Opinion
No. 5-316 / 04-0573
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
David Kiarie Njenga appeals following his conviction for operating while intoxicated, second offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins and Sheryl A. Soich, Assistant Attorneys General, John P. Sarcone, County Attorney, and Romonda D. Belcher, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Zimmer, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Defendant David Kiarie Njenga appeals from the judgment and sentence imposed following his conviction for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2003). He claims his waiver of counsel during a guilty plea to an OWI offense in Minnesota in 2001 was inadequate under the Iowa Constitution. Njenga argues his Minnesota conviction should not have been used to enhance his subsequent OWI conviction in Iowa. We affirm.
I. Background Facts Proceedings
On November 7, 2003, a police officer observed a car being driven well above the speed limit in Clive, Iowa. The officer followed the car into a parking lot and pulled in behind it. The officer planned on giving the driver a verbal warning for speeding. However, before that could happen, the driver parked his vehicle in a no-parking zone and ran away. Following a brief foot chase, the officer apprehended the driver, who was later identified as David Njenga. The officer arrested Njenga for interference with official acts and driving while suspended. Further investigation revealed that Njenga had been driving while intoxicated.
On December 8, 2003, the State filed a trial information formally charging Njenga with OWI, second offense. Njenga filed a Motion to Strike Prior Conviction. He argued that his prior OWI conviction in Minnesota could not be used to enhance his current offense because it was the result of an uncounseled guilty plea for which there was an invalid waiver of counsel. Following a hearing, the district court denied Njenga's motion.
The State alleged that Njenga had been previously convicted of OWI in Minnesota on December 31, 2001.
On March 26, 2004, Njenga waived his right to a jury trial and proceeded to a bench trial on the minutes of testimony. The district court found Njenga guilty as charged and sentenced him to two years in prison with all but seven days suspended. Njenga was also placed on supervised probation for two years and was ordered to participate in any recommended programming and treatment. This appeal followed.
II. Scope of Review
Because this appeal turns on a constitutional issue we review the record de novo and evaluate the totality of the circumstances. State v. Nelson, 390 N.W.2d 589, 591 (Iowa 1986).
III. Discussion
On appeal, Njenga reasserts his claim that his 2001 OWI conviction in Minnesota cannot be used to enhance his current offense to second-offense OWI because his plea of guilty in the Minnesota case was uncounseled. He argues the Minnesota court did not conduct the inquiry required for a valid waiver of counsel under the Iowa Constitution. We find no merit to Njenga's challenge to his current judgment and sentence.
In State v. Tovar, 656 N.W.2d 112 (Iowa 2003), overruled by Iowa v. Tovar, 541 U.S. 77, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004), our state supreme court set forth the admonitions a court is required to give to an accused in order to obtain a valid waiver of counsel. Njenga acknowledges the United States Supreme Court subsequently held that the Sixth Amendment of the United States Constitution did not require two of those admonitions. Nevertheless, Njenga invites us to hold that the Iowa Constitution requires prior uncounseled pleas to include all of the admonitions required by State v. Tovar and therefore confers a greater right to counsel than the Sixth Amendment.
In Iowa v. Tovar, the United State Supreme Court held that the Sixth Amendment, which guarantees an accused the right to legal representation, does not require: (1) advising the defendant that waiving assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked or (2) advising the defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.
In response, the State suggests that a recent decision from our supreme court, State v. Allen, 690 N.W.2d 684 (Iowa 2005), compels a different result. In Allen, our supreme court declined "to interpret the Iowa Constitution to afford more protection than the federal constitution with respect to the use of prior uncounseled misdemeanor convictions." Id. at 690. The supreme court specifically held that the "Iowa Constitution does not forbid the use of a prior uncounseled misdemeanor conviction for enhancement of a later conviction, so long as the defendant was not incarcerated for the prior conviction." Id. at 693. Based on our supreme court's pronouncements in Allen, we conclude Njenga was not entitled to any more protection than the Sixth Amendment provides. Accordingly, we decline Njenda's invitation to conclude that Article I, section 10 of the Iowa Constitution requires the colloquy set forth in State v. Tovar for waiver of counsel purposes.
The Allen court analyzed the state constitutional rights to counsel and due process. See Iowa Const. Art. I, § 9 and 10.
In this case, the record reveals that Njenga's previous uncounseled OWI conviction in Minnesota was a misdemeanor and he was not incarcerated for his prior offense. Accordingly, we believe it is irrelevant under the circumstances of this case whether there was a valid waiver of counsel in the Minnesota proceedings for purposes of enhancement of Njenga's Iowa OWI offense. State v. Wilkins, 687 N.W.2d 263, 264-65 (Iowa 2004). However, the State concedes this ground for affirming the district court was not argued at the hearing on the defendant's motion to strike. Accordingly, the State acknowledges it is precluded from raising the issue of whether the right to counsel ever attached because of our supreme court's holding in State v. DeVoss, 648 N.W.2d 56, 63 (Iowa 2002). As a result, we believe it is necessary to address the issue of Tovar's application to the Iowa Constitution.
We also conclude that the record fails to demonstrate an invalid waiver of counsel occurred during the 2001 guilty plea proceedings in Minnesota. The United States Supreme Court in Iowa v. Tovar, 540 U.S. at 78, 124 S. Ct. at 1381, 158 L. Ed. 2d at 160, stated:
The constitutional requirement [for waiver of counsel] 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 the range of allowable punishments attendant upon the entry of a guilty plea.
The record shows that Njenga was told of and understood his right to counsel, the elements of the offense, and the punishment he faced in 2001. Njenga filed a written plea petition which referred to his waiver of counsel. His plea colloquy with the court addressed the waiver of counsel. He also watched a video before pleading guilty which addressed his rights. We find that Njenga failed to show that his waiver of counsel was invalid.
The video is not part of the record in this case.
We conclude the district court correctly used Njenga's previous OWI conviction in Minnesota to enhance his present offense to OWI, second offense.