                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 47577
  STATE OF IDAHO,                                    )
                                                     )
       Plaintiff-Respondent,                                   Boise, April 2020 Term
                                                     )
                                                     )
  v.                                                           Opinion Filed: June 10, 2020
                                                     )
  CLINTON HAGGARD,                                   )
                                                               Melanie Gagnepain, Clerk
                                                     )
       Defendant-Appellant.                          )
                                                     )


         Appeal from the District Court of the Seventh Judicial District, State of Idaho,
         Bingham County. Darren B. Simpson, District Judge.

         The district court’s decision is reversed and the case remanded with
         instructions.

         Swafford Law, PC, Idaho Falls, for Appellant. Trevor L. Castleton argued.

         Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. John C.
         McKinney argued.

                                 _____________________________

BURDICK, Chief Justice.
         Clinton Haggard appeals the district court’s decision affirming a magistrate court’s
judgment of conviction. The magistrate court found Haggard guilty of misdemeanor
domestic battery in violation of Idaho Code section 18-918(3)(b) after a court trial.
For the reasons below, we reverse the district court’s decision and remand this case with
instructions to the district court to remand this case to the magistrate court with
instructions to vacate the judgment of conviction.
                I. FACTUAL AND PROCEDURAL BACKGROUND
         Around midnight on the morning of June 8, 2016, police arrested Haggard and
charged him with domestic battery in the presence of a child, a violation of Idaho Code
section 18-918(3)(b). Haggard spent the night in custody and at 7:00 a.m., he signed a
“Notification of Rights” form. That form admonished him to “initial only those items

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which you fully understand.” Haggard initialed an item acknowledging that if he pled not
guilty, he would “have the right to a trial before the Court or a jury of six (6) jurors[.]” At
the end of the listed items, the form advised Haggard that he should not hesitate to speak
up if he had “any questions concerning any rights of procedure[,]” and stated: “It is
essential that you understand.” Haggard signed and dated the document below the
following pre-printed statement:
       By signing this document I acknowledge that I have read the same and that
       I fully understand my rights as indicated and that any questions I may have
       regarding these rights have been answered to my satisfaction.
       A few hours later, Haggard’s first appearance occurred in magistrate court. There,
the magistrate judge advised Haggard of his rights, to which Haggard replied that he
understood and had no questions. He pleaded not guilty and requested counsel. That same
day, Haggard filled out a “Statement of Defendant’s Rights: Domestic Assault or Battery
Cases.” This document also informed Haggard that he had the right to a jury trial. It further
explained that if he pled not guilty, the court would ask whether he would wish to have a
trial before a jury or a trial before the judge only. Haggard signed and dated the document
below the statement: “I have read this document or had it explained to me and have
received a copy.”
       On the day of the scheduled pre-trial conference, Haggard signed a “Pretrial
Stipulation and Order.” Haggard’s attorney and the prosecutor also signed the document,
but the magistrate judge did not, despite the document having a place for the judge’s
signature. The only filled-out portion of the document is the date set for the court trial and
a checked box next to that date, accompanied by the pre-printed line, appearing in bolded
text: “AND the right to have this matter heard by jury trial is waived by both parties.”
       A court trial took place on September 7, 2016. The magistrate court found Haggard
guilty of domestic battery without traumatic injury under Idaho Code section 18-918(3)(b),
and sentenced Haggard to 90 days of jail time (with 88 days suspended and 2 days credit)
and 24 months of unsupervised probation.
       Haggard appealed to the district court, arguing that the magistrate court’s failure to
secure a personal waiver of his right to a jury trial in open court was reversible error. The
district court ordered that the appeal would proceed with no transcript under Idaho
Criminal Rule 54.6(b)(1). In October 2017, the district court affirmed the judgment of

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conviction and dismissed Haggard’s appeal, ruling that Haggard was unable to meet the
first prong of the fundamental-error standard because he waived his right to a jury trial.
Relevant to this appeal, the district court explained how the pre-trial conference was likely
conducted:
       The custom in Bingham County . . . is to hold an informal conference
       between the prosecutor, the defendant, and defense counsel, after which a
       pretrial stipulation and order is signed by the parties and the presiding
       magistrate judge. If issues arise requiring the magistrate’s presence, the
       magistrate is called into the courtroom and matters are placed on the record.
       Haggard timely appealed the district court’s decision to the Court of Appeals. State
v. Haggard, No. 45592, 2019 WL 4126365 (Idaho Ct. App. Aug. 30, 2019). The Court of
Appeals reversed, holding that Haggard was able to show fundamental error “because the
record show[ed] no inquiry into the validity of Haggard’s written jury trial waiver and no
basis for concluding that the written waiver was knowing, voluntary and intelligent[.]” Id.
at *2. The State timely petitioned for review, which this Court granted.
                                 II. ISSUE ON APPEAL
   Has Haggard shown fundamental error because there was no inquiry by the trial
   court into his jury-trial waiver?
                            III. STANDARD OF REVIEW
       “When reviewing a case on petition for review from the Court of Appeals this
Court gives due consideration to the decision reached by the Court of Appeals, but directly
reviews the decision of the trial court.” State v. Chernobieff, 161 Idaho 537, 539, 387 P.3d
790, 792 (2016) (quoting State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)).
       “On appeal of a decision rendered by a district court while acting in its intermediate
appellate capacity, this Court directly reviews the district court’s decision.” Id. (quoting In
re Doe, 147 Idaho 243, 248, 207 P.3d 974, 979 (2009)). We review “the trial court
(magistrate) record to determine whether there is substantial and competent evidence to
support the magistrate’s findings of fact and whether the magistrate’s conclusions of law
follow from those findings.” Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760
(2008) (quoting Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981)). And
“if those findings are so supported and the conclusions follow therefrom and if the district
court affirmed the magistrate’s decision, we affirm the district court’s decision as a matter
of procedure.” Id.

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                                      IV. ANALYSIS
     The crux of this appeal is whether Haggard effectively waived his right to a jury trial.
We hold that Haggard’s waiver was ineffective because the magistrate court did not, in
open court, inquire into whether the waiver was knowing, intelligent, and voluntary.
       As a preliminary matter, the State argues that Haggard failed to preserve
consideration of the arraignment transcript on appeal because he failed to include it in the
appellate record for the district court. Haggard’s failure to include the transcript below does
not require us to ignore it on appeal. The district court on intermediate appeal entered an
order declaring that the appeal would proceed with no transcript under Idaho Criminal
Rule 54.6(b)(1). While the order was likely intended to forestall the costly preparation of a
trial transcript, given that Haggard’s argument centered on pre-trial matter, the order
merely says “no transcript” without any other limiting language. Here, Haggard has
included the transcript in the record on appeal to this Court. On these facts, we will
consider the transcript despite the district court not having the same opportunity.
       Haggard seeks reversal under the fundamental-error doctrine because there was not
a timely objection to the trial court. To successfully show fundamental error under State v.
Perry, Haggard must show:
       1. One or more of the defendant’s unwaived constitutional rights was
          violated;
       2. The error is clear or obvious, without the need for any additional
          information not contained in the appellate record, including information
          as to whether the failure to object was a tactical decision; and
       3. The error affected the defendant’s substantial rights, meaning (in most
          instances) that it must have affected the outcome of the trial
          proceedings.
150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
       A deficient waiver of the jury-trial right is a structural defect, and thus,
automatically satisfies Perry’s third prong. See State v. Vasquez, 163 Idaho 557, 562–63,
416 P.3d 108, 113–14 (2018). However, the State argues that Haggard cannot meet Perry’s
first and second prongs. For the reasons below, we determine: (A) Haggard has met the
first prong of Perry because there is no evidence that the magistrate judge inquired into his
jury trial waiver to determine whether it was knowing, voluntary, and intelligent, and (B)



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that Haggard has met his burden on the second prong because the error is clear from the
record.
A. Haggard’s jury-trial waiver was ineffective.
          The district court determined that Haggard’s written waiver and his failure to
include the arraignment transcript supported finding that the jury-trial waiver was
effective. Haggard argues that his signature on the Pretrial Stipulation Form is insufficient
to show that his waiver was knowing, voluntary, and intelligent. He also argues that the
magistrate court’s failure to personally inquire of him, in open court, means his waiver was
ineffective. In response, the State argues that Haggard’s written waiver is proof, or at least
creates a presumption, that his waiver was knowing, voluntary, and intelligent. The State
also argues that this Court’s case law regarding jury-trial waiver has not been extended to
misdemeanors and that this Court’s decision in State v. Vasquez, 163 Idaho 557, 416 P.3d
108 (2018) does not compel a finding of fundamental error.
          Article I, section 7 of the Idaho Constitution provides a jury-trial right for all
criminal offenses—felony or misdemeanor—with the exception of infractions. See State v.
Bennion, 112 Idaho 32, 45, 730 P.2d 952, 965 (1986). In most instances, the Idaho
Constitution’s jury-trial protections hinge on whether the accused faces incarceration. Id. at
44, 730 P.2d at 964. Haggard was charged with misdemeanor domestic battery in the
presence of a child in violation of Idaho Code section 18-918(3)(b). A defendant’s first
conviction under this subsection is subject to a maximum possible sentence of $1,000 and
six months of incarceration, or both. I.C. § 18-918(3)(c). However, a defendant charged
with domestic battery in the presence of the child faces double the statutory penalties under
Idaho Code section 18-918(4). Because Haggard’s charge carried the possibility of
incarceration, it triggered the jury-trial right under Article I, section 7.
          When a defendant waives the right to trial by jury and its associated protections, the
trial court is required to abide by certain procedural guidelines. The Idaho Constitution
explains how one may waive the right to a jury trial:
          The right of trial by jury shall remain inviolate; . . . . A trial by jury may be
          waived in all criminal cases, by the consent of all parties, expressed in
          open court, . . . signified in such manner as may be prescribed by law. . . .
Idaho Const. art. I, § 7 (emphasis added). This section provides that a jury-trial waiver
must be (1) expressed in open court and (2) consented to by all parties. Id. How a waiver

                                                 5
can be “signified in such manner as may be prescribed by law” is answered by both statute
and court rule. See Van Vranken v. Fence-Craft, 91 Idaho 742, 745, 430 P.2d 488, 491
(1967) (“The waiver of [the right to jury trial] cannot be made or enforced unless it appears
to have been made in conformity with existing statute or rule, and not by implication.”).
Though neither party cites to the applicable statutes, Idaho has two statutory provisions
that address waiver of the right to trial by jury: Idaho Code sections 19-1902 1 and
19-3911 2. In addition, this Court promulgated Idaho Criminal Rule 23 to govern how the
right to a jury trial may be waived:
           (a) Felony Cases. In felony cases issues of fact must be tried by a jury,
           unless, in open court, a trial by jury is waived in writing by the defendant
           and the consent of the prosecutor is expressed and entered in the minutes.
           (b) Misdemeanor Cases. In criminal cases not amounting to a felony, issues
           of fact must be tried by a jury, unless a trial by jury is waived by the consent
           of both parties expressed in open court and entered in the minutes.
I.C.R. 23 (emphasis added).
           These procedural components are intertwined with the substantive requirements
that the waiver be knowing, intelligent, and voluntary. Vasquez, 163 Idaho at 562, 416 P.3d
at 113 (“[I]t is axiomatic that the failure to obtain a defendant’s personal, knowing and
voluntary waiver of her right to jury trial is a clear violation of a constitutional right.”). “A
defendant’s right to be tried by a jury of her peers is a fundamental tenet of constitutional
law, both in our nation and in this state.” Id. “Failing to make [findings that the waiver was
“knowing, intelligent, and voluntary”] as to the defendant personally establishes a
structural defect in the proceedings.” Id. at 563, 416 P.3d at 114.
           This Court explained how a defendant must personally waive the jury-trial right in
Vasquez, 163 Idaho at 557, 416 P.3d at 108. There, the defendant pled not guilty to a felony
intimidating-a-witness charge and was set to have a jury trial. Id. at 559, 416 P.3d at 110.
However, the day before trial, defense counsel and the prosecutor informed the district

1
    Idaho Code section 19-1902 provides:
           Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases by the
           consent of both parties expressed in open court and entered in the minutes. . . . .
2
    Under Chapter 39 “Proceedings in the Magistrate’s Division of the District Court,” the Code provides:
           A trial by jury may be waived by the consent of both parties expressed in open court and
           entered in the docket. . . .
I.C. § 19-3911.

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court that they intended to waive the defendant’s right to a jury trial and stipulate to a court
trial. Id. The court confirmed this stipulation on the record on the day of trial while the
defendant was present, but the court never inquired whether she agreed with the
stipulation. Id. Following the court’s finding of guilt, she appealed. Id.
       This Court reversed, holding that “failure to obtain a personal waiver of jury trial
from the defendant, either orally or in writing in open court is a structural defect, which
constitutes fundamental error.” Id. at 564, 416 P.3d at 115. This Court explained that
“failure to obtain a defendant’s personal, knowing and voluntary waiver of her right to jury
trial is a clear violation of a constitutional right[.]” Id. at 562, 416 P.3d at 113. The
defendant also showed “clear error” because the district court’s procedure contravened
Idaho Criminal Rule 23(a). Id. This Court emphasized that “the trial court did not discuss
with [the defendant] her right to trial by jury, nor did [the defendant] offer any indication
that she waived her right in a knowing, voluntary manner.” Id. This failure amounted to
structural error, obviating the defendant’s need to show that the error affected the outcome:
       [I]n criminal cases trial courts must obtain a defendant’s consent to waive
       the right to jury trial, not just from counsel, but from the defendant herself.
       Further, such waiver must be knowing, intelligent and voluntary. Failing to
       make these findings as to the defendant personally establishes a structural
       defect in the proceedings.
Id. at 563, 416 P.3d at 114 (citations omitted).
       Because the due-process requirements for waiving a right are proportional to the
constitutional protection surrendered, a general presumption exists against the waiver of
constitutional rights. See State v. Thurlow, 85 Idaho 96, 103, 375 P.2d 996, 1000 (1962).
That said, a written waiver carries significant weight in determining whether the waiver
was knowing, voluntary, and intelligent. For instance, when the State seeks to admit an
interview taken in alleged violation of a defendant’s Miranda rights, an express written
waiver is strong evidence of voluntary waiver, even though it is not conclusive. State v.
Mitchell, 104 Idaho 493, 497, 660 P.2d 1336, 1340 (1983). Likewise, a defendant’s prior
experience with the criminal-justice system is a factor considered when determining
whether the right was adequately waived. State v. Bainbridge, 108 Idaho 273, 276, 698
P.2d 335, 338 (1985).
       Here, there is some evidence that Haggard’s waiver was knowing, intelligent, and
voluntary. For example, Haggard’s signature on the Pre-Trial Stipulation raises the

                                               7
presumption that it was voluntary. Likewise, there are multiple sources of evidence
suggesting that his waiver was knowing and intelligent. For one, Haggard signed and
initialed two separate forms that apprised him of his rights. In addition, the district court’s
dialogue with Haggard at his arraignment revealed that Haggard had some experience and
savvy with the criminal justice system. Haggard pleaded not guilty, asked for counsel, and
stated that he had no questions concerning his rights.
       But while this evidence shows some general knowledge or familiarity with court
procedures, it does not alter Idaho’s constitutional requirement that the waiver and the
parties’ consent be “expressed in open court”:
       This Court has recognized that “where a . . . constitutional provision is
       plain, clear, and unambiguous, it ‘speaks for itself and must be given the
       interpretation the language clearly implies.’” This Court reviews the
       provision’s language as a whole, considering the meaning of each word, so
       as not to render any word superfluous or redundant. Thus, the starting point
       in this Court’s interpretation of the relevant constitutional . . . provisions is
       the plain language
Coeur D’Alene Tribe v. Denney, 161 Idaho 508, 518, 387 P.3d 761, 771 (2015) (citations
omitted). The plain meaning of the phrase “in open court” requires that the waiver be made
on the record before a judge while court is in session:
       open court (15c)
       1. A court that is in session, presided over by a judge, attended by the
          parties and their attorneys, and engaged in judicial business.
           • Open court usu. refers to a proceeding in which formal entries are
           made on the record. The term is distinguished from a court that is
           hearing evidence in camera or from a judge that is exercising merely
           magisterial powers.
       2. A court session that the public is free to attend.
           • Most state constitutions have open-court provisions guaranteeing the
           public’s right to attend trials.
Black’s Law Dictionary (11th ed. 2019).
       To argue that the written waiver suffices, the State ignores the language from
Article I, section 7 of the Idaho Constitution and relies solely on the disjunctive “orally or
in writing” statement in Vasquez. However, in so doing, the State fails to explain the “in
open court” qualifier that directly follows that language. See 163 Idaho at 564, 416 P.3d at
115. Vasquez’s recitation of the “orally or in writing” language stems from the Court of

                                              8
Appeals’ decision in State v. Swan, which contemplated a court-conducted inquiry. 108
Idaho 963, 966, 703 P.2d 727, 730 (Ct. App. 1985) (“A requirement that the Court
personally address the defendant will not constitute an undue burden on the courts where
this very important right is at issue.”); Vasquez, 163 Idaho at 562, 416 P.3d at 113. State v.
Swan quoted the disjunctive language from the American Bar Association Standards for
Criminal Justice, Vol. III., Ch. 15, Trial by Jury, Section 1.2(b) (1980). The current version
of the ABA Standards explains that its terms outline the methods by which a court may
ensure that a jury trial waiver is sufficient in the absence of constitutional or statutory
guidance. See American Bar Association Standards for Criminal Justice, Vol. III., Ch. 15,
The Right to Trial by Jury, Section 1.1 p. 123 (1996).
       Here, Haggard’s waiver was neither signed nor confirmed “in open court.” While
the Pretrial Stipulation and Order contained an express waiver and displayed the parties
consent, there is no evidence of any court-conducted inquiry into that waiver. The
stipulation was agreed to at Haggard’s pretrial conference, where the parties met and
conferred in the courtroom, outside the presence of the judge. As a result, they were never
“in open court,” because the waiver did not occur in a hearing presided over by a judge
attended by the parties and their attorneys. The parties could very easily have called the
magistrate judge in to confirm the written waiver on the record. See State v. Morais, 203
A.3d 1150, 1156 (R.I. 2019). They also could have easily complied with the open-court
requirement on the day the bench trial began by confirming that Haggard wished to
proceed without a jury. However, they did not do this.
       The open-court requirement presents the procedure to comply with Vasquez’s
requirement that the trial court find that the defendant’s waiver was knowing, intelligent,
and voluntary. The State is correct that, unlike Vasquez (where there was no evidence—oral
or in writing—that suggested that the defendant personally waived her right to a jury trial),
Haggard’s signature appears on the Pre-Trial Stipulation. Thus, the record contains
evidence of a “personal waiver of jury trial from the defendant” done “in writing.” But this
signature, on its own, fails to meet the “knowing, intelligent, and voluntary” standard in
the absence of some sort of inquiry and finding by the trial court. Vasquez dictates that the
Court must make findings on whether the defendant’s waiver was knowing, intelligent, and



                                              9
voluntary even when it is personally given. Vasquez, 163 Idaho at 563, 416 P.3d at 114
(citations omitted).
       Because the waiver was not “expressed in open court,” the magistrate court never
had the opportunity to inquire whether the waiver was knowing, intelligent, and voluntary.
The open-court requirement ensures a record will be made to establish whether there was
an adequate waiver. The failure to observe it “simply create[s] fertile ground for an appeal
and for post-conviction relief.” State v. Umphenour, 160 Idaho 503, 507, 376 P.3d 707, 711
(2016). Given the record before us, there is insufficient evidence to show that the waiver
was knowing, voluntary, and intelligent in the absence of such findings. Thus, Haggard has
shown an ineffective waiver of his jury-trial right and meets Perry’s first prong.
B. Haggard has also met his burden under Perry’s second prong because
   the error is clear from the record.
       Meeting Perry’s second prong requires that the defendant demonstrate that
constitutional error was clear or obvious from the record. State v. Perry, 150 Idaho 209,
226, 245 P.3d 961, 978 (2010). The State contends that Haggard cannot meet this burden
by arguing that the case law on this point was not fully developed until State v. Vasquez.
This argument misunderstands Perry’s second prong. This Court reemphasized in State v.
Miller that the focus is whether the record clearly shows error, which includes asking
whether the decision was tactical:
       This means the record must contain evidence of the error and the record
       must also contain evidence as to whether or not trial counsel made a tactical
       decision in failing to object. If the record does not contain evidence
       regarding whether counsel’s decision was strategic, the claim is factual in
       nature and thus more appropriately addressed via a petition for post-
       conviction relief.
165 Idaho 115, 119, 443 P.3d 129, 133 (2019).
       In this case, the decision to waive the right to a jury trial is personal to the
defendant, so it matters not that there might be tactical considerations which may lead an
attorney to advise his client to forgo a jury trial. As this Court explained in Vasquez, a
record which shows that the court and the parties contravened the requirements of Idaho
Criminal Rule 23(a) constituted clear and obvious error. Implicit in Vasquez’s holding is
the recognition that failure to follow the procedural requirements that ensure that the



                                             10
defendant personally waived the right in a knowing, intelligent, and voluntary manner
obviates any need to determine whether there were any tactical considerations.
       The Idaho Constitution requires the defendant’s waiver to the “expressed in open
court” and Idaho Criminal Rule 23 reinforces that requirement. So while Vazquez shored
up any doubts about a faulty jury-trial waiver’s impact on the fundamental-error analysis,
the law pertaining to properly waiving the right to trial by jury was established by the
framers of the Idaho Constitution long before Vasquez was decided.
                                   V. CONCLUSION
       As explained above, Haggard has carried his burden to show fundamental error
because his jury-trial waiver was ineffective. Accordingly, we reverse the district court’s
decision and remand this case with instructions to the district court to remand this case to
the magistrate court with instructions to vacate the judgment of conviction.
       Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR.




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