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 
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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.