Opinion
No. 04-1057
Filed September 14, 2005
Appeal from the Iowa District Court for Clinton County, Mark J. Smith, Judge.
Jeremy Fenton appeals following his conviction and sentence for operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2003). REVERSED AND REMANDED.
Kent Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Michael L. Wolf, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Jeremy Fenton appeals following his conviction and sentence for operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2003). Fenton asserts that his trial counsel was ineffective for failing to ensure the district court followed proper procedures for waiver of a jury trial and submission to a trial by the court based upon a stipulated record. Fenton further asserts there is insufficient evidence to support a finding of guilt, and that the court failed to state adequate reasons for the sentence imposed. We reverse and remand on the first issue presented, and therefore find it unnecessary to reach the other issues.
I. Background Facts and Proceedings.
In October 2003, a trial information was filed accusing Fenton of operating while intoxicated (OWI) by operating a motor vehicle while under the influence of alcohol and/or drugs or while having an alcohol concentration of .08 or more, having been convicted of OWI two or more times in the last twelve years. Fenton entered a plea of not guilty, and the matter was set for a jury trial.
On May 10, 2004, the first day of trial, Fenton appeared with counsel, and the parties selected a jury. Fenton's counsel then informed the court that his client "wishes to accept the record, the Trial Information, and the Minutes of Testimony that have been filed in this matter." The court conducted a colloquy with Fenton, inquiring into whether Fenton understood that he was giving up a number of rights. The court then clarified that Fenton was submitting to a trial by the court based upon a stipulated record, and proceeded to find Fenton guilty based upon the minutes of evidence:
The Court: And I understand you are not pleading guilty, but in accepting the record, you are acknowledging that the State would prove the testimony, and you are stipulating to that testimony as submitted in the Minutes of Testimony filed by the State. . . . The Defendant: Yes.
The Court: And you are stipulating that those facts are uncontested by you? The Defendant: Yes.
. . . .
[T]he Court would allow you to waive your right to a jury trial, and based on your stipulation and acceptance and — as stated by you and your attorney, the Court would enter a finding of guilt based on those Minutes, which the Court would deem to be uncontested, and would therefore be true as stated.
Therefore, the Court finds you guilty based on the stipulation of Operating While Intoxicated Third Offense, that having taken place on October 4, 2003, in Clinton County, State of Iowa. Judgment is entered thereon at this time.
Fenton was sentenced on June 24, 2004. Consistent with the recommendation in the presentence investigation report, the State recommended that Fenton be sentenced to a term of incarceration but be placed "at the O.W.I [work release] facility." Fenton requested probation or, alternatively, placement at the work release facility. The district court declined to follow either recommendation, and sentenced Fenton to a term of incarceration not to exceed five years, with directions that he be delivered to the general prison reception center. Fenton now appeals.
The court also imposed a $2,500 fine.
II. Scope of Review.
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).
III. Nature of the Proceedings.
Before we can address Fenton's ineffective assistance of counsel claim, we must address his contention that the district court did not conduct a trial on the stipulated record, but instead engaged in a "hybridization of a guilty plea and bench trial [that] is nowhere authorized by rule or statute." State v. Nikkel, 597 N.W.2d 486, 486 (Iowa 1999).
When a defendant stipulates to a trial by the court based upon a stipulated record, the court must:
(1) verify that the defendant has waived his right to a jury trial in accordance with Iowa Rule of Criminal Procedure [2.17](1); (2) confirm the extent of the factual record to which the parties are stipulating; and (3) "find the facts specially and on the record," separately state its conclusion of law, and render an appropriate verdict as required by Iowa Rule of Criminal Procedure [2.17](2).
State v. Sayre, 566 N.W.2d 193, 196 (Iowa 1997).
Fenton points out that the in-court colloquy conducted by the court involved advisories appropriate to a guilty plea proceeding — including the right to a court-appointed attorney, the right to conduct discovery, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. He further asserts that the court's findings and conclusions do not satisfy rule 2.17(2). He contends that, in light of these facts, it cannot be determined whether the court in fact was conducting a trial based upon the stipulated record, accepting a guilty plea, or conducting some form of unauthorized, "hybrid" procedure. We cannot agree.
Aside from the inquiries relevant to a plea proceeding, there is no indication in the record made before the trial judge that Fenton was submitting, or the court was accepting, a guilty plea. Rather, the record contains multiple indications that the district court found Fenton guilty based upon the minutes of evidence. We conclude the record adequately demonstrates the nature of the proceeding. Cf. Nikkel, 597 N.W.2d at 488 (reversing where "it [was] impossible . . . to determine, on appeal, whether the resulting judgment stems from a confession of guilt or a fact finder's determination based on the elements of the offense"). We therefore turn to Fenton's claim of ineffective assistance of counsel.
Although the advisories regarding court-appointed counsel, discovery, and the privilege against self-incrimination had little or no relevance in light of the fact that Fenton was represented by counsel, the matter was ready to proceed to trial, and Fenton would not testify in a trial on the minutes, we note that an advisory regarding the right to confront and cross-examine witnesses is no less applicable in a stipulated trial on the minutes than it is in a guilty plea proceeding. In either event, Fenton was giving up his right to a jury trial.
The sentencing memorandum and judgment entry does state that, "[b]ased upon Defendant's plea of guilty, it is the judgment of the Court that [he] is guilty of the crime of Operating While Intoxicated, Third Offense. . . ." However, the calendar entry made by the trial judge stated that Fenton had "accept[ed] the record," and that the court "[t]herefore . . . finds Defendant guilty." During the sentencing proceeding the sentencing judge restated the contents of this calendar entry. Under the circumstances, use of the term "plea of guilty" in the judgment entry appears to be no more than a scrivener's error.
IV. Ineffective Assistance of Counsel.
Fenton claims trial counsel was ineffective for failing to ensure the district court followed the necessary procedures for conducting a trial based upon the stipulated record. Specifically, Fenton contends the district court did not verify that he voluntarily and intelligently waived his right to a jury trial as required by Iowa Rule of Criminal Procedure 2.17(1), and that trial counsel was thus ineffective for failing to assure a voluntary and intelligent waiver.
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). 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.
Although the rule requires, inter alia, a written waiver, no such requirement is imposed by constitution. Stallings, 658 N.W.2d at 111. Further, the absence of a written waiver is not necessarily fatal. Id. at 110.
[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 the "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").
Fenton did not file a written waiver of a jury trial. In light of the fact that Fenton had already participated in jury selection, it might reasonably be assumed he was aware that the jury was composed of twelve members of the community, that he had a right to participate in jury selection, and that his guilt would be decided by the court alone. However, the present record does not affirmatively demonstrate that Fenton was aware of any one or more of these three "subjects of inquiry" and the related rights he would be waiving by waiving a jury trial.
In its colloquy with Fenton the district court did not mention, or inquire into Fenton'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 a written waiver or an inquiry or colloquy concerning any of the five subjects we conclude the record does not demonstrate a voluntary and intelligent waiver.
VI. Conclusion and Disposition.
Counsel failed to assure substantial compliance with 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 Fenton's conviction and remand for trial to a jury unless Fenton voluntarily and intelligently waives his right to a trial by jury. See id. REVERSED AND REMANDED.