IN THE COURT OF APPEALS OF IOWA
No. 16-1139
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SAMUEL LEE HARRIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William A. Price,
District Associate Judge.
A defendant appeals his sentence. AFFIRMED.
Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.
Samuel Harris appeals his sentence following his guilty plea to assault
causing bodily injury, in violation of Iowa Code sections 708.1 and 708.2(2)
(2015), and child endangerment, in violation of Iowa Code section 726.6(7).
Harris claims he was deprived his right to counsel under the state and federal
constitutions and his trial counsel was ineffective. We conclude Harris’s waiver
of his right to counsel at sentencing was voluntary, knowing, and intelligent, and
we affirm his sentence. However, because the factual record relevant to Harris’s
claim of ineffective assistance of counsel is not fully developed, we preserve that
claim for a postconviction action.
I. Background Facts and Proceedings
On April 21, 2016, the State charged Harris with one count of domestic
abuse assault, second offense, and one count of child endangerment. On April
27, Harris pled guilty to one count of assault causing bodily injury and one count
of child endangerment. Sentencing was initially set for May 11 but was later
continued to June 15.
Initially, Harris was represented by court-appointed counsel who helped
him negotiate his plea deal and who appeared with him when his plea was
accepted. Prior to the sentencing hearing, Harris signed a written waiver of his
right to an attorney. Harris’s counsel was not present at the sentencing hearing.1
After receiving the waiver, the district court entered into a colloquy with Harris:
THE COURT: Mr. Harris, earlier, you had an attorney
appointed to represent you, but it’s my understanding that you wish
to waive that attorney; is that correct?
1
The record does not reveal why counsel was not present at the sentencing hearing.
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MR. HARRIS: Yes, sir.
THE COURT: You signed this written waiver of attorney, the
form I’m showing you right now (indicating).
MR. HARRIS: Yes, sir.
THE COURT: You signed that today; is that correct?
MR. HARRIS: Yes, sir.
THE COURT: Did you read that over?
MR. HARRIS: Yes, sir.
THE COURT: Are all the statements on that form true and
correct?
MR. HARRIS: Yes, sir.
THE COURT: Do you understand that you do have a right to
have an attorney with you at all stages of your case, including any
plea negotiations, a plea, a sentencing, or a trial if there was to be
one?
MR. HARRIS: Yes, sir.
THE COURT: Do you understand that if you cannot afford an
attorney, one would be appointed for you at State’s expense?
MR. HARRIS: Yes, sir.
THE COURT: In fact, that had been done; is that correct?
MR. HARRIS: Yes, sir.
THE COURT: You understand that if you proceed today, you
forever give up any opportunity to get an independent opinion as to
whether or not it would have been wise to plead guilty given the law
and the facts of your case? Do you understand that?
MR. HARRIS: Yes, sir.
THE COURT: In fact, you pled guilty some time ago; is that
correct?
MR. HARRIS: Yes, sir.
THE COURT: You understand, though, that sentencing is a
critical part of any proceeding?
MR. HARRIS: Yes, sir.
THE COURT: Do you still wish to proceed without a lawyer?
MR. HARRIS: Yes, sir.
THE COURT: Has anyone threatened you with anything or
promised you with anything in order to get you to proceed without a
lawyer?
MR. HARRIS: No, sir.
The court then sentenced Harris to sixty days in jail on each count to be served
concurrently with thirteen days of credit for time served—the exact
recommendation agreed to in the plea agreement. Harris appeals.
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II. Standard of Review
We review claims that a defendant was denied the right to counsel under
the state and federal constitutions de novo. State v. Majeres, 722 N.W.2d 179,
181 (Iowa 2006). In addition, as claims of ineffective assistance of counsel are of
a constitutional nature, we review them de novo. Ledezma v. State, 626 N.W.2d
134, 142 (Iowa 2001). When a claim of ineffective assistance of counsel is
raised on direct appeal, courts must first determine whether the record is
adequate to resolve the claim. State v. Johnson, 784 N.W.2d 192, 199 (Iowa
2010). “If . . . the court determines the claim cannot be addressed on appeal, the
court must preserve it for a postconviction-relief proceeding, regardless of the
court’s view of the potential viability of the claim.” Id.
III. Denial of Right to Counsel
Harris asserts he was denied his right to counsel under the state and
federal constitutions because his counsel was not present at sentencing and his
waiver of counsel was not voluntary, knowing, and intelligent. Specifically, Harris
argues the district court’s colloquy was inadequate to ensure the voluntariness of
his waiver. The State responds the combination of the written waiver and the
court’s colloquy were sufficient to ensure Harris’s waiver was voluntary, knowing,
and intelligent.
Both the Sixth Amendment of the United States Constitution and article I,
section 10 of the Iowa Constitution provide the accused with the right to counsel
when facing criminal prosecution. The right to counsel applies at critical stages
of the criminal process, including sentencing. State v. Boggs, 741 N.W.2d 492,
506 (Iowa 2007). However, defendants may waive the right to counsel. Majeres,
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722 N.W.2d at 182. “A waiver of the right to counsel requires that a defendant do
so knowingly and intelligently with sufficient awareness of the relevant
circumstances.” Id.
To ensure a defendant’s waiver of the right to counsel is voluntary,
knowing, and intelligent, the court is required to engage in a colloquy. State v.
Stephenson, 608 N.W.2d 778, 782 (Iowa 2000). Whether a colloquy is
satisfactory depends on the surrounding circumstances of a case and can vary
based on the type of proceeding, the nature of the charges, or the particular
features of the defendant. See Hannan v. State, 732 N.W.2d 45, 53 (Iowa 2007)
(“The surrounding circumstances will determine the sufficiency of a colloquy.”);
Majeres, 722 N.W.2d at 182 (“A defendant requires less rigorous warnings as to
the waiver of plea counsel than for the waiver of trial counsel.”); Stephenson, 608
N.W.2d at 782 (“The degree of inquiry necessary to assure a valid waiver varies
with the nature of the offense and the ability of the accused to understand the
process.”). Thus, our analysis must determine whether Harris knowingly and
intelligently with sufficient awareness of the relevant circumstances waived his
right to counsel at the sentencing hearing. See Majeres, 722 N.W.2d at 182.
In Hannan, our supreme court suggested:
A sufficient colloquy will necessarily look into
“the nature of the charges, the statutory offenses
included within them, the range of allowable
punishments thereunder, possible 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)] (quoting Von
Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 323, 92 L. Ed.
309, 321 (1948)). In addition, the defendant must be “admonished
as to the usefulness of an attorney at that particular proceeding,
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and made cognizant of the danger in continuing without counsel.”
Id.
732 N.W.2d at 53. Harris claims the sentencing court’s colloquy was inadequate
because while it discussed his written waiver, it did not ask Harris whether he
“understood each and every item contained on the waiver” again and because
the court did not admonish him about the “wisdom of appearing for his
sentencing hearing without an attorney.”
Harris had the benefit of counsel throughout the process prior to the
sentencing hearing, including when he entered his guilty plea and was advised,
in writing and in person in his discussions with the court that accepted his guilty
plea, of the nature of the charges, the possible punishments, and his procedural
rights. His waiver of his right to counsel and the court’s inquiry into that waiver
was exclusively in the context of the sentencing hearing following a negotiated
plea agreement. Therefore, the court was not required to inquire into Harris’s
waiver with the same depth as it would have had Harris been seeking to waive
the right to counsel in his plea hearing or at a trial. See Majeres, 722 N.W.2d at
182 (“A defendant requires less rigorous warnings as to the waiver of plea
counsel than for the waiver of trial counsel.”).
At sentencing, among the admonitions contained in the written waiver
were, that Harris understood “the nature of the charge[s] and the possible
sanctions,” “the purpose and assistance an attorney can serve, and the possible
adverse consequences of proceeding without the assistance of an attorney.”
The court confirmed Harris understood his entry of his guilty plea was a
proceeding distinct from sentencing. The court inquired about Harris’s waiver of
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counsel at sentencing, in light of the fact that Harris had counsel previously
appear with him. Additionally, the court commented that counsel could provide
an independent opinion and that Harris was foregoing that opportunity by
proceeding. The court’s discussion with Harris regarding his prior plea
agreement and the agreed upon sentence indicates Harris understood the
process and was fully aware of the crimes he had pled guilty to and the
sentencing options available to the court. Based on the totality of the relevant
circumstances surrounding Harris’s waiver of his right to counsel, we conclude
his waiver was voluntary, knowing, and intelligent.
IV. Ineffective Assistance of Counsel
Harris claims his counsel was ineffective in failing to attend his sentencing
hearing and he was prejudiced because he proceeded without her assistance.
The record is completely bare on the reason for Harris’s counsel’s
absence at the sentencing hearing, and neither party provided any insight into
possible reasons. Further, the record was not fully developed regarding the
prejudice, if any, Harris suffered due to his counsel’s absence at the sentencing
hearing. Under these circumstances, the best course when facing a claim of
ineffective assistance of counsel on direct appeal is to preserve the claim for
further development of the factual record in a postconviction action. See
Johnson, 784 N.W.2d at 198.
V. Conclusion
Because we conclude Harris’s waiver of his right to counsel at sentencing
was voluntary, knowing, and intelligent we affirm his sentence. However,
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because the factual record relevant to Harris’s claim of ineffective assistance of
counsel is not fully developed, we preserve that claim for a postconviction action.
AFFIRMED.
Vaitheswaran, J., concurs; Danilson, C.J., dissents.
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DANILSON, Chief Judge. (dissenting)
I respectfully dissent. Harris was represented by court-appointed counsel
at the time of the sentencing hearing. Notwithstanding, the record presented to
us is completely bare of any explanation for defense counsel’s absence. There
was no inquiry with Harris or the prosecutor regarding any reason for defense
counsel’s absence, and there was no inquiry if Harris wanted a continuance of
the hearing, if he wanted to discharge his attorney, or if he desired substitute
counsel. We do not know if defense counsel was simply five minutes late for the
hearing, had a true emergency or health issue, or was derelict in her duties in
timely appearing on behalf of Harris. Upon this barren record, I conclude Harris
was deprived of his right to counsel by the trial court proceeding with the
sentencing hearing in the absence of Harris’s court-appointed counsel and would
reverse.