                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0937
                                Filed May 20, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALBERTO SALAZAR RAMON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.



       The defendant appeals from the judgment and sentence entered following

his conviction for second-degree criminal mischief. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller and Jean C. Pettinger,

Assistant Attorneys General, Carlyle D. Dalen, County Attorney, William J.

Hoekstra, Assistant County Attorney, and Louis S. Sloven, Student Legal Intern,

for appellee.



       Considered by Tabor, P.J., Bower, J., and Sackett, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                            2



SACKETT, S.J.

          Alberto Ramon appeals from the judgment and sentence entered following

his conviction for second-degree criminal mischief, in violation of Iowa Code

sections 716.1 and 716.4 (2013). He contends his counsel was ineffective in

failing to object to what he alleges was an inadequate waiver of a jury trial.

          I. BACKGROUND FACTS AND PROCEEDINGS.

          The State charged Ramon with second-degree criminal mischief in

January 2014 based on damage he caused to a home owned by James

Johnson.       Ramon had been renting the home from his girlfriend, Johnson’s

neighbor, while Johnson was out of state.           When Johnson returned to the

residence, he found the front door screwed shut, the back door welded shut,

graffiti on the walls, and other damage.        Johnson spent $1695 to repair the

home.

          Ramon filed a written waiver of jury trial on March 20, 2014. The waiver

states:

                  1. I am the Defendant in the above-captioned case.
                  2. I have been fully advised by my attorney that I have the
          right to be tried by a jury of twelve (12) persons, as guaranteed by
          the United States and Iowa Constitutions, as well as by Iowa Rule
          of Criminal Procedure 2.17.
                  3. I have been advised and understand that, if I desire to
          give up my right to a jury trial, it must be done in writing and filed
          with the Court within thirty (30) days after arraignment, or ten (10)
          days after completion of discovery, but in any event not later than
          ten (10) days before trial. Waiver may not otherwise be made at a
          later time unless the prosecuting attorney consents to the waiver.
                  4. By waiving a jury trial, I will no longer assist in the
          selection of my jury because there will no longer be one and there
          will no longer be the requirement that a conviction, if any, must be
          based on a unanimous verdict of twelve persons, because with this
          Waiver, my case will be decided and judged solely by the Court.
                                          3



             5. With all of the above in mind, I hereby knowingly and
      voluntarily waive my right to a jury trial in this case.

      On March 25, 2014, the court conducted an in-person colloquy with

Ramon concerning his decision to waive a jury.           In response to the court’s

questions, Ramon stated he was forty-five years old, was able to read and

understand the English language, and had earned his GED.                 The following

exchange then occurred:

               THE COURT: Okay, Mr. Ramon, your attorney has signed
      and you had signed a waiver of jury trial. I think you have a copy of
      that in front of you; is that correct?
               THE DEFENDANT: Yes, I do.
               THE COURT: What that is Mr. Ramon is you as a person
      accused of a crime have the right to have a jury of twelve members
      of the community determine your case. You can also waive that
      right and have the case submitted to a fact finder which would be a
      judge which in your case will be me.
               THE DEFENDANT: Okay.
               THE COURT: Because the intention is to proceed with that
      matter as soon as we’re done with this waiver proceeding. The
      difference is, obviously, instead of twelve people making a decision,
      it will be one person making a decision; and so under both the Iowa
      Constitution and the United States Constitution, we can’t do that
      without your agreement. Do you understand that?
               THE DEFENDANT: Yes, I do.
               THE COURT: And do you understand that, again, instead of
      twelve people deciding whether you’re guilty or not guilty of this
      charge, it will be just one?
               THE DEFENDANT: Yes, I do.
               THE COURT: And do you understand that by waiving your
      right to a jury trial, you will be giving up the right to select that jury,
      to present evidence there. Do you understand that?
               THE DEFENDANT: Yes, I do.
               THE COURT: And do you wish to voluntarily waive your right
      to a jury trial?
               THE DEFENDANT: Yes, I do.
               THE COURT: Mr. Ramon, is anyone forcing you to make
      that decision?
               THE DEFENDANT: No.
               THE COURT: And that’s being made after you’ve talked with
      your attorney on the issues; is that correct?
                                         4



              THE DEFENDANT: Yes, it is.

The court accepted Ramon’s waiver of jury trial, and a bench trial was held.

       The district court found Ramon guilty as charged and sentenced him to a

term of imprisonment of no more than five years. The court suspended the

sentence and placed Ramon on probation for a period of three years. It also

ordered Ramon to pay $1695 in restitution to Johnson.

       II. INEFFECTIVE ASSISTANCE OF COUNSEL.

       Ramon contends his trial counsel was ineffective in failing to object to

what he characterizes as an inadequate waiver of jury trial.       Specifically, he

alleges the written waiver of jury trial failed to advise him the jury would be made

up of members of the community or that he would not be rewarded by the State

for waiving the jury. He also alleges the in-court colloquy failed to establish he

understood or read the written waiver, that the jury verdict would have to be

unanimous to be convicted, or that he understood he would be not rewarded by

the State for waiving the jury.

       We review ineffective-assistance-of-counsel claims de novo.         State v.

Ross, 845 N.W.2d 692, 697 (Iowa 2014). In order to succeed in proving counsel

was ineffective, a defendant must show counsel’s performance was deficient and

a reasonable probability that the outcome of the proceeding would have differed

but for counsel’s errors. Id. at 697-98. While we typically preserve ineffective-

assistance claims for postconviction-relief proceedings, we will address them on

direct appeal where the record is adequate. State v. Bearse, 748 N.W.2d 211,

214 (Iowa 2008).
                                          5



       Iowa Rule of Criminal Procedure 2.17(1) is designed to protect the

constitutional right to a jury trial. State v. Feregrino, 756 N.W.2d 700, 705 (Iowa

2008). It states that those cases required to be tried by jury “shall be so tried

unless the defendant voluntarily and intelligently waives a jury trial in writing and

on the record.” Iowa R. Crim. P. 2.17(1). Failure to assure compliance with rule

2.17(1) constitutes a breach of duty by trial counsel. Feregrino, 756 N.W.2d at

705.

       To ensure the waiver of jury trial is knowing and voluntary, our supreme

has stated the court should inquire into whether the defendant understands

       (1) that twelve members of the community compose a jury; (2) that
       the defendant may take part in jury selection; (3) that jury verdicts
       must be unanimous; (4) that the court alone decides guilt or
       innocence if the defendant waives a jury trial; and (5) that neither
       the court nor the prosecution will reward the defendant for waiving
       a jury trial.

Id. However, this list is not “a specific checklist” and does not create “black letter

rules” regarding subject areas of inquiry. Id. Rather, the five areas listed are

“helpful tools” in determining whether a waiver was knowing and voluntary;

substantial compliance is acceptable. Id.

       The evidence establishes that Ramon’s waiver was knowing and

voluntary. Separately, the written waiver and the in-court colloquy substantially

complied with rule 2.17(1). When taken together, they covered all but the last

subject suggested by our supreme court. Substantial compliance was shown.

See State v. Miranda, 672 N.W.2d 753, 764 (Iowa 2003) (finding substantial

compliance although defense counsel “did not ensure the court met each of the

five specific exhortations”).     Because Ramon’s waiver was knowing and
                                         6



voluntary, counsel had no duty to object.    Accordingly, Ramon’s ineffective-

assistance claim fails, and we affirm.

       AFFIRMED.
