State v. Liddell

• Decision Date: 17 December 2003
• Docket Number: No. 02-1563.,02-1563.
• Citation: 672 N.W.2d 805
• Parties: STATE of Iowa, Appellee, v. Keteris Latron LIDDELL, Appellant.
• Court: Iowa Supreme Court

672 N.W.2d 805

STATE of Iowa, Appellee, v. Keteris Latron LIDDELL, Appellant.

No. 02-1563.

Supreme Court of Iowa.

December 17, 2003.

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

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, William E. Davis, County Attorney, and Marc Gellerman and Robert Bradfield, Assistant County Attorneys, for appellee.

STREIT, Justice.

Keteris Liddell appeals his conviction and sentence for credit card fraud. Liddell alleges he was denied effective assistance of counsel when his trial counsel failed to challenge the validity of his jury trial waiver. Liddell also claims the district court failed to exercise its discretion when, during sentencing proceedings, the court remarked it had no choice other than to revoke his deferred judgment.

We hold Liddell's trial counsel did not fail to perform an essential duty, and therefore reject his ineffective assistance of counsel claim. Viewing its statements in context, we also find the district court properly exercised its discretion in revoking Liddell's deferred judgment. We therefore affirm Liddell's conviction and sentence.

I. Facts and Prior Proceedings

On August 10, 2000, a woman's purse with an ATM card was stolen from her office. Keteris Liddell used the stolen ATM card to withdraw $500 from her bank account without her permission. Liddell was charged with credit card fraud, an aggravated misdemeanor. See Iowa Code §§ 715A.6(2), 715A.1(2), 715A.6(1) (2001).

On April 19, 2001, Liddell signed a written waiver of his right to a jury trial. This waiver was filed in the district court, and is part of the record before us. Liddell's jury trial waiver contained three paragraphs, in which Liddell stated he understood (1) he had a right to a trial by jury of twelve persons; (2) in a jury trial, a guilty verdict must be unanimous and proven beyond a reasonable doubt; and (3) if he waived his right to a jury trial, a judge would decide whether the State proved its case beyond a reasonable doubt, and would issue its findings in writing. On June 8, 2001, a bench trial was held. The district court found Liddell guilty as charged.

On July 17, 2001, Liddell came before the district court for sentencing. The court deferred judgment for one year. See generally Iowa Code ch. 907 (setting forth statutory provisions for deferred judgments, sentences, and probation). If Liddell made restitution to his victim, paid court costs, and did not receive any further convictions within the upcoming year, the court would dismiss the case.

Almost exactly a year later, on July 19, 2002, the court held a hearing to determine whether Liddell had complied with the conditions of his probation. The hearing concluded with the court continuing the matter "to allow Defendant to complete the conditions of his deferred judgment."

On September 27, 2002, the court held another hearing, at which it determined Liddell had not complied with the terms of his probation—even though the court had given him more than a year to do so. The court specifically noted the defendant had not paid restitution to his victim. Clearly frustrated with the defendant's failure to do so, the court then stated "I don't have a choice other than to revoke your deferred judgment and sentence.... When we don't have victim restitution paid, we don't have a choice." The court revoked Liddell's deferred judgment and sentenced him to 240 days in jail and a $500 fine. The court then suspended Liddell's sentence and ordered him to pay the fine, victim restitution, and court costs by February 19, 2003. On September 30, 2002, Liddell appealed.

We are presented with two issues for review: (1) Was Liddell denied effective assistance of counsel, because of an inadequate jury trial waiver? and (2) Did the district court fail to exercise its discretion when it said it did not have a choice other than to revoke Liddell's probation?

II. Ineffective Assistance of Counsel

Liddell alleges he was denied effective assistance of counsel. Relying upon our recent decision in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), Liddell claims his trial counsel breached an essential duty because he failed to ensure Liddell's jury trial waiver was knowing, voluntary, and intelligent. In support of his claim, Liddell points out the court did not conduct an in-court colloquy with him. He maintains this problem is exacerbated by the fact his written waiver failed to mention (1) he would be able to participate in voir dire and (2) his jury would be drawn from members of the community (as opposed to somewhere else). As a consequence of this alleged failure to perform an essential duty, which he characterizes as a structural error, Liddell urges us to presume prejudice and thus find he was denied effective assistance of counsel.

A. Scope of Review

Appellate review of an ineffective assistance of counsel claim is de novo. Stallings, 658 N.W.2d at 108. Ineffective assistance of counsel claims are generally preserved for post-conviction relief. Id. (citing State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994)). Where we are presented with an adequate record, however, the merits of the claim may be resolved on direct appeal. Id. The record in this case is sufficient for resolution on direct appeal.

B. Analysis

"To establish an ineffective-assistance claim, [the defendant] must show that (1) his counsel failed to perform an essential duty, and (2) prejudice resulted." Id. at 108 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Should Liddell fail to prove either prong, his ineffective assistance of counsel claim must fail. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Because we find Liddell's trial counsel did not fail to perform an essential duty, we reject his ineffective-assistance claim. In order to properly address Liddell's arguments, however, it is first necessary to briefly review Stallings, a recent decision regarding the adequacy of jury trial waivers.

In Stallings, the defendant appealed claiming the only evidence he waived his right to a jury trial appeared obliquely in his attorney's statement of fees for his bench trial. Stallings, 658 N.W.2d at 108. The statement of fees indicated Stallings waived his right to a jury during a hearing on a motion to suppress. Id. In spite of the fact Iowa Rule of Criminal Procedure 2.17(1) explicitly mandates that "[c]ases 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 ...," the record before us in Stallings contained "no evidence that the court was even included in the waiver process." Stallings, 658 N.W.2d at 112. Recognizing that "the right to a jury trial is ... fundamental to our justice system," we determined Stallings was "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)). We held the defendant's trial counsel was ineffective in failing to ensure the court complied with Iowa Rule of Criminal Procedure 2.17(1). Id.

Unlike Stallings, in this case Liddell signed a written waiver of his right to a jury trial. This waiver, which contained three paragraphs outlining some of its legal implications, was subsequently filed in the district court. Importantly, then, Liddell's waiver is part of the record before us, even though the court did not conduct an in-court colloquy with the defendant.

Stallings did not, as the State suggests, implicitly overrule State v. Lawrence, 344 N.W.2d 227 (Iowa 1984), and require an in-court colloquy. See Lawrence, 344 N.W.2d at 230

(in-court colloquy not required); see also State v. Combs, 316 N.W.2d 880, 883-84 (Iowa 1982) (stating, in dicta, the rules of criminal procedure have "no such requirement"). United States v. Robertson, 45 F.3d 1423 (10th Cir.1995), upon which Stallings repeatedly relied, expressly rejected a per se supervisory order requiring an in-court colloquy. Robertson, 45 F.3d at 1432 (cited in Stallings, 658 N.W.2d at 109-11). But see United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978) (adopting supervisory order) (cited in Stallings, 658 N.W.2d at 109-10). Rather, Robertson and Stallings "strongly urge[d]" district courts to specifically inform the defendant "of the nature of [the] right [to a jury trial] and the consequences of waiving it." Stallings, 658 N.W.2d at 109-10.

The relevant facts of this case mirror Lawrence, a case which we decided nearly twenty years ago. In Lawrence, we directly addressed whether our rules of criminal procedure require an in-court colloquy to determine whether a defendant's waiver is knowing, voluntary, and intelligent.

In Lawrence, the defendant filed a jury trial waiver which both he and his attorney signed. 344 N.W.2d at 229. The court did not, however, conduct an in-court colloquy with the defendant. Id. Citing then Iowa Rule of Criminal Procedure 16(1), which in the respects relevant to this appeal is identical to present rule 2.17(1),¹ we said

[D]efendant contends the record does not establish that his waiver was knowing and voluntary. The state thinks the rule, as now amended, requires only that a written waiver be placed on record. Under this view participation by the court is not required to ensure that the waiver was voluntary and intelligent. Defendant counters by pointing out that the document itself is silent on defendant's level of awareness and his voluntariness.

Id. Although we recognized "our task ... would have been greatly simplified if the trial court had conducted even a brief proceeding in open court at which defendant could attest his waiver," we refused to conclude Lawrence's waiver was not knowing, voluntary, and intelligent. Id. at 230.

After discussing the history of the rule, we stated "[a]n open court proceeding is no...