STATE v. DUKES, 683 N.W.2d 127 (Iowa App. 2004)

No. 4-202 / 03-0926Court of Appeals of Iowa.
April 14, 2004.

Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.

Defendant appeals from the judgment and sentence entered upon his conviction for possession of marijuana without a drug stamp.AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.

EISENHAUER, J.

Jacque Donzell Dukes appeals from the judgment and sentence entered upon his conviction for possession of marijuana without a drug stamp, in violation of Iowa Code sections 453B.3, 453B.7, and 453B.12 (2001). He contends his counsel was ineffective in failing to challenge his defective waiver of a jury trial. We review his claim de novo. State v. McBride, 625 N.W.2d 372, 373
(Iowa Ct.App. 2001).

On November 18, 2002, Dukes was charged with failure to affix a tax stamp (count I), and possession of marijuana with intent to deliver (count II). Dukes agreed to waive his right to a jury trial and to stipulate to (1) the minutes of testimony, (2) the absence of a tax stamp, and (3) the existence of his left index finger print on a large plastic bag containing smaller baggies of marijuana. In exchange, the State agreed to dismiss count II. On May 23, 2003, Dukes was found guilty of possession of marijuana without a tax stamp and was sentenced to a term not to exceed five years imprisonment. His sentence was suspended and he was placed on three years probation.

On appeal, Dukes contends his trial counsel was ineffective in failing to challenge his defective waiver of a jury trial. To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A strong presumption exists that counsel’s performance fell within the wide range of reasonable professional assistance. Id. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).

Iowa Rule of Criminal Procedure 2.17(1) states in pertinent part, “Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record. . . .” Our supreme court has held that the failure to put a waiver in writing is not necessarily fatal where the record clearly reflects a defendant’s waiver of the right is voluntary, knowing, and intelligent State v. Stallings, 658 N.W.2d 106, 110 (Iowa 2003).

In assessing a waiver, the 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.

Id. at 111. The court should also seek 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 111-12.

Here, there is no written record of Dukes’s waiver of his right to a jury trial. Although there was an in-court colloquy, Dukes asserts it was insufficient to ensure the waiver was knowing and voluntary. The following exchange occurred:

THE COURT: Mr. Dukes, I’m told that you are here today to ask the Court to consider the minutes of testimony as though it was evidence presented to the Court and to make a finding of fact as to whether or not you are guilty. Is that what you want to do today?

THE DEFENDANT: Yes, your Honor.

THE COURT: You understand that you have a right to have a trial in which the witnesses would be presented to testify against you? You have the right to have that trial and to have a jury make the findings of fact. Do you want to give up those rights?

THE DEFENDANT: Yes, your Honor.

THE COURT: You understand that a jury is an important aspect of your rights under the Constitution. That a jury of 12 persons would have to decide unanimously on your guilt or innocence if you decided to have a jury trial instead of a bench trial?

THE DEFENDANT: Yes, your honor.

Dukes alleges the in-court colloquy was insufficient because the court failed to inform him the twelve members of the jury would be members of the community, that he would take part in the jury selection, and that the court alone would decide his guilt if he waived a jury trial. Additionally, Dukes contends the court failed to ascertain whether he was under the mistaken impression he would somehow be rewarded for waiving a jury trial.

We conclude the district court adequately stated Dukes’s right to a twelve member jury. In State v, Miranda, 672 N.W.2d 753, 764 (Iowa 2003), our supreme court stated, “Commonsense should tell a defendant, for example, that his twelve member jury will be drawn from his community.” Accordingly, the court’s statement to Dukes that a twelve member jury would unanimously have to decide his guilt or innocence was sufficient.

We also conclude the trial court sufficiently conveyed that the court alone would decide his guilt or innocence. The court’s explanation that a twelve member jury would have to unanimously decide his guilt or innocence contrasted to a bench trial impliedly stated the court alone would decide his guilt or innocence.

The court’s failure to inform Dukes that he would be involved in jury selection and its failure to ascertain whether Dukes believed he would be rewarded for waiving his right to a jury trial does not render his waiver unknowing or involuntary. The failure of the district court to “recite, in a prayer-like fashion, Stallings’ five subjects of inquiry” does not necessarily invalidate a waiver of the right to trial by jury if the waiver can otherwise be shown to have been entered knowingly, voluntarily, and intelligently. State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003).

We conclude that from the totality of the circumstances, Dukes’s waiver to his right to a jury trial has been shown to be knowing, voluntary, and intelligent. Counsel was not ineffective in failing to challenge Dukes’s waiver of his right to a jury trial. Accordingly, we affirm.

AFFIRMED.