IN THE COURT OF APPEALS OF IOWA

No. 16-1174

Filed January 24, 2018

JAMES ABRAHAM HILDRETH,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

James Hildreth appeals the dismissal of his application for postconviction 

relief, asserting his trial counsel was ineffective. AFFIRMED.

John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney 

General, for appellee State.

Considered by Danilson, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

James 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.

I. Background Facts and Proceedings.

On 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. 
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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 concerns.

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?

[HILDRETH]: Yes.

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. It may take a little longer. Do you understand that?

[HILDRETH]: Yes, I do.

THE COURT: You are willing to go along with that?

[HILDRETH]: Yes.

. . . .

THE COURT: And because you are taking that position, [the 

prosecutor] is saying, “All right, Judge. Let’s continue. I’m going 

along. I will continue the trial date. If he wants depositions, we will 

get them set up. . . .” And if that is the way this runs its course, [the 

prosecutor] is not pulling the plea offer or at least not—just not 

saying, ‘‘Okay. All deals are off, we go to trial in 30 or 60 days. . . .”
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. . . .

THE COURT: So plea discussions are still on the table as long 

as that victim is not deposed. . . . Do you understand that, Mr. 

Hildreth?

[HILDRETH]: Yes, I do.

The prosecutor requested that Hildreth sign a waiver of his rule 2.33(2)(b) right, 

and he did.

Shortly thereafter, the lab’s DNA report was completed. The results were 

less than favorable to Hildreth, including finding seminal fluid on the victim’s 

panties consistent with Hildreth’s DNA profile. Thereafter, the State withdrew its 

prior plea offers.

The matter was tried to the bench, and Hildreth was found guilty of two 

counts of second-degree sexual assault. We affirmed his convictions on direct 

appeal. See State v. Hildreth, No. 10-1641, 2013 WL 2371194, *1-2 (Iowa Ct. App. 

May 30, 2013). Hildreth later filed an application for postconviction relief (PCR), 

claiming, among other things, that his waiver of his right to a speedy trial was 

invalid by way of ineffective assistance of his trial counsel. Following a hearing, 

the PCR court dismissed Hildreth’s PCR application.

Hildreth now appeals that ruling, arguing his trial counsel was ineffective. 

Our review is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). 

Ineffective assistance is shown by establishing counsel breached an essential duty 

that resulted in prejudice. See id.

II. Discussion.

Under Iowa Rule of Criminal Procedure 2.33(2)(b), if a defendant indicted 

for a public offense is not brought to trial within ninety days, the indictment must 

be dismissed unless the State proves one of the following exceptions 
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occurred: (1) the defendant waived the right, (2) the defendant caused the delay, 

or (3) there was good cause for the delay. See State v. Taylor, 881 N.W.2d 72, 78 

(Iowa 2016); see also State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011). To 

establish the defendant waived his speedy-trial right, the State must show the 

defendant intentionally relinquished or abandoned the right. See Taylor, 881 

N.W.2d at 78. “That is . . . the defendant must do so knowingly and intelligently.” 

Id. at 79. Mere acquiescence of the right is not sufficient. See id. at 80.

In the present case, because the trial information was filed December 2, 

2009, Hildreth had to be tried by March 2, 2010, unless one of the exceptions 

occurred. See id. at 78-80; see also Iowa R. Crim. P. 2.33(2)(b). Although Hildreth 

acknowledges he signed a waiver of his right to a speedy trial, he claims the waiver 

was not knowingly or intelligently made because of his trial counsel’s actions—or 

lack thereof. More specifically, Hildreth insists that his trial attorney failed to 

provide him with the January 2010 forensic lab report, and if Hildreth had been 

given the report, he would not have waived his speedy-trial right. Hildreth asserts 

this requires dismissal of his charges. We disagree.

Hildreth relies upon Taylor, wherein the Iowa Supreme Court found that the 

district court erred in not granting Taylor’s motion to dismiss her indictment 

because her speedy-trial right had been violated. See Taylor, 881 N.W.2d at 74-

80. Based upon the unusual facts of the case, the supreme court disagreed that 

the State had shown both good cause for its delay in bringing Taylor to trial within 

ninety days of her indictment and that Taylor waived her right. See id. 

Consequently, it did not address Taylor’s ineffective-assistance-of-counsel claim. 

See id. at 80.
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Two justices of the court dissented in Taylor and would have affirmed the 

finding that Taylor waived her right to a speedy trial. See id. at 80-81 (Mansfield

& Waterman, JJ., dissenting). Nevertheless, those justices would have preserved 

for possible PCR proceedings the question of whether Taylor’s counsel rendered 

effective assistance in consenting to the waiver, because, in the dissent’s view, 

there were possible tactical reasons that would have made waiver a good decision, 

even after the ninety-day deadline, such as negating the possibility of other 

charges being filed against Taylor. See id.

The dissent in Taylor discussed and distinguished Taylor from another 

case, Utter, where the supreme court found the record adequate to address on 

direct appeal Utter’s ineffective-assistance-of-counsel claim concerning Utter’s 

waiver of her speedy-trial right. See id. (discussing Utter, 803 N.W.2d at 655). 

Somewhat akin to Hildreth’s argument here, the court in Utter found:

Utter would not have pled guilty if she had known the court was 

required to dismiss the information under rule 2.33 . . . . 

Consequently, she did not enter into the plea voluntarily or 

intelligently. Thus, a reasonable probability exists that, but for 

counsel’s unprofessional errors, the result of the proceeding would 

have been different.

803 N.W.2d at 655. On this basis, the court found Utter’s trial counsel was 

ineffective, vacated Utter’s guilty plea, and remanded for dismissal of the 

information pursuant to rule 2.33. See id. at 655-56.

Hildreth’s claim here is kind of a hybrid of those addressed in Taylor—in 

both the majority and dissenting opinions—and Utter. However, the facts and 

procedural posture of both Taylor and Utter make this case distinguishable. See

Taylor, 881 N.W.2d at 79-80; Utter, 803 N.W.2d at 653-55. Hildreth’s claim, like in 
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Utter but unlike Taylor, is one of ineffective assistance. Utter was required to show 

she would not have pled guilty but for her counsel’s ineffective assistance. See 

Utter, 803 N.W.2d at 653-55. Utter was able to do that by first showing her trial 

counsel permitted her to enter a guilty plea “after the speedy indictment time 

expired,” which was a breach of an essential duty. Id. at 653. That is not what 

happened here.

When Hildreth agreed to waive his speedy-trial right and wait for the 

additional lab report, the speedy-indictment time had not expired; in fact, the State 

was prepared to go to trial within that deadline. Hildreth’s trial counsel testified at 

the PCR hearing that he advised Hildreth of the risk of waiting for the additional 

report, and although he could not recall for certain, trial counsel testified it was his 

ordinary practice to give his clients lab reports when received and believed he 

would have given Hildreth the January 2010 report. The transcript from the 

February 2010 pretrial conference shows Hildreth was explicitly advised there was 

a possibility the additional report could be unfavorable to him, and there is no 

indication that Hildreth was unaware what was in the January 2010 report or that 

he had not seen it or received it.

Moreover, unlike in Taylor, Hildreth was expressly informed of his speedytrial right and agreed to waive it so he could await the completion of the additional 

report. See 881 N.W.2d at 79-80. He could have been tried within ninety days, 

but he knowingly waived the right. Hildreth did not establish his trial counsel 

breached an essential duty. Consequently, Hildreth cannot show his counsel 
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rendered ineffective assistance. Accordingly, we affirm the ruling of the PCR court 

dismissing Hildreth’s PCR application.

AFFIRMED.