709.8(2) (2007), a
class “D” felony. He was sentenced to a term of imprisonment not to exceed five
years. Cashen’s conviction was affirmed on appeal. State v. Cashen, No. 10-
0490, 2011 WL 3689144, at *5 (Iowa Ct. App. Aug. 24, 2011).
Cashen filed an application for postconviction relief on September 27,
2012. He claimed he received ineffective assistance because defense counsel
did not file a timely motion to dismiss based on rule 2.33(2)(a). After a
postconviction hearing, the district court denied Cashen’s request for
postconviction relief, finding, “The trial information was filed 28 days after Cashen
was first arrested.” Cashen now appeals.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied the applicant
a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has
the burden to show by a preponderance of the evidence counsel was ineffective.
State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
III. Ineffective Assistance
A. Cashen claims he received ineffective assistance because defense
counsel did not file a timely motion to dismiss on speedy indictment grounds.
Rule 2.33(2)(a) provides, “When an adult is arrested for a public offense . . . and
an indictment is not found against the defendant within 45 days, the court must
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order the prosecution to be dismissed, unless good cause to the contrary is
shown or the defendant waives the right thereto.” “The indictment can be in the
form of a trial information.” Ennenga, 812 N.W.2d at 702; see also Iowa R. Crim.
P. 2.5(5).
“[T]he speedy indictment rule serves to ‘relieve an accused of the anxiety
associated with’ the suspension of a prosecution, provide for the ‘reasonably
prompt administration of justice,’ prevent the loss of evidence, and maintain a fair
process.” State v. Penn-Kennedy, 862 N.W.2d 384, 387 (Iowa 2015) (citation
omitted). The speedy indictment time period begins to run when a person is
arrested. State v. Wing, 791 N.W.2d 243, 247 (Iowa 2010). An “arrest” occurs
for purposes of rule 2.33(2)(a) when “a reasonable person in the defendant’s
position would have believed an arrest occurred, including whether the arresting
officer manifested a purpose to arrest.” Id. at 249. “A person must be in the
custody of county authorities of the county issuing the arrest warrant for a person
to be under ‘arrest’ in that county.” State v. Waters, 515 N.W.2d 562, 566 (Iowa
Ct. App. 1994). Whether a person has been “arrested” must be determined on a
case-by-case basis. Wing, 791 N.W.2d at 248.
Cashen relies upon a Manchester Police Department arrest report dated
April 24, 2007. At the postconviction hearing, Cashen stated while he was in the
Marshall County jail, “I had the jailers come in, and hand me a piece of paper,”
which he believed was the Delaware County arrest warrant. Cashen stated he
believed this was soon after he was brought back to jail on April 19, 2007.
Officer Rick Carnicle of the Manchester Police Department testified the
arrest report was prepared on April 24, 2007, but Cashen was not arrested at
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that time. Officer Carnicle testified it was a common practice of the department
to prepare an arrest report at the same time as an arrest warrant, whether the
person was actually arrested at the time or not. Mary Kleinschrodt, the police
records administrator, testified an arrest report could be created for someone
who was not actually arrested in order to get their information into the computer
system. Looking at Cashen’s arrest report, Kleinschrodt stated Cashen could not
have been arrested on April 24, 2007, because the date was previous to the date
on the warrant. The State also presented a print-out from Iowa Courts Online,
which showed the criminal complaint and arrest warrant were filed on April 25,
2007, then no further activity occurred until the warrant was returned on April 14,
2008.
The district court considered this evidence and concluded Cashen’s
argument was “not supported by the docketing record or the filings.” The court
stated,
The credible evidence is that [Cashen] was arrested and made his
initial appearance in Delaware County on April 21, 2008.
Therefore, if a motion to dismiss had been filed, it would have
appropriately been denied as the Delaware County Attorney
complied with his obligation to file the trial information timely.
Cashen could not prove he was prejudiced as a result of his
first attorney’s failure to file the motion to dismiss.
We agree with the district court’s conclusions. The evidence does not
support Cashen’s claim the prosecution should have been dismissed because
more than forty-five days passed between the date he was arrested and the date
the trial information was filed. Because a timely motion to dismiss pursuant to
rule 2.33(2)(a) would have been denied, Cashen is unable to show he received
ineffective assistance due to defense counsel’s failure to file a timely motion.
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See State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (“Counsel does not fail to
perform an essential duty by failing to raise a meritless objection.”).
B. On appeal, Cashen claims he received ineffective assistance
because defense counsel did not explain to him that he would be required to
register as a sex offender for the rest of his life. During the postconviction
hearing, Cashen stated at the time he entered his guilty plea he was required to
register as a sex offender for ten years, but the law had changed since then and
“they” were telling him he now had to register for life. The prosecutor then stated
since Cashen’s claim involved an issue which arose after his conviction, he
needed to bring it in a separate proceeding. Cashen stated, “All right.” The
district court did not address the issue in its ruling, although the court specifically
stated Cashen was given the opportunity to raise all of the issues he wanted to
raise.
Cashen has the burden to show by a preponderance of the evidence
counsel was ineffective. See McKettrick, 480 N.W.2d at 55. Cashen did not
testify as to what he was told by defense counsel concerning the sex offender
registry. Also, by his testimony at the hearing, it appears his complaint does not
refer to something that happened during the time he was represented by defense
counsel, but rather is based on something that occurred later. We conclude
Cashen has not met his burden to show he received ineffective assistance on
this ground.
We affirm the decision of the district court denying Cashen’s application
for postconviction relief.
AFFIRMED.