Opinion
No. 4-002 / 02-0478
April 28, 2004.
Appeal from the Iowa District Court for Polk County, James Birkenholz, Judge.
Gregory Donald Harris appeals from his conviction, following a trial to the court, for domestic abuse assault causing bodily injury in violation of Iowa Code section 708.2A(2)(b) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Christina Gonzalez, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Gregory Donald Harris appeals from his conviction, following a trial to the court, for domestic abuse assault causing bodily injury in violation of Iowa Code section 708.2A(2)(b) (2001). He contends his trial counsel was ineffective for failing to make an adequate record of his waiver of jury trial and that the court failed to comply with Iowa Rule of Criminal Procedure 2.17(2) by failing to find facts and state its conclusions in finding him guilty. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Harris was charged, by trial information, with domestic abuse assault causing bodily injury, and with criminal mischief in the fourth degree. The charges arose out of an incident in which it was alleged Harris assaulted his wife causing her to suffer bruising and swelling to her forehead, neck, and left arm. At that time the court ordered that Harris have no contact with his wife. On February 2, 2002 the State also charged Harris with three counts of violation of a no contact order based on letters he had written to his wife from jail. On February 21, 2002, the date set for trial on the original charges, the parties discussed a plea agreement in which the State would agree to dismiss several of the pending charges if Harris would plead guilty to the domestic abuse assault charge, stipulate to a probation revocation, and plead guilty to a newer obstruction of prosecution charge. Harris rejected the proposed plea agreement and stated he wanted to go to trial.
A jury was selected but before the trial started and testimony was taken Harris changed his mind and reached an agreement with the State. The agreement included the following terms. The domestic abuse assault causing injury charge would be tried to the court on the minutes of evidence, Harris would stipulate to one violation of the no contact order, and Harris would admit these offenses violated the terms of his probation. The State in turn would dismiss the criminal mischief charge, two counts of the violation of a no contact order, and one charge of obstruction of prosecution. The State also agreed to recommend that Harris receive a one-year sentence on the domestic abuse assault charge, to be served concurrently with the two-year sentence he would receive on the probation violation, and a six-month sentence on the violation of the no contact order, to be served consecutively to the other sentences for a total term of imprisonment of two and one-half years.
Harris signed a modified written guilty plea form reflecting he was not pleading guilty but agreeing to be tried on the minutes of evidence. The court reviewed the minutes and found "there is evidence beyond a reasonable doubt that the defendant, Gregory Harris, committed the crime of Domestic Abuse Assault Causing Injury." The court also found that Harris had the benefit of counsel and had reviewed his rights and understood them. The court then accepted the parties' agreement. Harris also admitted to violating the no contact order and that he had violated the terms of his probation. The court informed Harris that by proceeding to immediate sentencing he was waiving his right to file a motion in arrest of judgment challenging the stipulation and Harris stated he understood and still wanted to proceed to immediate sentencing. The court imposed the sentence recommended by the parties in their agreement.
Harris appeals from his conviction contending his trial counsel was ineffective for failing to make an adequate record of his waiver of his right to jury trial. He further argues the trial court's findings of fact, conclusions of law, and finding of guilt did not comply with Iowa Rule of Criminal Procedure 2.17(2).
II. MERITS.
A. Ineffective Assistance of Counsel.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claim.
Harris claims his counsel was ineffective for failing to make an adequate record of his waiver of jury trial. Specifically, he contends there was no written waiver or in-court colloquy regarding the waiver of his right to jury trial and thus his counsel was ineffective for failing to ensure his waiver was voluntary and intelligent. His claim is premised in large part on our supreme court's decision in State v. Stallings, 658 N.W.2d 106 (Iowa 2003). However, Stallings was not filed until nearly a year after Harris's waiver of jury trial and, even more importantly, Stallings did not overrule the well-settled legal doctrine set forth in State v. Lawrence, 344 N.W.2d 227 (Iowa 1984). See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003); State v. Spies, 672 N.W.2d 792, 799 (Iowa 2003); State v. Miranda, 672 N.W.2d 753, 762 (Iowa 2003). Accordingly, Lawrence controls our analysis of the case at hand
Iowa Rule of Criminal Procedure 2.17(1) provides, in relevant part, "Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record. . . ." The supreme court in Lawrence stated that a written jury waiver taken in compliance with this rule is prima facie evidence that the waiver was voluntary and intelligent. Lawrence, 344 N.W.2d at 230. The court also stated that the rule does not require an extensive inquiry by the district court into the waiver, although at least a brief proceeding in open court would greatly simplify the appellate court's task, and the absence of an open court verbatim record does not require reversal. Id. When a defendant later attacks the validity of a written waiver taken in compliance with rule 2.17(1) he or she bears the burden of proving it was not voluntary and intelligent. Id.
Harris argues there was no written waiver of jury trial executed by him in this case. However, there was in fact a stipulation signed by Harris which stated in relevant part,
I [Harris] understand the following:
. . . .
I have a right to a speedy trial by jury. . . .
. . . .
By stipulating to trial [on the] minutes of testimony I am giving up all of these rights and acknowledge that the judge may sentence me up to the maximum provided by law.
Accordingly, we find there was a written waiver of jury trial executed by Harris in compliance with rule 2.17(1). This written waiver is prima facie evidence his waiver was voluntary and intelligent, and Harris bears the burden on appeal to prove otherwise. Lawrence, 344 N.W.2d at 230. There is no evidence in the record before us that the signed, written waiver was not voluntary and intelligent. Therefore, Harris has not carried his burden and no basis for reversal on this ground appears in the record. We refuse to conclude Harris's trial counsel failed to perform an essential duty. Counsel followed the proper procedures for waiving a jury trial in effect at the time of the waiver and made an adequate record of Harris's waiver.
Harris further argues there was no in-court colloquy regarding the waiver of his right to jury trial, in accordance with the model set forth in Stallings, and his trial counsel was ineffective for failing to insist upon such a colloquy. Our supreme court has stated that
[g]iven the law as interpreted by Lawrence and left undisturbed by Stallings, the failure of the district court to conduct an in-court colloquy with the defendant (let alone an in-court colloquy in strict compliance with the five-part Stallings model) does not necessarily offend the Iowa Rules of Criminal Procedure.
Liddell, 672 N.W.2d 805, 811 (Iowa 2003). Therefore, the fact there was not a formal, in-court colloquy concerning the five subjects listed in Stallings is not fatal to Harris's waiver and his counsel had no duty to insist upon such a colloquy.
However, even if we were to presume Harris's counsel did have a duty to insist upon the court's compliance with rule 2.17(1) as construed in Stallings, we would find that the record demonstrates Harris was either informed or aware of the substantial equivalent of the information contemplated by Stallings. We believe the fact that four of the five subjects of inquiry set forth in Stallings were dealt with in one way or another in this case makes clear the knowing and voluntary nature of Harris's waiver.
In assessing a waiver, the court should inquire into the defendant's understanding of the difference between jury and nonjury trial 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 innocent if the defendant waives a jury trial.
The court "should [also] seek 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."
Stallings, 658 N.W.2d at 111-12 (citations omitted). Here the jury was already selected before Harris waived his right to jury trial. Thus, he already knew, based on his own observations and participation in the trial process, that the jury consisted of twelve members of the community and that he could take part in the jury selection. After waiving jury trial, reviewing the proposed stipulation, and agreeing to a trial on the minutes, the court asked Harris,
And at this time you are proposing that I can review the Minutes of Testimony; and if I find they are sufficient and meet the burden of proof beyond a reasonable doubt, I can enter a finding of guilt to the charge of Domestic Abuse Assault Causing Injury?
Harris replied, "Yes."
This passage makes it clear that Harris knew the court alone would decide his guilt or innocence if he agreed to waive jury trial. Finally, here the wavier of jury trial and stipulation to a trial on the minutes was part of, or akin to, a plea bargain. The terms of the agreement were discussed at length on the record between the court, counsel, and Harris. Harris told the court he had reviewed the stipulation document with his counsel and that he understood it. There is no contention that Harris did not understand the terms of his agreement with the State. Harris was thus fully aware of the extent of any reward he would receive, the dismissal of certain charges and a recommendation concerning sentencing, for waiving a jury trial and having a trial on the minutes of evidence. We can find no indication in the record of any danger that Harris was or could have been under any impression he would be further rewarded for waving a jury trial. We conclude the fifth Stallings factor was satisfied.
Harris thus received all of the information suggested in Stallings except that jury verdicts must be unanimous. However, these five subjects are not a checklist by which all jury-trial waivers must be strictly judged. Liddell, 672 N.W.2d at 814. "They merely point toward a knowing, voluntary, and intelligent waiver. The ultimate inquiry remains the same: whether the defendant's waiver is knowing, voluntary, and intelligent. . . . Substantial compliance is acceptable." Id. We conclude that because Harris was informed of the practical equivalent of all but one of the subjects of inquiry, there was substantial compliance with the Stallings model. We cannot find Harris's counsel failed in an essential duty in this regard.
We conclude Harris has not met his burden to prove his counsel did not make an adequate record in order to ensure his waiver of jury trial was knowing, voluntary, and intelligent. Harris was not denied his right to effective assistance of counsel.
B. Iowa Rule of Criminal Procedure 2.17(2).
Harris next contends that the trial court's findings of fact and conclusions of law did not comply with Iowa Rule of Criminal Procedure 2.17(2). This rule provides, "In a case tried without a jury the court shall find the facts specially and on the record, separately stating its conclusions of law and rendering an appropriate verdict." After Harris waived his right to jury trial and agreed to be tried on the minutes of evidence the court reviewed the minutes and stated, "Pursuant to the stipulation and of the Minutes of Testimony, the Court finds that there is evidence beyond a reasonable doubt that the defendant, Gregory Harris, committed the crime of Domestic Abuse Assault Causing Injury." The written stipulation and sentencing order entered by the court and signed by Harris also states that "Upon review of the Minutes of Testimony, the Court finds that there is evidence beyond a reasonable doubt that the defendant committed each and every element of the offense(s) charged. . . . DEFENDANT IS FOUND GUILTY."
After making the allegedly insufficient finding on the record the court addressed Harris and asked him if he wished to go ahead and be sentenced. Harris stated that he did. The court then informed Harris,
by doing the sentencing today, you are waiving the right to file a Motion in Arrest of Judgment. In other words, if you had a basis to set aside the stipulation that you entered into just a few minutes before, you are waiving that right by us going ahead and doing the sentencing. Do you understand that?
Harris replied that he understood and that he still wanted to go ahead.
A defendant in a bench-tried criminal case who has not filed a motion for new trial seeking amendment or enlargement of the court's findings and conclusions cannot rely on appeal on the insufficiency of those findings and conclusions to support the court's decision so long as the evidence would support the necessary additional findings and conclusions.
Therefore defendant is precluded from attacking the sufficiency of the trial court's findings of fact, as distinguished from the sufficiency of evidence to support necessary findings, unless excused from raising the issue in the trial court by ineffective assistance of counsel.
State v. Miles, 346 N.W.2d 517, 519 (Iowa 1984). Similarly, in a bench trial on stipulated facts a defendant who elects to forgo post-trial motions and proceed with sentencing waives "any defect in the trial or the finding of guilt and the conviction based upon stipulated facts." State v. Farmer, 482 N.W.2d 682, 684 (Iowa Ct.App. 1992).
Here Harris did not file any type of post-trial or post-sentencing motions attacking the court's findings or conclusions. Nor does he contend on appeal that the evidence was insufficient to support the verdict, only that the court's findings and conclusions were insufficient to comply with rule 2.17(2). Furthermore, Harris does not claim his counsel was in any way ineffective for not filing any such motions or in allowing him to proceed to immediate sentencing. Accordingly, we conclude that by not filing any post-trial motions challenging the court's findings and conclusions and agreeing to proceed immediately to sentencing Harris has waived any defect in the district court's findings and conclusions. See Miles, 346 N.W.2d at 519.
III. CONCLUSION.
For all of the reasons set forth above, we conclude Harris has failed to meet his burden to prove his signed, written waiver of jury trial was not knowing, voluntary and intelligent. An adequate record of Harris's waiver of jury trial was made and thus we cannot find his trial counsel failed to perform an essential duty. Harris's ineffective assistance of counsel claim must fail. We further find Harris has waived any claim that the trial court's findings and conclusions were insufficient under Iowa Rule of Criminal Procedure 2.17(2).