                    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.
________________________________________________________________


      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
                                           6


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
                                         7

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.
