Court of Appeals of IowaFeb 9, 2005
695 N.W.2d 506 (Iowa Ct. App. 2005)

No. 5-032 / 04-0892

Filed February 9, 2005

Appeal from the District Court for Tama Country, Robert E. Sosalla, Judge.

Scott Ackart argues his counsel was ineffective in failing to ensure he "knowingly and intelligently" waived his right to a jury trial. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Brent D. Heeren, County Attorney, and Natalie Peterson and Richard VanderMey, Assistant County Attorneys, for appellee.

Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.

The State charged Scott Ackart with two counts of domestic abuse assault-third offense, a felony, and one count of serious assault on a police officer. He and his attorney signed and filed a "waiver of right to jury trial." Before evidence was presented, the district court engaged the defendant in a colloquy about the waiver. The court then received evidence and found Ackart guilty of the domestic abuse counts.

On appeal, Ackart claims trial counsel was ineffective in failing "to assure that [his] waiver of jury trial was knowing and intelligent." We find the record adequate to address this issue. State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003); State v. Stallings, 658 N.W.2d 106, 109 (Iowa 2003).

A person claiming ineffective assistance of counsel must generally show both a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). Where the adequacy of jury trial waivers is at issue, a determination that the waiver was inadequate will result in a presumption of prejudice. Stallings, 658 N.W.2d at 112.

The key question in deciding the adequacy of a waiver is whether it was "knowing, voluntary, and intelligent." Liddell, 672 N.W.2d at 814. On our de novo review of the record, we conclude Ackart's waiver satisfied this standard. The written waiver recited that Ackart knew of his constitutional right to have his case tried by a jury, stated Ackart had been "fully advised" of his "statutory and constitutional rights to a trial by jury and the ramifications of waiving the same by" his attorney, and stated Ackart was waiving his right to trial by jury and agreeing to have the case tried to the court. The written waiver also contained the following attestation by Ackart's counsel: "I have discussed the matters referred to in this pleading with my client, the defendant, and acknowledge that he/she executes the same knowingly, intelligently, and voluntarily." The district court's colloquy with Ackart reaffirmed the contents of the written waiver. Specifically, the court confirmed that Ackart signed the document, understood the document, and had trial counsel explain the document to him. We believe this exchange satisfied our supreme court's requirement that the district court conduct "some in-court colloquy with the defendant" to ensure that the "waiver is knowing, voluntary, and intelligent." Id.

In reaching this conclusion, we recognize that the written waiver in Liddell was more detailed than the one signed by Ackart. Id. at 811. It recited that the defendant had a right to a trial by a jury of twelve persons, a unanimous guilty verdict and a verdict proven beyond a reasonable doubt. Id. It also recited that a waiver of the right meant that a judge would issue written findings and would decide whether the State proved its case beyond a reasonable doubt. Id. This waiver closely tracked a list of recommended topics for discussion set forth in Stallings. 658 N.W.2d at 111. The list, however, was not constitutionally mandated but dictated by "practical considerations." Id. The Iowa Supreme Court later reiterated that the Stalling "subjects of inquiry are not `black letter rules' nor a `checklist' by which all jury-trial waivers must be strictly judged." Liddell, 672 N.W.2d at 814.

In the absence of law mandating an inquiry into a defendant's understanding of the Stallings topics, we conclude trial counsel did not breach an essential duty in failing to challenge the jury-trial waiver on this ground. His ineffective-assistance-of-counsel claim, therefore, must fail.