IN THE COURT OF APPEALS OF IOWA
No. 19-1718
Filed October 21, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CURTIS EDWARD HAWKINS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James B. Malloy,
District Associate Judge.
Defendant appeals from his conviction and sentence for operating while
intoxicated, third offense. AFFIRMED.
Daniel J. Rothman and Nicholas A. Carda of McEnroe, Gotsdiner, Brewer,
Steinbach and Rothman P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Mullins and Greer, JJ.
2
GREER, Judge.
We are asked to travel back to 2007 to answer the question presented here.
Without the benefit of legal counsel, Curtis Hawkins pled guilty to operating while
intoxicated (OWI), first offense. When asked if he wanted to proceed without
counsel, Hawkins answered, “Yes, I do.” Hawkins pled guilty again in 2016 to a
second offense OWI. After being charged with a third OWI, Hawkins learned the
previous convictions for OWI served as grounds for enhanced punishment.
On appeal, he challenges the use of his first, uncounseled conviction for
OWI as an enhancement in this case. We agree with the State that Hawkins failed
to show his prior waiver of counsel was not made competently, knowingly, and
intelligently. For the reasons set out below, we affirm the trial court’s ruling.
Facts and Proceedings.
On April 9, 2019, Hawkins was charged with OWI, third offense. His first
OWI charge was resolved by an uncounseled guilty plea on September 4, 2007.
Because Hawkins had sufficient income to hire his own counsel, he was not offered
legal counsel at the State’s expense. Still, he chose to forgo counsel in the OWI,
first offense matter. At the 2007 plea hearing, the court addressed the waiver of
an attorney with the thirty-three year old college-educated Hawkins:
THE COURT: All right. And, Mr. Hawkins, I’ll ask you the
same question. You’re charged also with operating while
intoxicated, section 321J.2 of the Iowa Code. I see that you made
an initial appearance on August 14th. At that time you were informed
of your right to have court-appointed attorney and the judge that saw
you indicated that you had sufficient income to hire your own
attorney. Has anything changed about your financial circumstances
since then, Mr. Hawkins?
HAWKINS: No, Your Honor, it has not.
THE COURT: Do you wish to proceed today without an
attorney then?
3
HAWKINS: Yes, I do.
Later in the plea proceeding the trial court again addressed the right to counsel,
stating:
You do have to answer out loud so she can get your response. Then
at this point, I would like to tell you of the rights that you would be
giving up if you should decide to plead guilty here today and, as I
said, basically you have the right to a trial and each of you would
have the right to have an attorney with you at that trial if you chose
to have one. You wouldn’t have to have one, but you could choose
to have one and if you couldn’t afford one, we could appoint one for
you.
Hawkins proceeded to plead guilty after indicating he understood he was giving up
his rights. He was sentenced to two days in jail, a fine, and surcharges.
Unfortunately, this was not the end of Hawkins legal troubles. In 2016, he was
charged with OWI, second offense. With the help of legal counsel in the second
2016 OWI case, Hawkins again pled guilty.
Now, after being charged with a third OWI and realizing that his criminal
history complicates the current case, Hawkins filed a motion to adjudicate law
points. In that motion, he argued his first conviction for OWI could not be used to
enhance his current charge because he pled guilty without the benefit of counsel
and was not advised of the dangers of self-representation. The trial court denied
the motion. After a trial on the minutes, Hawkins was found guilty and sentenced
to an indeterminate term not to exceed five years in prison, all suspended but for
thirty days, less time served, and placed on probation for not less than two but no
more than five years. Hawkins was also required to pay a fine, court costs, and
surcharges. Hawkins appeals the conviction and sentence.
4
Preservation of Error and Standard of Review.
The State asserts that Hawkins failed to preserve error on his claim that the
holding of State v. Tovar 1 should be adopted under article I, section 10 of the Iowa
Constitution. The State claims that Hawkins never made that argument below.
Yet we find in the record below that Hawkins preserved this argument.2 Hawkins’s
basic argument at trial was that Iowa cases following the Tovar analysis should
require the trial court to “make the defendant aware of the dangers and
disadvantages of self-representation so that the record will establish that he knows
1 Iowa v. Tovar, 541 U.S. 77, 78–79 (2004) overruled State v. Tovar, 656 N.W.2d
112, 121 (Iowa 2003). In State v. Tovar, our supreme court found that the
defendant’s guilty plea was constitutionally inadequate (under the federal
constitution) because waiver of a right to an attorney was not knowing and
intelligent. 656 N.W.2d at 121. Our supreme court ruled that a defendant must be
advised specifically that waiving counsel’s assistance “in deciding whether to plead
guilty” (1) entails “the risk that a viable defense will be overlooked” and (2) deprives
them of “the opportunity to obtain an independent opinion on whether, under the
facts and applicable law, it is wise to plead guilty.” Id. The United States Supreme
Court held
neither warning is mandated by the Sixth Amendment. The
constitutional requirement 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.
Tovar, 541 U.S. at 81.
2 Hawkins argued:
The most likely language and what we believe would be the most
appropriate language is still the Tovar—State vs. Tovar case
language; but even if this court believes that, well, we’ve got a clear
U.S. Supreme Court case that says that’s not part of the federal
constitution, and according to the State in this case no Iowa case
that says it should be part of the Iowa constitution—which after
reading [State v. Hannan, 732 N.W.2d 45 (Iowa 2007)] we
respectfully disagree—we still believe that Hannan sets out a clear
statement on page fifty-three that a sufficient colloquy for waiving
an attorney at least references in some way possible defenses to a
charge and circumstances in mitigation.
(Emphasis added.)
5
what he is doing and his choice is made with eyes open.” Hawkins continued with
arguments referencing the Iowa Constitution, and the trial court noted
Now, I believe the Tovar case sets a lower standard than obviously
Justice [Ternus] raised in the initial Tovar decision by the Iowa
Supreme Court. Our Iowa Supreme Court has also shown that it is
not bound just by the U.S. Constitution in protecting an individual’s
rights, that they will proceed under the Iowa Constitution which has
been alleged here also; but at this stage I will find that the State can
use that, so I’ll deny your request.
(Emphasis added.)
So, we address the waiver issue under both the United States and Iowa
Constitutions. State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (finding an
argument, even one implicating constitutional rights, is preserved when it is raised
and decided by the trial court).
Generally, we review constitutional claims de novo. State v. Majeres, 722
N.W.2d 179, 181 (Iowa 2006). But, as is the case here, where there is no factual
dispute and the only issue is whether a court may constitutionally use a prior
uncounseled misdemeanor conviction to enhance a subsequent crime, our review
is for the correction of errors at law. Id.
Analysis.
Hawkins waived counsel for his 2007 guilty plea proceeding. Under both
the United States Constitution and the Iowa Constitution, at critical stages of the
criminal process an accused has the right to counsel. Id. at 182. And a plea
proceeding is a critical part of the process. Id. But a defendant may waive the
right to counsel. Id. With this focus here on Hawkins’s uncounseled conviction,
he had the burden to show that his waiver of counsel was not knowingly and
intelligently made with sufficient awareness of relevant circumstances. Id. at 182;
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see also State v. Taylor, No. 10-1555, 2011 WL 3689010, at *2 (Iowa Ct. App. Aug.
24, 2011) (clarifying that the burden of proof depends on whether there is a direct
challenge to a conviction, in which case the State has the burden, or if it involves
an attack on an uncounseled conviction, then the defendant has the burden to
show involuntary waiver). Still when waiver of counsel is at the plea stage of
proceedings, as opposed to the trial stage, the defendant “requires less rigorous
warnings as to the waiver of plea counsel.” Majeres, 722 N.W.2d at 182.
To put it simply, Hawkins argues the colloquy required at the time of his
2007 plea had to include notice that a plea to OWI might be used as an
enhancement for future convictions and he should have been told that an attorney
would be able to “see things you could not see as a layperson.” While Hawkins
urged that Hannan controls and requires the court to both admonish a defendant
as to the usefulness of an attorney and address the dangers of continuing without
counsel, that case involved a defendant representing himself pro se at the trial
stage. See 732 N.W.2d at 52–53. We find that at the plea stage, Majeres is
applicable rather than Hannan.
Majeres also faced a third-offense OWI charge. Majeres, 722 N.W.2d at
181. In the first-offense case she pled guilty with the guidance of legal counsel.
Id. But, by written guilty plea, Majeres pled guilty to an OWI, second offense,
without the benefit of an attorney. Id. Her written plea “acknowledged the charge
against her as OWI, second offense; her right to counsel; her right to plead not
guilty; the attendant rights of trial; the maximum and minimum sentences; and that
her plea was being made intelligently and voluntarily.” Id. When faced with an
enhanced punishment for her third-offense OWI, Majeres argued that the
7
uncounseled OWI, second offense, could not be used to enhance the charge to
OWI, third offense. Id. Disagreeing with her position, the court in Majeres found
Majeres failed to meet her burden of proving she did not voluntarily,
knowingly, and intelligently waive her right to counsel in the Sioux
County proceeding. In the present case, Majeres testified she did
not have the money for an attorney and decided not to apply for
court-appointed counsel in the Sioux County proceeding. When
questioned why she did not apply for court-appointed counsel, she
responded, “I didn’t feel I wanted one or needed one.” Prior to
entering her plea of guilty in that case, Majeres obtained a copy of
the police report and reviewed it. She acknowledged there was
nothing in the police report that led her to believe she wanted to
speak to an attorney prior to entering her guilty plea. She further
testified she was comfortable in proceeding on her own without an
attorney.
Id. at 183. Even though the supreme court analyzed the waiver issue under the
United States Constitution instead of our state constitution, it was noted that the
Iowa Constitution was in line with the United State Constitution regarding the use
of uncounseled misdemeanor convictions. Id. at 182 (“Iowa’s right-to-counsel
guarantee affords no greater protection than the federal constitution regarding the
use of prior uncounseled misdemeanor convictions . . . .”). When the trial court
informs the defendant of the nature of the charges against that person, of their
right to be counseled regarding their plea and about the range of allowable
punishments the Sixth Amendment is satisfied. Id. Majeres received those
protections in her written plea agreement. And Hawkins received those same
protections at his 2007 plea proceeding. Because the written plea agreement,
which does not require informing the defendant of the dangers and disadvantages
inherent in self-representation is acceptable, the open courtroom colloquy
involving Hawkins is also acceptable.
8
Based on the reasoning above, we find Hawkins’s 2007 plea proceeding
met the requirements of the Sixth Amendment to the United States Constitution
and article I, section 10 of the Iowa Constitution. Thus, the prior uncounseled plea
to a misdemeanor that resulted in incarceration may be used to enhance the
offense in this present criminal proceeding.
Conclusion.
We affirm the trial court ruling.
AFFIRMED.