Opinion
No. 3-512 / 02-1201
Filed September 24, 2003
Appeal from the Iowa District Court for Mahaska County, Annette J. Scieszinski, Judge.
The defendant appeals his conviction and sentence for forgery. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Linda Del Gallo, Appellate Defender and David Adams, Assistant Appellate Defender, for appellant.
Steven M. Cooley, Fort Madison, pro se for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Harold Denton, County Attorney, and Charles Stream, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
The State charged Steven Cooley with forgery, and sought to enhance his sentence based on two prior convictions. Iowa Code§§ 715A.2, 902.8 (2001). Cooley, no stranger to the legal system, represented himself. The jury found him guilty and the State proceeded to the sentencing enhancement phase. Cooley admitted he was convicted of crimes in 1978 and 1986. He argued, however, that the 1978 conviction could not be used to enhance his sentence because he represented himself in that proceeding and the district court did not ensure he validly waived his right to counsel. The district court rejected this argument, pointing to a reference in the certified copy of the 1978 order that Cooley appeared with counsel. On appeal, Cooley reasserts his challenge to the use of this conviction for enhancement purposes. He also contests the sufficiency of the evidence supporting his forgery conviction and raises issues concerning the merger of court files and credit for time served before the forgery charge was filed. We affirm in part, reverse in part and remand.
I. Use of Prior Conviction.
Cooley presciently raises an issue recently considered and decided by our highest court. In State v. Tovar, 656 N.W.2d 112, 121 (Iowa 2003), the court held that the Sixth Amendment to the United States Constitution requires a district court to ensure that defendants who choose to represent themselves in plea proceedings have made a knowing and voluntary waiver of their right to counsel. The court further held that convictions obtained in violation of this precept cannot be used to enhance a current charge. Id. Tovar is legally controlling.
The only remaining question is a factual one: whether Cooley indeed represented himself in the 1978 proceeding. The answer to this question turns on the parties' respective burdens. See State v. Draper, 457 N.W.2d 606, 610 (Iowa 1990); State v. Nelson, 234 N.W.2d 368, 375 (Iowa 1975). Draper and Nelson hold that the State may rest on documentary evidence to establish that a defendant was represented by an attorney in prior proceedings on which an enhancement is based. Id. The defendant may then present a prima facie case that those proceedings were constitutionally infirm. Draper, 457 N.W.2d at 610. If the defendant does so, the burden shifts back to the State to rebut that evidence. Nelson, 234 N.W.2d at 375.
In Tovar, there was no disagreement that the defendant represented himself in the prior proceeding. 656 N.W.2d at 114.
The State introduced the 1978 order imposing judgment and sentence on Cooley. Cooley then took the stand and testified that the attorney named in the order served only as standby counsel, and that he represented himself. He also stated that the district court in the 1978 case did not engage in a colloquy concerning "the harms and disadvantages of representing" himself. The State responded by again pointing to the language of the order. The named attorney was not called as a witness nor was a transcript of the 1978 proceeding introduced to show either that Cooley was represented by counsel or that he knowingly and intelligently waived his right to counsel following a colloquy with the district court. On this record, Cooley's assertion that he had no counsel and did not knowingly and voluntarily waive his right to counsel in the 1978 proceeding must prevail.
Pursuant to Tovar, the conviction resulting from the 1978 proceeding may not be used to enhance Cooley's current sentence. We reverse and remand for entry of judgment without consideration of Cooley's 1978 conviction.
II. Sufficiency of the Evidence.
Cooley contends the evidence was insufficient to support the jury's guilty verdict on the forgery charge. "We will uphold a verdict if substantial record evidence supports it." State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001).
The jury was instructed that the State would have to prove the following elements of forgery:
1. On or about March 5, 2001, Steven Melvin Cooley uttered a check on the account of David or Kristin Heutmaker, at the Horizon Bank in Oskaloosa, Mahaska County, Iowa.
2. Steven Melvin Cooley knew the check had been altered without the permission of an account owner, so that the check would appear to be the act of an account owner.
3. Steven Melvin Cooley
a. Specifically intended to defraud or injure the Heutmakers or Horizon Bank, or
b. had knowledge that he was facilitating a fraud or an injury to be perpetrated by another.
A jury reasonably could have found that Kristin Heutmaker made out check number 1111 to her mortgage company for $19. She mailed the check, but the mortgage company did not receive it. An investigation revealed that Cooley, a man unknown to the Heutmakers, presented check number 1111 to Horizon Bank. The check was made out to himself in the amount of $419. Before cashing the check, the bank confirmed Cooley's identity by copying his driver's license. The bank retained the copy with its check-cashing ticket. These facts constitute substantial evidentiary support for the jury's verdict.
III. Disposition.
We find sufficient evidence to support the forgery conviction. We conclude the district court should not have enhanced Cooley's sentence with the 1978 conviction. We reverse the district court's judgment and remand for entry of judgment without consideration of Cooley's 1978 conviction. Cooley's remaining arguments lack merit.