Opinion
No. 6-073 / 05-0525
Filed March 1, 2006
Appeal from the Iowa District Court for Scott County, Douglas C. McDonald, District Associate Judge.
Eric Conger appeals his conviction, following a trial to the court, for driving while barred. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, William E. Davis, County Attorney, and Marc Gellerman, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Eric Conger appeals his conviction, following a trial to the court, for driving while barred. Conger asserts his trial counsel was ineffective for failing to assure his waiver of jury trial was knowing, voluntary, and intelligent. We reverse and remand.
On October 5, 2004, the State filed a trial information charging Conger with driving while barred as an habitual offender, in violation of Iowa Code sections 321.555(1) and 321.561 (2003). On November 9, 2004, Conger signed a written waiver of jury trial. The waiver indicated that Conger understood: (1) he had the right to a trial by jury of twelve persons; (2) in a jury trial a guilty verdict must be unanimous and proven beyond a reasonable doubt; and (3) if he waived his right to a jury trial, a judge would decide whether the State had proved its case beyond a reasonable doubt and would state findings and a verdict in writing.
Trial to the court was held on January 14, 2005. At the start of the proceedings the court inquired, "Mr. Conger, I assume [your attorney] explained to you your right to have a jury trial and you have been properly informed in that regard?" His attorney answered "Yes, Your Honor, I have." On the same date, after receiving all of the evidence the trial court orally on the record found Conger guilty of driving while barred. On January 18, 2005, a court calendar entry reiterated the court's earlier ruling stating, "At the conclusion of the evidence, the Court found [Conger] guilty of the charge of Driving While Barred, in violation of Section 321.561 of the Code." Conger filed a motion for new trial and to set aside the verdict. On March 16, 2005, the court denied Conger's motions and sentenced him to two years imprisonment with all but thirty days suspended.
Conger appeals his conviction, contending his attorney was ineffective for failing to assure his waiver of jury trial was knowing, voluntary, and intelligent. More specifically, he contends counsel was ineffective for not ensuring the trial court followed the proper procedures for waiver of a jury trial as set forth in Iowa Rule of Criminal Procedure 2.17(1), and in failing to challenge the absence of written findings of fact, conclusions of law, and verdict.
Claims that raise constitutional questions, such as the alleged ineffective assistance of counsel, are reviewed de novo. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000).
To establish an ineffective assistance claim, a defendant must typically show that (1) his counsel failed to perform an essential duty, and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). However, when the alleged failure of duty is a failure to assure compliance with rule 2.17(1), upon a demonstrated inadequacy of counsel's performance, prejudice is presumed. State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003) ("Because the right to a jury trial is so fundamental to our justice system, we conclude this is one of those rare cases of a `structural' defect in which prejudice is presumed.").
A trial by jury is required unless the defendant "voluntarily and intelligently waives a jury trial in writing and on the record. . . ." Iowa R. Crim. P. 2.17(1). Rule 2.17(1) "requires the court to conduct an in-court colloquy with defendants who wish to waive their jury trial rights." State v. Liddell, 672 N.W.2d 805, 811-12 (Iowa 2003). The court in Liddell found that the "on the record" language from rule 2.17(1) requires some in-court colloquy or personal contact between the court and the defendant, to ensure the defendant's waiver is knowing, voluntary, and intelligent. Id. at 812.
Our supreme court has suggested a five-part inquiry that "constitute[s] a sound method by which a court in an in-court colloquy may determine whether a defendant's waiver of his right to a jury trial is knowing, voluntary, and intelligent." Id. at 811.
[T]he court should inquire into the defendant's understanding of the difference between jury and nonjury trials by informing the defendant:
1. Twelve members of the community compose a jury,
2. the defendant may take part in jury selection,
3. jury verdicts must be unanimous, and
4. the court alone decides guilt or innocence if the defendant waives a jury trial.
Importantly, . . . we also urge judges to "ascertain whether [the] defendant is under [the] erroneous impression that he or she will be rewarded, by either court or prosecution, for waiving [a] jury trial."
Id. at 810-11 (quoting Stallings, 658 N.W.2d at 111) (third through fifth alterations in original). However, the court clarified that these "five subjects of inquiry are not `black-letter rules nor a `checklist' by which all jury-trial waivers must be strictly judged. . . . The ultimate inquiry remains the same: whether the defendant's waiver is knowing, voluntary, and intelligent." Id. at 814. Thus, substantial compliance with the five-factor inquiry is acceptable. Id. Sufficient compliance with rule 2.17(1), and the voluntary and intelligent nature of the defendant's waiver, must appear in the present record. See Stallings, 658 N.W.2d at 111 (holding that "posttrial reconstruction of the record will not suffice to show a valid waiver").
Conger concedes a timely and adequate written waiver of jury trial was filed. However, he argues the brief in-court colloquy which occurred here did not substantially comply with the requirements of rule 2.17(1) as set forth in Liddell. We agree.
In its colloquy with Conger the district court did not mention, or inquire into Conger's understanding of, any one or more of the "five subjects of inquiry" suggested by Stallings and Liddell. While we recognize the court need not assure a defendant's awareness and understanding of all five of those subjects, in the absence of an inquiry or colloquy concerning any of those subjects we conclude the record does not demonstrate a voluntary and intelligent waiver.
Furthermore, it is not clear from this record whether Conger even heard or understood the court's inquiry concerning whether his attorney had explained his right to jury trial, because Conger's attorney answered the question. The court did not inquire further of Conger concerning waiver of jury trial. There was thus no colloquy between the court and him concerning the matter.
Counsel failed to ensure substantial compliance with the requirements of rule 2.17(1) and thus breached an essential duty. Prejudice is presumed. Stallings, 658 N.W.2d at 112. We conclude counsel rendered ineffective assistance. We therefore reverse Conger's conviction and remand for trial to a jury unless Conger voluntarily and intelligently waives his right to a trial by jury. See id. Because we are reversing and remanding on this issue we need not determine whether counsel was ineffective for failing to challenge the alleged absence or inadequacy of written findings of fact, conclusions of law, and verdict.