State v. Moe, 84-1929
| Decision Date | 18 December 1985 |
| Docket Number | No. 84-1929,84-1929 |
| Citation | 379 N.W.2d 347 |
| Parties | STATE of Iowa, Appellee, v. Kevin Delon MOE, Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Appellate Defender, and Deborah A. Goins, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Ann DiDonato, Asst. Atty. Gen., Mary E. Richards, County Atty. and Paul Crawford, Asst. County Atty., for appellee.
Considered en banc.
Defendant appeals from his conviction of second offense operating a motor vehicle while under the influence of intoxicants (OWI), an enhanced-punishment offense provided for in Iowa Code section 321.281 (1983). The trial court found that defendant's 1980 conviction of first offense OWI could be used to raise to second offense status his 1984 conviction of OWI, because defendant had validly waived his right to counsel before entering a plea of guilty in 1980. Defendant contends that his conviction of OWI in 1980 could not be used for enhancement purposes because it was based on an uncounseled plea of guilty. Defendant also contends that if an uncounseled plea can be used for enhancement purposes when there has been a valid waiver of the right to counsel, this record does not establish such a waiver. We find defendant's contentions without merit and affirm.
In 1980 the Story County attorney charged defendant by information with first offense OWI, a serious misdemeanor carrying possible incarceration of one year. Iowa Code § 321.281 (1979). Defendant appeared before the district court, engaged in a colloquy with the court concerning his constitutional rights, and tendered a guilty plea on which he was convicted.
In 1984 the county attorney charged defendant with another OWI offense, this time second offense OWI which is an aggravated misdemeanor carrying possible incarceration of two years and a minimum period of incarceration of seven days. Iowa Code § 321.281(2)(b) (1983). Defendant moved to strike the allegation of second offense OWI on the ground he was uncounseled in the first prosecution, but the court received evidence and then denied that motion. After a bench trial the trial court found defendant guilty of OWI based on the facts of the 1984 incident, then also found that the violation was a second offense because of the 1980 conviction. Defendant was sentenced to seven days in jail, required to perform 100 hours of community service, and assessed with court costs.
Defendant does not challenge his 1984 conviction of OWI but contends that the 1980 uncounseled guilty plea could not be used to raise it to second offense status. He contends no uncounseled plea of guilty can be used to enhance punishment, regardless whether the right to counsel was validly waived. Alternatively he contends that the record of the 1980 proceedings does not establish a valid waiver of counsel. We address first the question whether the absence of counsel in the 1980 proceeding was itself fatal to enhancement of the second OWI offense, regardless whether there was a valid waiver of counsel; we then address the question whether the defendant validly waived counsel in that 1980 proceeding.
I. Defendant's primary contention is that no uncounseled plea may be used to enhance punishment for a subsequent offense, regardless whether defendant validly waived counsel, because an uncounseled plea is fundamentally unreliable. On this issue defendant relies entirely on State v. Cooper, 343 N.W.2d 485 (Iowa 1984). There the indigent defendant Cooper had twice previously been convicted of theft without being represented by counsel or advised of her right to appointed counsel. When Cooper was again charged with theft, a simple misdemeanor in this instance because the value of the property did not exceed $50, the State sought conviction of the enhanced offense of theft in the third degree, an aggravated misdemeanor, for theft "by one who has before been twice convicted of theft." Iowa Code § 714.2(3) (1983). Our court affirmed dismissal of that enhanced charge. We based our decision on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), where the Court held that absent a waiver of counsel an uncounseled prior misdemeanor conviction could not be used to convert a subsequent misdemeanor into a felony carrying a prison term.
Defendant concedes that both Baldasar and Cooper involved defendants who had not been advised of their right to court-appointed counsel, so neither case reached the question whether uncounseled pleas could be used for enhancement purposes when the right to counsel had validly been waived. Defendant relies, however, on language in Cooper in which we emphasized the "lack of reliability in an uncounseled conviction" which would prevent both imposition of incarceration on the first charge and enhancement of a subsequent charge. Cooper, 343 N.W.2d at 486. Defendant urges us "to extend [Cooper ] beyond the minimal requirement set by Baldasar," but we choose not to do so.
The constitutional right to counsel may be waived. See Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 794, 9 L.Ed.2d 799, 802 (1963). When a defendant has validly waived the right to be represented by counsel, the defendant has not only given up a constitutional right but at the same time exercised another right of constitutional dimension, the right to represent oneself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, (1975) (); State v. Simon, 297 N.W.2d 206, 208 (Iowa 1980) (). If we were to accept defendant's argument we would be countenancing anomalous results. First offense OWI defendants could simply exercise their constitutional right not to be represented by counsel and thus avoid conviction at a later time of second or third offense OWI because their prior convictions were in fact uncounseled.
Defendant's contention here was not spoken to in Cooper. Addressing it now, we hold that uncounseled prior convictions may be used for enhancement purposes in subsequent proceedings when the defendant validly has waived the right to counsel in the earlier proceedings.
II. In his reply brief defendant contends for the first time that he did not knowingly and voluntarily waive his right to counsel in the first OWI proceeding, therefore his plea of guilty and conviction in 1980 may not be used to enhance the 1984 OWI charge. Although there is serious doubt whether defendant challenged the validity of his waiver before the trial court in this proceeding so as to preserve error, we pass that question and address the merits of his argument.
Defendant stakes his claim of error on the unsatisfactory state of the record in the 1980 proceeding, contending that the trial court informed him only that counsel would be provided him at trial and not that he had the right to court-appointed counsel at the plea and sentencing stages of the proceeding. Defendant points to a contextual ambiguity in the transcript of the 1980 plea proceeding, arguing that the court advised him of his right to counsel only in the context of his right to a jury trial. The transcript of that colloquy reads:
Q. (The Court) You understand if you sit here now and tell me you want to plead not guilty, I will set this down for a trial and unless you waive jury trial, it will be a trial by jury and it will be a public trial and it will be within the next 90 days? A. (Defendant) I understand.
Q. Do you understand an attorney would be provided for you at public expense if you are indigent? A. I understand.
Q. Do you understand if you plead not guilty, you have a privilege against self-incrimination and you would not be required to testify at your trial? A. I understand.
(Emphasis added.)
In deciding whether defendant intelligently and voluntarily waived his right to be represented by counsel in that proceeding, we may properly consider more in this record than that part of the colloquy itself. The record made when testimony was taken in this 1984 proceeding may be used to amplify the record made at the time of the taking of the guilty plea in 1980. See State v. Gillespie, 271 N.W.2d 686, 689 (Iowa 1978) (); Adams v. State, 269 N.W.2d 442, 445 (Iowa 1978) (). The United States Supreme Court has explained that the state may rely on extrinsic evidence to establish facts which are absent from the record of a plea proceeding itself. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962):
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
(Emphasis added.)
The record in this case--including not only the transcript of the first criminal proceeding but also testimony of the defendant in this second proceeding--shows that defendant knowingly and validly waived his right to counsel before pleading guilty to first offense OWI. We know from the transcript of the first proceeding--the colloquy between the court and defendant quoted above--that defendant understood before he pleaded guilty that an attorney would be provided for him at public expense if he were indigent. We also know he was advised of his many other constitutional rights, including his right to a jury trial. The entire colloquy was in the context not just of his rights in the event of a trial but what the court stated as a preface to the colloquy:
I won't accept your plea of guilty...
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