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Dunham v. State

Court of Appeals of Iowa

November 22, 2017

DAVID W. DUNHAM, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Carla L. Schemmel, Judge.

         David Dunham appeals from the denial of his application for postconviction relief. AFFIRMED.

          Susan R. Stockdale, Windsor Heights, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee State.

          Considered by Vaitheswaran, P.J., Bower, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         David Dunham appeals from the denial of his application for postconviction relief (PCR), contending his plea counsel was ineffective in failing to file a motion to dismiss based upon a violation of the speedy indictment rule. His ineffectiveness claim fails, and we affirm.

         We review ineffective-assistance-of-counsel claims de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To prevail on an ineffective- assistance-of-counsel claim, the applicant must prove both the following elements by a preponderance of the evidence: (1) counsel failed to perform an essential duty, and (2) prejudice resulted from counsel's failure. Id.

         Dunham pled guilty to possession of a controlled substance (methamphetamine) with intent to deliver on February 15, 2013. Dunham maintains he was arrested on July 31, 2012, and the trial information was filed on September 20-more than forty-five days after arrest.[1] He asserts counsel was ineffective in failing to file a motion to dismiss and in allowing him to plead guilty. See Ennenga, 812 N.W.2d at 702 ("If [applicant's] attorney did not ensure that the State abided by rule 2.33, and allowed his client to plead guilty to charges that could have been dismissed with prejudice, then he failed to perform an essential duty.")

         Dunham was represented by two attorneys prior to pleading guilty. Both attorneys testified at the PCR hearing, and each indicated they did not believe Dunham was arrested the night of the traffic stop. His first attorney testified,

When Mr. Dunham was stopped, he was stopped-he wasn't driving. The woman who was driving the car . . . was stopped for some kind of traffic violation. He was searched. They found some meth in a pocket. Later they searched a potato chip bag that he had, and it had an ounce or a little bit less than an ounce of methamphetamine in it.
They took him to Ankeny PD. He wanted to cooperate with Ankeny PD, and he gave a lengthy statement that was taped, and he filled out a statement that he was going to deliver that ounce of methamphetamine I think to-if memory serves me correctly, to Brandon Singleton, who is that officer from Des Moines that's gotten in trouble over the years for dealing drugs or using drugs while on duty.
He was never arrested that night on that. I don't think he was ever arrested on anything else, but someone else, one of the officers, would have to say about that. So he agreed to cooperate. They kind of detained him-and I'm going to put those words in quotes. The judge can see it and Mr. Heinicke and Mr. Taylor can see it-at his request because he didn't want anybody to think he was snitching or informing on everybody while he actually was.
I think they held him for a few hours and released him, is what happened. So there weren't any grounds to dismiss anything because ...

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