Opinion
No. 3-082 / 02-0120.
Filed April 30, 2003.
Appeal from the Iowa District Court for Cherokee County, DAVID A. LESTER, Judge.
The appellant alleges on appeal that he was denied his Sixth Amendment right to counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Mark R. Corzine, County Attorney, for appellee.
Considered by HABHAB, HARRIS, and BROWN, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
This is an appeal by the defendant-appellant, Stephen Craig Leonard, from a judgment and sentence entered following his pleas of guilty to assault while participating in a felony, willful injury causing serious injury, and going armed with intent. He asserts on appeal the district court denied him his Sixth Amendment right to counsel in failing to obtain a knowing, intelligent, and voluntary waiver of his right to counsel at the time of his sentencing. We affirm.
The defendant was charged by trial information with the following crimes: attempted murder, burglary in the first degree, willful injury, and going armed with intent. A supplemental trial information was filed stating the defendant was being charged with enhancements as an habitual offender and as having in his possession a dangerous weapon.
The defendant initially filed a pro se written arraignment. At that time, the court ordered a new arraignment as defendant wanted to be represented by counsel, Robert Montgomery. Later, defendant, with the assistance of counsel, filed a written arraignment, at which time he waived his right to speedy trial. Several motions to produce and motions to extend filing deadlines were filed as well as a notice of defense of self defense.
In accordance with a plea agreement signed by the defendant, the defendant with his privately-retained counsel, Mr. Montgomery, entered a plea of guilty on September 24, 2001, to assault while participating in a felony, willful injury causing serious injury, and going armed with intent. In exchange for his plea, the State agreed to dismiss Count I after time for appeals and postconviction relief filings had passed, and the parties agreed that the defendant would serve consecutive sentences, indicating that each count would be served completely before the next count began and indicating that Count IV would be enhanced to fifteen years due to the defendant's habitual offender status. The court concurred with the plea agreement.
The defendant acknowledged that he had conversed with his attorney as to all particulars of the written plea agreement and was "aware of the consequences thereof."
On October 15, 2001, the defendant filed his first pro se motion in arrest of judgment, claiming that his counsel filed the wrong defense and should have pursued a diminished capacity defense. A month and a half later, the defendant filed an amended pro se motion in arrest claiming he was coerced into pleading guilty due to the ineffective assistance of his trial counsel, rendering counsel unprepared to put on an adequate defense. He then filed a series of pro se motions, which included a motion to withdraw his guilty plea; to return seized property; and one of recusal asking that Judge Nelson recuse himself as the defendant felt he could not be fair. The recusal motion and the motion to withdraw his guilty plea were later withdrawn.
On December 17, 2001, the court appointed a new attorney for the limited purpose of assisting the defendant in his motions hearing as he was claiming current counsel ineffective. Newly-appointed counsel filed two amended motions in arrest, claiming defects in the plea proceedings. Mr. Montgomery was allowed to withdraw as counsel at the motions hearing. The trial court denied the defendant's motions in arrest and set the date for sentencing.
The defendant appeared at the sentencing hearing. The trial court noted the pro se appearance of the defendant and also stated on the record that Attorney J. P. Loughlin "is also present in the courtroom and while he is not representing the defendant in these proceedings, he is here in an advisory capacity only should the defendant have any legal questions concerning these proceedings, Attorney Loughlin having been appointed in that capacity early on in these proceedings."
The court asked the defendant if he was ready to proceed, and the defendant replied that he was. The defendant approved the contents of the presentence report. The trial court entered into a lengthy discussion with defendant concerning his eight previous felony convictions and the sentences that were imposed. The defendant was then advised he had the right under Iowa law to make a statement and he did so. He apologized to the victims of the crimes and spent additional time denouncing the attorney who had represented him on this and other charges and voicing his basic distrust of lawyers in general. The court then asked the defendant if he knew of any legal reason why sentence should not be pronounced, and the defendant replied that he did not. The court sentenced the defendant in accordance with the plea agreement. The court then asked Attorney Loughlin if he was court-appointed in this proceeding. He replied that he was. The defendant did not seek the advice of counsel, but counsel was there and he was available at all times should the defendant have any questions.
Eighteen days after the court's judgment and sentence, the defendant, still representing himself, filed his timely pro se notice of appeal. The State Appellate Defender's office now represents him. The appellant does not challenge the guilty plea proceeding. He admits that standby counsel was present and available if he desired. He knew what the penalty would be for the court had approved the plea agreement, and the sentence impose was consistent with that agreement. His only challenge on appeal is that the sentencing court should have engaged in an inquiry to determine whether he wanted to proceed without counsel and whether such waiver was knowing and intelligent. Although not of any great moment, he does not say what he would do differently if the court had engaged in that inquiry.
The appellant argues a violation of Sixth and Fourteenth Amendment rights. As such, our review is de novo. State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997). The Sixth Amendment and the Fourteenth Amendment to the United States Constitution provide that, "[I]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. Amend. VI. In addition and as our supreme court stated in State v. Hindman, 441 N.W.2d 770, 772 (Iowa 1989), "[w]e accept as a well-established proposition that the right to counsel must be waived by nonindigent defendants as well as by indigent defendants."
As noted earlier, the proceedings prior to sentencing are not challenged on appeal. It is the proceedings at sentencing that is of concern. In this respect, the appellant relies on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), along with Rater, 568 N.W.2d 655; State v. Cooley, 608 N.W.2d 9 (Iowa 2000), State v. Stephenson, 668 N.W.2d 778 (Iowa 2000), and a number of other federal and state cases for authority that the trial court had to make a careful inquiry that fully demonstrated a knowing and voluntary waiver and that the waiver is competent and intelligent.
Indeed, those cases so hold. But in most of those cases, the concern of the court was the pro se representation of the defendant at, during, and throughout trial. Here, the defendant was not only represented by retained or court-appointed counsel in all of the proceedings to the date of sentencing but even at sentencing and at the very time he desired to proceed pro se, Attorney Loughlin was present to aid in an advisory capacity should the defendant have any legal questions concerning the sentencing proceedings.
Our supreme court case of State v. Hindman, 441 N.W.2d 770 (Iowa 1989), is instructive. There it is stated:
The degree of inquiry which is required in order to assure a valid waiver of the Sixth Amendment right to counsel varies with the nature of the offense and the ability of the accused to understand the process. Where the offense is readily understood by laypersons and the penality 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.Hindman, 441 N.W.2d at 772.
Here, the defendant has a long history of criminal activity and a history of pro se representation. He was well aware of the charges leveled against him as evidenced by the several pro se motions he personally filed. Some of those motions proceeded to hearing with retained counsel, while others were withdrawn by him. Unlike the Hindman case, the penalty here is severe, but then the only penalty that could be imposed was that which was set forth in the plea agreement. When we couple these undisputed facts with the additional undisputed fact that the court-appointed standby counsel was available should he have any questions, we find no error. And applying the pragmatic test suggested in Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 2397-98, 101 L.Ed.2d 261, 275-76 (1988), we affirm the trial court.