Randy Mitchell Copenhaver v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 20-1259
Filed December 15, 2021
RANDY MITCHELL COPENHAVER,
Applicant-Appellant,

Vs.

STATE OF IOWA,
Respondent-Appellee.

Appeal from the lowa District Court for Linn County, Fae Hoover Grinde,

Judge.

Randy Copenhaver appeals the denial of his application for postconviction

relief. AFFIRMED.

Fred Stiefel, Victor, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickobaum (until withdrawal)

and Kevin Cmelik, Assistant Attorneys General, for appellee State.

Considered by Mullins, P.J., and May and Ahlers, Ju.
MAY, Judge.

Randy Copenhaver appeals from the denial of his application for
postconviction relief (PCR). On appeal, he claims his trial counsel was ineffective
for failing to move for dismissal based on a speedy-trial violation. We affirm.

We review ineffective-assistance claims de novo. Castro v. State, 795
N.W.2d 789, 792 (lowa 2011). To prevail on his ineffective-assistance-of-counsel
claim, Copenhaver “must demonstrate ‘(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.” Lado v. State, 804
N.W.2d 248, 251 (lowa 2011) (citation omitted). “Both elements must be proven
by a preponderance of the evidence.” Ledezema v. State, 626 N.W.2d 134, 142
(lowa 2001). “Counsel, of course, does not provide ineffective assistance if the
underlying claim is meritless.” State v. Halverson, 857 N.W.2d 632, 635 (lowa
2015).

Copenhaver claims his trial counsel should have moved for dismissal due
to a speedy-trial violation. lowa Rule Criminal Procedure 2.33(2)(b) provides, “Ifa
defendant indicted for a public offense has not waived the defendant’s right to
speedy trial the defendant must be brought to trial within 90 days after indictment
is found or the court must order the indictment to be dismissed unless good cause
to the contrary be shown.” “Under this rule, a criminal charge must be dismissed
if the trial does not commence within ninety days from the filing of the charging
instrument ‘unless the State proves (1) defendant’s waiver of speedy trial, (2) delay

cee

attributable to the defendant, or (3) “good cause” for the delay.” State v. Winters,
690 N.W.2d 903, 908 (lowa 2005) (citation omitted). And in instances where a

defendant waives speedy trial and then withdraws that waiver, “the defendant must
be tried within ninety days from the date of the withdrawal unless good cause to
the contrary be shown.” State v Hamilton, 309 N.W.2d 471, 475 (lowa 1981).

The PCR court summarized the relevant timeline in the underlying criminal
proceeding as follows:

The trial information in this case was filed on March 2, 2010.
On the same date, the district court entered an order setting the case
for trial, noting that speedy trial was not waived. On March 15, 2010
Mr. Copenhaver moved the court by written motion to appoint new
counsel. On March 24, 2010 the court appointed a new attorney to
represent Mr. Copenhaver. On April 30, 2010 Mr. Copenhaver’s
attorney filed a written waiver of right to speedy trial signed by Mr.
Copenhaver. On May 12 and May 26, 2010 Mr. Copenhaver again
moved the court in writing to appoint new counsel. On June 10, 2010
the district court entered an order noting that Mr. Copenhaver
withdrew his request for new counsel. On June 11, 2010
Mr. Copenhaver moved to continue the trial date. Mr. Copenhaver
reasserted his right to speedy trial on June 16, 2010. The district
court rescheduled the trial for August 23, 2010 and set a pretrial
conference for August 12, 2010. On July 23, 2010 Mr. Copenhaver
filed a notice he would take discovery depositions. On August 13,
2010, the court rescheduled the trial [for October 18, 2010 and the
pretrial conference] for October 7, 2010, on Mr. Copenhaver’s
motion. On October 8, 2010 the court again reset the pretrial
conference and trial dates for January 13 and 24, 2011, respectively.

Copenhaver focuses on the August 13, 2010 order rescheduling trial. He
claims (1) the order was not actually on his motion; so it cannot be used as a waiver
of speedy trial and (2) by October, the speedy-trial deadline had passed because
he reasserted his speedy-trial rights on June 16, creating a September 14

deadline. So he claims counsel was ineffective for failing to file a motion to dismiss.
We disagree. The August 13 order contained the following notations:

[ ] By agreement of counsel, [ ] On State's motion, x) On Defendant's motion,

fx] ‘Trial is reset for Metvbr 8 _. 20/0, at 9 a.m.

64) Defendant waives / will waive the right to a speedy trial.

| | Defendant will waive / has waiwed the right to a jury in open court and/or in writing.

[ |] Defendant, on the record, voluntarily and intelligently waived the right to a trial within one year of
arraignment and requested that the trial be continued.

(=) Pretrial conference is reset for letober qd md at _ Ital fm
{ ] Motton to Suppress / Dismiss is set for hearing at 7., OM, 2.

{ ] Hearing on _isset for 20, at im.

These notations plainly show that trial was reset on Copenhaver’s motion.
They also show Copenhaver was waiving his speedy-trial right. Because of our
presumption of regularity, we presume the court's notations were correct. See,
e.g., Cass Cnty. v. Audubon Cnty., 266 N.W. 293, 296 (lowa 1936) (noting “the
presumption that the action of the court was regular and lawful in all respects”).
And Copenhaver has failed to rebut that presumption: At the PCR hearing, he
presented no evidence to show that (1) he did not actually move to reset trial or
(2) he did not waive his speedy-trial right at the August pretrial hearing. So we
conclude the August 13 order was correct; Copenhaver waived his right to speedy
trial; and the delay in trial was attributable to Copenhaver. This means that any
motion to dismiss for a speedy-trial violation would have been meritless. And we
will not find counsel was ineffective for failing to pursue a meritless motion. See
Halverson, 857 N.W.2d at 635.

AFFIRMED.