Opinion
No. 5-866 / 05-0290
Filed December 21, 2005
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.
The State was granted discretionary review of a district court ruling holding one of two prior OWI convictions could not be used to enhance a present offense to third offense OWI. REVERSED AND REMANDED.
Timothy Kramer of Waagmeester Law Office, P.L.C., Rock Rapids, for appellee.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for appellant.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
The State was granted discretionary review of the district court's ruling on the defendant Lisa Majeres's motion for adjudication of law points. The court found the State was precluded from using one of Majeres's two prior operating while intoxicated (OWI) convictions to enhance her present offense to OWI, third offense. The State contends Majeres's prior, uncounseled, conviction can be used to enhance her current offense. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
Shortly after midnight on July 3, 2004, Majeres was pulled over in Le Mars, Iowa for various traffic violations. She failed several field sobriety tests and eventually consented to provide a breath sample which revealed a .236 alcohol concentration. Majeres was charged by trial information with OWI, third offense, in violation of Iowa Code section 321J.2 (2003). Majeres had two prior OWI convictions in Iowa, one in 1999 and one in 2001. She had been sentenced to 180 days in jail with all but seven suspended in connection with her 2001 OWI conviction.
Majeres filed a motion for an adjudication of law points. She claimed the State was precluded from using her second OWI conviction to enhance the charge and sentence in this case because she had pled guilty without the assistance of counsel and had been sentenced to seven days in jail. Following hearing the court ruled that Majeres's waiver of counsel in the prior case was not valid for the purpose of enhancing the current offense because the waiver had not been accomplished through a colloquy with the court. The court also stated it would rule in the State's favor, but was precluded by precedent from doing so, implicitly agreeing with the State's argument that Majeres's prior waiver was in fact knowing and voluntary.
The State appealed from the district court's ruling. Our supreme court ordered that the appeal be treated as an application for discretionary review and granted the application. On appeal the State contends the court erred in not allowing Majeres's prior OWI conviction to be used to enhance the present charge because the prior waiver of her right to counsel was knowing and voluntary and no in-court colloquy is required for waiver of plea counsel in misdemeanor cases. The State argues the district court applied the wrong standard in determining whether Majeres's prior waiver of plea counsel was valid.
II. SCOPE AND STANDARD OF REVIEW.
We generally review constitutional claims de novo. State v. Allen, 690 N.W.2d 684, 687 (Iowa 2005). However, because there are no factual disputes and the only issue is whether the State was allowed to use a prior uncounseled misdemeanor conviction based on a written plea agreement and waiver of counsel without an in-court colloquy, we will review the court's ruling on the motion for correction of errors at law. Id.; State v. Tovar, 656 N.W.2d 112, 114 (Iowa 2003), rev'd on other grounds by Iowa v. Tovar, 541 U.S. 77, 94, 124 S. Ct. 1379, 1390, 158 L. Ed. 2d 209, 224 (2004). In a collateral attack on an uncounseled conviction, it is the defendant's burden to prove she did not competently and intelligently waive her right to the assistance of counsel. Tovar, 541 U.S. at 92, 124 S. Ct. at 1390, 158 L. Ed. 2d at 223; Watts v. State, 257 N.W.2d 70, 71 (Iowa 1977).
III. MERITS.
The district court was correct in stating thata prior uncounseled misdemeanor conviction which resulted in incarceration cannot be used for enhancement purposes in subsequent prosecutions unless there is a valid waiver of counsel. See generally Allen, 690 N.W.2d at 687-92. Majeres's second OWI conviction was an uncounseled misdemeanor conviction and resulted in incarceration. Thus, the question before us is whether the district court was correct in holding that Majeres's waiver of counsel in that case was not valid because the waiver had not been accomplished through a colloquy with the court.
First, we note the district court relied almost entirely on the unpublished case of State v. Horton, No. 03-1181 (Iowa Ct.App. Dec. 22, 2004), in determining that Majeres's waiver of plea counsel was not valid. We agree with the State that in doing so the court applied an incorrect and more stringent standard than necessary in this case. Horton dealt with a defendant who wanted to represent herself at a jury trial on a felony charge and the appropriate colloquy for the trial court to conduct in determining whether the defendant's waiver of trial counsel was valid in such a situation. Here we must determine what, if any, in-court colloquy is necessary for a defendant's waiver of plea counsel on a misdemeanor charge to be valid for the purpose of enhancing a subsequent offense. This appears to be an issue of first impression in Iowa, as we have not had cited to us or found any authority on the precise issue.
The court may accept a written plea of guilty in a serious or aggravated misdemeanor case. See Iowa R. Crim. P. 2.8(2)( b) (stating court may, with approval of defendant, waive in-court colloquy in plea of guilty to serious or aggravated misdemeanor); see also State v. Meron, 675 N.W.2d 537, 543 (Iowa 2004) (holding court may waive in-court colloquy requirement in guilty pleas to serious and aggravated misdemeanor and use defendant's written acknowledgement to determine if guilty plea is voluntary, intelligent, and supported by facts). The written guilty plea in Majeres's second OWI case covered the rule 2.8(2)( b) matters which a court would have discussed with Majeres during an in-court colloquy. See State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002) (finding substantial compliance with informing defendant of rights under rule 2.8(2)( b) is sufficient). We conclude that just as an in-court colloquy concerning rule 2.8(2)( b) matters may be waived, an in-court colloquy is not necessary for a valid waiver of plea counsel in misdemeanor cases when the written guilty plea substantially complies with the requirements of rule 2.8(2)( b) and is also sufficient for the court to determine that the waiver of plea counsel is voluntary and intelligent. We turn to the question of whether Majeres's written plea of guilty in the second OWI case was sufficient for that purpose.
The Supreme Court in Tovar stated that the constitutional requirement for a waiver of counsel at a guilty plea is satisfied when the trial court informs the defendant of the nature of the charged offenses, the right to be counseled regarding the plea, and the range of allowable punishments attendant upon entry of a guilty plea. Tovar, 541 U.S. at 81, 124 S. Ct. at 1383, 158 L. Ed. 2d at 216. For the reasons that follow we conclude the written plea Majeres signed on November 13, 2001, pleading guilty to her second OWI charge demonstrated she had been properly informed of and understood these three matters. We thus further conclude she validly waived plea counsel in the prior case and her conviction is therefore available to enhance the present offense to OWI, third offense.
First, Majeres acknowledged in the written guilty plea in question that she was charged with OWI second offense. Second, with regard to the right to be counseled she stated
I know I have the right to have a lawyer represent me and that if I cannot afford to pay a lawyer one will be appointed for me at public expense to represent me at all stages of this criminal case, including a trial and appeal.
In addition, in the present case she acknowledged she had signed a document waiving her right to counsel in the prior case and that she was verbally told of her right to and the availability of court appointed counsel. Finally, the written guilty plea Majeres signed identified the range of allowable punishments for OWI, second offense, and included Majeres's statements that she understood them. Furthermore, Majeres represented in the written guilty plea that she understood the entirety of her guilty plea, the consequences of the plea, and that she entered into the plea voluntarily and intelligently.
We do note that Majeres has never claimed she did not fully understand the 2001 charge or the range of punishment for the crime prior to pleading guilty, she has never "articulate[d] with precision" the additional information counsel could have provided, given the simplicity of the charge, and she does not assert that she wasunaware of her right to be counseled prior to and at her plea. See Tovar, 541 U.S. at 92-93, 124 S. Ct. at 1390, 158 L. Ed. 2d at 223. She claims only that the court did not conduct an in-court colloquy.
Under the facts and circumstances shown by the record it is far from clear that an in-court colloquy in Majeres's second OWI case would have enlightened her decision whether to waive her right to plea counsel. In a case as simple and straightforward as Majeres's second OWI case, requiring the court to orally inform Majeres of those matters already set forth in the written guilty plea would waste the time and resources of the State and perhaps Majeres as well. See id. at 93, 124 S. Ct. 1390, 158 L. Ed. 2d at 223 (expressing a waste of such resources as one concern in determining certain admonitions are not required for a valid waiver of the right to plea counsel).
IV. CONCLUSION.
For the reasons stated above we conclude Majeres failed to meet her burden in this collateral attack to prove she did not competently and intelligently waive her right to the assistance of plea counsel in her prior uncounseled OWI conviction. The district court erred in applying the standard for waiver of trial counsel in a felony charge to a waiver of plea counsel in a misdemeanor charge and thus erred in determining Majeres's 2001 OWI conviction could not be used to enhance the present offense to OWI, third offense. We conclude Majeres's prior waiver of plea counsel was valid and thus is available to enhance the present offense. We reverse the district court's ruling on the motion to adjudicate law points and remand the case for further proceedings not inconsistent with this opinion.