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State of Iowa v. Kelly Lee Weber Jr

March 13, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
KELLY LEE WEBER JR., DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer (motion to dismiss) and Bradley J. Harris (motion to suppress, trial, and sentencing), Judges.

The opinion of the court was delivered by: Potterfield, J.

Kelly Weber Jr. appeals following judgment and sentences entered upon convictions of conspiracy to distribute a controlled substance, possession with intent to deliver a controlled substance, and failure to affix drug tax stamps. AFFIRMED IN PART, SENTENCE VACATED IN PART.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Bower, J., takes no part.

Kelly Weber Jr. appeals following judgment and sentences entered upon convictions of conspiracy to distribute a controlled substance, possession with intent to deliver a controlled substance, and failure to affix drug tax stamps. He contends (1) the charges should be dismissed because he was not tried within ninety days of his arraignment, (2) the district court erred in denying his motion to suppress because the warrantless search of his vehicle was without probable cause, and (3) the convictions of conspiracy and possession with intent to deliver should merge. Because the trial court did not abuse its discretion in finding good cause for the delay of trial and probable cause and exigent circumstances supported the vehicle search, we affirm Weber's convictions. However, the convictions of conspiracy and possession with intent to deliver merge, and we therefore vacate the conspiracy sentence.

I.Speedy trial.

Kelly Weber Jr. was charged by trial information on July 8, 2011. A written arraignment and plea of not guilty was filed on July 19 wherein Weber "demand[ed] a speedy trial pursuant to Iowa Rule of Criminal Procedure 27(2)(b)" (now numbered rule 2.33(2)(b)).

The court entered an order, filed July 21, 2011, setting a pretrial conference for September 9, which provided that "[p]lea negotiations shall be completed by this date" and "[d]efendant may enter a guilty plea on this date." The order noted Weber was incarcerated in the Black Hawk County Jail.

On September 9, a pretrial conference was held at which the prosecutor and defense counsel appeared. The court entered a form order with a checkmark by the statement: "Further proceedings shall be held on the 22nd day of Sept., 2011, at 11:30 a.m."

A September 22, 2011 order states that the "matter was scheduled to come before the court on September 22, 2011, at 11:30 a.m. for entry of a guilty plea. Counsel requested that guilty plea proceeding be rescheduled for an additional three weeks."

On October 7, Weber signed a document agreeing to a session of "an informal proffer of information," and based on the information Weber provided, the State would "prepare a proposed agreement that would resolve the pending indictments and investigation."

On October 14, an order was filed stating, "On agreement, plea hearing is reset to Nov. 10, 2011 at 11:30." Two additional continuances by agreement of counsel were entered on November 10 and November 21.

On November 28, Weber filed a pro se motion to dismiss contending he had not waived his speedy trial rights. The State resisted and asked that the motion be considered at the hearing set for "further proceedings" on December 16.

Weber sent a handwritten letter to the court, which was filed on December 16, 2011. The letter reads, in part:

On or about September 9th, 2011 my attorney and I went over some options. The State was offering me 25 years which is the maximum sentence imposed on my crime. I refused to take the offer. Then my attorney brought it to my attention that someone was willing to talk to me if I ...


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