author: LARSON, Justice.

text:
    In re DETENTION OF Albert BARNES. State of Iowa, Appellee, v. Albert Barnes, Appellant.
    No. 01-1545.
    Supreme Court of Iowa.
    Jan. 23, 2003.
    Rehearing Denied March 14, 2003.
    Mark C. Smith, First Assistant State Public Defender, and Thomas J. Gaul, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Lisa A. Nelson and Roxann M. Ryan, Assistant Attorneys General, for appellee.
   LARSON, Justice.

Abert Barnes was ordered confined pursuant to Iowa Code section 229A.7(3) (2001), based on a jury’s finding that he met the statutory definition of a sexually violent predator under Iowa Code section 229A.2(9). Barnes appealed, arguing that he was denied due process by the district court’s failure to fully instruct the jury. We reverse and remand.

I. Facts and Prior Proceedings.

Barnes’ record of convictions for sexually violent offenses is not challenged. In 1983 he pled guilty to sexual abuse and in 1985 was convicted of two counts of sexual abuse. He also pled guilty to assault with intent to commit sexual abuse on another occasion, although he denied this in the trial of the present case. In 1985 and 1996 he was convicted of third-degree sexual abuse. In February 2001 the State of Iowa filed a petition alleging Barnes to be a sexually violent predator under Iowa Code chapter 229A. A jury found the State had met its burden of proof, and Barnes was ordered to be confined in accordance with Iowa Code section 229A.7.

II. The Statutes.

Iowa Code section 229A.7(3) provides for confinement of persons found by the court or jury to be sexually violent predators. Sexually violent predators are defined in section 229A.2(9):

“Sexually violent predator” means a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

The present appeal involves the application of the statute defining “mental abnormality.”

“Mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.

Iowa Code § 229A.2(4).

III. The Issue.

The focus of Barnes’ due-process challenge is the district court’s instruction regarding mental abnormality. The court instructed the jury:

“Mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health or safety of others.

Although this instruction tracked almost verbatim the language of section 229A.2(4), Barnes claims an additional element must be read into the statute to make it pass due-process analysis. His requested instruction would have informed the jury:

Before you may find the Respondent suffers from a mental abnormality, you must find the mental abnormality suffered by the Respondent is a volitional impairment that makes it difficult if not impossible for him to control his future dangerous sexual behavior.

(Emphasis added.)

Barnes argues that the italicized language in his proposed instruction is necessary to conform Iowa law to recent Supreme Court rulings that emphasize a respondent’s lack of ability to control his behavior so as to distinguish chapter 229A offenders from other recidivists. The two Supreme Court cases were based on a Kansas confinement statute similar to our chapter 229A. The first of the cases is Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The Kansas statute challenged in Hendricks defined a “mental abnormality” as a

congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

Kan. Stat. Ann. § 59 — 29a02(b) (1994). The Supreme Court upheld the statute’s definition of “mental abnormality” against a contention that it violated substantive due process. Hendricks, 521 U.S. at 356, 117 S.Ct. at 2079, 138 L.Ed.2d at 511. The Court said in Hendricks:

A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” These added statutory requirements serve to limit involuntary civil commitment to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior.

Id. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 512-13 (emphasis added) (citations omitted).

We interpreted the “mental abnormality” definition of section 229A.2(3) (1999) (now section 229A.2(4) (2001)) in In re Detention of Ewoldt, 634 N.W.2d 622 (Iowa 2001). We held in Ewoldt that chapter 229A is civil in nature, not criminal. Id. at 623. As the Supreme Court said in Hendricks:

Although freedom from physical restraint “has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,” that liberty interest is not absolute. The Court has recognized that an individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context ... [.] Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.

521 U.S. at 356-57, 117 S.Ct. at 2079, 138 L.Ed.2d at 511-12 (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437, 448 (1992)) (citations omitted).

In Ewoldt the respondent argued that under the Supreme Court’s ruling in Hendricks the state must prove “a complete lack of volitional control” before an alleged predator may be confined. Ewoldt, 634 N.W.2d at 623. We rejected that argument, stating:

The essential conclusion to be derived from Hendricks is that a state’s sexually violent predator statute does not violate substantive due process if it requires proof of a “mental abnormality” that results in an inability to control sexually dangerous behavior. Iowa Code section 229A.2(4) requires such proof as did the Kansas statute upheld in Hendricks. But, we do not read section 229A.2(4) as requiring that the necessary mental abnormality involved a total lack of volitional control.

Id.

The Supreme Court again examined the Kansas statute in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). In Crane the state complained that the Kansas Supreme Court had interpreted Hendricks in an overly restrictive manner by holding the state must always prove the respondent is completely unable to control his behavior — the issue considered in our Ewoldt case. See Crane, 534 U.S. at 409, 122 S.Ct. at 868, 151 L.Ed.2d at 860. The Crane Court rejected any reading of Hendricks that would require the state to prove total or complete lack of control to constitute a “mental abnormality.” Id. at 411, 122 S.Ct. at 870, 151 L.Ed.2d at 861-62. Hendricks had said the state must prove it is difficult, if not impossible, for the respondent to control himself. See Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 513. The Crane Court clarified the “difficult” standard of Hendricks:

The word “difficult” indicates that the lack of control to which this Court referred was not absolute. Indeed, as different amici on opposite sides of this case agree, an absolutist approach is unworkable. Moreover, most severely ill people — even those commonly termed “psychopaths” — retain some ability to control their behavior. Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.

Crane, 534 U.S. at 411-12, 122 S.Ct. at 870, 151 L.Ed.2d at 862 (citations omitted). The Court nevertheless said it is constitutionally required that some lack-of-control determination be made. Id. at 412, 122 S.Ct. at 870, 151 L.Ed.2d at 862. The Court stated:

[I]n cases where lack of control is at issue, “inability to control behavior” will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Crane, 534 U.S. at 413, 122 S.Ct. at 870, 151 L.Ed.2d at 862-63 (emphasis added).

IV. Disposition.

We agree with the respondent that, while the court’s instruction followed the words of the statute, the statute must be interpreted to require a showing of a serious difficulty in controlling behavior, as the Supreme Court held in Crane. The Missouri Supreme Court has suggested an instruction embodying the lack-of-control requirement, and we suggest this as an instruction to be used in Iowa cases.

As used in this instruction, “mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.

Thomas v. Missouri, 74 S.W.3d 789, 792 (Mo.2002).

Iowa Code section 229A.2(4) in defining “mental abnormality” states that it means an emotional or “volitional” capacity predisposing the person to commit sexually violent offenses. By interpreting this section as requiring a showing of a serious difficulty in controlling behavior, we are not changing the statute but rather clarifying the language already in it.

Because the court’s instruction did not embody this concept, we reverse and remand for a new trial.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    In re DETENTION OF Jessie J. GONZALES. State of Iowa, Appellee, v. Jessie J. Gonzales, Appellant.
    No. 01-2066.
    Supreme Court of Iowa.
    Jan. 23, 2003.
    Rehearing Denied Feb. 21, 2003.
    Mark Smith, First Assistant Public Defender, and Greg Bal, Assistant Public Defender, for appellant.
    ■ Thomas J. Miller, Attorney General, and Roxann M. Ryan, Andrew B. Prosser, and Denise A. Timmins, Assistant Attorneys General, for appellee.
   LARSON, Justice.

This is an appeal by Jessie J. Gonzales from a district court order, following a jury trial, for his confinement as a sexually violent predator under Iowa Code chapter 229A (2001). We conclude Gonzales did not meet the statutory criteria for adjudication as a sexually violent predator and therefore reverse the order for confinement.

I. Facts and Prior Proceedings.

In 1981 Gonzales pled guilty to sexual abuse in the second degree and was sentenced to prison. In 1994 he pled guilty to two counts of indecent contact with a child and was placed on probation. His probation was revoked, and he was sent to prison. Gonzales was released from this confinement in 1997.

In 1999 Gonzales was sentenced to prison for operating a motor vehicle without the owner’s consent. His scheduled release date for that offense was June 15, 2001. On May 2, 2001, the State filed this petition for Gonzales’ commitment as a sexually violent predator under chapter 229A.

II. Issues.

Gonzales contends (1) he was denied due process by the court’s refusal to instruct the jury that it must find he had serious difficulty in controlling his behavior; (2) Iowa Code chapter 229A violates his substantive due process rights because it did not expressly provide the State must prove he had serious difficulty in controlling his behavior; and (3) chapter 229A, as interpreted by the State and the district court, denies him his right to substantive due process and denies him equal protection because it treats him differently from other alleged predators who are charged under different subdivisions of chapter 229A by not requiring proof of a “recent overt act.” We do not address the constitutional questions raised in the second and third issues because, for the reasons we discuss later, we interpret chapter 229A as requiring both a showing of a lack of control and a recent overt act.

III. Disposition.

A. The court’s instruction.

Gonzales contends the district court erred in refusing to instruct the jury that, as an element of proving he is a sexually violent predator under chapter 229A, the State must prove he had serious difficulty in controlling his behavior. In In re Detention of Barnes, 658 N.W.2d 98, 99 (Iowa 2003), filed today, we held it was necessary to establish difficulty in controlling behavior to conform chapter 229A to the constitutional requirements set out by the Supreme Court in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 870, 151 L.Ed.2d 856, 862 (2002). Barnes controls the present case on this issue, and we need not discuss the instruction issue further. However, Gonzales raises another issue that goes to the heart of his case: whether the facts here provide a basis for a finding of sexually violent-predator status under chapter 229A. We hold they do not.

B. The statute.

Under the statutory scheme of chapter 229A, a person is subject to commitment proceedings if the person is a “sexually violent predator,” which

means a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(9). “Likely to engage in predatory acts,” in turn, is defined in section 229A.2(3):

“Likely to engage in predatory acts of sexual violence” means that the person more likely than not will engage in acts of a sexually violent nature. If a person is not confined at the time that a petition is filed, a person is “likely to engage in predatory acts of sexual violence” only if the person commits a recent overt act.

A “recent overt act” “means any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” Iowa Code § 229A.2(6). “Recent” is not defined in the statute.

At the time the petition was filed against Gonzales, he was in prison under the driving-without-consent charge. Section 229A.3(1), the basis for the State’s petition, provides for notice of discharge of a person who is confined:

When it appears that a person who is confined may meet the definition of a sexually violent predator, the agency with jurisdiction shall give written notice to the attorney general and the multidisciplinary team established in subsection 4, no later than ninety days prior to any of the following events:
a. The anticipated discharge of a person who has been convicted of a sexually violent offense from total confinement, except that in the case of a person who is returned to prison for no more than ninety days as a result of revocation of parole, written notice shall be given as soon as practicable following the person’s readmission to prison.

Section 229A.4(2) establishes the procedure for filing a petition for the commitment of a person who is not presently confined:

A prosecuting attorney of the county in which the person was convicted or charged, or the attorney general if requested by the prosecuting attorney, may file a petition alleging that a person is a sexually violent predator and stating sufficient facts to support such an allegation, if it appears that a person who has committed a recent overt act meets any of the following criteria:
a. The person was convicted of a sexually violent offense and has been discharged after the completion of the sentence imposed for the offense.

(Emphasis added.)

The significant difference between the provisions for petitioning against confined and nonconfined persons is that, in the latter case, the State must show the person has committed a recent overt act, while this is not expressly required as to a person who is confined.

Under section 229A.3(1), “[w]hen it appears that a person who is confined may meet the definition of a sexually violent predator ... [proceedings may be initiated] no later than ninety days prior to ... [t]he anticipated discharge of a person who has been convicted of a sexually violent offense from total confinement....” Similarly, section 229A.4(1) provides: “If it appears that a person presently confined may be a sexually violent predator” a petition may be filed.

The State justifies its filing of a petition in this case because these statutes do not expressly require that the person be presently confined for a sexually violent offense. The State correctly notes that Gonzales “has been convicted” of sexually violent offenses. Those convictions were in 1981 and 1997. It is also true, as the State claims, that Gonzales was in confinement (although not for the sexual offenses) at the time the petition was filed. The State contends this combination of circumstances is all the statutes require. It contends that, if the legislature had intended to limit “confinement” to a confinement for a sexually violent offense, it would have said so, citing Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996) (“Precise, unambiguous language will be given its plain and rational meaning in light of the subject matter.”). Carolan, however, goes further: “A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute” and “[a]mbiguity may arise ... from the general scope and meaning of a statute when all its provisions are examined.” Id: (citation omitted). We believe, for the reasons that follow, the “plain” meaning the State claims for the statute is not plain at all.

We believe the “confinement” relied on by the State means confinement for a sexually violent offense because (1) in each of the statutes, “confinement” and “sexually violent offense” or “sexually violent predator” appear in the same sentence; (2) by interpreting the statute as the State urges us (applying the “confined person” basis for commitment) the State would be relieved of showing a “recent overt act” (a matter we discuss later); and (8) the result would not be a reasonable application of the statute because it would allow the State to reach back in time, seize on a sexually violent offense for which a defendant was discharged, and couple this with a present confinement for a totally different — or even perhaps a trivial — offense and use chapter 229A to confine the person. Iowa Code section 4.4 provides that, in construing a statute, “it is presumed that ... [a] just and reasonable result is intended.” The result urged by the State would not be just or reasonable.

If the “confinement” referred to in these statutes is interpreted, as we believe it should be, to mean confinement for a sexually violent offense, the “recent overt act” requirement of chapter 229A is satisfied. The recent act would simply be deemed to be the act for which the person is presently confined. If we interpret the statute as the State suggests, a person could be committed without any showing of a recent overt act because they are being processed as a “confined” person. This would raise serious constitutional issues. See Iowa Code § 4.4(1) (In interpreting statutes, “[cjomplianee with the Constitutions of the state and of the United States is intended”).

A federal court, interpreting chapter 229 regarding commitment of mentally ill persons, recognized the constitutional importance of showing a recent overt act:

This Court ... holds that the commitment standards of Chapter 229 of the [Iowa] Code violated substantive due process by not requiring that subjects pose a serious threat to themselves or others, as evidenced by a recent overt act, attempt or threat.

Stamus v. Leonhardt, 414 F.Supp. 439, 451 (S.D.Iowa 1976) (emphasis added). As we stated in In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986):

This element [proof that the respondent is likely, if allowed to remain at liberty, to inflict physical injury on himself or others] requires that the threat the patient poses to himself or others be evidenced by a “recent overt act, attempt or threat.” Furthermore, rule 13(10) of the [Iowa] [S]upreme [C]ourt rules for hospitalization of mentally ill provides that “[t]he physician’s diagnosis and recommendations” must include “a detailed statement of the facts, symptoms and overt acts observed or described to him or her, which led to the diagnosis.” (Emphasis added.)

Mohr, 383 N.W.2d at 542 (quoting Stamus, 414 F.Supp. at 451). See also Lynch v. Baxley, 386 F.Supp. 378, 391 (M.D.Ala.1974):

Due process requires that the need for confinement be based upon a substantial likelihood that dangerous behavior will be engaged in unless restraints are applied. While the actual assessment of the likelihood of danger calls for an exercise of medical judgment, the sufficiency of the evidence to support such a determination is fundamentally a legal question. A mere expectancy that danger-productive behavior might be engaged in does not rise to the level of legal significance when the consequence of such an evaluation is involuntary confinement. To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another.

(Footnote omitted.)

One writer has observed with respect to chapter 229 commitments:

The requirement that a prediction of dangerousness, either physical or emotional, must be based bn prior overt manifestations of danger is necessary both in order to protect the reliability of the prediction under the clear and convincing standard of proof ... and in order to satisfy constitutional standards.

Randall P. Bezanson, Involuntary Treatment of the Mentally III in Iowa: ■ The 1975 Legislation, 61 Iowa L.Rev. 261, 295 n. 161 (1975).

Because Gonzales was not confined for a sexually violent offense at the time the petition was filed, and the State failed to prove, or even allege, a recent overt act that meets the definition of the statute, we reverse the commitment order and remand for dismissal of the petition.

REVERSED AND REMANDED.


text:
    STATE of Iowa, Appellee, v. Raymond Lamont STALLINGS, Appellant.
    No. 01-1766.
    Supreme Court of Iowa.
    Jan. 23, 2003.
    Rehearing Denied March 14, 2003.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, William E. Davis, County Attorney, and Joseph A. Grubisich, Assistant County Attorney, for appellee.
   LARSON, Justice.

Raymond Stallings was convicted in a bench trial of first-degree murder, willful injury, and going armed with intent. He appealed, claiming he was improperly denied his constitutional and statutory right to a jury trial. We reverse and remand.

I. Facts and Prior Proceedings.

A man was shot during a multiparty free-for-all in Davenport. Raymond Stall-ings was arrested and charged with first-degree murder, willful injury, and going armed with intent. Trial was set. A December pretrial conference order stated that a jury trial had not been waived. A pretrial conference order dated March 2, 2001, again stated that a jury trial had not been waived. On May 29, 2001, an order was entered continuing the “jury trial” until August 13, 2001. Another order, dated July 25, 2001, continued the “jury trial” again. Based on these orders, and the failure of either the State or defendant to assert otherwise, it appeared that the case was headed for a jury trial.

A statement of fees from Stallings’ trial counsel indicates that, on August 31, 2001, Stallings waived a jury trial during a hearing on his motion to suppress evidence. However, there is no testimony on record from the suppression hearing about waiving a jury trial. No waiver was even mentioned by the State, the defendant, or the court at either the suppression hearing or trial. There is no written waiver of a trial by jury in the record.

The court held a bench trial and found Stallings guilty of all three counts. Stall-ings appealed.

II. The Issue.

The sole issue is whether Stallings was denied effective assistance of counsel when his attorney failed to obtain his waiver of a jury trial in writing and secure the compliance of the court with our rule concerning waivers of jury trial.

The standard of review for ineffective assistance of counsel is well established. We review such claims de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). We review Stallings’ claim with respect to his right to a jury trial in view of the great solicitude of courts for jury trials. The Constitution provides: “The trial of all Crimes, except in Cases of Impeachment, shall be by Jury....” U.S. Const. art. III, § 2. Further, the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....”

The adequacy of a jury-trial waiver is a mixed question of fact and law, which an appellate court decides de novo. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997). A court’s ruling on a jury-waiver application is a matter vested in the court’s sound discretion. United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir.1985).

Ineffective-assistance-of-counsel claims are an exception to the general rules of error preservation. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). In general, ineffective-assistance claims are preserved for postconviction relief, but we consider the claim on its merits when the record is adequate to do so. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). We consider the present case to be one in which the record is sufficient to rule on the issue on direct appeal.

To establish an ineffective-assistance claim, Stallings must show that (1) his counsel failed to perform an essential duty, and (2) prejudice resulted. Strick land v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To meet the first prong of the test, 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. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. In order to meet the prejudice prong of this test, the defendant must show that, but for counsel’s error, there is a reasonable probability that the results of the trial would have been different. Id. We believe the defendant has satisfied both tests here.

III. Analysis.

No record appears showing Stallings’ counsel insured compliance with Iowa Rule of Criminal Procedure 2.17(1) (formerly rule 16), which provides:

Trial by jury. 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 within 30 days after arraignment, or if no waiver is made within 30 days after arraignment the defendant may waive within ten days after the completion of discovery, but not later than ten days prior to the date set for trial....
The comparable federal rule provides:
Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.

Fed.R.Crim.P. 23(a) (2000). Our rule differs in two significant respects from the federal rule. Our rule does not require the “approval” of the court or the consent of the prosecutor, as the federal rule does. Our rule, however, assumes the court is at least made aware of the defendant’s waiver because it requires the waiver to be made in writing and “on the record.” Because the right to a trial by jury is so fundamental in our system of justice, we believe our rule must be interpreted to at least require the court to be involved in the waiver process. Some federal cases strongly suggest that the court engage in an in-court colloquy in which the court assesses the extent of the defendant’s knowledge and understanding of a waiver — much like a guilty plea. See, e.g., United States v. Christensen, 18 F.3d 822, 825 (9th Cir.1994); United States v. Cochran 770 F.2d 850, 851-53 (9th Cir.1985); United States v. Martin, 704 F.2d 267, 274-75 (6th Cir.1983).

One authority has stated:

It clearly is the better practice for the court to interrogate the defendant personally, before accepting a waiver of jury trial, to be sure that the defendant understands his right to trial by jury and the consequences of a waiver. This is not, however, required either by the Constitution or [Federal] Rule 23.

2 Charles Alan Wright, Federal Practice and Procedure § 372, at 453-54 (3d ed.2000).

Some federal circuits have entered supervisory orders requiring an in-court colloquy in jury-waiver hearings. See, e.g., United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978) (noting failure of district courts to adopt seventh circuit’s previous suggestions of in-court colloquy, adopted supervisory order requiring such colloquy in all future cases); see also Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir.2000) (discussing per se rule for colloquy in federal courts). But see United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) (rejecting per se supervisory order requiring in-court colloquy, saying, nevertheless, “[we] strongly urge district courts personally to inform each defendant of the nature of jury trials on the record before accepting a proffered waiver”).

The court in Robertson stated:

Given the significance of the right to a jury trial and the importance of the decision to waive that right, we have no doubt district courts will insure such waivers are knowing, voluntary, and intelligent by informing defendants, on the record, of the nature of that right and the consequences of waiving it.
Defendants should be informed that (1) twelve members of the community compose a jury; (2) the defendant may take part in jury selections; (3) jury verdicts must be unanimous; and (4) the court alone decides guilt or innocence if the defendant waives a jury trial.

45 F.3d at 1432.

We take a view similar to Robertson’s, concerning waivers under our rule 2.17(1): More than the fact a waiver was executed by the defendant must be apparent in the record. Even if a written waiver were in the record of the present case (which it was not), the record should still establish the defendant made a knowing, voluntary, and intelligent decision on waiver — a requirement that is “distinct from the requirement that the waiver be written.” Robertson, 45 F.3d at 1432 (quoting 8A James W. Moore, Moore’s Federal Practice ¶ 23.03[2][c] (2d ed.1994)).

No written waiver may be found in the record of Stallings’ case. However, we agree with the State that this is not necessarily fatal. As Robertson said,

[m]indful of Rule 23(a)’s writing requirement and the reasons for it, we conclude requiring strict compliance with Rule 23(a) is not justified. In those circumstances where the record clearly reflects a defendant’s waiver of the right is voluntary, knowing, and intelligent, we see no practical justification for finding a waiver invalid simply because Rule 23(a)’s writing requirement has not been met. The Constitution requires only that a waiver of the right to trial by jury be knowing, intelligent, and voluntary. When the purposes of Rule 23(a) have been satisfied by means other than a written waiver, little is served by rigidly requiring compliance with the Rule. To conclude otherwise would, in our opinion, elevate form over substance. Accordingly, we hold while Rule 23(a) should be complied with in all cases, noncompliance will not necessarily invalidate a waiver of the right to trial by jury if the waiver can otherwise be shown to have been entered knowingly, voluntarily, and intelligently.

45 F.3d at 1431 (citations omitted).

In Robertson the defendant’s attorney, but not the defendant, signed and filed a written waiver. However, the district court made no inquiry as to the defendant’s understanding of the waiver. On appeal the court said:

Under these circumstances, there is no way for a reviewing court to determine whether Ms. Walker’s waiver was knowing, voluntary, and intelligent. This fact, coupled with the strong presumption against finding a waiver of fundamental constitutional rights, compels us to reject the government’s argument that her waiver is nevertheless valid. Accepting the government’s argument would require us to permit the waiver of a fundamental constitutional right based on nothing more than conjecture and speculation. This we decline to do. The right of trial by jury is one enjoyed by the people as well as defendants and courts should be hesitant to dispense with that right.

Id. at 1433 (citation omitted). The Robertson court vacated the defendant’s conviction because there was no evidence in the record to indicate the waiver of a trial by jury was knowing, voluntary, and intelligent. Id. The court remanded for a trial by jury. Id.

In Stallings’ case, there is even less of a record on which to find a valid waiver. In contrast to Robertson, in which the defendant’s attorney signed a waiver, there is no written waiver by Stallings or his attorney in the record in this case. While neither a written waiver nor an in-court colloquy is constitutionally mandated to establish a knowing, voluntary, and intelligent waiver, practical considerations suggest that a written waiver as well as an in-court colloquy should be used to assure a proper waiver. For example, a defendant might be shown through an in-court colloquy to have a mental condition that impairs his ability to understand the waiver. See, e.g., Christensen, 18 F.3d at 826 (“The suspected presence of mental or emotional instability eliminates any presumption that a written waiver is voluntary, knowing or intelligent.”). The court may also, through the colloquy, determine if a proposed waiver decision was the product of duress or coercion. Martin, 704 F.2d at 273. The court in Martin said:

[A] defendant ignorant of the nature of the jury trial right cannot intelligently waive the value of the safeguard [of a jury trial]. A defendant, therefore, should have both the mental ability and some knowledge of the jury trial right before he is allowed to waive it.

Id.

It is suggested in this appeal that the case should be remanded for additional findings. However, it has been observed that posttrial reconstruction of the record will not suffice to show a valid waiver. Saadya, 750 F.2d at 1422 (“A defendant’s waiver of his right to jury trial must appear on the record prior to the time the trial commences. The absence of a waiver on the record of the right to trial by jury cannot be remedied by subsequent proceedings on remand.”). The court in Saadya ordered reversal, rather than a remand for additional findings. The court first noted “that not only did [the defendant] fail to make a written waiver or an oral waiver in open court, but the record also fails to reflect the approval of any waiver by the district judge.” Id. at 1421. The court then stated:

In [a previous case involving waiver of right to counsel] we said that the limited remand procedure is appropriate only in the exceptional case where other records are in existence which might establish that the waiver was valid.... Here, there is no suggestion that additional relevant records exist. More important, we are not concerned ... with the limited question whether a waiver appearing on the record was knowing and intelligent. Here, there was no waiver on the record at all.

Id. at 1422, n. 3.

In assessing a waiver, the court should inquire into the defendant’s understanding of the difference between jury and nonjury trials by informing 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, and
4. the court alone decides guilt or innocence if the defendant waives a jury trial.

See Robertson, 45 F.3d at 1432. The court “should [also] seek to ascertain whether [the] defendant is under [the] erroneous impression that he or she will be rewarded, by either court or prosecution, for waiving [a] jury trial.” Wright § 372, at 452-53 n. 22.

IY. Disposition.

The failure of counsel to assure compliance with rule 2.17(1) constituted ineffective assistance of counsel. Because the right to a jury trial is so fundamental to our justice system, we conclude this is one of those rare cases of a “structural” defect in which prejudice is presumed. See McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998) (“Despite the ‘strong presumption that constitutional errors can be harmless,’ we conclude that the denial of a jury trial is a structural error subject to automatic reversal.”) (quoting United States v. Raether, 82 F.3d 192, 194 (8th Cir.1996)).

In the present ease, even though Stallings’ attorney might be able to show on remand that Stallings was fully advised concerning his right to a jury trial, there is still no evidence that the court was even included in the waiver process; the record is silent on the matter. As the United States Supreme Court has said, “[w]e cannot presume a waiver of ... important rights [including the right to trial by jury] from a silent record.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-80 (1969). We reverse and remand for trial to a jury unless that right is properly waived by the defendant.

REVERSED AND REMANDED.


author: SACKETT, Chief Judge.

text:
    Marlon Jermaine GULLY, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
    No. 01-1769.
    Court of Appeals of Iowa.
    Dec. 11, 2002.

      Philip Mears of Mears Law Office, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Patrick Jackson, County Attorney, and Amy Snook, Assistant County Attorney, for appellee.
    Heard by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.
   SACKETT, Chief Judge.

Applicant-appellant Marlon Gully appeals the district court’s denial of his application for postconviction relief following his guilty plea and sentence for second-degree sexual abuse, enhanced, in violation of Iowa Code sections 709.3 (1997), 901A.l(a) and 901A.2(3); third-degree kidnapping, in violation of sections 710.1 and 710.4; and first-degree burglary, in violation of sections 713.1 and 713.3. Applicant claims that the district court improperly sentenced him to an enhanced term of incarceration on the sexual abuse charge pursuant to Iowa Code section 901A.2(3), and that he was rendered ineffective assistance of counsel for several reasons. We affirm applicant’s conviction but modify his sentence to strike the enhancement on the second-degree sexual abuse conviction.

I. BACKGROUND FACTS AND PROCEEDINGS

According to the minutes of testimony, between 4:30 and 5:00 a.m. on July 28, 1997, in Burlington, Iowa, Marcy Rooney awoke to find an unknown assailant in her bedroom, tugging on her shorts. She did not see the assailant’s face but noticed he wore a gold ring. The assailant threw a jacket over her head and raped her at gunpoint. He repeatedly penetrated her vagina and anus with his penis while holding a gun to her temple and threatening her not to look at him. He also penetrated her vagina with his gun, and following that, with a bottle of lotion, squeezing the lotion into her vagina. Following the sexual assault, the assailant tied Marcy’s hands behind her with a pillowcase, wrapped a sheet around her face, and forced her into the closet. After waiting in the closet for about ten minutes, Marcy proceeded downstairs in the apartment where she found the screen to the living room window had been removed, the rear door was open, and the phone was off the hook.

Following the incident authorities were informed by Cynthia Caulkins that she had lent applicant a BB gun the night of the assault. She indicated that he was making advances to women at a party he attended and that he had left around 4:30 the morning of July 28. She further indicated he was wearing a gold ring. Authorities discovered applicant had previously registered in Des Moines County as a sex-offender but had transferred his parole to the State of Missouri. Believing that applicant may have returned to Des Moines County from Missouri and failed to re-register, Detective Klein located him. The applicant indicated he had come to Des Moines County only for a short time and that he was leaving the following day. Applicant had no money on' him or other proof that he had just arrived in Des Moines County and would be leaving the next day. Detective Klein arrested the applicant on grounds of failing to register as a sex offender. He advised him of his Miranda rights. Applicant signed a waiver of those rights and spoke with authorities. Applicant later signed a form consenting to a blood test. DNA from that blood test was linked to DNA in the sperm found in Marcy Rooney’s vaginal area following the sexual assault.

Applicant was charged with the crimes of sexual assault, kidnapping and burglary arising out of the incident. After a series of negotiations, applicant pled guilty to second-degree sexual abuse, third-degree kidnapping, and first-degree burglary on December 23, 1998. On that same date applicant was sentenced to a fifty-year enhanced sentence for the second-degree sexual abuse conviction, a ten-year sentence for the kidnapping conviction, and a twenty-five year sentence for the first-degree burglary conviction. These sentences were to run concurrently.

II. LEGALITY OF APPLICANT’S ENHANCED SENTENCE

Applicant was given the fifty-year enhanced sentence for the second-degree sexual abuse conviction pursuant to Iowa Code section 901A.2(3), enacted on July 1, 1996. This section provided as follows:

A person convicted of a sexually predatory offense which is a felony, who has a prior conviction for a sexually predatory offense, shall be sentenced to and shall serve twice the maximum period of incarceration for the offense, or twenty-five years, whichever is greater, notwithstanding any other provision of the Code to the contrary. A person sentenced under this subsection shall not have the person’s sentence reduced under chapter 903A or otherwise by more than fifteen percent.

The sentencing court applied this enhancement provision to applicant’s sentence on the basis that applicant had a prior conviction in 1991 for sexual abuse, and therefore was to be sentenced to twice the maximum twenty-five year sentence on his current sexual abuse conviction.

Applicant filed a notice of appeal. His counsel on direct appeal, Stephan Japun-tich of the State Appellate Defender’s Office, deemed applicant’s appeal to be frivolous, and filed a motion to withdraw from the case on July 29,1999, pursuant to Iowa Rule of Appellate Procedure 6.104. Applicant filed a motion resisting his counsel’s motion to withdraw on August 11, 1999. The supreme court did not dismiss applicant’s appeal until March 15, 2000.

During the time in which Mr. Japun-tich’s motion to withdraw and applicant’s direct appeal were pending, which was specifically July 29, 1999 to March 15, 2000, the Iowa Supreme Court decided State v. Tornquist, 600 N.W.2d 301 (Iowa 1999). In that case, decided on September 9, 1999, the supreme court interpreted Iowa Code section 901A.2(3), the same section under which applicant’s sentence for his sexual abuse conviction had been enhanced. The supreme court interpreted the enhancement provisions of section 901A.2 to operate prospectively only; that is, only convictions occurring after chapter 901A became effective on July 1, 1996 could be used to enhance a sentence imposed for a subsequent conviction of a sexually predatory offense. Tornquist, 600 N.W.2d at 307. As stated earlier, the conviction used for enhancement in applicant’s case had occurred in 1991. Under a plain reading of Tomquist at the time it was filed, applicant’s sentence would have been illegal.

On postconviction review, in which applicant filed a motion to vacate his sentence, the district court denied applicant’s motion for several reasons. The court initially concluded that applicant could not rely on subsequent reasoning by the supreme court in the 1999 Tornquist opinion to invalidate his pre-Tornquist 1998 sentence. In State v. Ortiz, 618 N.W.2d 556, 561-62 (Iowa 2000), the supreme court concluded that a sentence based upon an improper interpretation of a statute could be vacated at any time, with or without objection by the applicant. We similarly conclude that the interpretation of section 901A.2 in Tomquist may appropriately vacate an earlier sentence pursuant to that section if the sentence was based upon an improper interpretation of a statute. Ortiz, 618 N.W.2d at 561-62.

The district court further relied upon two additional factors in concluding applicant’s sentence was valid even if it were proper to apply the subsequent Tornquist reasoning to his 1998 sentence. First, in March of 2000, in apparent response to the supreme court’s interpretation of section 901A.2 in Tornquist, the legislature amended chapter 901A. Amended chapter 901A stated, in subsection 901A.1(2)

2. As used in this chapter, the term “prior conviction” includes a plea of guilty, deferred judgment, deferred or suspended sentence, or adjudication of delinquency, regardless of whether a pri- or conviction occurred before, on, or after the effective date of this Act.

(Emphasis added). The amendment also repealed sections 901A.3, relating to trial information or indictment in cases involving a sexually predatory offense and sentence enhancement for subsequent offenses, and 901A.4, relating to findings that an offense is a sexually predatory offense and notice that a conviction for such an offense will enhance punishment for any future similar offenses. The legislature further provided that, due to the “immediate importance” of the act, the amendment was to “[take] effect upon enactment.” 2000 Iowa Acts ch. 1030, § 4.

Second, in State v. DeCamp, 622 N.W.2d 290, 293 (Iowa 2001), the supreme court, interpreting another code section, revisited its Tomquist decision and expressly disavowed the prospective application analysis it had used in Tomquist. In disavowing this analysis in Tomquist, the court emphasized that, with respect to the principle that statutes are presumed to apply prospectively unless otherwise indicated, the only relevant action for the purpose of determining the prospective or retrospective application of a statute is the commission of the acts making up the elements of the current offense. DeCamp, 622 N.W.2d at 293. In the court’s words, “[T]he only acts at issue for the purpose of determining whether a statute providing for an enhanced sentence for prior convictions offends the principles of prospective application of a statute are the acts that make up the latest offense.” Id. at 294.

In denying applicant’s motion to vacate his sentence, the district court concluded that the above statutory amendment and subsequent DeCamp decision disavowing the reasoning of Tomquist were adequate legal support to deny applicant’s motion to vacate his sentence, as they effectively invalidated the Tomquist grounds upon which he was challenging his sentence.

Applicant’s first argument in this appeal of his application for postconviction relief is that his 1998 sentence, which was enhanced based upon a 1991 crime, was illegal under Tomquist. In making this argument applicant contends Tomquist is still controlling authority with respect to crimes committed before the legislature amended chapter 901A in March of 2000. Applicant claims that although the statutory amendment to chapter 901A may alter sentences subsequent to the enactment of the amendment in March of 2000, using the amendment to enhance applicant's sentence prior to its effective date would be a violation of applicant’s ex post facto rights under the United States and Iowa Constitutions. See State v. Corwin, 616 N.W.2d 600, 602 (Iowa 2000). Applicant claims in the alternative that even if Tomquist is not controlling authority with respect to crimes committed prior to March of 2000, his appellate counsel nevertheless rendered ineffective assistance not to challenge applicant’s sentence during the pen-dency of applicant’s direct appeal.

When a district court’s application of a sentencing statute is challenged, we review for correction of errors at law. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). However, when there is an alleged denial of a constitutional right, our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).

In support of his argument that Tomquist is still controlling authority in his case, applicant contends that the enhancement of his sentence under the March 2000 amendments violates the ex post facto provisions of our federal and state constitutions. See U.S. Const, art. I, § 10, cl. 1 (“No State shall ... pass any ... ex post facto Law.”); Iowa Const, art. I, § 21 (“No ... ex post facto law ... shall ever be passed.”). The constitutional prohibition of ex post facto laws “forbids application of a new punitive measure to conduct already consummated where it operates to the detriment or material disadvantage of the accused.” State v. Walker, 506 N.W.2d 430, 433 (Iowa 1993) (quoting State v. Quanrude, 222 N.W.2d 467, 469-70 (Iowa 1974)); see also State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985) (ex post facto clause is violated when a statute “makes more burdensome the punishment for a crime, after its commission”) (quoting Beazell v. State, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217 (1925)). Applicant also refers us to two cases in which the Tomquist opinion was used as authority to deem a sentence drawing upon pre-1996 sexual abuse crimes illegal, namely State v. Harrington, 608 N.W.2d 440 (Iowa 2000), and State v. Bennett, No. 99-1321, 2001 WL 726377 (Iowa Ct.App. June 29, 2001).

The State responds that the amendments to chapter 901A clarified the statute rather than changing it, and their application to applicant therefore does not violate ex post facto laws. The State cites to, among other cases, State v. Dean, 357 N.W.2d 307, 309 (Iowa 1984) in making its argument that an amendment which merely clarifies the meaning of a statute may be looked at to determine what rights existed under the original act. Given this reasoning, the State urges us to conclude that the chapter 901A amendments allowing enhancing crimes to have occurred at any time actually clarified the 1996 enhancement statute and therefore render applicant’s sentence valid. The State also refers us to State v. Guzman-Juarez, 591 N.W.2d 1, 3 (Iowa 1999) as authority for this issue. In that case the supreme court concluded that a statute amended after the applicant filed notice of appeal applied to the applicant because it was a mere clarification of the law rather than a change in the law. In Guzman, however, there had been no prior judicial interpretation of the law. In this case, the supreme court had already interpreted chapter 901A in Tom-quist prior to the 2000 amendment. Construing the legislature’s 2000 amendment to chapter 901A, which established a meaning of that chapter directly contrary to the supreme court’s previous interpretation of it in Tomquist, as a mere clarification of the law would be effectively permitting the legislature to overrule a judgment of the supreme court. We decline to accept the State’s argument that the 2000 amendment was a clarification, rather than a change, of the law.

Having concluded that the 2000 amendment to chapter 901A was a change in the law, and recognizing that the retroactive application to applicant of the stiffer penalties in the 2000 amendments would violate the ex post facto provisions of our federal and state constitutions, we conclude applicant’s enhanced sentence was illegal. See Corwin, 616 N.W.2d at 602. We vacate the enhancement to applicant’s sentence for sexual abuse and modify his sentence for that offense to twenty-five years.

III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Having vacated applicant’s sentence, we conclude it is unnecessary to address •whether applicant’s appellate counsel was ineffective for failing to raise the Tom-quist objection while his direct appeal, in the form of a rule 6.104 motion, was pending.

IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. FAILURE TO OBTAIN PSYCHOLOGICAL EVALUATION

In his postconviction appeal applicant makes five additional claims of ineffective assistance of counsel. The first is that his counsel was ineffective for failing to obtain for him a psychological evaluation. The record shows that defense counsel did file an application for psychological evaluation at State expense, which was denied by the district court on December 21, 1998. Defense counsel then filed a motion to reconsider, which was set for hearing on December 28. Apparently on or just before December 28, applicant was offered the plea bargain which he ultimately took, which reduced his first-degree kidnapping charge to third-degree kidnapping and eliminated the risk to applicant of serving a life sentence.

We review ineffective assistance of counsel claims de novo. Osborn v. State 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, applicant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if applicant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App.1999). To sustain his burden of proof with respect to the duty element, applicant must overcome the strong presumption that counsel’s actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (citations omitted). Thus, claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed a defendant under the Sixth Amendment. Id. (citation omitted).

Applicant claims that his counsel should have sought a psychological evaluation, presumably before the rush for a plea bargain made obtaining one too late. Additionally, applicant claims his suicidal acts the morning of the plea demonstrate his fragile mental state and further support the need for a psychological evaluation and his inability to enter into the plea voluntarily.

In reviewing applicant’s postconviction application the district court found that as a matter of trial strategy defense counsel did not disclose to the court its basis for seeking a psychological evaluation, namely applicant’s November 17 letter essentially admitting to his crime but detailing his childhood problems and current depressive condition. Because defense counsel had not provided the court with a basis for granting a psychological evaluation, it was denied. When counsel disclosed to the court that there was, in fact, a basis for the evaluation, but that the basis must remain confidential, the court set the matter for reconsideration. Before the reconsideration hearing was held, a plea agreement was reached.

On postconviction review, the court further noted that applicant’s attorney was unaware of applicant’s apparent attempts to hang himself the day of the plea and that the sentencing court’s lengthy plea dialogue with applicant would rebut any claim of prejudice, as applicant’s behavior before the sentencing court would indicate any psychological evaluation would prove him entirely competent.

We agree with the district court. The delay occurring in obtaining a psychological evaluation, according to defense attorney Cook, was a matter of trial strategy. Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989). Further, as the district court noted, trial counsel was unaware of applicant’s suicidal efforts the morning of the plea. Mr. Cook testified practically every client he works for is understandably despondent upon realizing he is facing a long-term sentence behind bars. There is no indication applicant’s counsel had any reason to believe that his client’s mental condition, given his situation, was extraordinary enough to require psychological evaluation or render him incapable of entering into a plea.

We further conclude, as did the district court, that applicant’s dialogue with the court during sentencing evidences the lack of prejudice, even were there ineffective assistance. The sentencing court engaged in a lengthy dialogue, including asking applicant to articulate what acts of his he understood to constitute a particular charge. Applicant fully and completely participated in this dialogue. We find no ineffective assistance.

B.FAILURE TO ENSURE APPLICANT’S UNDERSTANDING OF SENTENCE

Applicant’s second allegation of ineffective assistance of counsel is that his counsel failed to ensure he understood his sentence. Specifically, applicant contends he was unaware that he would be required to serve eighty-five percent of his fifty-year sentence under Iowa Code sections 902.12 and 903A.2(b). Applicant argues he believed, based on his previous prison experience, that in pleading guilty he could be out of prison in twenty-one years after serving eighty-five percent of the sentence and receiving a day-for-day good conduct credit in the sentence.

As we have vacated applicant’s enhanced sentence, applicant has a maximum sentence of twenty-five years. Eighty-five percent of that twenty-five years is twenty one and one quarter years, roughly what applicant claims he expected to serve. There is therefore no prejudice, and we find it unnecessary to address this issue further. We note, however, in spite of applicant’s claims to the contrary, that the record and sentencing transcript support the conclusion that applicant was fully informed by his lawyers and the court as to the length of his sentence, including the eighty-five percent rule requirements.

C. FAILURE TO INFORM APPLICANT OF CHAPTER 229A

Applicant’s third claim of ineffective assistance is that his counsel failed to advise him he would be subject to civil commitment, following his sentence, under chapter 229A of the Iowa Code. In fact, Mr. Taylor’s deposition indicates he did inform applicant of the civil commitment possibilities under chapter 229A. Even had he not, however, counsel does not have the duty to inform applicant of collateral consequences to the plea. In this case the issue of civil commitment is one such collateral consequence. See Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987). We affirm on this issue.

D. FAILURE TO FILE MOTION TO DISMISS KIDNAPPING CHARGE

Applicant’s fourth claim of ineffective assistance is that his counsel failed to file a motion to dismiss the first-degree kidnapping charge. Applicant claims the facts in his case clearly did not support that charge, and that he would have pursued a better plea had he not been focused on avoiding the potential life sentence of first-degree kidnapping. The State claims applicant has not preserved the error.

We will address the merits of this claim. We conclude applicant has shown us no prejudice. There is no reason to conclude applicant would have been offered a better plea had he not been charged with first-degree kidnapping. Applicant received a fifty-year sentence due to the sexual abuse charge. Applicant pled guilty to third-degree kidnapping and received a ten-year sentence to be served concurrently with his other offenses. We find no prejudice.

We further note, as did the district court, that during sentencing applicant’s attorney Cook described how he had, in fact, researched the first-degree kidnapping issue in light of our decision in State v. Heard, No. 96-8081 (Iowa Ct.App., Aug. 22, 1997), had concluded the State probably could not prove first-degree kidnapping, but had advised applicant that if it could, he would face life in prison. During that sentencing hearing applicant agreed that, given this advice, it had been his decision as to how to proceed. Matters of strategy generally do not rise to the level of ineffective assistance. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App.1999) (citing Hinkle v. State, 290 N.W.2d 28, 34 (Iowa 1980)). We find no error.

E. FAILURE TO CHALLENGE DNA EVIDENCE

Applicant’s final claim of ineffective assistance is that his counsel improperly failed to raise claims which could have resulted in the dismissal of charges or at least suppression of evidence against him. Applicant claims there was no probable cause to arrest him for failure to register as a sex offender under section 692A.7 and that his consent to a blood test following this arrest was illegal as involuntary and as the fruit of an unlawful arrest. Applicant claims his counsel was ineffective for failing to pursue these challenges to the State’s evidence. Applicant’s counsel did not pursue these claims. Mr. Taylor deemed them frivolous and Mr. Cook reasoned the authorities would just get another blood sample if the current one was suppressed.

We defer to the applicant’s attorneys’ evaluations that his arrest was legal and that there was no purpose to pursue the blood test as the fruit of an unlawful arrest. An informant reported applicant’s presence in the area and that she had lent applicant her gun. Officers knew applicant had not registered as a sex offender. Applicant’s claims of being in town only temporarily were unsupported by the evidence. Further, following arrest the minutes of testimony show applicant was given his Miranda rights, which he does not dispute, and that applicant agreed to a blood test after being read those rights. Given applicant’s history, his proximity to the crime in space and time, his connection to a weapon, and his gold ring, we conclude the attorneys were reasonable to conclude the State would likely have had probable cause to obtain another blood test if the first one was suppressed. We conclude applicant’s attorneys did not render ineffective assistance for failing to pursue his claims challenging the DNA evidence.

V. LEGALITY OF PLEA BARGAIN

Finally, applicant claims his plea should be set aside, as chapter 229A makes it impossible for the State to live up to its end of the plea bargain because the commitment provisions effectively give applicant a life sentence. Chapter 229A proceedings are not mandatory for sexual offenders. There is no indication they will occur in applicant’s case. We decline to accept applicant’s proposition that the very presence of chapter 229A makes it impossible for the State to fulfill its end of the plea bargain. We affirm on this issue.

CONVICTION AFFIRMED; TENCE MODIFIED. SEN-

      . Formerly, Iowa Rule of Appellate Procedure 104.

      . That sentence is now reduced to twenty-five years.


author: GILBERT, Justice.

text:
    In re ESTATE OF James A. PALMER, Deceased.
    No. C7-02-182.
    Supreme Court of Minnesota.
    March 20, 2003.
    Robert A. McLeod, McLeod & Troy, St. Paul, MN, Attorneys for Appellant, Marie C. Palmer.
    David F. Herr, Margaret A. Garvin, Jason A. Lien, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, MN, Richard S. Eskola, Columbia Heights, MN, Attorneys for Respondent, Michael J. Smith.
   OPINION

GILBERT, Justice.

The issue raised by this appeal is whether parentage for the purposes of intestate succession may be established by clear and convincing evidence apart from the Parentage Act and its time limitation on bringing actions to determine paternity. We conclude it may and affirm the decision of the court of appeals.

The facts of this case are undisputed and were stipulated to pursuant to Minn. R. CivApp. P. 110.04. James A. Palmer (decedent) died on September 22, 1999. He was survived by appellant Marie Palmer, his wife of 51 years. No children were born to decedent and his wife. At the time of his death decedent owned a one-half interest in his home located in Ramsey County, which he inherited upon the death of his father in 1983. Absent respondent Michael J. Smith’s challenge, Marie Palmer would receive decedent’s entire interest in the home in fee simple, pursuant to Minn.Stat. § 524.2-402(a)(l) (2002). If respondent were found to be decedent’s issue, Marie Palmer would receive a life estate in decedent’s interest in the home with the remainder interest going to respondent. MinmStat. § 524.2-402(a)(2).

Michael J. Smith (Smith) was born on September 7, 1957, to Beverly A. Smith. On January 26, 1959, decedent was charged with the crime of illegitimacy, relating to the birth of Smith. On January 28, 1959, decedent pleaded guilty to that charge. On February 10, 1959, Smith’s birth certificate was revised to indicate James A. Palmer as the father with a written note stating, “adjudication of paternity report.” There is no evidence that decedent consented to the revision of the birth certificate.

Decedent never acknowledged fathering Smith to his wife or to his closest friend. Smith never visited decedent’s home nor did he bring any proceeding to adjudicate paternity before April 16, 2001. Nonetheless, decedent and Smith did have an ongoing relationship. Decedent visited Smith two to three times per week at the Smiths’ home during childhood. He helped Smith’s mother move into her home. He referred to Smith as his son and Smith consistently called him dad. He taught Smith auto mechanics, and the two hunted, golfed and made numerous trips to a lake cabin together. He gave numerous gifts to Smith throughout his life, including a ring purchased during his military service. He also divided a $2.00 bill in half for each of them to keep; Smith still has his half of the bill. Decedent and Beverly Smith were close and participated in many family activities. He also attended family outings, graduations and other events as Smith’s father, including participating in Smith’s wedding as father of the groom. Several pictures were presented to the district court showing decedent’s attendance at Smith’s family gatherings.

This matter came up for hearing before the Ramsey County District Court. The district court issued an order and memorandum granting Smith’s petition for summary assignmenVdistribution and denying Marie Palmer’s objections. The court concluded that the use of the term “may” in Minn.Stat. § 524.2-114(2) (2002) created the inference that the Parentage Act is not the exclusive means of establishing paternity for the purposes of intestate succession. The court went on to hold that since the statute does not mandate the exclusive use of the Parentage Act to determine paternity, parentage may also be established in a probate court proceeding by clear and convincing evidence. The district court then found that Michael J. Smith had established by clear and convincing evidence, unrefuted at trial, the existence of the parent-child relationship. Marie Palmer appealed the decision.

The court of appeals affirmed the district court’s decision, concluding that parentage for the purposes of intestate succession may be established by clear and convincing evidence apart from the Parentage Act and its time limitation on bringing proceedings to establish paternity. In re Estate of Palmer, 647 N.W.2d 13, 16 (Minn.App.2002). Marie Palmer petitioned this court for review of the court of appeals’ decision. We granted review.

Statutory construction is a question of law, subject to de novo review by this court. Doe v. Minnesota State Bd. of Med. Exam’rs, 435 N.W.2d 45, 48 (Minn.1989). When interpreting a statute, whenever possible, “no word, phrase or sentence should be deemed superfluous, void, or insignificant.” Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999).

Appellant argues that the court of appeals erred by not requiring paternity for the purposes of intestate succession to be decided under the Parentage Act. Appellant claims the lower courts erred by focusing on the word “may” in Minn.Stat. § 524.2-114(2), without analyzing its relation to the preceding phrase in the same sentence: “a person is the child of the person’s parents regardless of the marital status of the parents.”

Minnesota Statutes § 524.2-114 states:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
* * * *
(2) In cases not covered by clause (1) [addressing adoption], a person is the child of the person’s parents regardless of the marital status of the parents and the parent and child relationship may be established under the Parentage Act, sections 257.51 and 257.74.

The word “may” is permissive. Minn. Stat. § 645.44, subd. 15 (2002). The district court and court of appeals both correctly interpreted Minn.Stat. § 524.2-114 as permitting, but not requiring, that parentage in a probate proceeding be determined in accordance with the dictates of the Parentage Act. Palmer, 647 N.W.2d at 16. Appellant’s argument that, within the context of the statute, the word “may” is in fact mandatory is not convincing. Indeed, the statute’s statement that, “a person is the child of the person’s parents regardless of the marital status of the parents,” highlights the fact that the legislature has sought to remove the distinctions between marital and nonmarital issue in inheritance claims. MinmStat. § 524.2-114; see Foss v. Duerscherl, 425 N.W.2d 828, 830 n. 7 (Minn.1988).

Had the legislature wanted parentage for probate purposes to be determined exclusively under the Parentage Act, it could have so provided. But, there exists sound rationale for the legislature’s decision to use permissive language. The New Jersey Supreme Court was faced with a similar situation in Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457 (1997), where a 31-year-old claimant sought to prove parentage for the purposes of intestate succession under New Jersey’s Parentage Act, which provided a 23-year statute of limitations. In Wingate, the court held that the New Jersey Parentage Act’s statute of limitations did not bar the probate claim. Id. at 465. The court explained the differences between the Parentage Act and the Probate Code under New Jersey law.

[T]he Parentage Act and the Probate Code are independent statutes designed to address different primary rights. The purpose of the Parentage Act is to establish “the legal relationship * * * between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations.” Child support is the major concern under the Parentage Act. The purpose of the Probate Code, on the other hand, is to determine the devolution of a decedent’s real and personal property. The different purposes the two statutes serve, help to explain why the Legislature contemplated different periods of limitations for filing claims under those statutes.

Id. at 463 (citations omitted). The New Jersey court’s rationale is applicable to our law. The distinct purposes of probate and family law justify the legislature’s decision not to make the Parentage Act the sole means of establishing paternity for the purposes of probate.

In support of the proposition that the Parentage Act’s statute of limitations bars Smith’s probate claim, appellant cites Wit-so v. Overby, a paternity case where we stated, “The MPA [Parentage Act] provides the exclusive bases [sic] for standing to bring an action to determine paternity.” 627 N.W.2d 63, 65-66 (Minn.2001) (citing Morey v. Peppin, 375 N.W.2d 19, 22 (Minn.1985)). However, the probate code through the use of the term “may” explicitly provides that the Parentage Act is not the exclusive means of determining parentage for the purposes of intestate succession. Minn.Stat. § 524.2-114(2). Accordingly, we affirm the court of appeals.

Affirmed.

      . Respondent argues that decedent's 1959 guilty plea to an illegitimacy charge and the subsequent revision of Michael J. Smith’s birth certificate to list him as the child's father should be dispositive in determining whether Smith should inherit from decedent. The district court did not base its decision on the criminal adjudication. Having found in respondent’s favor on other grounds, we need not decide the effect of the 1959 adjudication.

      . Ramsey County Probate Court is a division of district court. Minn.Stat. § 2.722, subd. 3 (2002).

      . The section of the Minnesota Probate Code at issue here, Minn.Stat. § 524.2-114(2), is similar to Uniform Probate Code § 2-114(a), which provides, "The parent and child relationship may be established under [the Uniform Parentage Act] [applicable state law] [insert appropriate statutory reference].” Unif. Probate Code § 2-114 (amended 1993), 8 U.L.A. 91 (Supp.2002).

      . The legislature specifically provided, for example, that the Parentage Act does not extend the time limit for asserting a right of succession. Minn.Stat. § 257.58, subd. 2 (2002).


author: /s/James H. Gilbert Associate Justice

text:
    Steven R. FOSTER, Respondent, v. METRO PRODUCE DISTRIBUTING, and Chubb & Son Group, Relators, and Metro Produce Distributing, and Indiana Insurance Companies, Respondents, and Blue Cross/Blue Shield of MN, Allergy & Asthma Specialists, PA, Jacobs Consulting Service, Intervenors.
    No. C4-03-19.
    Supreme Court of Minnesota.
    March 20, 2003.
    Brian T. Mak (# 264386), Sieben, Polk, Laverdiere, Jones & Hawn, St. Paul, MN, for Employee/Respondent Steven R. Foster.
    Michael C. Jackman (#49189), Larkin, Hoffman, Daly & Lindgren, Ltd., Bloom-ington, MN, for Relators Metro Produce Distributing and Chubb and Son Group.
    Steven C. Gilmore (# 158653), Conley & Borgeson, St. Paul, MN, for Respondents Metro Produce Distributing and Indiana Insurance Companies.

      Thomas F. Gilde (#34782), Bine Cross/ Blue Shield of Minnesota, St. Paul, MN, for Intervenor Blue Cross/Blue Shield of Minnesota.
    Allergy & Asthma Specialists, Minneapolis, MN, Intervenor.
    Marilyn Jacobs, Jacobs Consulting, Columbia Heights, MN, Representative for Intervenor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 13, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/James H. Gilbert Associate Justice


author: ANDERSON, RUSSELL A., Justice.

text:
    STATE of Minnesota, Respondent, v. Robyn Keith AMOS, Sr., Petitioner, Appellant.
    No. C1-01-1172.
    Supreme Court of Minnesota.
    March 27, 2003.

      Bradford Colbert, St. Paul, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, St. Paul, MN, Amy J. Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Robyn Keith Amos, Sr. was found guilty by a jury of aiding and abetting a drive-by shooting, in violation of Minn.Stat. § 609.66, subd. le (2002), and Minn.Stat. § 609.05 (2002), and was sentenced by the trial court to a 78-month prison term. The court of appeals affirmed the conviction against claims by appellant that the evidence was legally insufficient and that the trial court had abused its discretion in the admission of prior testimony. We granted review solely to consider the trial court’s evidentiary ruling. Concluding that the admission of prior testimony was proper where the witness feigned a lack of recall of the underlying events described in the prior testimony, the witness was present and testifying at trial, and the witness was subject to cross-examination concerning the prior testimony, we affirm.

To place the evidentiary ruling in context, a brief factual summary is necessary. Appellant Robyn Keith Amos, Sr. is the father of Robyn Keith Amos, Jr. and Melissa Moe. On October 14, 2000, Moe was involved in a fistfight with Laura Jackson, Amos, Sr.’s friend, at the home of Dawn Hayes. Police were called, restored order and left without making any arrests. Later that day, again at the Hayes residence, Moe and another person known as P.J. fought over Jackson’s missing wedding band. Jackson had removed her jewelry before the fight with Moe, and Moe had been told that P.J. had the missing item. Moe struck P.J. with a large flashlight, and P.J. reciprocated by hitting Moe with an ironing board. Police were again called, and P.J. was taken to a hospital. Later that same day, Amos, Sr. called the Hayes residence and told Hayes that “[Jackson’s] rings had better show up or some shit is going to go down.” Amos, Jr. also called, telling Hayes: “[the rings] needed to show back up,” or “some shit’s going to go down.”

Shortly after that phone conversation, Hayes’ mother looked out the door to see if her grandchildren were outside. She saw a burgundy or red car moving slowly down the street. She recognized Amos, Sr. as the driver, Amos, Jr. as a passenger, and saw a third unidentified person in the rear seat. She closed the door. Shortly afterwards, as she was sitting on the couch, she heard a series of gunshots from the back of the house. A neighbor living across the alley saw a burgundy or maroon car move slowly down the alley behind the Hayes residence two or three times and after the last pass heard shots fired in the vicinity of the Hayes residence.

Police were called. One of the responding officers was directed by Moe and Hayes to the back of the residence where he discovered bullet holes in the fence between the alley and the residence and bullet holes in the side of the residence itself. Police collected 15 discharged shell casings in the alley. Another officer patrolling nearby heard the description of the vehicle and pulled over a maroon Cadillac Eldorado with three people in the car, one of whom was identified as Amos, Sr. In the ensuing investigation, police recovered a nine-millimeter TEC-9 semiautomatic handgun that ballistics experts determined had fired at least two shell casings found in the alley behind the Hayes residence. Amos, Sr. was charged with aiding and abetting a drive-by shooting and Amos, Jr. was charged with a drive-by shooting, a charge later amended to aiding and abetting.

Amos, Jr. was tried first. At Amos, Jr.’s trial, Moe testified that she saw Amos, Sr.’s car behind the Hayes residence before the shooting and that Amos, Jr. was a passenger in the vehicle. State v. Amos, No. C4-01-713, 2002 WL 418369, at *2 (Minn.App. Mar.19, 2002). She identified the TEC-9 semiautomatic handgun as Amos, Jr.’s gun, and she testified that Amos, Jr. kept the gun under his bed. Two weeks later, at Amos, Sr.’s trial, Moe recalled the fight with Jackson but recalled nothing further about the day of the shooting incident, stating that she was confused and emotional. She remembered testifying at her brother’s trial and acknowledged that she had tried to be truthful then, “as much as [she could] remember.” When efforts to refresh Moe’s recollection failed, the court excused the jury and allowed argument concerning the admissibility of Moe’s prior testimony. The court found from its observation of the state’s questioning of Moe that she had feigned a lack of memory and, over Amos, Sr.’s objection, allowed the use of Moe’s prior testimony as an inconsistent statement under Minn. R. Evid. 801(d)(1)(A).

The jury found Amos, Sr. guilty as charged, and he received the 78 month presumptive sentence. The court of appeals affirmed, rejecting claims that the trial court’s evidentiary ruling admitting Moe’s prior testimony as substantive evidence was improper under Rule 801(d)(1)(A) and that the evidence was insufficient for conviction. State v. Amos, No. C1-01-1172, 2002 WL 523185, at *1 (Minn.App. Apr.9, 2002). As indicated, we granted review of the evidentiary ruling.

Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn.1990). On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997).

Amos, Sr. argues that Moe’s prior testimony does not qualify as inconsistent statements under Minn R. Evid. 801(d)(1)(A) because her lack of memory was not inconsistent with her prior testimony at Amos, Jr.’s trial. Amos, Sr. further argues that this lack of memory made Moe “unavailable,” in which case her prior testimony would have been admissible, if at all, under Minn. R. Evid. 804(b)(1), an exception to the hearsay rule for former testimony in a retrial of the same defendant. Rule 801(d)(1)(A) provides, in relevant part, that a prior statement made by a witness is not hearsay if the prior statement was given under oath and subject to the penalty of perjury at an earlier trial, and if the witness is now testifying and is subject to cross-examination concerning the prior .statement, and the prior statement is inconsistent with the witness’s present testimony. Rule 804(b)(1) excepts certain hearsay statements from the hearsay rule and provides that in a criminal proceeding involving the retrial of a defendant for the same or an included offense, witness testimony from the previous trial is not excluded if the witness is unavailable. Rule 804(a)(3) defines unavailability of a witness to include situations in which the witness testifies to a lack of memory of the subject matter of the witness’s statement. But if the trial court disbelieves the witness who claims a lack of memory, finding that unavailability is not established, “the extra-judicial statement might be admissible as a prior inconsistent statement if the requirements of Rule 801(d)(1)(A) are met.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.03(4)(b), at 804-15 (Joseph M. McLaughlin ed., Matthew Bender 2d ed.2003).

To qualify as nonhearsay, a prior sworn statement must be inconsistent with the declarant’s trial testimony. Minn. R. Evid. 801(d)(1)(A). Because Minnesota’s Rules 801(d)(1)(A) and 804(b)(1) closely resemble their federal counterparts, we have looked to federal case law for guidance. See, e.g., State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996). We note that the federal courts do not limit the meaning of the word “inconsistent” in Fed.R.Evid. 801(d)(1)(A) to statements that are “ ‘diametrically opposed or logically incompatible’ ” with each other. United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir.1985) (quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir.1984)). Federal courts generally agree that a feigned loss of memory regarding prior testimony is inconsistent and the pri- or testimony is admissible as nonhearsay under Rule 801(d)(1)(A). See, e.g., United States v. Murphy, 696 F.2d 282, 283-84 (4th Cir.1982); United States v. Bigham, 812 F.2d 943, 947 (5th Cir.1987) (stating that a reluctant witness’s memory loss at trial was “convenient,” and prior testimony was admissible under Fed.R.Evid. 801(d)(1)(A)); DiCaro, 772 F.2d at 1321-22 (concluding that a witness’s claimed lack of recollection is sufficient to satisfy inconsistency requirement of Rule 801(d)(1)(A)); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir.1983) (“[The witness’s] statement on the stand that he could not recall having any contact with [the defendant] around the time he cashed the forged postal money orders is sufficiently inconsistent with his grand jury testimony for the trial court to admit the previous testimony [under Rule 801(d)(1)(A)].”). In support of admitting prior testimony upon a finding of a subsequent feigned lack of recollection, federal courts cite the advisory committee note indicating that the federal rule was intended to “provide a party with desirable protection against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.” E.g., United States v. Williams, 737 F.2d 594, 609 (7th Cir.1984) (quoting Fed.R.Evid. 801(d)(1)(A) advisory committee note) (internal quotation marks omitted).

Some state courts also treat prior testimony as inconsistent with feigned claims of memory loss and admissible as nonhearsay. See, e.g., State v. Osby, 246 Kan. 621, 793 P.2d 243, 250 (1990) (determining that witnesses’ testimony “was contradictory to their prior testimony,” and “admissible as a matter of judicial discretion”); Nance v. State, 331 Md. 549, 629 A.2d 633, 645 (1993) (stating that a court may admit prior statements when witnesses display a selective loss of memory); State v. Devlin, 251 Mont. 278, 825 P.2d 185, 187 (1991) (noting that inconsistency “includes both positive contradictions and claimed lapses of memory”); State v. Brown, 138 N.J. 481, 651 A.2d 19, 49 (1994) overruled on other grounds, State v. Cooper, 151 N.J. 326, 700 A.2d 306 (1997) (concluding that a claimed lack of memory is essentially a denial of the prior statement, making the statement inconsistent and not hearsay); State v. Lenarchick, 74 Wis.2d 425, 247 N.W.2d 80, 87 (1976) (holding “where a witness denies recollection of a prior statement, and where the trial judge has reason to doubt the good faith of such denial, he may in his discretion declare such testimony inconsistent and permit the prior statement’s admission into evidence.”).

In addition, commentators agree that feigned lack of recollection at trial amounts to inconsistency for purposes of qualifying prior sworn statements as non-hearsay:

When is a prior statement inconsistent? On the face of it, a prior statement describing an event would not be inconsistent with testimony by the witness that he no longer remembers the event. Yet the tendency of unwilling or untruthful witnesses to seek refuge in forgetfulness is well recognized. Hence the judge may be warranted in concluding under the circumstances the claimed lack of memory of the event is untrue and in effect an implied denial of the prior statement, thus qualifying it as inconsistent and nonhearsay.

2 John W. Strong, McCormick on Evidence § 251, at 121 (4th ed.1992) (footnotes omitted). See also Weinstein & Berger, supra, at § 801.21(2)(b) (“A witness’s statement that he or she has no recollection of the subject may be treated as ‘inconsistent’ with a former statement concerning the now-forgotten matter.”). Professor Wigmore’s view predates the modern trend of admitting prior inconsistent statements not only to impeach but also as substantive evidence, but he has observed:

It ought to follow that, where the witness now claims to be unable to recollect a matter, a former affirmation of it should be admitted as a contradiction. But courts have usually forbidden this, because the improper effect is apt to be to give a testimonial value to the former statement. * * * But the unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes impregnable unless his flank can be exposed to an attack of this sort. An absolute rule of prohibition would do more harm than good, and the trial court should have discretion.

3A John Henry Wigmore, Evidence in Trials at Common Law § 1043, at 1059-60 (James H. Chadbourn ed.1970) (citations and footnotes omitted).

We agree with the prevailing view that a trial court ought to have discretion to admit an unwilling witness’s prior testimony as inconsistent with the witness’s purported lack of memory at trial. The policy of affording protection against the unwilling witness was fully implicated in this case. Moe, under oath and subject to cross-examination, testified in some detail at her brother’s trial to the events before, during, and after the shooting. Two weeks later, she claimed that she could not remember the shooting incident and that she was too emotional and confused to recall most of her previous testimony. Moe was obviously an evasive and reluctant witness, and the dubious circumstances surrounding her claimed memory loss made it entirely reasonable for the trial court to conclude that the memory loss was feigned. Moe’s purported inability to recall the details of the shooting at her father’s trial was plainly inconsistent with her ability to remember the same details at her brother’s trial two weeks earlier.

The apparent necessity for the admission of prior testimony, however, does not in itself satisfy the requirements of Rule 801(d)(1)(A). The rule also requires that the witness be present and “subject to cross-examination” at trial “concerning the statement.” Minn. R. Evid. 801(d)(1)(A). It may be that the validity of cross-examination at trial is not undermined even when the witness testifying at trial asserts no memory of the events reported in the earlier statement. See United States v. Owens, 484 U.S. 554, 561-64, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) (approving admission under Fed.R.Evid. 801(d)(1)(C) of pri- or statement of victim naming defendant as assailant even though victim at trial could not remember seeing assailant). Nevertheless, the rule appears to require that the witness be “testable about the statement, meaning that he must be reasonably responsive to questions on the circumstances in which he made it.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 404, at 175 (2d ed.1994); see Bigham, 812 F.2d at 946.

Here, Moe testified at Amos, Sr’s trial. She admitted that she testified at Amos Jr.’s trial two weeks earlier and that she had tried to tell the truth at that time. Although she claimed no recall of much of that testimony or the basis of the testimony, counsel for Amos, Sr. had a full opportunity to test the prior testimony. In fact, the record reflects that counsel for Amos, Sr. effectively cross-examined Moe not only concerning the prior testimony but also as to the basis of that testimony, eliciting from Moe details of the shooting incident favorable to the defense. Counsel for Amos, Sr. also elicited testimony from which he was able to argue that Moe’s prior testimony should not be credited. Clearly, Moe was subject to cross-exami-natipn within the meaning of Minn. R. Evid. 801(d)(1)(A).

In summary, we hold that where a trial court finds that a witness is feigning lack of memory of the underlying events described in prior sworn testimony, the witness’s prior testimony is admissible as inconsistent under Minn. R. Evid. 801(d)(1)(A) if the witness testifies and is subject to cross-examination concerning the prior sworn testimony. Inasmuch as the trial court reasonably concluded that Moe’s selective memory loss was more convenient than actual and that Moe was subject to cross-examination concerning the prior testimony, the admission of the prior testimony was proper.

Affirmed.

      . Rule 801(d)(1)(A) provides:
      A statement is not hearsay if—
      (1) Prior statement by a witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition * * *.
      Minn. R. Evid. 801(d)(1)(A).

      . Rule 804(b)(1) provides, in pertinent part:
      The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (1) Former testimony. * * * In a criminal proceeding involving a retrial of the same defendant for the same or an included offense, testimony given as a witness at the prior trial or in a deposition taken in the course thereof.
      Minn. R. Evid. 804(b)(1).

      . The advisory committee’s comment to Rule 804(a)(3) provides: "If the declarant is present at trial but will not or cannot testify as to an issue for any reason, whether justified or not, the declarant is deemed to be unavailable on that issue for the purposes of the rule.” Minn. R. Evid. 804, comm. cmt. 804(a).