Opinion
No. 3-725 / 02-1565.
Filed December 10, 2003.
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Jeremiah Vansice appeals following his conviction on the charge of willful injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Defendant Jeremiah Vansice appeals following his conviction on the charge of willful injury. He claims his trial counsel was ineffective for failing to ensure that the trial court was properly involved in the jury trial waiver process. We affirm.
I. Background Facts Proceedings
On April 4, 2002, Vansice approached Shawn Dean, who was waiting for a bus. Vansice intentionally struck Dean in the face causing multiple fractures to his jaw. On May 30, 2002, the State filed a trial information charging Vansice with willful injury causing serious injury, a class C felony, in violation of Iowa Code section 708.4(1) (2001). On August 14, 2002, the State filed an amended trial information charging Vansice with willful injury causing bodily injury, a class D felony, in violation of Iowa Code section 708.4(2). That same day, Vansice signed and filed a written waiver of his right to a jury trial. He then appeared in court and orally waived his right to jury trial after a colloquy with the district court. During his court appearance, defendant agreed that his trial to the court would be based on a stipulated record consisting of the minutes of testimony, the deposition of the victim, police reports, and medical records. On August 16, 2002, the court found Vansice guilty of willful injury causing bodily injury. On September 19, 2002, the court sentenced Vansice to serve a term of imprisonment not to exceed five years. Vansice appeals.
II. Scope of Review
Because Vansice alleges a denial of his constitutional right to effective assistance of counsel, our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. Ineffective Assistance of Counsel
Vansice claims his trial counsel was ineffective "for failing to ensure that the court [was] properly involved in the jury trial waiver process." Although Vansice waived his right to a jury trial in writing and orally, he contends the district court's colloquy with him regarding his waiver was inadequate to demonstrate that he knowingly, voluntarily, and intelligently waived his right to a jury trial.
To establish a claim of ineffective assistance of counsel, Vansice has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted from this omission. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish the requisite prejudice, Vansice mush show that there is a reasonable probability that but for counsel's unprofessional errors the result of the proceedings below would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695. Usually we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). Here, we find the record sufficient to address Vansice's claim.
Vansice's claim that he was denied effective assistance of counsel in connection with his jury waiver is premised on our supreme court's recent decision in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), a case decided after the conclusion of the proceedings in district court in this case. In Stallings, the supreme court found counsel ineffective for failing to assure compliance with Iowa Rule of Criminal Procedure 2.17(1) (formerly rule 16), which provides:
Trial by jury. 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 within 30 days after arraignment, or if no waiver is made within 30 days after arraignment the defendant may waive within ten days after the completion of discovery, but not later than ten days prior to the date set for trial, as provided in these rules for good cause shown, and after such times only with the consent of the prosecuting attorney.
The supreme court stated:
In assessing a waiver, the 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 guilty or innocence if the defendant waives a jury trial.
See Robertson, 45 F.3d at 1432. 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." Wright § 372, at 452-53 n. 22.
Stallings, 658 N.W.2d at 111-12.
We begin our discussion of the defendant's claim by pointing out that this case is factually distinguishable from Stallings in several respects. In Stallings, the record contained no written waiver of jury trial, and no mention of a waiver was made by the state, the defendant, or the district court during any recorded court proceeding. Here, Vansice signed and filed a written waiver of his right to a jury trial. Additionally, the court and Vansice engaged in the following colloquy regarding his decision to waive his right to a jury trial:
The Court: Mr. Vansice, you are now charged in the Amended Trial Information in Count I with Willful Injury, a violation of 708.4(2), a Class D Felony. My understanding is that what you want to do today is you want to waive your right to a jury trial, which you have already done in writing. I need to know if you want to waive that right on the record orally?
Vansice: Yes.
The Court: Now, before — I want to make sure that you understand all of your rights before I agree to proceed in this manner. Do you understand that you have a right to a jury trial that would include the following: If you couldn't afford to hire your own attorney, one would be provided to you at public expense. Do you understand that?
Vansice: Yes.
The Court: Do you understand that you have a privilege against self-incrimination? And that means whether or not you were to testify at the time of your trial would be up to you. And if you decided not to testify, no one could use that against you. Do you understand that?
Vansice: Yes.
The Court: Do you understand that the State of Iowa would have to bring witnesses into court to testify against you under oath, and that those witnesses would be subject to cross-examination by your own lawyer?
Vansice: Yes.
The Court: Do you understand that you are presumed innocent until such time, if ever, the State would be able to prove your guilt by competent evidence beyond a reasonable doubt to the satisfaction of 12 jurors, and any jury verdict must be unanimous?
Vansice: Yes.
The Court: Do you understand that?
Vansice: Yes.
The Court: Do you understand that if you couldn't afford to bring witnesses into court to testify in your behalf, public funds would be provided so that you could do so?
Vansice: Yes.
The Court: And do you understand that by going along with the procedure that has been outlined for the Court today, you are giving up all of those rights and you will have no jury trial?
Vansice: Yeah.
The Court: And I alone will determine whether or not you are guilty of this crime based upon the State's Exhibit 1, which are the Minutes of Testimony, the police reports, and looks like the deposition of Sean Thomas Dean . . . [a]nd the medical records.
Vansice: Yes.
The Court: So I have all those at my disposal and everything else that is in your court file, criminal number 64507, that I would review and then I would determine from that whether or not the State has proved beyond a reasonable doubt that your are guilty of the amended charge. Do you understand that?
Vansice: Yes.
The Court: I'm the only one that is going to decide that; not twelve jurors.
Vansice: Yes.
The Court: One person and that is me.
Vansice: Yes.
The Court: Is that what you are willing to do?
Vansice: Yes.
The Court: Do you understand that the maximum punishment you are subjecting yourself to is a Class D felony, which means you can go to prison for a period not to exceed five years and you could be fined a minimum of $750 and a maximum of $7,500?
Vansice: Yes.
The Court: All right. Knowing all that, you want to follow the procedure that has been outlined by the State's attorney and your attorney and the Court to you.
Vansice: Yes.
Vansice contends that the above colloquy was inadequate because the court did not ascertain whether he was under the mistaken impression that he would be rewarded for waiving his right to a jury trial or whether he had a medical condition that would impair his ability to understand what rights he was giving up. Moreover, he claims that the colloquy was not sufficient because it did not inform him that the twelve people who would make up his jury would come from his community and that he would have the opportunity to take part in jury selection.
Vansice is correct in asserting the district court's colloquy with him did not include all the inquiries to set forth in Stallings; however, that fact is hardly surprising. Vansice waived his right to a jury trial in August 2002. The Stallings case was not decided until January 2003. Even though Stallings had not been decided when Vansice waived his right to a jury trial, he suggests his counsel was ineffective for failing to insist that the district court conduct the entire colloquy that Stallings now requires. We disagree.
The State contends that prior cases interpreting the requirements of Rule 2.17(1) do not mandate the detailed colloquy that Stallings now requires. We agree with this assessment. In addition, in establishing the "on the record" requirements for a valid jury waiver under Rule 2.17(1), the Stallings court relied on Federal Rule of Criminal procedure 23(a) and the federal cases interpreting that rule. As noted in Stallings, the Iowa rule differs from the federal rule. Federal Rule 23(a) states that a waiver must be "with the approval of the court" while the Iowa Rule does not. However, our rule assumes the court is made aware of a defendant's waiver because it requires the waiver to be made in writing and on the record. Stallings, 658 N.W.2d at 109. Given the difference in the rules, it is hard to fault Vansice's lawyer for failing to anticipate that our supreme court would follow the federal rule in construing the Iowa rule.
See generally, State v. Buck, 510 N.W.2d 850, 851-53 (Iowa 1994) (limited colloquy and written waiver constituted "overwhelming evidence" of voluntary, knowing, and intelligent waiver); State v. Lawrence, 344 N.W.2d 227, 229-30 (Iowa 1984) (written waiver, standing alone, "is prima facie evidence that the waiver was voluntary and intelligent" and satisfied the rule, even though there was "no open court proceeding, nor record colloquy between the court and defendant concerning the waiver"); State v. Combs, 316 N.W.2d 880, 883-84 (Iowa 1982) (rule does not require "a lengthy inquiry into defendant's waiver of jury").
We do not require our trial attorneys to be crystal gazers; it is not necessary to know what the law will become in the future to provide effective assistance of counsel. Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981). We conclude Vansice's attorney breached no duty in failing to argue that his client's on-the-record jury waiver was improper and incomplete because it did not include the inquires for assessing a waiver established in a case decided by our supreme court five months after Vansice waived a jury trial. Based on the pre- Stallings caselaw, trial counsel could have reasonably concluded the district court's on-the-record colloquy with Vansice was sufficient to satisfy the requirements of Rule 2.17(1). Accordingly, Vansice's ineffective assistance of counsel claim fails as a matter of law.