Opinion
No. 2-843 / 02-0527.
Filed December 30, 2002.
Appeal from the Iowa District Court for Scott County, J. HOBART DARBYSHIRE, Judge.
Tomsha appeals from his conviction and sentence for being a felon in possession of a firearm. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Jerald L. Feuerbach, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
Tomsha appeals from his conviction and sentence for being a felon in possession of a firearm in violation of Iowa Code section 724.26 (2001).
I. Background Facts and Proceedings.
Tomsha was charged with robbery in the first degree and being a felon in possession of a firearm following the August 31, 2001, robbery of a Davenport restaurant. Tomsha was implicated in the robbery because he was a passenger in the rear seat of an automobile matching the description of the getaway car used in the robbery. He was charged as a felon in possession of a firearm because of a prior felony conviction and discovery of a gun wedged between the rear passenger seats of the same car.
Tomsha denied any involvement in the robbery. He also denied any knowledge that there was a gun in the car.
The day after trial commenced, Tomsha filed a stipulation with the district court. It stated, in part:
This stipulation is presented to the court subject to the prosecutor's and the court's agreement that evidence of prior felony convictions(s) by the Defendant will not be submitted to the jury in this matter unless the Defendant takes the stand and is subject to impeachment. Defendant agrees that this fact is stipulated and shall be a finding beyond a reasonable doubt that he has been convicted of a felony and Defendant agrees to waive the requirement that the jury find he is guilty of this element of the offense of felon in possession of a firearm.
The State agreed to this stipulation and did not introduce any evidence of Tomsha's prior felony convictions.
As a result, the jury was not instructed on the felon-in-possession-of-a-firearm count. The jury was instead given a special interrogatory asking, "Has the State proved beyond a reasonable doubt that the Defendant was in possession of a firearm?" to which the jury responded yes.
The jury acquitted Tomsha on the robbery count. The trial court, based on the stipulation and the jury's answer to the foregoing interrogatory, found Tomsha guilty of the felon-in-possession-of-a-firearm count. Tomsha's posttrial motions were denied. The district court sentenced Tomsha pursuant to Iowa Code section 902.3A (Supp. 2001) to a determinate term of imprisonment of four years, eleven months, and thirty days, followed by an indeterminate term of imprisonment not to exceed two years.
On appeal, Tomsha argues:
(1) He was denied effective assistance of counsel and a fair trial when trial counsel failed to challenge the court's failure to instruct the jury on the charge of felon in possession of a firearm,
and
(2) The trial court erred in imposing an illegal sentence.
II. Standard of Review.
We review Tomsha's constitutional claims that he was denied due process of law and effective assistance of counsel de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). Where as here there is a challenge to the legality of the sentence imposed, we review for errors of law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).
III. Ineffective Assistance of Counsel.
To establish a claim of ineffective assistance of counsel, Tomsha has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). To establish the requisite prejudice, Tomsha must show that there is a reasonable probability, 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. Ordinarily, 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).
In State v. Owens, 635 N.W.2d 478 (Iowa 2001), the supreme court held:
When a prior conviction forms an essential element of the current charge, rather than merely furnishing the basis for an enhanced sentence, the jury must determine guilt on that element beyond a reasonable doubt; answering an interrogatory will not suffice. Even if the defendant stipulates to guilt on an element of an offense, the court must still instruct the jury as to the stipulation. It is from this stipulation that the jury determines a defendant's guilt beyond a reasonable doubt.State v. Owens, 635 N.W.2d 478, 483-84 (Iowa 2001). In so holding, the court has expressly repudiated the method by which Tomsha's guilt or innocence of the felon in possession of a firearm was submitted. Although Owens does not expressly address the issue, we are unable to reconcile its holding with the notion that Tomsha could waive a jury trial on one but not all of the elements of the offense charged. In any event, the express purpose of the stipulation was to spare Tomsha the prejudicial implications of the evidence concerning his prior felony conviction. Neither the express terms of the stipulation or the record made concerning it were intended or sufficient to establish Tomsha's voluntary and intelligent waiver of his right to a jury trial on the felon-in-possession-of-a-firearm count. See Iowa R.Crim.P. 2.17(1) (formerly Iowa R.Crim.P. 16.1).
We find based on the record that counsel breached an essential duty by permitting the felon-in-possession-of-a-firearm count to be submitted in violation of Owens's express prohibition. As a result, Tomsha was denied his right to a jury trial and verdict on each element of the offense charged. United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444, 458 (1995).
In the absence of the required jury verdict, any resulting error, invited or otherwise, cannot be considered harmless. Cf. Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182, 189-90 (1993) (the question whether the same verdict would have been rendered absent counsel's error is utterly meaningless in the absence of actual verdict). We believe the same rationale controls our determination of the resulting prejudice to Tomsha. Without a jury verdict, there is simply no way to determine the reasonable probability of another result. Id.
The judgment of the district court is therefore reversed and this case is remanded for a new trial in conformity with our opinion. Because the resolution of this issue is dispositive, we need not address the remaining issues raised in this appeal.