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Appeal from the Iowa District Court for Dubuque County, Randal J. Nigg, District Associate Judge. Justin Jentz appeals from his convictions for operating while intoxicated and possession of marijuana while being a third or greater offender, in violation of Iowa Code sections 321J.2(1)(a)(b) and 124.401(5) (2011), respectively.
Gina L. Kramer of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Ralph Potter, County Attorney, and Mark Hostager, Assistant County Attorney, for appellee.
Heard by Vogel, P.J. and Danilson and Tabor, JJ. Danilson, J., concurs; Tabor, J., dissents.
Justin Jentz was convicted of operating while intoxicated (OWI) and possession of marijuana while being a third or greater offender, in violation of Iowa Code sections 321J.2(1)(a)(b) and 124.401(5) (2011), respectively. Jentz raises several issues on appeal. He first claims his constitutional right to know the charges against him, as well as his right to due process, were violated when, after the first phase of the trial concluded, it came to light the possession charge was a D felony, not an aggravated misdemeanor; therefore, the district court erred in denying his motion in arrest of judgment that requested he not be charged with a D felony. However, Jentz did not preserve error on either constitutional claim, because the specific constitutional challenges Jentz now makes on appeal were not presented to the district court, and no ruling was made that we may review for appropriate application of constitutional principles. Jentz further argues the five-year term imposed was an illegal sentence because treatment of the possession offense as a D felony is contrary to the language and intent of Iowa Code section 124.401(5). We find the sentence appropriate under the plain language of the second paragraph of the statute authorizing the charge of a D felony. Jentz next asserts trial counsel was ineffective for failing to advise him the possession offense could be a D felony; however, we find the record is inadequate to address his ineffective assistance claim on direct appeal. Jentz also argues the district court erred in denying his motion for a judgment of acquittal, given the State did not provide enough evidence he was the person who committed the prior crimes that served as the predicate convictions for the possession charge's penalty enhancement. We hold that a unique name, in combination with the same birth date and the fact the crimes were all committed in a similar geographic location, is substantial evidence supporting the finding of identity. Jentz last asserts the district court erred
in denying his motion to dismiss for failure to bring him to trial within one year of arraignment, and that good cause did not exist for the delay. However, we find Jentz caused the delay by traveling to another state, incurring criminal charges and awaiting resolution of the other state's prosecution, and that this resolution constituted good cause for the delay. Therefore, we affirm Jentz's convictions.
I. Factual and Procedural Background
These charges arise from Jentz's activities on February 11, 2011. After responding to a call from a McDonald's restaurant employee who reported a driver in the drive-through lane appeared to be intoxicated, police followed the vehicle matching the description and observed it swerving out of the lane of travel by several feet before returning to the proper lane. Police pulled the vehicle over and identified Jentz as the driver. Upon searching his person, police found a four-gram bag of marijuana. Jentz's blood alcohol content was 0.107.
On February 16, 2011, the State filed a trial information and supplemental trial information charging Jentz with operating while intoxicated or drugged and possession of a Schedule I controlled substance, to wit: Marijuana, while being a third or greater offender. The possession offense was in violation of Iowa Code section 124.401(5). Jentz was arraigned the same day.
Jentz failed to appear for a final pretrial conference in April 2011, prompting the issuance of an arrest warrant, which was later quashed. A warrant was again issued for non-appearance in September 2011. Jentz was in Florida, and was arrested there on October 26, 2011, for aggravated battery. Jentz executed a waiver of extradition consenting to return to Iowa on November 7, 2011; however, the bondsman in Florida refused to post bond after learning Jentz had an outstanding warrant in Iowa. Jentz was subsequently held in police custody in Florida until he entered a plea on April 5, 2012. After being sentenced to time served, Jentz was picked up from Florida on April 18, 2012, by Iowa authorities. Jentz then appeared before the district court in Dubuque on April 25, 2012. Asserting a violation of the one-year speedy trial requirement under Iowa Rule of Criminal Procedure 2.33(2)(c), Jentz moved to dismiss the case. The district court denied the motion, determining good cause existed for the delay.
The trial proceeded in two phases. The first phase, which began on May 30, 2012, was to determine whether Jentz was guilty of the offenses of operating while intoxicated and possession of marijuana. The jury returned guilty verdicts as to both charges on June 1, 2012. The second phase of the trial required the jury to decide whether Jentz had been convicted of three previous drug offenses, which served as predicate offenses for the penalty enhancement. This phase began June 4, 2012.
On the morning of June 4, 2012, prior to the start of the second phase, the State informed the court and Jentz it intended to treat the possession of marijuana conviction as a class " D" felony rather than an aggravated misdemeanor, after having reviewed the case law and statute at issue. Both parties agreed neither had previously discussed the charge as being a class " D" felony, and that all plea negotiations were based on the assumption the possession charge was an aggravated misdemeanor. Finding the language of the statute controlled over the misconception of the attorneys, the court ruled the second phase of the trial should proceed.
Jentz moved for a judgment of acquittal after the State rested its case in the second phase. Jentz claimed the State's evidence
was not sufficient to support the conclusion he was the person identified in the arrest records, as the State only relied on the identity of name, birth date, and the fact the offenses occurred in eastern Iowa to show Jentz committed those crimes. The motion was denied, and the jury returned a verdict of guilty.
On June 21, 2012, Jentz filed a motion in arrest of judgment, stating his " 6th Amendment and 14th Amendment right to be informed of the nature of the charge against him" were violated when the State prosecuted him for a class " D" felony rather than an aggravated misdemeanor. He further argued the court misapplied the law in treating the possession offense as a class " D" felony. The district court denied the motion. Jentz was sentenced to 180 days for the operating while intoxicated conviction and a five-year indeterminate sentence on the marijuana conviction, with the sentences to run concurrently. Jentz now appeals, asserting several bases of error.
II. Denial of Motion in Arrest of Judgment
On appeal, Jentz refines his arguments and asserts that enhancing the level of the charge against him was a violation of his right " to know the charges against him and his rights to due process," under both the federal and Iowa constitutions. Therefore, he asserts the district court erred in denying his motion in arrest of judgment that requested he not be charged with a class " D" felony.
The State maintains Jentz did not preserve error on these arguments, as his objection at trial was not sufficient to preserve error. The State argues that rather than making a clear objection, when Jentz became aware the State intended to seek a felony level punishment, he merely equivocated. He did not raise the argument the State's actions constituted a violation of his constitutional right, or request any sort of relief. Jentz responds he adequately preserved error by making his opposition clear to the court and the court in fact ruled the State could proceed with seeking a class " D" felony punishment for the possession conviction, thus establishing it considered, and then overruled, Jentz's argument.
" The doctrine of error preservation has two components--a substantive component and a timeliness component." State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) (holding a one-page resistance that stated there was no legal basis for the State's actions did not properly preserve error with respect to the defendant's constitutional claims). To preserve error on appeal, the party must first state the objection in a timely manner, that is, at a time when corrective action can be taken, in addition to the basis for the objection. Id. at 524. The court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). " If the court's ruling indicates that the court considered the issue and necessarily ruled on it, even if the court's reasoning is 'incomplete or sparse,' the issue has been preserved." Id. (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)).
Here, the discussion regarding the felony classification occurred the afternoon of June 4, 2012. The following exchange took place:
The Court: Is it the State's position that if the jury finds the Defendant was indeed convicted of the manufacturing charge, that the defendant is now looking at a felony as opposed to an aggravated misdemeanor?
The State: That's our reading of that section.
The Court: I just wanted to be clear about it.
The court went on to discuss the case State v. Cortez, with argument from Jentz regarding the proper interpretation. The court and Jentz then proceeded with the following discussion:
Defense Counsel: Your Honor, I guess I'm a bit at a loss here. We're talking about a felony now?
The Court: Yeah.
Defense Counsel: Because up until now we had never talked about this being a felony. This wasn't charged as a felony. This is charged as a misdemeanor the entire while. It has never gone through any felony procedure. Everything was always handled as a misdemeanor, and up until right now, I was under the assumption that even if everything came in, this was still going to be an aggravated misdemeanor.
The Court: That's why I asked it.
Defense Counsel: Correct.
The Court: Because that was my impression, but only from a notation made on the Trial Information where it talked about the nature of the offense being an SR or AG or whatever. That's the only place that I got that . . . . [T]he law doesn't change in the sense of the facts are there, you've always known what the facts are that they were alleging, you have known the offenses, the predicates that they were talking about, and so I'm not sure that the Defendant is in a position to cry foul at this point because of an interpretation of whether he's facing an aggravated or a felony, and as far as what conversations you may have had with the State regarding the charge and your negotiations, obviously, I don't know anything about that or how that may play into things.
Defense Counsel: I can inform the Court that the felony has never come up in any of these cases.
The Court: Okay. So what would you have me do if I find that he is correct in terms of if, indeed, the jury finds that he is the person that was convicted of manufacturing marijuana, he's going ...