State v. Shockey, 54958

• Decision Date: 16 January 1974
• Docket Number: No. 54958,54958
• Citation: 214 N.W.2d 146
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Eugene F. SHOCKEY, Appellant.

Page 146

214 N.W.2d 146

STATE of Iowa, Appellee, v. Eugene F. SHOCKEY, Appellant.

No. 54958.

Supreme Court of Iowa.

Jan. 16, 1974.

Donald W. Sylvester, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., Zigmund Chwirka, County Atty., for appellee.

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

MASON, Justice.

Eugene F. Shockey appeals from judgment following his conviction by a jury of possession of burglar tools in violation of section 708.7, The Code. He had been charged with the offense by a county attorney's information filed August 12, 1970, in the Woodbury district court but was not brought to trial until February 16, 1971.

Defendant contends the delay in bringing him to trial was grounds for dismissing the charge against him and the trial court erred in refusing to do so. He also asserts the court erred in refusing to give his requested instruction relating to possession of a .22 caliber derringer pistol.

The information just referred to was in regard to the criminal action designated as No. 35313 in the records of the office of the clerk of the Woodbury district court. An earlier information charging defendant with carrying a concealed weapon, criminal action No. 35312, is somewhat involved here in regard to the procedural history of the case. Although the record of 35312 is not before us, apparently when various counsel were appointed they were appointed to represent defendant in all actions.

A narration of the events following the filing of the information in criminal cause 35313 could be helpful to a clearer understanding of the issue presented by defendant's first assignment of error. August 17 defendant appeared for arraignment with H. A. McQueen whom he had retained as counsel and was given until August 28 to move or plead. On that date defendant pled not guilty to the charge and trial was set for October 5. September 22, Mr. McQueen, with the consent of defendant, withdrew as his attorney. October 12 Mr Forker, another Sioux City attorney, was appointed as defense counsel for defendant in criminal actions 35312 and 35313. Forker was also apparently appointed as defendant's counsel in a third action, No. 35350; at this time trial was reset for November 23 in criminal cause No. 35313.

November 10 defendant and Forker appeared before the court. Forker requested to withdraw from his representation of defendant citing as his reason that he had been appointed to represent defendant in criminal action 35350 about the same time, or prior to his appointment on cases 35312 and 35313, and that he had worked exclusively on those other cases and not at all on the latter. Forker further stated he had not prepared this case because the county attorney's office had advised him defendant was going to be tried on criminal matter 35350, which trial had been set for November 9. He further reasoned that if 35350 was tried the other charges would be set back for a period of time until a different jury panel was obtained. No. 35350 had been dismissed, however, prior to its trial date.

After a lengthy colloquy between the court, the assistant prosecutor, Forker and defendant in which the court made a careful inquiry to determine the reason for Forker's application to withdraw and whether defendant objected thereto, the court allowed Forker to withdraw from both case 35312 and 35313 to become effective at the time new counsel appeared for defendant. The court then advised defendant he was entitled to have an attorney of his choice appointed to represent him in the case at the expense of Woodbury County. At this point defendant informed the court he did not then have a choice but expected he possibly would by the following Monday.

Defendant was given until Tuesday, November 17, at 10:30 a.m. 'at which time the defendant * * * (was to) be brought into the court to advise the court of the name of the attorney that he requests for appointment.' Defendant failed to appear in court on the day set for formal appointment of counsel. Examination of the record discloses defendant did not at any time advance any explanation or reason why such appearance was not made. In fact, he did not appear in court again until January 14, 1971.

December 30, 1970 the court, without motion of defendant, had set the case for trial commencing January 18. Defendant's appearance with his present attorney Donald W. Sylvester January 14 was for the purpose of requesting an extension of time until 3:30 p.m. January 22 to further move or plead in criminal cause 35313 and a continuance of trial until January 25. The court granted defendant's requests.

January 20 defendant filed motion to dismiss criminal cause 35313 on the ground he had been denied his right to a speedy trial in violation of his statutory and constitutional rights. The motion to dismiss was overruled January 26. It is the ruling on this motion that serves as a basis for defendant's first assignment of error.

I. The relevant portions of defendant's January 20 motion to dismiss are set out in record in the following language:

'* * *

'1. That this Defendant was arrested on or about the 17th day of August, 1970.

'2. That this Defendant received the benefit of Court-appointed counsel on or about the 12th day of October, 1970, and further that the court-appointed counsel was permitted to withdraw from said case on or about the 10th day of November, 1970.

'3. That this Defendant has been incarcerated since the 1st day of September, 1970, and has been without the effective benefit of legal Counsel since the 10th day of November, 1970, and has remained without counsel until January 13, 1971.

'4. That the Defendant has been denied his right to a speedy trial as afforded under the laws of the State of Iowa and the United States Constitution, and the Constitution of the State of Iowa.

'WHEREFORE, the Defendant respectfully requests that the charge now pending against the Defendant be dismissed.'

The trial court's ruling on the foregoing motion is neither set out in the record nor in the clerk's transcript before us. The only reference in the record to the court's ruling is this statement: 'On the 26th day of January, 1971, the Defendant's Motion to Dismiss was overruled.' However, this court has been furnished a certified copy of a ruling isued in criminal cause 35312. The motion to dismiss in that cause was based on the grounds defendant had been denied a speedy trial as guaranteed under the state and federal constitutions. It is obvious the motions made in 35312 and 35313 were identical.

The record shows that in proceedings had November 10, 1970, when both criminal cause 35312 and 35313 were being considered, the court announced that 'the same calendar entry will be made in this case (35313) as was made in 35312.' It is a fair inference to be drawn from the practice indicated in the November 10 hearings that defendant's motion to dismiss in 35313 was denied by an order similar to that made in 35312 on January 25.

Defendant insists he is relying on section 795.2, The Code, in urging that the trial court erred in this ruling. This statute provides:

'Delay in trial. If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it 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 his 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.'

Defendant argues he is entitled to a dismissal of the charge under the terms and provisions of the second sentence of the quoted statute since he was not effectively represented by counsel from November 10, 1970 until January 14 and was not admitted to bail.

The record is not entirely clear as to whether defendant had been incarcerated since September 1, 1970, as he alleged in the motion to dismiss previously set out. The clerk's transcript discloses that an order was made August 17, 1970 releasing defendant from custody on his own recognizance without bond on that date. It does not show whether he had been returned to custody on this charge or was being confined on one of the several other charges pending against him. In this connection see State v. Mason, 203 N.W.2d 292 (Iowa 1972).

However, the court's judgment sentencing defendant to the state penitentiary in criminal cause 35313 provided: 'Defendant shall receive credit for time already spent in custody on this charge.' The copy of the mittimus included in the transcript has this clerk's note: 'Defendant also to be given credit for time already spent in custody on this charge. Credit 210 days (9/1/70 to 4/7/71).'

Conceding that the foregoing record supports defendant's assertion he had been incarcerated before trial since September 1, the second sentence of section 795.2 relied on by defendant at this point in his argument requires he also be unrepresented by legal counsel. State v. Johnson, 167 N.W.2d 696, 700 (Iowa 1969); Parrott v. Haugh, 158 N.W.2d 766, 769 (Iowa 1968). In this connection defendant argues he was without counsel from November 10, 1970, until January 14, 1971, a period of 65 days.

Shockey insists he could not have been deemed to have waived his rights to a speedy trial by failure to make demand under the...