Opinion
No. 4-654 / 03-1483
Filed December 22, 2004
Appeal from the Iowa District Court for Des MoinesCounty, Mary Ann Brown, Judge.
Lawrence Lee Mills appeals his conviction and sentence for Burglary in the Second Degree and Eluding a Peace Officer. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Amy Beavers, Michael Bennett, Tim Davis, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Lawrence Lee Mills appeals the judgment, conviction, and sentence following a bench trial on the minutes of testimony for Burglary in the Second Degree and Eluding a Peace Officer. Mills argues his convictions should be vacated and his case remanded for new trial because he was denied his constitutional right to effective assistance of counsel when his trial counsel failed to ensure his waiver of his right to a jury trial was knowing, voluntary, and intelligent. Mills further asserts his conviction for Burglary in the Second Degree should be vacated as it is not supported by sufficient evidence. Because Mills failed to produce any evidence contradicting prima facie evidence of his knowingly and voluntarily waiver of his right to a jury trial, we decline to find his trial counsel ineffective for failing to object to this waiver. We further find Mills' conviction for Burglary in the Second Degree was supported by substantial evidence. Accordingly, we affirm.
I. Background Proceedings
On March 7, 2003, the State filed a trial information charging Mills with the following: Two counts of Burglary in the Second Degree (Counts I and II) in violation of Iowa Code sections 713.1 and 713.5(2) (2001) enhanced as an Habitual Offender under Iowa Code section 902.8; Attempted Burglary in the Third Degree (Count III), an aggravated misdemeanor in violation of Iowa Code section 713.6B (2001 Supp.); Eluding a Peace Officer (Count IV), an aggravated misdemeanor in violation of Iowa Code section 321.279(2) (2001). On April 16, 2003, Mills filed a "Written Waiver of Jury" which stated simply that he "pursuant to Rule 2.17(1) and prior to the end of discovery and more than ten (10) days before the date set for trial, waive[d] trial by jury in the above entitled cause." On April 28 Mills appeared before the district court for a final pretrial conference during which the district court made the following statement regarding Mills' waiver of a jury trial. "The Court would note that Mr. Mills, on April 16, 2003, executed a written waiver of jury. So this matter will be tried as a bench trial as the written waiver was filed within the time requirements provided in the rules." Mills' counsel then stated the following with regard to Mills' waiver of his jury right, "I just asked Mr. Mills again to make sure that he desires to continue with his waiver of jury and he indicates that he does wish to have the matter tried by the court."
The trial information incorrectly listed the applicable Iowa Code section as section 713.7B.
On May 15, pursuant to a plea agreement whereby the State agreed to dismiss Counts I and III, a bench trial on Counts II and IV was conducted on the minutes of testimony. Before the trial began, Mills attempted to enter a guilty plea as to Count IV. The district court, prior to rejecting this plea, went through a detailed colloquy with Mills. During the course of this colloquy, the district court engaged in the following conversation with Mills regarding his waiver of his right to a jury trial.
THE COURT: You have the right to choose whether to have a judge or jury of twelve people hear your case and you've already given up the right to have a trial by a jury in this case; but if the trial was to a jury, the jury would have to vote unanimously to find you guilty in order for you to be convicted. Do you understand that?
MR. MILLS: Yes, excuse me.
THE COURT: At trial, you would be entitled to have an attorney present and, if you could not afford one, the Court would appoint one. And, at trial, you and your attorney would select a jury of twelve people . . . make arguments of law to the Court and arguments of fact to the jury.
On June 19th district court issued its "Findings of Fact, Conclusions of Law, Verdict and Order" wherein the district reiterated that on May 15.
The Court specifically addressed [Mills] concerning his right to a jury trial, including the right to call witnesses, the right to cross-examine witnesses, the right to present a defense, the right to testify if he chose to do so, as well as the right to have the verdict rendered in open court. [Mills] knowingly and voluntarily waived said rights.
II. Scope of Review
In light of the constitutional dimensions of an ineffective assistance of counsel claim, our review of this claim is de novo. State v. Weatherly, 679 N.W.2d 13, 16 (Iowa 2004). Because a verdict "is binding on us when supported by substantial evidence, we review challenges to the sufficiency of the evidence underlying the verdict for correction of errors at law." Id. III. Issues A. Effective Assistance of Counsel
Ineffective assistance of counsel is established when a defendant demonstrates two elements by a preponderance of the evidence. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 693 (1984). "Failure to prove either of these elements is fatal to a claim of ineffective assistance." Weatherly, 679 N.W.2d at 18 (citing State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003).
The Iowa Supreme Court has referred to the first prong in three different ways: that trial counsel failed to perform an essential duty; that "trial counsel's conduct fell outside the range of normal competency"; and that "counsel's performance was so deficient as to not constitute functioning as counsel." Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998) (citations omitted). The ultimate test under the first element is whether considering the entire record and the totality of the circumstances trial counsel's performance was within the normal range of competency. Id. In determining whether trial counsel's performance was deficient, more is required than a showing that trial strategy backfired or that another attorney would have prepared and tried the case differently. Strickland, 466 U.S. at 690, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693. In fact, in determining whether trial counsel failed in an essential duty "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and a defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. Mills must prove this element of his ineffective assistance of counsel claim by a preponderance of the evidence. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999).
Mills contends his trial counsel failed in an essential duty when his trial counsel failed to ensure his waiver of his right to a jury trial was knowing, voluntary, and intelligent. Ineffective assistance of counsel claims are generally preserved for post-conviction relief actions. See State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003). However, the issue of whether a jury waiver was sufficient is often ruled on in a direct appeal. See id. at 111 (noting that "posttrial reconstruction of the record will not suffice to show a valid waiver." [citation omitted]); see, e.g., State v. Spies, 672 N.W.2d 792, 799 (Iowa 2003); State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003); State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994).
Mills' right to a jury trial is a constitutional right, and the adequacy of the waiver of this right is a mixed question of fact and law, which we decide de novo. Stallings, 658 N.W.2d at 108. A waiver of a constitutional right must be voluntary, knowing, and intelligent. State v. Loye, 670 N.W.2d 141, 148 (Iowa 2003). In furtherance of this requirement, Iowa Rule of Criminal Procedure 2.17(1) provides in part: "[c]ases 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 within 30 days after arraignment." Evidence of "a written jury waiver taken in compliance with rule [2.17(1)] is prima facie evidence that the waiver was voluntary and intelligent." State v. Lawrence, 344 N.W.2d 227, 230 (Iowa 1984). Thus, a defendant who attacks a written jury waiver complying with Rule 2.17(1) bears the burden of demonstrating that the waiver is not knowing, voluntary, and intelligent. Id.
At the time Mills waived his right to a jury trial, all that was required to be compliant with Rule 2.17(1) was simply that the waiver be written and be part of the record. Id. ("An open court proceeding is no longer expressly required by [2.17(1)] although it once was."). However, in order for a waiver to be part of the record there must have been evidence in the record demonstrating that the court was involved in the waiver process. See Stallings, 658 N.W.2d at 112 (finding trial counsel ineffective for failing to ensure a waiver was knowing, voluntary, and intelligent as the record contained "no evidence that the court was even included in the waiver process . . .").
In State v. Liddell, 672 N.W.2d 805, 811-14 (Iowa 2003), the Iowa Supreme Court reinterpreted the meaning of the phrase "on the record" for the purposes of Rule 2.17(1) and partially overruled State v. Lawrence by holding that in order to comply with this requirement a district court must conduct some in-court colloquy with defendants who wish to waive the right to a jury trial. 672 N.W.2d 805, 811-812 (Iowa 2003). However, this partial overruling of Lawrence does not affect our decision in this case as Liddell was decided after judgment and sentence were entered in the present case. See Spies, 672 N.W.2d at 799-800 ("Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide effective assistance of counsel." (quoting Liddell, 672 N.W.2d at 814)).
Similar to the facts of Lawrence, Mills signed his written waiver and this written waiver was "unquestionably a part of the record." See Lawrence, 344 N.W.2d at 230. Moreover, and unlike the facts of Stallings, a case in which the record contained neither a written waiver nor a transcript otherwise indicating court involvement in the defendant's waiver, Mills' written waiver was discussed in open court both by the district court judge, and by Mills' counsel who assured the court that he, "just asked Mr. Mills again to make sure that he desires to continue with his waiver of jury and he indicates that he does wish to have the matter tried by the court." This is prima facie evidence that the waiver was made voluntarily, knowingly, and intelligently.
In Lawrence, the court noted the waiver was signed by "both defendant and his trial counsel." In Mills' case, his waiver was signed by Mills and notarized by his trial counsel.
In Spies, a companion case to Liddell that was also decided after Mills' jury waiver, the Iowa Supreme Court determined a written and signed waiver mentioned prior to trial, but without an in-court colloquy was prima facie evidence of a knowing and voluntary waiver. Spies, 672 N.W.2d at 799.
Mills accordingly bears the burden of producing evidence proving that his waiver was not voluntary, knowing, and intelligent. However, on appeal, Mills' arguments focus on his belief that because no in-court colloquy took place there is no evidence in the record to indicate that the waiver was voluntary, knowing, and intelligent. These arguments ignore both the prima facie validity afforded the waiver, and the reality that at the time Mills' waiver was executed and presented to the court, no colloquy was required. See Liddell, 672 N.W.2d at 809 (noting that the Iowa Supreme Court decision in Lawrence that "on the record" meant "in the record" had not been overruled by the court's subsequent decision in Stallings). Mills points to no evidence in the record, nor does he make any allegations that his signed, written waiver was not knowing, voluntary, and intelligent. Furthermore, we note that the only additional evidence in the record, occurring prior to the district court's June 19 order, regarding Mills' jury waiver was the in-court plea colloquy conducted at the outset of Mills' trial. This colloquy only bolsters the conclusion that Mills' waiver was a knowing, voluntary, and intelligent jury waiver. Consequently, because Mills has failed to produce any evidence contradicting the prima facie evidence indicating that his waiver of his right to a jury trial was knowing and intelligent, we refuse to conclude Mills' trial counsel failed to perform an essential duty in failing to ensure the validity of this waiver. See Spies, 672 N.W.2d at 799 (refusing to find counsel failed in an essential duty where there is no evidence in the record nor allegation on appeal contradicting prima facie evidence of a knowing and intelligent waiver); State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994) (Where evidence establishes a knowing and voluntary waiver, counsel has no duty to preserve the issue for appeal.).
We note that Mills argues that at the time of the plea colloquy he had already waived his right to a jury trial, and that he could not withdraw this waiver, so that any colloquy at this time regarding his jury waiver was futile. We disagree. Iowa Rule of Criminal Procedure 2.17(1) provides that a "defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal . . ." (emphasis added). See also Lawrence, 344 N.W.2d at 230. Thus, this rule affects only voluntary and knowing waivers. Therefore, if Mills waiver was not knowing and voluntary, as he contends, then he had not yet waived his right to a jury, he was not subject to the prohibition on withdrawal of valid waivers without leave of court, and consequently that part of the plea colloquy discussing his right to a jury was pertinent. If, on the other hand, Mills' jury waiver was knowing and intelligent and thus subject to Rule 2.17(1)'s prohibition on withdrawal without leave of the court, then Mills has no complaint as he made a valid waiver and never sought withdrawal.
B. Sufficiency of the Evidence for Burglary Conviction
Thedistrict court, in its June 19 order, made the following findings of fact relating to Mills' conviction for burglary in the second degree, which we hereby adopt.
Mills does not contest the accuracy of any of these facts on appeal. In fact, Mills' rendition of the facts on appeal relies on the district court's findings of fact and is therefore very similar to these findings.
Howard Burgus is a resident of a home located at 11367 Stony Hollow Road, Sperry, Iowa. On or about February 21, 2003, Mr. Burgus was at this location. While in his home, he heard the doorbell at one of the doors of his residence ring. He looked through the window and saw a male subject outside his door whom he did not know. Because he did not know this individual, he did not answer the door. The individual rang the doorbell several times. The individual eventually went to another door of the residence and ran[g] a doorbell at that door. Mr. Burgus again did not answer the door.
At no time did Mr. Burgus give this individual permission or authority to be in the Burgus residence. At the time this incident occurred, the Burgus residence was not open to the public. The man at the Burgus residence entered the Burgus residence after ringing the door bell at the second door. The man entered into the Burgus kitchen, the man yelled "is there anyone home? Is there anyone there? Hello, is there anyone home?" Mr. Burgus did not respond. The man then left the kitchen and walked into the hallway. Mr. Burgus then walked out of a bedroom and confronted the individual in the hallway.
Mr. Burgus confronted the individual and asked him what he was doing in his home. The man told Mr. Burgus that he was looking for the Johnsons, stating that he had been told the Johnsons lived at that location. Mr. Burgus told the man that no one named Johnson lived at the house. It took Mr. Burgus two times telling the man to leave before the man would leave his residence.
Mr. Burgus was eventually shown a photograph lineup by law enforcement personnel. Mr. Burgus identified the Defendant as the man who had been in his home without permission or authority on February 21, 2003.
To support a conviction of burglary in the second degree, the State must prove all of the following elements beyond a reasonable doubt:
1. On or about the ____ day of ____, 20__, the defendant broke into [a place].
2. The [place] was an occupied structure. . . .
3. The defendant did not have permission or authority to break into [the place].
4. The defendant did so with the specific intent to commit a [felony, theft or assault].
5. During the incident . . . persons were present in or upon the occupied structure.
See II Iowa Crim. Jury Instruction 1300.2 (2004), see also Iowa Code §§ 713.1, 713.5 (2003). If substantial evidence supports the verdict we will uphold a finding of guilty. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). "`Substantial evidence' is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id. We review the facts in the light most favorable to the State, and consider not only evidence which supports the verdict, but all reasonable inferences which could be derived from the evidence. Id.
Mills contends the evidence supporting the district court's guilty verdict for second-degree burglary was insufficient with regard to only one element of the crime. Specifically, Mills challenges the sufficiency of the evidence showing he had the intent to commit a theft when he entered the home of Howard Burgus. Because determining specific criminal intent requires knowledge of what a defendant was thinking when an act was done criminal intent is seldom capable of direct proof. See State v. Evans, 672 N.W. 328, 331 (Iowa 2003); State v. Venzke, 576 N.W.2d 382, 384 (Iowa Ct.App. 1997). Rather, proof of intent may be inferred from circumstantial evidence such as outward acts and attending circumstances. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999); Venzke, 576 N.W.2d at 384.
With regard to whether Mills, at the time he entered an occupied structure, had the specific intent to commit theft, the district court stated in its "conclusions of law" that:
The facts surrounding the Defendant being caught by Mr. Burgus support a conclusion that the Defendant's purpose in being there was to steal something, if he found something worth stealing. The Defendant's behavior in ringing two different doorbells at the residence to see if anyone was home shows that he was attempting to make sure no one was in the house before he entered it. The Defendant's statement that he was looking for someone named Johnson is not credible. This is particularly true in light of the fact that he used the same name as a person he was looking for in 1998 when he burglarized another home. There can be no other reasonable explanation but that the Defendant was intending to look for something to steal in the Burgus residence when he entered the residence. As a result, the Court concludes the State has proven beyond a reasonable doubt that the Defendant entered the Burgus residence with the specific intent to commit a theft.
In addition, we note that Mills had no legitimate reason to enter Burgus' home, as he did not know Burgus.
The inference of intent drawn by the district court from the above recited circumstantial evidence of Mills' outward acts and the attending circumstances is reasonable, and, more than likely than not, true. Therefore, the requirement of proof beyond a reasonable doubt is satisfied. State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994) (stating the requirement of proof beyond a reasonable doubt is satisfied if the inference of intent is more likely than not, true) (citation omitted). Consequently, there was substantial evidence demonstrating that Mills had the intent to commit a theft when he entered the Burgus home. We accordingly find no error in the guilty verdict.
IV. Conclusion
Mills' waiver of his right to a jury was compliant with Rule 2.17(1) as applied at the time of his waiver. Thus, it was prima facie evidence of a valid, knowing, and intelligent waiver. Mills failed to meet his burden in producing evidence that this signed, written waiver was not knowing, voluntary and intelligent. Therefore, we refuse to conclude that his trial counsel failed in an essential duty. Moreover, the reasonable inferences drawn from the evidence in the record sufficiently establish that Mills had the specific intent to commit theft when he entered the Burgus home. Consequently, substantial evidence supports his burglary conviction and we therefore affirm.