Opinion
No. 192 / 01-1499
Filed January 23, 2003
Appeal from the Iowa District Court for Washington County, Richard J. Vogel and James Q. Blomgren, Judges.
Defendant appeals from his conviction and sentence, following a stipulated bench trial, for operating while intoxicated, third offense, claiming ineffective assistance of counsel with respect to his right to a jury trial. REVERSED AND REMANDED.
Linda del Gallo, State Appellate Defender, James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Barbara A. Edmondson, County Attorney, and Eric Goers, Assistant County Attorney, for appellee.
Kevin Patrick McCormick appeals from his conviction and sentence, following a stipulated bench trial, for operating while intoxicated, third offense. He contends his trial counsel was ineffective regarding his waiver of jury trial.
The State charged McCormick with operating while intoxicated third offense and being a habitual offender, in violation of Iowa Code sections 321J.2 and 902.8 (1999). The State and the defendant eventually agreed to try the case solely on the minutes of testimony and the amended minutes of testimony. The State agreed to drop the habitual offender allegation in return for McCormick's agreement not to argue against a five-year term of imprisonment if found guilty. At the time set for trial, the following exchange took place:
THE COURT: Then may it be stipulated and agreed to by and between counsel and the defendant that the minutes of testimony and the amended minutes of testimony be admitted into the record and used by the Court for making a determination of guilt or innocence?
[THE PROSECUTOR]: Correct your Honor.
THE COURT: It is stipulated?
[THE DEFENSE COUNSEL]: Yes, so stipulated, your Honor.
THE COURT: Mr. McCormick, do you understand what's going on?
THE DEFENDANT: Yes, your Honor.
THE COURT: You visited with your attorney about this?
THE DEFENDANT: Yes, your Honor.
THE COURT: That's the way you wish to proceed at this time?
THE DEFENDANT: Yes.
THE COURT: You understand that you will not be presenting a defense as such and that I will be making my ruling solely on the minutes of testimony and the amended minutes of testimony that were filed in this case?
THE DEFENDANT: Yes, your Honor.
THE COURT: Very well. The matter is submitted.
The record contains no written or oral statement by McCormick waiving his right to a jury trial.
Later, the district court found McCormick guilty of the operating-while-intoxicated charge and sentenced him to an indeterminate five-year prison term.
In a case decided today, State v. Stallings, ___ N.W.2d ___ (Iowa 2003), we held that the failure of the defendant's counsel to assure compliance with rule 2.17(1) constituted ineffective assistance of counsel. Our ruling in Stallings controls here. Because we find that McCormick has established his claim of ineffective assistance of counsel, we reverse and remand the case for a new trial.