Opinion
No. 5-218 / 04-0692
Filed April 28, 2005
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.
Martin Shelton appeals his conviction for second-degree robbery. AFFIRMED.
Kristina Kaeding of Kaeding Law Offices, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Matt Wilber, County Attorney, and Christopher Wilson and Kyle Jones, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
Martin Shelton was charged with robbery in the second degree, in violation of Iowa Code sections 711.1(1) and 711.3(2) (2003). The State alleged that on April 16, 2003, Shelton assaulted a Target security person, while he was attempting to effectuate a theft, or to escape therefrom. Shelton admitted to the theft, but not the assault.
On November 6, 2003, Shelton filed a written waiver of jury trial, which stated, "I hereby knowingly and voluntarily waive my right to a jury trial, and hereby request a bench trial in this case." No in-court colloquy was held prior to the bench trial on January 22, 2004. After considering the evidence, the district court found Shelton guilty of second-degree robbery.
Shelton filed a motion for new trial and a motion in arrest of judgment, claiming the evidence did not support his conviction. Shelton then obtained new counsel, and filed an expanded motion in arrest of judgment or for a new trial, claiming that he received ineffective assistance because his counsel did not demand an in-court colloquy, as required by State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003), prior to a finding that he had voluntarily waived his right to a jury trial. He also claimed he received ineffective assistance because his trial counsel did not adequately advise him of the rights he was giving up by agreeing to a bench trial.
The district court denied Shelton's post-trial motions. The court determined:
5.The Court finds that the defendant filed his written waiver of jury trial on November 6, 2003. The Liddell case was filed December 17, 2003 requiring defendants to waive their right to a jury trial in open court and on the record with a colloquy provided by the court. The Supreme Court in Liddell did note " For waivers taking place once this decision is final, however, a trial court must conduct the proceedings `on the record' in the sense that some in-court colloquy with the defendant is required in order to ensure the defendant's waiver is knowing, voluntary, and intelligent." Liddell, 672 N.W.2d at 814 (emphasis added) [footnote omitted].
6.The Court finds that the defendant's waiver on November 6, 2003 was given knowingly and voluntarily and was a valid waiver of jury trial when it was entered.
The court determined that regarding Shelton's ineffective assistance claim that he was not adequately advised of his rights, these claims would be more appropriately considered in a postconviction action. Shelton appeals.
II. Standard of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
III. Ineffective Assistance A.
Shelton contends that because his bench trial took place after the decision in Liddell was filed, his attorney should have requested an in-court colloquy to ensure that his jury trial waiver was knowing, voluntary, and intelligent. See Liddell, 672 N.W.2d at 814. Our supreme court clearly indicated that its holding in Liddell would have prospective application only, by stating:
Our re-examination of our holding in [ State v.] Lawrence, [ 344 N.W.2d 227 (Iowa 1984)] in no way disturbs our decision today to reject Liddell's ineffective assistance of counsel claim. Under the law in effect at the time, it would be patently unfair to adjudge Liddell's counsel ineffective for failing to foresee today's decision, which diverges from precedent. "Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide effective assistance of counsel." Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981). For waivers taking place once this decision is final, however, a trial court must conduct the proceedings "on the record," in the sense that some in-court colloquy with the defendant is required in order to ensure the defendant's waiver is knowing, voluntary, and intelligent.
Id. (footnote omitted); see also State v. Miranda, 672 N.W.2d 753, 763 (Iowa 2003) (noting Liddell does not apply retroactively); State v. Spies, 672 N.W.2d 792, 799-800 (Iowa 2003) (same).
The holding in Liddell became effective on January 13, 2004, when procedendo issued in that case. An in-court colloquy was thereafter required "[f]or waivers taking place once [the] decision is final. . . ." Liddell, 672 N.W.2d at 814 (emphasis added). The decision therefore specifically states that the date of the waiver is the applicable date for determining whether an in-court colloquy is necessary. Shelton waived his right to a jury trial on November 6, 2003. We conclude Shelton has failed to show he received ineffective assistance due to counsel's failure to demand an in-court colloquy in accordance with Liddell, because that decision was not applicable to Shelton's waiver of a jury trial.
B.
Shelton claims his trial attorney failed to inform him of the rights he was giving up by agreeing to a non-jury trial and by failing to explain the differences between a jury and non-jury trial. Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). 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).
The district court determined this claim could more appropriately be considered in possible postconviction proceedings. We agree. While Shelton testified at a hearing on his post-trial motions, his trial attorney was not given an opportunity to testify. We determine the record is not adequate to address Shelton's other claims of ineffective assistance of counsel.
C.
The State asks us to reverse, limit, or modify a holding in State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003), that the failure to show a valid waiver of a jury trial "is one of those rare cases of a `structural' defect in which prejudice is presumed." It would be premature for us to address this issue. At this point there has been no showing that Shelton did not validly waive his right to a jury trial. We therefore decline to address this issue.
We affirm Shelton's conviction for second-degree robbery.