Opinion
No. 2-330 / 01-1558.
Filed June 19, 2002.
Appeal from the Iowa District Court for Johnson County, AMANDA P. POTTERFIELD and Larry J. Conmey, Judges.
Felipe Tovar appeals from the judgment and sentence following his conviction for operating while intoxicated, third offense, and driving while license barred in violation of Iowa Code sections 321J.2 and 321.561 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Felipe Tovar appeals from the judgment and sentence following his conviction for operating while intoxicated, third offense, and driving while license barred in violation of Iowa Code sections 321J.2 and 321.561 (1999). We affirm.
I. Factual Background and Proceedings. On the evening of December 7, 2000, Iowa City Police Officer Steve Kivi observed Felipe Tovar driving without his headlights illuminated. When Kivi stopped the vehicle, Tovar handed him an Illinois driver's license that belonged to his passenger. Another officer arrived shortly thereafter and both detected a strong odor of alcohol and signs of intoxication. The officers administered a preliminary breath test, which indicated a blood alcohol concentration of .148. Tovar was arrested and taken to the Iowa City police station where he declined to provide a breath sample.
The State charged Tovar with operating while intoxicated (OWI), third offense, and driving while license barred. Tovar pled not guilty to both charges. Tovar filed a motion for adjudication of law points regarding a 1996 OWI conviction entered upon a guilty plea. In his motion, Tovar contended the 1996 conviction could not be used to enhance his OWI charge because his plea was uncounseled. At Tovar's 1996 arraignment, the following colloquy took place:
Tovar pled guilty to operating while intoxicated in 1996 and 1998.
Tovar was banned from driving until May 20, 2003.
THE COURT: Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived application for a court appointed attorney. Did you want to represent yourself at today's hearing?
THE DEFENDANT: Yes, sir.
THE COURT: And are you charged in your true and correct name?
THE DEFENDANT: Yes, sir.
THE COURT: And did you want me to read that information to you or did you want to waive the reading?
THE DEFENDANT: Waive the reading.
THE COURT: And how do you wish to plead?
THE DEFENDANT: Guilty.
* * *
THE COURT: Mr. Tovar, your age?
THE DEFENDANT: Twenty-one.
THE COURT: Your education?
THE DEFENDANT: Currently in college.
THE COURT: So you, of course, read and write the English language?
THE DEFENDANT: Yes.
* * *
THE COURT: . . . if you continue with this desire to plead guilty, there are certain rights that each one of you will be giving up and I now will explain those rights to you. First of all, if you enter a plea of not guilty, you would be entitled to a speedy and a public trial by jury. But, if you plead guilty, you give up your right to have a trial of any kind on your charge. Do you understand that . . . Mr. Tovar?
THE DEFENDANT: Yes, sir.
* * *
THE COURT: If you would enter a plea of not guilty, not only would you have a right to a trial, you would have a right to be represented by an attorney at that trial, including a court appointed attorney. That attorney could help you select a jury, question and cross-examine the State's witnesses, present evidence, if any, in your behalf, and make arguments to the judge and jury on your behalf. But, if you plead guilty, not only do you give up your right to a trial, you give up your right to be represented by an attorney at that trial. Do you understand that . . . Mr. Tovar?
THE DEFENDANT: Yes, sir.
* * *
THE COURT: Mr. Tovar . . . you have been charged with operating while intoxicated. That charge carries a maximum penalty of up to a year in jail and up to a $1,000.00 fine and the mandatory minimum fine (sic) of two days in jail and a $500.00 fine. Do you understand that, Mr. Tovar?
THE DEFENDANT: Yes, sir.
During the 1996 plea proceedings, the following relevant exchange, regarding waiver of counsel, took place:
THE COURT: Mr. Tovar, I note that you are appearing here today without having an attorney present and you waived application for a court appointed attorney. I am sorry. You applied, but it was denied due to the fact you are dependent upon your parents. Mr. Tovar, did you want to represent yourself at today's hearing or did you want to take some time to hire an attorney to represent you?
THE DEFENDANT: No, I will represent myself.
THE COURT: Mr. Tovar, has anyone promised you anything or threatened you in any way in order to convince you to proceed here today without having an attorney present?
THE DEFENDANT: No, sir.
Tovar's motion for adjudication of law point asserted his waiver of counsel in 1996 was not knowing, intelligent, and voluntary because the district court failed to address the following five matters during the 1996 colloquy: (1) the possible defenses to the charge, (2) circumstances of mitigation, (3) that OWI is an enhanced penalty offense, (4) an admonishment of the usefulness of an attorney, and (5) the danger of proceeding without an attorney. The district court found Tovar's waiver of counsel was voluntary, knowing, and intelligent and denied the relief requested in the motion. The court held a stipulated bench trial and found Tovar guilty on both charges. Tovar appeals.
II. Standard of Review. We review the ruling of the district court on the defendant's motion to adjudicate law points for the correction of legal error. State v. Mann, 463 N.W.2d 883, 883 (Iowa 1990). To the extent Tovar's claims raise constitutional issues, our review is de novo. State v. Moe, 379 N.W.2d 347, 350 (Iowa 1985).
III. Merits. Tovar contends the district court erred in overruling his motion to adjudicate law points. Tovar argues his current conviction cannot be enhanced from OWI second to OWI third because his waiver of counsel in his 1996 plea was not knowingly and voluntarily made.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to self-representation. State v. Martin, 608 N.W.2d 445, 449-50 (Iowa 2000). "Before the right to self-representation attaches, the defendant must voluntarily elect to proceed without counsel by `knowingly and intelligently' waiving his or her Sixth Amendment right to counsel." Id. at 450 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 582 (1975)). A valid waiver requires an understanding of the "nature of the charges, the statutory offenses included within them, the range of allowable defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." State v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000) (citations omitted). Furthermore, a criminal defendant must be "admonished as to the usefulness of an attorney at the particular proceeding, and made cognizant of the danger of continuing without counsel." Id. (citations omitted).
The State concedes the district court failed to address the five items listed in Tovar's motion; however, the State contends a full admonition of the dangers of self-representation is not required when a defendant enters a guilty plea to a criminal charge. The State argues the authorities cited by Tovar, including Martin and Cooley, concern self-representation at trial and are not applicable to self-representation in a guilty plea.
In support of this contention the State relies primarily on State v. Cashman, 491 N.W.2d 462, 462 (S.D. 1992), where the defendant challenged the enhancement of his sentence for driving under the influence contending "his two prior convictions failed to reflect a knowing and intelligent waiver of his right to counsel prior to entry of the uncounseled guilty pleas on which the convictions were based." Id. In Cashman, the South Dakota Supreme Court determined a Faretta-type inquiry is not required for waiver of counsel at every stage of the criminal process. Id. at 464. The court noted the significant differences between a defendant considering proceeding pro se at trial and a defendant "making a decision to waive counsel in the earlier stages of the criminal process." Id.
The court held the appropriate test for waiver prior to a guilty plea proceeding is "whether the accused was made sufficiently aware of his right to have counsel present; and whether the accused was made sufficiently aware of the possible consequences of a decision to forego the aid of counsel." Id. at 465 (citing Patterson v. Illinois, 487 U.S. 285, 292-93, 108 S.Ct. 2389, 2395, 101 L.Ed.2d 261, 272 (1988)). The court concluded all the requirements were met for a valid waiver of counsel prior to the entry of Cashman's guilty pleas because he was advised of his right to counsel, had indicated his understanding of that right, and was advised of the maximum possible penalties for his offense. Cashman, 491 N.W.2d at 466. We find this reasoning persuasive and adopt it as our own.
Applying the test in Cashman, we conclude Tovar validly waived his right to counsel prior to entry of the 1996 uncounseled guilty plea. Tovar was advised of his right to counsel and made sufficiently aware of what counsel could do for him at trial. See Moe, 379 N.W.2d at 350 (holding defendant's waiver of counsel knowing and voluntary when he testified at a later proceeding that he "understood before he pleaded guilty that an attorney would be provided for him" and was advised of his right to jury trial). See also State v. Hindman, 441 N.W.2d 770, 772 (Iowa 1989) ("Where the offense is readily understood by laypersons and the penalty is not unduly severe, the duty of inquiry which is imposed upon the court is only that which is required to assure an awareness of right to counsel and a willingness to proceed without counsel in the face of such awareness"). Furthermore, Tovar was informed of the ultimate adverse consequences he could suffer as he was advised of the maximum possible penalties for the offense.
Because there was a valid waiver of counsel in obtaining Tovar's 1996 conviction, his present conviction was appropriately enhanced. See Moe, 379 N.W.2d at 349 (holding "uncounseled prior convictions may be used for enhancement purposes in subsequent proceedings when the defendant has validly waived the right to counsel in the earlier proceedings"). Accordingly, we conclude the district court did not err in ruling on Tovar's motion to adjudicate law points.
AFFIRMED.