Opinion
No. 3-828 / 02-1555.
Filed December 10, 2003.
Appeal from the Iowa District Court for Cherokee County, Frank B. Nelson, Judge.
Blake Tripp appeals his conviction for operating while intoxicated, second offense. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Mark Cozine, County Attorney, and John Wibe, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts Proceedings
Blake Trapp was convicted of operating while intoxicated (OWI), first offense, in 1997 after a jury trial in which he represented himself. On direct appeal from that conviction we rejected Trapp's claim that he had not made a valid waiver of his right to counsel and affirmed his conviction. State v. Trapp, No. 97-2055 (Iowa Ct.App. Oct. 29, 1998).
Trapp was charged with OWI, second offense, in June 2002. Trapp again asserted his right to self-representation. He also filed a written waiver of his right to a jury trial. At the commencement of his trial, the trial judge engaged Trapp in the following colloquy:
COURT: Mr. Trapp, you have been appearing pro se, that is without counsel. You understand that you're entitled to be represented by an attorney in this proceeding?TRAPP: Yes, sir.
COURT: And do you still wish to waive your right to have an attorney represent you?
. . . [discussion of a motion for a bill of particulars filed by Trapp]
COURT: That still does not completely answer my questions concerning your right to have an attorney, Mr. Trapp. Once again, you do understand that you do have the right to have an attorney? TRAPP: Yes, sir, I do.
COURT: And if I'm correct in my understanding of the history, you had a previous trial here where you were also not represented by counsel? TRAPP: Yes, sir.
COURT: And in the appeal one of the issues you raised was the fact that you were not adequately advised concerning your right to counsel. TRAPP: Yes, sir.
COURT: Is that not correct? TRAPP: Yes, sir. If you would like to read it —
COURT: I have read it. TRAPP: Okay. Thank you, sir.
COURT: Now are we going to run into the same problem here? TRAPP: No, sir.
COURT: Are we going to go through a trial and then have you say you weren't adequately advised as to your right to have counsel? TRAPP: No, sir.
COURT: Okay. I guess I can't preclude you from raising that issue, but you understand that? You thoroughly do understand that you have the right to have a lawyer? TRAPP: Yes, sir.
COURT: And you understand if you can't afford a lawyer, you can apply to have one appointed at State expense? TRAPP: Yes, sir.
After the ensuing bench trial, the trial judge found Trapp guilty and entered appropriate orders disposing of posttrial matters and setting a date for sentencing.
At the sentencing hearing, the State recommended that Trapp be sentenced to two years in prison, with all but seven days suspended, and that he be placed on probation. Upon hearing this recommendation, Trapp asked to have an attorney appointed to represent him. The court then appointed counsel to represent Trapp and continued the sentencing hearing to a later date. After the sentencing hearing, the trial judge entered a judgment of conviction and imposed the sentence recommended by the State.
On appeal Trapp argues: (1) he was denied his Sixth Amendment right to counsel because he did not make a knowing, intelligent, and voluntary waiver of his right to counsel and (2) he was denied his constitutional right to a jury trial because he did not make a knowing, intelligent, and voluntary waiver of his right to a jury trial.
II. Standard of Review
Constitutional challenges are reviewed de novo. State v. Stephenson, 608 N.W.2d 778, 782 (Iowa 2000). We consider the totality of the circumstances. State v. Bowers, 656 N.W.2d 349, 352 (Iowa 2002).
III. Right to Counsel A. Error Preservation
The State claims Trapp failed to preserve error on his claim that he did not validly waive his right to counsel. The State asserts that in his colloquy with the district court, Trapp agreed not to raise this issue on appeal. The court asked, "Now are we going to run into the same problem here?" referring to Trapp's previous appeal, and Trapp responded, "No, sir."
We determine Trapp's acquiescence with the court's statement does not amount to a waiver of his right to raise this issue on appeal. In fact, the court recognized, "I guess I can't preclude you from raising this issue. . . ." Furthermore, even if Trapp had waived his right to appeal on this issue, there is no showing that his waiver was voluntary, knowing and intelligent. See State v. Loye, 670 N.W.2d 141, 147-48 (Iowa 2003). B. Voluntary Waiver
There was no inquiry by the court concerning whether Trapp knew he had the right to appeal, whether he voluntarily waived that right, and whether he knew the consequences of giving up the right. See Loye, 670 N.W.2d at 148.
A defendant has the right, under the Sixth and Fourteenth Amendments, to self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975). Our supreme court has noted:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent oneself, an accused must knowingly and intelligently forgo those relinquished benefits.
State v. Cooley, 608 N.W.2d 9, 14 (Iowa 2000) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L. Ed.2d at 581). In addition, a defendant's request to proceed without counsel must be "clear and unequivocal." State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997); see also Loye, 670 N.W.2d at 148 (stating the waiver of a constitutional right must be voluntary, knowing, and intelligent).
Before a trial court accepts a defendant's request to proceed pro se, the court must make the defendant "aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Rater, 568 N.W.2d at 658 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L. Ed.2d at 582 (citation omitted)). To this end, some sort of meaningful colloquy must be accomplished. Patterson v. Illinois, 487 U.S. 285, 298, 108 So. Ct. 2389, 2398, 101 L.Ed.2d 261, 276-77 (1988). In Cooley, the supreme court set forth these requirements:
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 Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed.2d 309, 321 (1948)). At a minimum, a defendant must be admonished as to the usefulness of an attorney at the particular proceeding, and made cognizant of the danger of continuing without counsel. State v. Tovar, 656 N.W.2d 112, 117 (Iowa), cert. granted, ___ U.S. ___ (2003).
The State has the burden of proving the waiver was valid. Rater, 568 N.W.2d at 660. While the district court engaged in a colloquy with Trapp, as set out above, the colloquy was not sufficient under the requirements of Cooley, 608 N.W.2d at 15. Additionally, Trapp was not admonished as to the usefulness of an attorney at that particular proceeding, or made cognizant of the danger of continuing without counsel. See Tovar, 656 N.W.2d at 117. A waiver that is not voluntary and intelligent cannot be accepted. Cooley, 608 N.W.2d at 15 (citing Godinez v. Moran, 509 U.S. 389, 401-02, 113 S.Ct. 2680, 2688, 125 L.Ed.2d 321, 334 (1993)). We conclude there was an insufficient constitutional inquiry by the district court in this case.
C. Harmless Error
The State argues that even though there may not have been a full colloquy in this case, Trapp's waiver should still be considered knowing and intelligent because of his previous experience representing himself in his first OWI case. The State notes Trapp would know the dangers of representing himself because he had done so in the past. The State also points out that Trapp knew how to request an attorney when he wanted one, as shown by the sentencing proceedings.
In Rater, as in this case, the State supported its argument by pointing out that the defendant was familiar with the legal process, and that he had sufficient intelligence and education to represent himself. Rater, 568 N.W.2d at 659. The supreme court concluded, "Whether Rater was actually prejudiced by the court's failure to conduct a sufficient inquiry or by its decision to require him to proceed pro se is immaterial." Id. at 661. This is because "harmless error" analysis has been rejected by our supreme court in the context of the Sixth Amendment right to self-representation. Cooley, 608 N.W.2d at 17; Rater, 568 N.W.2d at 661. Because "the right to represent oneself is a right that, when exercised, usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to `harmless error' analysis." Cooley, 608 N.W.2d at 17-18 (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122, 133 n. 8 (1984)).
The district court's failure to conduct an adequate inquiry to determine if Trapp voluntarily waived his right to counsel results in reversible error.
IV. Right to Jury Trial
Trapp also contends he did not make a valid waiver of his right to a jury trial. Trapp filed a written waiver of his right to a jury trial, but there was no in-court colloquy on this issue. Trapp points out that he was not represented by counsel at the time he signed the written waiver of his right to a jury trial.
We have already determined this case should be remanded because there was insufficient inquiry into whether Trapp validly waived his right to counsel. On remand, the court may also engage Trapp in a colloquy to determine whether he has voluntarily and intelligently waived his right to a jury trial. See State v. Stallings, 658 N.W.2d 106, 111 (Iowa 2003).
We reverse Trapp's conviction and remand for further proceedings in accordance with this opinion.