January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
TASHA NICOLE COMSTOCK, Defendant-Appellant.
from the Iowa District Court for Bremer County, Peter B.
Newell, District Associate Judge.
defendant appeals her conviction for third-degree theft on
speedy-indictment grounds. REVERSED AND REMANDED FOR
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
Nicole Comstock appeals her conviction for theft in the third
degree on speedy-indictment grounds. Comstock contends the
State violated Iowa Rule of Criminal Procedure 2.33(2)(a) by
waiting 269 days after her initial appearance to file its
trial information. Because we find Comstock was arrested when
she appeared in court and waived a preliminary hearing and
the State did not file its trial information within
forty-five days of that appearance, we reverse Comstock's
conviction and remand for dismissal of the trial information.
Facts and Prior Proceedings
August 23, 2005, a sergeant with the Waverly Police
Department filed a criminal complaint accusing Comstock of
third-degree theft. The complaint alleged Comstock had
presented four checks written on a closed bank account to a
Waverly Wal-Mart in May 2005. A magistrate issued a summons
ordering Comstock to appear and answer the theft charge, and
Comstock did so on October 14. Comstock also applied for
counsel and waived a preliminary hearing at her October 14
appearance. After Comstock signed an agreement providing she
would not leave Iowa without the written consent of the
court, would keep her attorney apprised of her whereabouts,
and would personally appear in court for all required
hearings, the court released her on her own recognizance
nine months later, on July 10, 2006, the State filed a trial
information charging Comstock with aggravated-misdemeanor
theft, in violation of Iowa Code sections 714.1 and 714.2
(2005). Comstock failed to appear for her arraignment, and
the court issued a warrant for her arrest on August 7, 2006.
She was not arrested on the outstanding warrant until January
March 27, 2015, Comstock filed a motion to dismiss, alleging
a speedy-indictment violation. In resistance, the State did
not attempt to show good cause for the delay. Instead, the
State cited State v. Mahan, 483 N.W.2d 1, 1-2 (Iowa
1992), in support of its contention Comstock had not been
arrested before the State filed its trial information and,
because no arrest occurred, the speedy-indictment rule had
not been triggered. Adopting the State's rationale, the
district court denied Comstock's motion to dismiss. On
November 18, Comstock waived her right to a jury trial and
agreed to a trial on the minutes of testimony. Following
trial, the court found Comstock guilty.
Scope and Standard of Review
review the district court's interpretation of rule
2.33(2)(a) for correction of legal error. State v.
Penn-Kennedy, 862 N.W.2d 384, 386 (Iowa 2015). If the
fact-findings are supported by substantial evidence, we are
bound by them. Id.
legislature prefaced the speedy-indictment rule with a broad
policy declaration: "It is the public policy of the
state of Iowa that criminal prosecutions be concluded at the
earliest possible time consistent with a fair trial to both
parties." Iowa R. Crim. P. 2.33(2). The substance of the
speedy-indictment rule immediately follows:
When an adult is arrested for the commission of a public
offense . . . and an indictment is not found against the
defendant within [forty-five] 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
Crim. P. 2.33(2)(a); see also Iowa R. Crim. P.
2.5(5) ("The term 'indictment' embraces the
trial information, and all provisions of law applying to
prosecutions on indictments apply also to informations . . .
."). The speedy-indictment rule serves to "relieve
an accused of the anxiety associated with a suspended
prosecution and provide reasonably prompt administration of
justice." State v. Wing, 791 N.W.2d 243, 246
(Iowa 2010) (quoting State v. Delockroy, 559 N.W.2d
43, 46 (Iowa Ct. App. 1996)). Moreover, it helps prevent the
serious harm that arises from the "impairment of the
accused's defense due to diminished memories and loss of
exculpatory evidence." Id. at 247 (quoting
State v. Olson, 528 N.W.2d 651, 654 (Iowa Ct. App.
1995)). Consistent with the nature of these policy
considerations, a violation of the speedy-indictment rule
results in an "absolute dismissal, . . . prohibiting
reinstatement or refiling of an information or indictment
charging the same offense." Ennenga v. State,
812 N.W.2d 696, 701 (Iowa 2012) (quoting State v.
Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008)).
case, we are asked to decide whether a person who is issued a
citation and summons by a magistrate has been
"arrested" within the meaning of rule 2.33(2)(a)
when-in compliance with the summons-that person makes an
initial appearance in court and waives a preliminary hearing.
To guide our interpretation, we examine the statutory
definitions of "arrest" and the line of cases
establishing the constructive-arrest doctrine under rule
late 1970s, our legislature rewrote the speedy-indictment
rule to start the clock at the time of arrest. See
Wing, 791 N.W.2d at 247 (discussing history of the
speedy-indictment rule). Before that rewrite, the
speedy-indictment period commenced when a person was
"held to answer" for a public offense, a phrase
"defined to mean being held to answer by a preliminary
examination or waiver of same." See State v.
Schmitt, 290 N.W.2d 24, 27 (Iowa 1980) (comparing
"held to answer" language with
immediately following the legislature's revision
construed the term "arrest" narrowly, limited to
the definitions in Iowa Code sections 804.5,  804.14,
805.1(4). See id. at 26-27 (citing section
804.5 and defining "arrested" as "being
physically taken into custody in the manner authorized by
law"); see also Mahan, 483 N.W.2d at
1-2 (limiting "constructive arrest doctrine" to
issuance of a citation in lieu of arrest under Iowa Code
section 805.1(4)). But in 2010, the court adopted the current
framework, holding a defendant has been arrested for
speedy-indictment purposes 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." See Wing, 791 N.W.2d at
argues she was officially arrested when she "submitted
to the jurisdiction of the court" on October 14, 2005,
at the time of her initial appearance. Citing
Wing's reasonable-person standard, she contends:
A reasonable person placed in the same situation would assume
that one had been "arrested" for a charge when a
magistrate or judge informs them of what they have been
charged with and that person is required to sign and
acknowledge rules of release from "custody" and
face further contempt findings should she not follow the
"orders of the court."
State counters Comstock was never arrested, relying on
Mahan, in which the court found the issuance of a
citation by a magistrate was not a constructive arrest under
our speedy-indictment rule. See 483 N.W.2d at 2.
examining the case law defining the scope of an arrest under
the speedy-indictment rule, we find the situation before us
does not fit neatly within the established framework. The
circumstances here differ from Wing; we are not
deciding if police interaction with Comstock amounted to an
arrest, rather we are concerned about her submission to
custody at the time of the initial appearance. Under the
rule's former "held to answer" language, the
October 2005 hearing-in which Comstock appeared in court and
waived a preliminary hearing-would have triggered the
speedy-indictment rule and the trial information the State
filed 269 days later would have been untimely. See State
v. Montgomery, 232 N.W.2d 525, 526-27 (Iowa 1975). We
conclude the legislature intended the same result under the
"arrested" language in the present version of our
definition of arrest contemplates that "the taking of a
person into custody" may be accomplished either by
"restraint of the person" or by "the
person's submission to custody." See Iowa
Code § 804.5. An arrest requires "an assertion of
authority and purpose to arrest followed by
submission of the arrestee." State v.
Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992) (quoting
California v. Hodari D., 499 U.S. 621, 626 (1991)).
the State asserted its authority over Comstock by issuing a
summons to appear in court served by a Floyd County deputy
sheriff. Attached to the summons was the criminal complaint
signed by a peace officer. The summons notified Comstock that
failure to appear may constitute a crime. The summons also
cited Iowa Code section 804.1, which provides, "If the
person named in the citation is actually served as provided
herein and willfully fails without good cause to appear as
commanded by the citation, the person shall be guilty of a
simple misdemeanor and the magistrate may issue a warrant of
arrest for the offense originally charged."
submitted to custody by appearing in court and answering the
charge against her. According to the express terms of her
signed "agreement for release upon own recognizance,
" the magistrate only released Comstock from custody
after she agreed to certain conditions. Accordingly, we find
Comstock was "arrested" on October 14, 2005, either
under section 804.5 or, as Comstock asserts, under
Wing's reasonable-person standard.
interpretation is consistent with the overall broadening of
protections that resulted from the legislature's use of
the term "arrest" in our speedy- indictment rule.
Generally, the term "arrest" has the effect of
triggering the rule earlier than under the former "held
to answer" language. As the court explained in
Normally, the date of an arrest and the date of prosecution
follow hand in hand. Thus, even though the date of arrest
triggers the requirement to file an indictment, the arrest
date is usually very close in time to the date that commences
the prosecution. . . . The period of time between the arrest
and the initial appearance normally must not exceed
862 N.W.2d at 388. But as recognized in Wing,
sometimes an arrest may occur much sooner than twenty-four
hours before a court appearance, and in those situations, the
speedy-indictment rule may be triggered weeks, or even
months, earlier than under the previous rule. See
791 N.W.2d at 252-53 (finding arrest occurred five months
before filing of criminal complaint); see also
Penn-Kennedy, 862 N.W.2d at 388-89 (describing situation
in which "a person reasonably believes a warrantless
arrest has occurred during an encounter with police, while
police assume the encounter ultimately ended without an
arrest and with the release of the person from police custody
without being taken before a magistrate for the initial
appearance" as triggering speedy-indictment rule). This
overall expansion in protection further reinforces our
determination Comstock's initial appearance and waiver of
a preliminary hearing were sufficient to trigger the
this holding best effectuates the policy considerations
underpinning the speedy-indictment rule. The manner in which
Comstock submitted to custody-following the magistrate's
issuance of a citation and summons-did not diminish the
speedy-indictment policy concerns, such as the importance of
relieving the anxiety associated with a suspended prosecution
and of providing reasonably prompt resolution of criminal
charges that arose after Comstock submitted to the authority
of the court and answered to the criminal charge against her.
See Wing, 791 N.W.2d at 246.
we disagree with the State that Mahan controls our
resolution of this matter. The Mahan court
determined a citation issued by a magistrate was not a
constructive arrest under our speedy-indictment rule but,
because the trial information was filed less than forty-five
days after the defendant's initial court appearance, did
not reach the issue of whether the defendant's initial
court appearance could trigger the rule. See 483
N.W.2d at 2. Our holding today does not disturb this
determination; it simply reaches the question left unanswered
the State did not file its trial information within
forty-five days of Comstock's October 2005 hearing and
failed to show good cause for the delay, we reverse
Comstock's conviction and remand to the district court
AND REMANDED FOR DISMISSAL.
 The Federal and Iowa Constitutions
both guarantee a general right to a speedy trial.
See U.S. Const. amend. VI; Iowa Const. art. I,
§ 10. In addition, intentional pre-indictment delay by
the State implicates a defendant's right to due process.
See U.S. Const. amend. V; Iowa Const. art. I, §
10. Although Comstock mentions a violation of her
constitutional rights on appeal, she does not make any
specific argument on this issue. See EnviroGas, L.P. v.
Cedar Rapids/Linn Cty. Solid Waste Auth., 641 N.W.2d
776, 785 (Iowa 2002) (holding random reference to a claim of
error, without elaboration or citation to authority, is
inadequate to raise an issue on appeal). And, as the State
observes, Comstock failed to preserve error on a
constitutional challenge because she failed to raise that
claim before the trial court. See Meier v. Senecaut,
641 N.W.2d 532 537 (Iowa 2002) ("It is fundamental
doctrine of appellate review that issues must ordinarily be
both raised and decided by the district court before we will
decide them on appeal."). Therefore, to the extent
Comstock raises a constitutional claim, we decline to address
 Section 804.5 provides: "Arrest
is the taking of a person into custody when and in the manner
authorized by law, including restraint of the person or the
person's submission to custody."
 Section 804.14(1) provides:
A person making an arrest must inform the person to be
arrested of the intention to arrest the person, the reason
for arrest, and that the person making the arrest is a peace
officer, if such be the case, and require the person being
arrested to submit to the person's custody, except when
the person to be arrested is actually engaged in the
commission of or attempt to commit an offense, or escapes, so
that there is no time or opportunity to do so.
 Section 805.1(4) provides: "The
issuance of a citation in lieu of arrest shall be deemed an
arrest for the purpose of the speedy indictment requirements
of rule of criminal procedure 2.33(2)(a) . . .
 We recognize some language in
Mahan supports the State's position. See,
e.g., 483 N.W.2d at 1 ("The problem that has arisen
in the present case stems from the fact that the defendant
never was arrested prior to the filing of the trial
information."). But that language is dicta and not
essential to Mahan's holding. Moreover, we are
skeptical of Mahan's continued vitality
following Wing, 791 N.W.2d at 249.