from the Iowa District Court for Polk County, Robert J.
Hildreth appeals the dismissal of his application for
postconviction relief, asserting his trial counsel was
Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
Hildreth appeals from the dismissal of his application for
postconviction relief, asserting his waiver of his right to a
speedy trial was invalid by way of his trial counsel's
ineffective assistance. Upon our review, we affirm.
Background Facts and Proceedings.
December 2, 2009, Hildreth was charged by trial information
with two counts of second-degree sexual assault for sexually
assaulting his fiancée's then six-year-old
daughter. Trial was scheduled for January 7, 2010. On
December 14, 2009, Hildreth's trial attorney filed a
notice of taking depositions in the case. The prosecutor
advised Hildreth's counsel that the State would withdraw
any plea offer if Hildreth deposed the child victim. On
January 5, 2010, Hildreth's counsel advised the
prosecutor that Hildreth would be willing to forego
depositions in exchange for a favorable plea offer. The same
day, the State's Criminalistics Laboratory issued its DNA
Report detailing the initial results of its DNA screening
tests on the evidentiary samples collected from the
State's evidence. Little DNA evidence was found in the
collected samples, and what was found was identified to most
likely belong to the victim. Further testing was ongoing, and
the prosecutor and Hildreth agreed to continue the trial
twice while awaiting the lab's completed DNA report, with
trial scheduled for March 1, 2010. A status hearing was held
February 24, 2010, and Hildreth was present. There, the
prosecutor indicated the evidence was still being tested, and
he did not expect the completed report for another two to
three weeks. Ultimately, the district court was advised by
the prosecutor and Hildreth's counsel that three options
were before Hildreth. Hildreth's counsel explained that
the State had tendered a plea offer to Hildreth, wherein
Hildreth would plead guilty to lascivious acts, a class
"C" felony without the mandatory minimum. Counsel
advised he had discussed the offer with Hildreth, but
Hildreth had indicated he wanted to wait until the DNA
testing was complete before accepting the offer. The
prosecutor was willing to go to trial on the scheduled date,
which complied with Iowa Rule of Criminal Procedure
2.33(2)(b)-Iowa's speedy-trial rule. The prosecutor was
also willing to accept the plea offer that day, or, if
Hildreth agreed to waive his rule 2.33(2)(b) right to trial
within ninety days, the prosecutor would agree to continuing
trial to await the results of the additional DNA testing. The
prosecutor further stated:
I just want to make sure that Mr. Hildreth understands that
he is not going to later, if he gets convicted, he is not
going to blame his attorney because he didn't do
depositions or he didn't get the DNA, which could be
favorable; could be unfavorable to him. So those are the
court conducted a colloquy with Hildreth:
THE COURT: So, Mr. Hildreth, as I understand it, you are
willing to waive and you are waiving speedy trial so you can
get the DNA evidence. Is that correct?
THE COURT: You understand, though, I will try to get this
trial up within a very reasonable time. And I am trying to
ballpark about 30 days or so. It could be because of the
court's docket I can't do it that fast. ...