Opinion
No. 5-145 / 04-0780
Filed April 13, 2005
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.
Donald Alan Corwin appeals his conviction and sentence for operating a motor vehicle while under the influence of alcohol, third offense. AFFIRMED.
Catherine K. Levine, Des Moines, James P. Piazza Sr., Des Moines, and Michael S. McMurray, Ankeny, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, James Ward, Assistant County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Donald Alan Corwin was convicted of third-offense operating while under the influence of alcohol in violation of Iowa Code section 321J.2(1) (2003) and was sentenced as a habitual offender pursuant to Iowa Code sections 902.8 and 902.9 (2003). Corwin appeals, challenging (1) the constitutionality of the stop of his vehicle by law enforcement and (2) the validity of a prior guilty plea, which was ultimately used to enhance the current sentence. Because the stop of his vehicle was based on reasonable suspicion, and because Corwin failed to timely assert his challenge to the prior plea, we affirm his conviction and sentence.
I. Background Facts and Proceedings
In January of 2004 Ankeny police officer Kory Miller witnessed a Jeep being driven by Corwin exit a local bar parking lot. Officer Miller next observed Corwin weave four or five times in his own lane of traffic, from the broken center line to the right side boundary line. Then, just short of an intersection where he turned right, Corwin crossed the right boundary line and drove on the gravel shoulder for twenty to twenty-five feet. At this point, Officer Miller turned on his emergency lights in order to stop Corwin. Corwin proceeded on for a short distance while Officer Miller observed Corwin swerve once or twice more.
After Corwin stopped his Jeep, Officer Miller observed Corwin sway from side to side, smelled alcohol on his person, noticed his eyes were bloodshot and watery, and noticed his speech was slurred. Corwin then failed all the field sobriety tests administered to him and later provided a breath sample indicating his blood alcohol was .226. Corwin was charged with operating a motor vehicle while under the influence of alcohol (OWI), third-offense.
On March 4, the deadline for pretrial motions, Corwin filed a motion to suppress asserting the stop of his vehicle was illegal. Following a hearing, this motion was overruled. On March 19, Corwin filed a motion for an adjudication of law points asserting a previous guilty plea should not be used to enhance the penalty for a subsequent OWI conviction because the prior plea was obtained without his knowing and voluntary waiver of his right to counsel. In denying this motion, the court first noted that the motion was untimely, but then, at the State's request, addressed the merits of Corwin's motion. Corwin appeals.
II. Standard of Review
Corwin's claims assert a violation of his constitutional rights, making our review de novo. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). We make an "independent evaluation of the totality of the circumstances as shown by the entire record." Id. (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)). However, our review of the district court's decision regarding the timeliness of Corwin's motion containing this constitutional challenge is for an abuse of discretion. State v. Rains, 574 N.W.2d 904, 909 (Iowa 1998).
III. Issues
A. Reasonable Suspicion
The State contends the district court correctly denied Corwin's motion to suppress because the stop of Corwin's jeep was justified by reasonable suspicion. In order to stop a vehicle and briefly detain it for investigatory purposes, "the police need only have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring." Tague, 676 N.W.2d at 204. The Iowa Supreme Court recently summarized the proper "reasonable suspicion" analysis as follows:
Corwin argued in his motion to suppress and now argues on appeal that Officer Miller's stop of his car was not justified by probable cause to believe Corwin committed a traffic violation or by the community caretaker function. The district court based its denial of Corwin's motion to suppress solely on its determination that reasonable suspicion justified the stop; it specifically decided that the stop was not justified by either probable cause or the community caretaker function. The State accepts the district court's ruling on these issues. Therefore, we need not address Corwin's probable cause or community caretaker arguments.
When a person challenges a stop on the basis that reasonable suspicion did not exist, the State must show by a preponderance of the evidence that the stopping officer had specific and articulable facts, which taken together with rational inferences from those facts, to reasonably believe criminal activity may have occurred. Mere suspicion, curiosity, or hunch of criminal activity is not enough. Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer at the time the officer makes the decision to stop the vehicle. The legality of the stop does not depend on the actual motivations of the officer involved in the stop.
Id.
In State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct.App. 1993), this court adopted the view of a majority of other jurisdictions by holding that a police officer's observation of a vehicle weaving within its own lane gives rise to a reasonable suspicion that criminal activity has occurred or is occurring. In State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997), our supreme court retreated from this position by stating, "[w]e do not believe Tompkins should be read to hold that observation of a vehicle weaving within its own lane of traffic will always give rise to reasonable suspicion for the police to execute a stop of the vehicle." (emphasis added). The Otto court then reiterated the general rule that the facts and circumstances surrounding the stop govern the reasonable suspicion analysis. Id.
We agree with the district court that the facts and circumstances surrounding the stop of Corwin's Jeep provided a reasonable suspicion for the belief criminal activity was afoot. Officer Miller observed Corwin leave a bar at approximately 10:00 p.m. Cf. State v. Stevens, 394 N.W.2d 388, 391 (Iowa 1986) (noting that a police officer who witnessed a defendant leave a bar at 2:00 a.m. could reasonably believe he had been drinking). Shortly thereafter, Corwin began repeatedly swerving in his lane. Then, right before executing a right-hand turn, Corwin drove off the road onto the shoulder and continued down the shoulder for twenty to twenty-five feet. We conclude that although a driver weaving within his or her own lane will not always give rise to reasonable suspicion, it does give rise to such suspicion under these facts and circumstances.
B. Habitual Offender Status
Corwin was sentenced as a habitual offender pursuant to Iowa Code section 902.8, which provides that a habitual offender "is any person convicted of a class `C' or `D' felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States." Corwin challenges his status as a habitual offender based on the proposition that his plea in a prior second-offense OWI conviction from 1989 was obtained in violation of his right to counsel. Specifically he argues the court had not counseled him on the dangers of proceeding without counsel, and therefore his prior uncounseled plea was obtained without a knowing and voluntary waiver of his right to counsel. As such, he now claims this uncounseled guilty plea should not have been used to enhance a subsequent OWI conviction to a third-offense OWI, which in conjunction with a later conviction for vehicular homicide and the offense he now appeals, has subjected him to a habitual offender sentence.
Iowa Rule of Criminal Procedure 2.11(4) provides pre-trial motions, except motions in limine, shall be brought, "when the grounds therefore reasonably appear but no later than forty days after arraignment." Corwin was arraigned on January 14, 2004, so that the forty-day deadline expired on February 23, 2004. The district court, upon Corwin's motion, extended the time for filing motions to March 4, 2003. Corwin's motion containing his constitutional attack of his habitual offender status was filed on March 19, 2004. We accordingly conclude that the district court did not abuse its discretion in determining this motion was untimely. Moreover, Corwin did not provide good cause for his failure to timely raise this issue. Consequently, we need not address this issue as it was waived. See Iowa R. Crim. P. 2.11(3) (providing that failure to timely raise a defense or objection or to make a request that must be made prior to trial acts as a waiver thereof unless good cause is shown).
Nevertheless, had the motion been timely, we find no merit in Corwin's constitutional challenge to his current sentence. In State v. Tovar, our state supreme court held that under the Sixth Amendment to the United States Constitution a district court, before accepting a guilty plea from a uncounseled defendant, must go through a detailed colloquy admonishing the defendant of certain risks and consequences attendant to waiving the right to counsel. 656 N.W.2d 112, 121 (Iowa 2003). In Iowa v. Tovar, the United States Supreme Court reversed our Iowa Supreme Court, holding that the Sixth Amendment did not compel the detailed admonitions required by our court, stating the Sixth Amendment is satisfied "when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." 541 U.S. 77, ___, 124 S. Ct. 1379, 1383, 158 L. Ed. 2d 209, ___ (2004). Corwin's proposition that his guilty plea was not knowing and voluntary as it was obtained in violation of his right to counsel is dependent upon his assumption that the Iowa Supreme Court, at some future time, will interpret article I, section 10 of the Iowa Constitution as requiring the elaborate colloquy announced in State v. Tovar. We decline to speculate as to such future holding and instead choose to adhere to the law of the land as provided in Iowa v. Tovar.
Moreover, in addressing the merits of Corwin's assistance of counsel claim, the district made the finding that "the defendant was represented by counsel [at the challenged guilty plea] based upon [court records]." The court made this finding despite the defendant's testimony to the contrary and his former counsel's inability to recall the representation. Although we are not bound by this credibility finding, we give it considerable deference. Tague, 676 N.W.2d at 201. Additionally, upon our own review we note that the transcript of the 1989 plea proceedings as well as the written judgment entry for Corwin's second offense OWI conviction indicates that he was represented. We accordingly conclude even if the rule under Tovar were reinstated under our Iowa Constitution, Corwin's sentence would not be affected as he had counsel when pleading guilty to the prior OWI charge.
IV. Conclusion
A reasonable suspicion criminal activity had occurred or was occurring supported Officer Miller's investigatory stop of Corwin's Jeep. Therefore we affirm the district court's denial of Corwin's motion to suppress. Corwin waived his challenge to his guilty plea to second-offense OWI by failing to timely assert it. Moreover, the law, as it currently stands does not require the colloquy Corwin claims he was denied and, even if it did, our review of the record demonstrates that he was counseled at this plea so his argument that he did not knowingly and voluntarily waive his right to counsel must fail. We accordingly affirm the district court's ruling on Corwin's motion to adjudicate law points.