IN THE COURT OF APPEALS OF IOWA
No. 18-0555
Filed March 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LONNIE L. RICHARDSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,
District Associate Judge.
A defendant appeals his convictions for driving while barred. AFFIRMED.
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.
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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
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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
waiving a jury trial.
Id. at 813-14. However, the supreme court has made clear these subjects are not
a “‘checklist’ by which all jury-waivers must be strictly judged.” Id. at 814. “The
ultimate inquiry remains the same: whether the defendant’s waiver is knowing,
voluntary, and intelligent.” Id. “Substantial compliance is acceptable.” Id.
The colloquies in both cases were minimal. In AGCR016952 the following
colloquy occurred:
THE COURT: Before we can proceed, sir, I must confirm that you
do understand you have a right to a trial by jury?
THE DEFENDANT: Yes, sir.
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THE COURT: I do note that you filed a waiver of jury trial dated
October of this year, ostensibly signed by you and your attorney.
You did sign that document?
THE DEFENDANT: Yes, sir.
THE COURT: And you do agree with its contents?
THE DEFENDANT: Yes, sir.
THE COURT: And you do understand the decision is strictly up
to me and not a 12 person jury?
THE DEFENDANT: Yes, sir.
The following colloquy occurred in AGCR017100:
THE COURT: Before we can proceed, sir, I note that you filed a
waiver of jury trial, which is this document here. Do you recall doing
so?
THE DEFENDANT: Yes, sir.
THE COURT: Did you review that with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: And you do agree with all the contents of that
document?
THE DEFENDANT: Yes, sir.
THE COURT: And you do proceed—you do wish to proceed to a
bench trial and without jury?
THE DEFENDANT: Yes, sir.
Although both colloquies could be fairly described as bare-bones, we
nonetheless conclude the district court substantially complied with Iowa Rule of
Criminal Procedure 2.17(1) in obtaining the defendant’s waivers. In both
colloquies, the district court referenced the defendant’s written waivers to ensure
the defendant had the opportunity to review them and understand the same. The
written waivers contain the defendant’s acknowledgement he was advised by his
counsel regarding his right to a jury trial. The written waivers contain an
explanation of the defendant’s rights as set forth in Liddell. The written waivers
also contain Richardson’s acknowledgement his waivers were “knowingly and
voluntarily” made. Although we caution against this minimalist approach to
conducting a waiver colloquy, we nonetheless conclude the district court complied
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with Rule 2.17 and Liddell by incorporating by reference the written waiver into the
colloquy. See, e.g., State v. McElroy, No. 17-0461, 2018 WL 1182534, at *3 (Iowa
Ct. App. Mar. 7, 2018) (“We find the district court substantially complied with the
requirements to establish a knowing, voluntary, and intelligent waiver of the right
to a jury trial. Therefore, we find there was no breach of duty as any objection
would have been meritless.”); State v. Green, No. 16-0059, 2016 WL 4384874, at
*1 (Iowa Ct. App. Aug. 17, 2016) (“While the court’s colloquy did not touch on all
of the subjects mentioned in Liddell, the colloquy was adequate for the court to
determine [the defendant]’s waiver was made voluntarily and intelligently.”).
Because the district court’s waiver procedures were adequate, counsel had
no duty to object to the same. See State v. Schlachter, 884 N.W.2d 782, 785 (Iowa
Ct. App. 2016) (“Counsel is not ineffective for failing to make a meritless claim”).
Richardson has thus failed to establish his first claim of ineffective assistance of
counsel.
Richardson’s second claim is his counsel provided constitutionally deficient
representation in failing to move for judgment of acquittal in AGCR016952.
Specifically, Richardson argues the State failed to prove, as an element of the
offense, that the department of transportation provided him notice of his barred
status.
Richardson’s second claim is wholly without merit. “The court on motion of
a defendant . . . shall order the entry of judgment of acquittal . . . if the evidence is
insufficient to sustain a conviction of such offense . . . .” Iowa R. Crim. P.
2.19(8)(a). “Evidence is sufficient to withstand a motion for judgment of acquittal
when, viewing the evidence in the light most favorable to the State and drawing all
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reasonable inferences in the State’s favor, ‘there is substantial evidence in the
record to support a finding of the challenged element.’” State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005) (quoting State v. Reynolds, 670 N.W.2d 405, 409 (Iowa
2003)). “Evidence is substantial if it would convince a rational trier of fact the
defendant is guilty beyond a reasonable doubt.” State v. Jorgensen, 758 N.W.2d
830, 834 (Iowa 2008). Our supreme court recently made clear that notice is not
an element of the offense. See State v. Williams, 910 N.W.2d 586, 593 (Iowa
2018) (“The crime consists of operating a vehicle during the period of time the
defendant was barred from driving as a habitual offender. That is what the State
must prove.” (citation omitted)). There was substantial evidence supporting the
elements of the offense as set forth in Williams. Counsel was not ineffective for
failing to move for judgment of acquittal because the motion would have
necessarily failed. See Schlachter, 884 N.W.2d at 785.
Finally, we address Richardson’s claim that counsel was ineffective in failing
to assert a necessity defense in AGCR017100. Richardson reasons it was
necessary for him to drive to court for his first trial because he was “threatened
with the loss of his liberty and right to be present at the State’s trial against him if
he did not violate the law by driving to the courthouse to make a defense to the
charge made against him.” Richardson notes he had no family or friends to provide
him with transportation.
The necessity defense is limited to “emergency situations where the
threatened harm is immediate and the threatened disaster imminent.” State v.
Ventura, No. 17-0661, 2018 WL 2084860, at *2 (Iowa Ct. App. May 2, 2018)
(quoting State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981)). “The defendant must
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be stripped of options by which he or she might avoid both evils.” Walton, 311
N.W.2d at 115. We have previously considered the following factors when
determining whether a necessity defense applies: “(1) the harm avoided, (2) the
harm done, (3) the defendant’s intention to avoid the greater harm, (4) the relative
value of the harm avoided and the harm done, and (5) optional courses of action
and the imminence of disaster.” State v. Mure, No. 16-1169, 2017 WL 1735886,
at *2 (Iowa Ct. App. May 3, 2017) (quoting Walton, 311 N.W.2d at 115)).
Upon examination it is clear this claim does not establish an entitlement to
relief. The necessity defense is inapplicable here. On October 25, 2017, the court
set trial for November 30, 2017. Richardson had over a month to arrange
transportation to the courthouse, yet he failed to do so. Richardson’s predicament
was of his own making by his failure to plan ahead. This is not an instance of
immediate danger warranting a necessity defense. See Walton, 311 N.W.2d at
115; State v. Young, No. 14–0271, 2015 WL 1055070, at *3 (Iowa Ct. App. Mar.
11, 2015) (“The district court declined to give the [necessity] instruction because
the harm was not imminent and because Young had options to avoid harm. We
agree in both respects.”). We conclude counsel was not ineffective for failing to
assert a necessity defense. See Schlachter, 884 N.W.2d at 785.
In conclusion, Richardson failed to establish his counsel provided
constitutionally deficient representation in these proceedings. We affirm
Richardson’s convictions in both AGCR016952 and AGCR017100.
AFFIRMED.