Jaclyn Keller was convicted, following trial to the court on a stipulated record, of operating while intoxicated (OWI), first offense. On appeal, she contends the district court erred in denying her motion to suppress evidence and that her trial counsel was ineffective for failing to assure her jury-trial waiver was knowing, voluntary, and intelligent. The court of appeals concluded the district court did not err in denying Keller’s motion to suppress, but found Keller’s counsel rendered ineffective assistance by not ensuring that Keller’s jury-trial waiver was a voluntary and intelligent waiver in accordance with Iowa Rule of Criminal Procedure 2.17(1). The court of appeals reversed her conviction and remanded for a new trial to a jury unless Keller voluntarily and intelligently waives her right to a trial by jury.
Both parties filed applications for further review. Although this court has authority to consider any issue raised in the appeal, in this case, we limit our review to the jury-trial waiver issue.
See WSH Props., L.L.C. v. Daniels,
A trial by jury is required unless the defendant “voluntarily and intelligently waives a jury trial in writing and on the record_” Iowa R.Crim. P. 2.17(1). Rule 2.17 “requires the court to conduct an in-court colloquy with defendants who wish to waive their jury trial rights.”
State v. Liddell,
Keller filed a written jury-trial waiver and stipulation to a trial on the minutes of evidence. None of the areas of inquiry mentioned in Liddell and Stallings were included in her written waiver. In addition, there is no record of any personal, in-court colloquy between Keller and the district court that would allow the court to ensure her waiver was knowing, voluntary, and intelligent. An after-the-fact “certification” by Keller’s appellate counsel states á court reporter has indicated that any “waiver of jury trial, stipulation to the minutes and sentencing proceedings were not reported.” Based upon these facts, Keller asserts a rule 2.17(1) violation occurred and supports an ineffective-assistance-of-counsel claim.
To establish an ineffective-assistance-of-counsel claim, a defendant must typically show that (1) counsel failed to perform an essential duty and (2) prejudice resulted.
See Strickland v. Washington,
In
Stallings,
we held that a failure to assure compliance with rule 2.17(1) constituted a breach of duty by trial counsel.
Stallings,
We recently reconsidered the analytical underpinning of our
Stallings
opinion.
See Feregrino,
[t]he absence of an oral colloquy or a written waiver does not necessarily prove that a defendant failed to understand the nature of the right waived by proceeding to a non-jury trial....
As a result, whether there has been such an alteration of the fundamental trial framework in violation of the defendant’s right to a jury trial depends on the resolution of an antecedent question, namely, whether, notwithstanding the violation of the rule, the defendant knowingly and voluntarily waived his right to a jury trial.
Id. at 708. This, we noted, presents a question of historical fact, which, like countless other factual questions, are resolved by our courts every day. Id. As a result, we overruled Stallings to the extent it held prejudice is presumed in cases involving a deficiency in a jury-trial waiver under rule 2.17(1). Finding the record before us inadequate to determine whether Feregrino was actually prejudiced, we preserved the issue for postconviction relief. Id.
Applying these principles to the facts of this case, we conclude defendant has established as a matter of law
2
the first prong of the
Strickland
test: a breach by trial counsel of an essential duty due to counsel’s failure
to
assure eompli-anee with rule 2.17(1).
Stallings,
However, because we do not presume prejudice from a failure to comply with rule 2.17(1), Keller must also establish the second prong of the
Strickland
test: prejudice. Under our ineffective-as-sistanee-of-counsel rubric, in order to establish the prejudice prong, Keller must prove by a preponderance of the evidence that, but for counsel’s failure to assure compliance with the rule, she would not have waived her right to a jury trial.
Cf. Straw,
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Notes
. 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 that:
“(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.” State v. Stallings,658 N.W.2d 106 , 110 (Iowa 2003) (quoting United States v. Robertson,45 F.3d 1423 , 1432 (10th Cir.1995)). "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 (quoting 2 Charles Alan Wright, Federal Practice and Procedure § 372, at 452-53 n. 22 (3d ed. 2000)).
. Because this ineffective-assistance-of-counsel claim comes to us on a direct appeal from the defendant’s criminal trial, there has not yet been a hearing to develop an evidentiary record on this claim. Consequently, we determine whether the defendant has established the elements of her ineffective-assistance claim as a matter of law.
State v. Graves,