Opinion
No. 4-744 / 03-1181
Filed December 22, 2004
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge (waiver of counsel), and Nathan A. Callahan, District Associate Judge (trial).
Nanette Horton appeals her conviction for possession of a controlled substance, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Heather Prendergast, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
I. Background Facts Proceedings
On December 2, 2002, a Waterloo police officer picked up Nanette Horton on a Johnson County warrant. At the Black Hawk County Jail officers found a crack pipe with residue in Horton's purse. On December 4, 2002, Horton was charged with possession of a controlled substance (cocaine), third offense, in violation of Iowa Code section 124.401(5) (2001).
Horton did not waive her right to a speedy trial. Her trial was originally scheduled for February 11, 2003. Horton requested a continuance, and trial was rescheduled for February 25, 2003. At a pretrial hearing on February 21, 2003, Horton indicated she intended to plead guilty, and the guilty plea hearing was set for March 13, 2003. Horton then filed a pro se motion asking for new counsel, and the combined matters were set for March 24, 2003.
At the guilty plea hearing, Horton changed her mind and requested a jury trial. She also stated she wanted to represent herself. During a hearing held on March 28, 2003, the court held a lengthy colloquy:
Q. All right. And first, how old are you? A. Forty-one years old.
Q. And then you also gave an educational background the last time we were in court, and as I recall you had two years at UNI College and also two other years at a community college, and I think you also took about some six or eight months or correspondence course as a paralegal; is that correct? A. Yes, Your Honor, that seems about right.
. . . .
Q. All right. Have you ever been hospitalized for any mental condition? A. Oh, yes.
Q. For what? A. My first classification was schizophrenic bi-polar, manic depressive.
Q. All right. And have you ever been addicted to drugs in the past or present or alcohol? A. Yes, I first started using drugs when I was thirteen years old.
Q. All right. And what drugs are you using? A. My primary drug of choice is marijuana.
Q. Are you presently on any medication? A. No. . . .
. . . .
Q. You know what the charge is against you; is that correct? A. Yes, possession of controlled substance.
Q. Yes, third offense. And so that carries with it a maximum of five years in prison and/or a $7500 fine with a mandatory minimum of $750 fine. In addition, you would be assessed a $125 law enforcement fee and a $10 DARE fee and you would lose your driver's license for 180 days if convicted. . . . Do you understand that? A. Yes, Your Honor.
Q. And you understand — I don't know what your record is — but if you have any significant record, that it's highly likely that a Court may incarcerate you on that charge, do you understand, send you to prison. A. Yes, for the possession charge, yes. Yes, Your Honor.
Q. All right. And — and that you understand that perhaps you are not in as good a position as your attorney might be in to argue various aspects of this, perhaps if not to beat the charge, at least to get it to a lesser included offense, and you might not be aware of how to do that. Do you understand that? A. Yes, Your Honor.
Q. And the attorney's role — And I don't think you have — Have you ever been through a trial yourself? A. I believe I think I might have been just one time.
Q. All right. Well, if you've been through a trial at least you have seen it once. But in essence, the attorney would have to conduct your defense, issue subpoenas for witnesses if there were going to be any witnesses. The attorney would be doing what's called voir dire, which is to ask questions of the jury, cross-examination of witnesses, in other words, asking questions of witnesses. He would be objecting to the evidence. He would be able to exercise discovery, handle subpoenas and pretrial and trial motions and presentation of your defense and give an opening and closing statement to the jury, all of which require some expertise and training. Do you understand that? A. Yes, Your Honor.
Q. And so you understand that you're not at as good of an advantage to do that as a person who is actually trained in that field? A. Yes, Your Honor.
. . . .
Q. . . . But do you understand that an attorney might have a better idea of the strategy to use in selecting a jury? A. Well, I guess if you say so.
. . . .
Q. You further understand that once the trial begins the Court will not interject on your behalf and is not going to assist you because it wouldn't be fair to the State if the Court were to do that, that you are going on your own as far as the procedures of the courtroom and what you have to accomplish. Do you understand that? A. Yes, Your Honor.
The court then granted Horton's request to waive counsel, and stand-by counsel was appointed.
The court also considered Horton's pro se motion to suppress on March 28, 2003. The court denied the motion, and trial remained set for April 1, 2003. Horton's standby counsel was unavailable that day, and trial was rescheduled for April 8, 2003. Horton failed to appear for trial, and a warrant was issued for her arrest. After she appeared on April 10, 2003, trial was set for April 15, 2003. Prior to April 15, 2003, Horton asked for different standby counsel. At a hearing on April 16, 2003, she also stated she was not ready to go to trial. On Horton's request, the court continued the matter for thirty days and appointed new standby counsel. The case was rescheduled for May 20, 2003, on stand by. The case was not reached on May 20, 2003, and Horton consented to a continuance to May 27, 2003. The trial was held on that date.
Horton was convicted of possession of cocaine as an habitual offender. She was sentenced to a term of imprisonment not to exceed five years. She now appeals.
II. Waiver of Counsel
Horton contends the district court did not adequately determine whether her waiver of the right to counsel was knowing and intelligent. She claims State v. Spencer, 519 N.W.2d 357, 360 n. 1 (Iowa 1994), sets forth a mandatory colloquy which the court failed to follow. Our review of this constitutional issue is de novo. State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997).
Under the Sixth and Fourteenth Amendments, a defendant has the right to self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975). "[I]n order to represent oneself, an accused must knowingly and intelligently forgo those relinquished benefits. Id. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581. A court should engage in a colloquy with a defendant to "provide fair notice of the obstacles inherent in self-representation before an accused embarks on so perilous an endeavor." State v. Cooley, 608 N.W.2d 9, 16 (Iowa 2000).
In Spencer, 519 N.W.2d at 360 n. 1, the Iowa Supreme Court noted a model colloquy which was found in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986), as well as in United States v. McDowell, 814 F.2d 245, 251-54 (6th Cir), cert. denied, 484 U.S. 980, 108 S. Ct. 278, 98 L. Ed. 2d 492 (1987). The court found the colloquy in Spencer, which did not follow the model, was proper in that case. 519 N.W.2d at 360 n. 1. In State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000), the supreme court again noted these model colloquies, and also noted an "excellent model" found in the Iowa Bench Book, 5-37 to 5-41 (1999). The court stated, "We suggest either model inquiry in forced-choice situations such as the one here." Martin, 608 N.W.2d at 450 (emphasis added). It is clear these models are suggestions, and are not mandatory.
The only requirements for a colloquy are those which our supreme court has set forth as follows:
To be valid such waiver must be made with an apprehension of 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. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
Cooley, 608 N.W.2d at 15 (quoting Van Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 323, 92 L. Ed. 2d 309, 321 (1948)). A defendant should also be admonished as to the usefulness of an attorney at that particular proceeding and made cognizant of the danger in continuing without counsel. Id. (citing Patterson v. Illinois, 487 U.S. 285, 298, 108 S. Ct. 2389, 2398, 101 L. Ed. 2d 261, 276 (1988)). These matters were all discussed with Horton by the district court.
Horton also claims her history of mental illness and substance abuse rendered her incompetent to waive counsel. The record shows, however, that Horton was able to participate in and understand the proceedings. The district court specifically inquired into these matters, and concluded Horton validly waived her right to counsel. Considering the record as a whole, we determine Horton's waiver of counsel was knowing, voluntary, and intelligent.
III. Speedy Trial
Horton claims the district court erred by overruling her motion to dismiss for lack of a speedy trial. In a pro se motion filed on March 4, 2003, Horton asserted the case should be dismissed on speedy trial grounds. At the time Horton was represented by counsel, and the court did not consider her motion. See United States v. Swinney, 970 F.2d 494, 498 (8th Cir. 1992) (noting a defendant cannot utilize the full assistance of counsel and at the same time attempt to act pro se). In a hearing on March 24, 2003, the district court informed Horton that while she was represented by counsel she should have counsel file motions for her. The court stated that if Horton represented herself, she could refile her motion. Although shortly thereafter, on March 27, 2003, the court granted Horton's request for self-representation, she never refiled her motion to dismiss on speedy trial grounds. We conclude this issue has not been preserved for our review because the district court never ruled upon it. See State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997) (noting issues must be presented to and passed upon by the district court before they can be raised and decided on appeal).
In the alternative, Horton asserts that if we determine error has not been preserved on this issue, then she received ineffective assistance due to counsel's failure to preserve this issue for our review. The problem with Horton's assertion is that she exclusively represented herself on the speedy trial issue. "[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Faretta, 422 U.S. at 833 n. 46, 95 S. Ct. 2541 n. 46, 45 L. Ed. 2d at 581 n. 46.
Even if we were to find that error had been preserved on this issue, the delays in bringing the case to trial were due to Horton and not the State. There is no speedy trial violation if the delays in bringing a case to trial were due to the defendant. See State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001); State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980).
IV. Ineffective Assistance
We have already addressed Horton's ineffective assistance claim in regard to her speedy trial issue. Horton also asserts that if we were to determine that her issue regarding waiver of counsel had not been preserved, then this was due to ineffective assistance of counsel. We have addressed this issue on the merits, and therefore need not address her ineffective assistance claims.
We affirm Horton's conviction.