1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 47577 STATE OF IDAHO,

Plaintiff

- Respondent,

v. CLINTON HAGGARD,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) Boise, April 2020 Term

Opinion Filed: June 10, 2020

Melanie Gagnepain , Clerk

Appeal from the District Court of the Seventh Judicial District, State of Ida ho, 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 ma gistrate court ’ s judgment of conviction

. The magistrate court found Haggard guilty of misd e meanor domestic battery in violation of Idaho Code section 18

- 918(3)(b) after a court trial

. For the reason s below, we reverse the district court’s decision and rem and 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 o n the morning of June 8, 2016, police arrested Hag gard 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 a t 7:00 a

. m

. , he signed a “Notification of Rights” form. That form admonished him to “initial only those items2 which you fully understand. ” Haggard initialed an item acknowledging that if he ple d not guilty, he would “have the right to a trial before the Court o r a jury of six (6) jurors [

. ] ” At the end of the listed items, the form ad vised Haggard that he should not hesitate to speak up if he had “any questions concerning any rights of procedure[,]” and stat ed : “It is essential that you understand.” Haggard signed and dated the document below the following pre

- printed stat e ment: 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 magistrat e 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: Domesti c Assault or Battery
Cases.” This document also informed Ha g gard 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 onl y. Haggard signed and dated the document
below the statement: “I have read this document or had it e x plained 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 att orney and the prosecutor also signed the doc u ment , but the magistrate judge did not , despite the document having a place for the judge’s signature

. T he only filled

- out portion of the document is the date set for the court trial and

a checked box next to th at 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 Hagg ard guilty of domesti c battery without traumatic injury under Idaho Code section 1 8

- 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 tha t 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 o r dered 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 of3 conviction and di s missed Haggard ’ s appeal , ruling that Haggard was unable to meet the first prong of the fundame n tal

- error standard because he waived his right to a jury trial. Relevant to this appeal, t he distr ict 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 defen d ant, and defense counsel, after which a pretrial stipulation and order is signed b y the parties and the presi d ing 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 Appeal s 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 wri t ten waiver was knowing, voluntary and intelligent[.]” Id.
at *2. The State timely petitioned for review , which t his 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

r e views t he 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 intermed i ate appellate capacity, this Court directly reviews the district court ’ s dec i sion.” Id. (quoting In
re Doe , 147 Idaho 243, 248, 207 P.3d 974, 979 (2009)). We review “ the trial court (magi s trate) record to determine whether there is substantial and competen t 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.2 d 1137, 1139 (1981)). And “if those findings are so supported and the conclusions follow therefrom and if the di s trict court affirmed the magistrate ’ s decision, we affirm the district court ’ s decision as a matter of procedure.” Id.4 IV. ANALYSIS
T h e crux of t his 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 pr eliminary 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 i nclude the transcript below does

not require us to ignore it on appeal . T he district court o n 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 p reparation 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
i ncluded the transcript in the record on appeal to this Court

. On the se 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 w as violated;
2. The error is clear or obvious, without the need for any additional information not contained in the appellate record, including in formation 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 procee d ings. 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 satisf ies 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 prong s

. For the reasons below, we d e termine : (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, volunta ry, and intelligent, an d (B)5 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
includ e the a rraignment transcript supported finding that the jury

- trial waiver was
effect ive

. 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 in quire of him, in open court, means his waiver was
ineffective

. In response, t he State argues that Haggard’s written waiver is proof, or at least creates a presumption, that his waiver was knowing, voluntary, and intelligent. T he State
also argues that this Court ’ s case law regarding jury

- trial waiv e r has no t 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 fundamen tal 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, t he Idaho
Constitution ’s jury

- trial protection s 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 Id a ho Code section 18

- 918(3)(b). A defendant’s first

co n viction under this subsection is subject to a maximum p ossible sentence of $1,000 and
six month s of incarceration, or both. I.C. § 18

- 918(3)(c). However, a defendant char ged
with dome s tic battery in the presence of the child faces dou ble the stat u tory penalties under
Idaho Code section 18

- 918(4). Because Haggard’s charge carried the possibility of
incarceration
, it trigger ed the jury

- trial right under Article I, section 7.
W hen a defendant w aiv es the right to trial by jury and its ass ociated protections , the trial court is required to abid e by certain procedural guidelines . T he 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 waive d 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)

. Th is section provides that a jury

- trial waiver

must be (1) expres sed in open court and (2) consented to by all parties. Id. How a waiver6 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 part y cites to the applicable statutes
, Idaho has two statutory pr ovisions
that address waiver of the right to trial by jury: I daho C ode 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 issu es of fact must be tried by a jury,

u n less, in open court , a trial by jury is waived in writing by the defendant and the co n sent 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)

. The se procedural components are intertwined with the substantive require ments 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 55 7 , 416 P.3d at 1 08

. There, the de fendant 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.
Ho w ever, the day before trial, defense counsel and the prosecutor informed the di s trict

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 i n 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

.7 court that they i n tended to waive the d efendant ’ s right to a jury trial and stipulate to a court trial

. Id. The court confirmed th is stipulation on the record on the day of trial while t he 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, kno w ing 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 emph a sized 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 amoun ted to structural error, obviating the d e fendant ’ s need to show that the error affected the outcome: [I] n criminal cases trial courts must obtain a defendant ’ s consent to wa ive 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 esta b lishes a structural defect in the pr o cee dings.
Id. at 563, 416 P.3d at 114 (citations omitted).
Because the due

- process requirement s for waiving a right are proportional to the constitutional protection surrendered, a general presumption exists against the waiver of constitutional rights. See S tate v. Thurlow , 85 Idaho 96, 103, 375 P.2d 996, 1000 (1962). That said, a written waiver carries si gnificant weight in determining whether the waiver was knowing, voluntary, and intelligent . For instance, when the State seeks to admit an
interview taken i n 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 pri or experi ence 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, t here is some evidence that Haggard ’ s waiver was knowing, intel ligent, and voluntary

. For example, Haggard’s signature on the Pre

- Trial Stipulation raises the8 presumption that it was voluntary. Likewise, there are multiple sources of evidence suggesting that his wa i ver was knowing and intelligent

. For one, Haggard sig ned and initialed two separate forms that apprised him of his rights

. In addition, t he 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 guilt y, asked for counsel, and stated that he had no questions concerning his rights

. But while this evidence show s some general knowledge or familiarity with court procedures
, it does not alter Idaho’s constitutional requirement that the waiver and the partie s’ 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” require s that the waiver be made on the record before a judge while court is in session: open court (15c)
1. A co urt 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 cour t 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).
T

o argue that the written waiver suffice s , t he 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 of9 Appeals’ decision in Stat e 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 th e disjunctive language from the American Bar Association Standards for
Criminal Justice , Vol. III., Ch. 15, Trial by Jury, Sec tion 1.2(b) (1980). T he 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 evide nce of any court

- conducted inquiry into that waiver

. T he 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, ” beca use the waiver did not occur in a h earing 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 115 0, 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, u nlike 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, and10 volun tary 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, intellig ent, and voluntary

. T he open

- court requirement ensures a record will be made to establish wheth er t here was an adequate waiver. The f ailure to observe it “simply create[s] fertile ground for an appeal and for post

- conviction relief.” State v. Umphenour , 16 0 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 jur y

- 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 misunde rstands Perry ’s second prong. T his Court re emphasized 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 rec ord 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 approp riately 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 considera tions which may lead an attorney to advise his client to forgo a jury trial. As t his C ourt 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 err or. I mplicit in Vasquez ’s holding is the recognition that failure to follow the procedural requirements that e nsure that the11 defendant personally waived th e 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 w hile Vazquez shored

up any doubt s about a faulty jury

- trial wai ver’s impa ct 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 va cate the judgment of conviction

. Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR

.