Opinion
No. 3-922 / 02-1167
Filed February 11, 2004
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Alonda Paulette Stallings appeals her conviction of second-degree criminal mischief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., Eisenhauer, J., and Harris, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Defendant Alonda Paulette Stallings waived a jury and proceeded with a bench trial on a charge of second-degree criminal mischief in violation of Iowa Code sections 716.1 and 716.4 (2001). On her appeal following conviction her only assignment of error challenges the sufficiency of her jury waiver. We reject the challenge and affirm.
The challenge is grounded on the holding in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), an opinion filed more than seven months following the waiver in this case. The challenge is structured through a claim her trial counsel was ineffective for not advising her on her waiver and in not insisting on a more extensive in-court colloquy in accordance with Stallings. Because there is no record of trial counsel's advice off the record, that issue is not appropriate for review on direct appeal and is reserved for postconviction proceedings.
A separate basis for the ineffectiveness counsel claim is also addressed to the holding in Stallings, 658 N.W.2d at 111, where the court established a requirement for a formal showing to support a jury waiver under Iowa Rule of Criminal Procedure 2.17(1). The defendant here argues her waiver did not anticipate and meet the standard. We think it did. The trial court did conduct a colloquy that shows the waiver was both knowing and voluntary. Defendant points to her remarks suggesting her guilt was a foregone conclusion for either a judge or jury. We, however, cannot conclude she was indicating a belief that her conviction had already been decided. It seems just as likely her pessimism resulted from a realistic assessment of the evidence against her.
In any event, the inadequate assistance of counsel claim must be and is rejected on the basis of later holdings in State v. Spies, 672 N.W.2d 792, 799 (Iowa 2003), and State v. Liddell, 672 N.W.2d 805, 811 (Iowa 2003). Those make it clear that ineffective counsel is not shown in cases such as this one where a written jury waiver was filed.