State v. Cennon

• Decision Date: 18 October 1972
• Docket Number: No. 55282,55282
• Citation: 201 N.W.2d 715
• Parties: STATE of Iowa, Appellee, v. Leigh J. CENNON true name James Lawrence Pulliam, Appellant.
• Court: Iowa Supreme Court

Page 715

201 N.W.2d 715

STATE of Iowa, Appellee, v. Leigh J. CENNON true name James Lawrence Pulliam, Appellant.

No. 55282.

Supreme Court of Iowa.

Oct. 18, 1972.

Paul J. Yaneff, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and Zigmund Chwirka, County Atty., Sioux City, for appellee.

Heard before MOORE, C.J., and UHLENHOPP, REYNOLDSON, HARRIS and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant appeals from his conviction of false drawing and uttering of a check. He asserts as sole ground for reversal trial court's overruling his pre-trial motion to dismiss the indictment, which was not returned against him within the 30 day perior provided in § 795.1, The Code. We affirm.

When defendant appeared June 3, 1971 on this charge in Sioux City municipal court he did not have counsel. He waived preliminary hearing and was bound over to the district court. On July 8, 1971, Woodbury County grand jury indicted defendant on the above charge.

July 12, 1971, defendant was arraigned in district court, at which time Attorney Paul J. Yaneff was formally appointed to represent him. Two days later defendant filed the motion to dismiss. Upon hearing, defendant testified during the period from June 3 to July 12 he was not represented by counsel concerning these charges, was not free on bond, and did not know he had a right to quick indictment. He maintained that although he had requested a deputy sheriff to contact Attorney Yaneff, who visited him in jail, they ahd discussed only a different charge involving a 'hold order' from California, and a civil collection matter.

Significantly, there appears in the certified court file the itemized and verified claim of Attorney Yaneff, reciting his appointment to represent defendant with respect to the captioned case, and that he had completed his services. A portion of the itemization includes:

"Appointment.

June 10th, 1971..Conference with Defendant..1 hr

June 15th, 1971..Conference defendant, County

Attorney and Mike Larson of Detective

Bureau re hold order in California....3 hrs

June 29th, 1971..Conference with defendant..1 hr

7-12-71 Arraignment Judge Pendleton ........1 hr"

August 10, 1971, trial court overruled the motion to dismiss indictment, finding that even though defendant's testimony was accepted as true, nevertheless he was not 'unrepresented' for the 30 day period prior to indictment.

I. This court recognizes the frequent practice of assigning an attorney for a defendant, followed by a formal appointment at arraignment in district court. We doubt such an arrangement would result in a holding that defendant was 'unrepresented' during the pre-indictment period. In the situation before us an even stronger case is presented. This defendant sought and received services of an attorney of his choice. The sam attorney was formally appointed to represent defendant at arraignment.

The first question we reach is whether a defendant who, prior to indictment, has the opportunity and actually does consult freely with an attorney of his choice, but voluntarily elects not to discuss the charge (known to him) upon which an indictment is subsequently found, is 'unrepresented by counsel' for the purposes of § 795.1, The Code, which provides:

'795.1 Failure to Indict. When a person is held to answer for a public offense, if an indictment be not found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown. An accused not admitted to bail and unrepresented by legal counsel shall not be deemed to have waived the privilege of dismissal or be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

We have held, '* * * that if a defendant is represented by counsel he must make a request or demand to enforce guarantee to speedy indictment or he shall be deemed to have waived such right.' State v. Johnson, 167 N.W.2d 696, 700 (Iowa 1969). It follows if defendant (not admitted to bail) was unrepresented by counsel, § 795.1 requires that he not be deemed to have waived his privilege to quick indictment, and his motion should have been sustained unless good cause for failure to indict within 30 days appears. On the other hand, if defendant was represented by counsel, then the holding in Johnson, supra, dictates he be deemed to have waived his privilege, and his motion to dismiss was properly overruled.

This court has never before been called upon to clarify the meaning of the words 'unrepresented by legal counsel.' The parties have not cited, nor has our own research revealed, any case construing similar words in an analogous situation.

We are required to determine the intent of the legislature by what it said. See rule 344(f)(13), Rules of Civil Procedure. In § 795.1 the General Assembly chose the words 'unrepresented by legal counsel' instead of the words 'assistance of counsel' used in Art. I, § 10 of the Iowa Constitution. Thus cases construing the constitutional words 'assistance of counsel' are of little aid here.

Looking at § 795.1 as a whole, and in conjunction with § 795.2, it is clear these sections were promulgated to implement the constitutional provisions which require a speedy trial. State v. Bledsoe, 200 N.W.2d 529 (Iowa, filed Sept. 19, 1972); State v. Johnson, 167 N.W.2d 696 (Iowa 1969); State v. Satterfield, 257 Iowa 1193, 136 N.W.2d 257 (1965). Section 795.1 was not intended to be used to trap state officials, nor as a device to give defendant absolute immunity from prosecution. State v. Johnson, supra; State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906 (1965). This statute was intended to provide a shield for the defendant, not a sword. State v. Lindloff, 161 N.W.2d 741 (Iowa 1968). Interpreting the statutory language 'an accused * * * unrepresented by legal counsel' to include a defendant who consulted freely with the attorney of his choice but elected not to mention the local charge for which he was detained in jail would provide defendants with a device to potentially trap state officials. The salutory intent of the legislature does not require such a result. Therefore, we hold such an accused is not 'unrepresented by legal counsel' and may be deemed to have waived his privilege of dismissal for failure to indict within 30 days.

II. We also hold these facts constitute good cause for failure to indict within the 30 day period. Section 795.1, The Code; see State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906 (1965); Keegan v. District Court, 237 Iowa 1186, 24 N.W.2d 791 (1946). Defendant's attorney, during the pre-indictment period, was in consultation with defendant and with the county law enforcement officials. The State had no way of knowing defendant had elected not to discuss pending charges with his lawyer. Under these circumstances the State would be justified in concluding it was not required to indict within 30 days unless defendant so demanded.

There is no evidence defendant was prejudiced by the few days' delay in indictment, nor does he claim any prejudice. He had access to his own counsel. He was also being held on a 'hold order' from California. He alleges no separate violation of his right to speedy trial apart from the statutory implementation of that right. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Jennings, 195 N.W.2d 351 (Iowa 1972); State v. Bowers, 162 N.W.2d 484 (Iowa 1968). Defendant...