No. 04-0722.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, District Associate Judge.
Timothy Jay Shirbroun appeals his conviction, following a bench trial, for driving while barred in violation of Iowa Code sections 321.560 and 321.561 (2003). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Matthew Wilber, County Attorney, and Shelly Sedlack, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
MILLER, J.
Timothy Jay Shirbroun appeals his conviction, following a bench trial, for driving while barred in violation of Iowa Code sections 321.560 and 321.561 (2003). He contends his counsel was ineffective for failing to ensure he made a valid waiver of jury trial. We reverse and remand.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103
(Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). However, we will consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We find the record adequate here and address Shirbroun’s claim.
As set forth above, Shirbroun claims his counsel was ineffective for failing to ensure Shirbroun made a valid waiver of his right to jury trial by not making an adequate record as required under Iowa Rule of Criminal Procedure 2.17(1) and the holdings in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), an State v. Liddell, 672 N.W.2d 805 (Iowa 2003). Shirbroun is correct that no written waiver of jury trial may be found in the record, nor does the record reflect an in-court colloquy which would have enabled the district court to determine whether Shirbroun’s waiver was knowing, voluntary, and intelligent. See Stallings, 658 N.W.2d at 110-11. Based on the lack of either a written waiver or in-court colloquy the State concedes the requirements of rule 2.17(1) and the relevant case law were not met here and thus counsel breached an essential duty in failing to make a proper record on the waiver. However, the State argues Shirbroun failed to prove he was prejudiced by this failure and here, unlike in Stallings, prejudice should not be presumed See Stallings, 658 N.W.2d at 112. We conclude that based on our supreme court’s holding in Stallings prejudice must be presumed when an important right such as a defendant’s right to jury trial is at issue, and the trial court’s judgment must be reversed and this case remanded.
The failure of Shirbroun’s counsel to assure compliance with rule 2.17(1) constituted ineffective assistance of counsel. Id.
“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.” Id.
(citing McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir. 1998)). Here, as in Stallings, even though Shirbroun’s attorney might be able to show on remand that Shirbroun was fully advised concerning his right to a jury trial, there is nevertheless no evidence the court was included in the waiver process, the record being silent on the matter. See id. at 111-12. “[P]osttrial reconstruction of the record will not suffice to show a valid waiver.” Id. at 111. We are not concerned here with the limited question of whether a waiver appearing on the record was voluntarily and intelligently made. “Here, there was no waiver on the record at all.” See id. (quoting United States v. Saadya, 750 F.2d 1419, 1422 n. 3 (9th Cir. 1985)). Accordingly, preserving the claim for a possible postconviction proceeding would not be appropriate here. “As the United States Supreme Court has said, `[w]e cannot presume a waiver of . . . important rights [including the right to trial by jury] from a silent record.'” Id. at 112 (quoting Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279-80 (1969)).
We reverse and remand for a trial to a jury unless that right is properly waived by Shirbroun.
REVERSED AND REMANDED.