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State v. Richardson

Court of Appeals of Iowa

March 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
LONNIE L. RICHARDSON, Defendant-Appellant.

          Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.

         A defendant appeals his convictions for driving while barred.

          Michael J. Jacobsma (until withdrawal) of Jacobsma Law Firm, P.C., Orange City, and Judy L. Freking of Judy L. Freking, P.C., Lemars, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., and Mullins and McDonald, JJ.

          MCDONALD, JUDGE.

         Lonnie Richardson was convicted of driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (2017), in two separate proceedings, AGCR016952 and AGCR017100, and sentenced to consecutive sixty-day terms in jail. The offense conduct in AGCR017100 occurred when Richardson drove away from the county courthouse following his trial for driving while barred in AGCR016952. Although the trials occurred at different times, the district court conducted a single sentencing hearing for both offenses. In this direct appeal, Richardson alleges his trial counsel provided constitutionally deficient representation in three respects. First, Richardson claims his counsel failed to ensure Richardson knowingly, intelligently, and voluntarily waived his right to a jury trial in both proceedings. Second, his counsel failed to challenge the sufficiency of the evidence in AGCR016952. Third, his counsel failed to assert a necessity defense in AGCR017100.

         We review claims of ineffective assistance of counsel de novo. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To establish a claim, a defendant must show counsel failed to perform an essential duty and prejudice resulted. See State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015). With respect to the first element, "counsel's performance is measured against the standard of a reasonably competent practitioner, with the presumption that the attorney performed his duties in a competent manner." State v. Keller, 760 N.W.2d 451, 452 (Iowa 2009) (citation omitted). As to the second element, the defendant must show "but for counsel's error, there is a reasonable probability that the results of the trial would have been different." Id. (citation omitted). Failure to prove either element defeats the claim. See Liddell, 672 N.W.2d at 809.

         We first address Richardson's claim that his counsel provided ineffective assistance by failing to ensure Richardson knowingly, intelligently, and voluntarily waived his right to trial by jury. Iowa Rule of Criminal Procedure 2.17(1) requires a defendant be tried by jury unless he or she "voluntarily and intelligently waives a jury trial in writing and on the record." Rule 2.17(1)'s "on the record" requirement necessitates "some in-court colloquy or personal contact between the court and the defendant, to ensure the defendant's waiver is knowing, voluntary, and intelligent." Liddell, 672 N.W.2d at 812. The district court in conducting a waiver colloquy should address the following subjects with 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;
4. The court alone decides guilt or innocence if the defendant waives a jury trial; and
5. Neither the court nor the prosecution will reward the defendant for ...

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