Amended July 17, 2015 State of Iowa v. Archaletta Latrice Young ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–0983
Filed April 3, 2015
Amended July 17, 2015
STATE OF IOWA,
Appellee,
vs.
ARCHALETTA LATRICE YOUNG,
Appellant.
Appeal from the Iowa District Court for Polk County, Carol L.
Coppola, Judge.
The defendant in a criminal proceeding appeals from an enhanced
sentence imposed on her present conviction for third-degree theft by the
use of a prior uncounseled misdemeanor conviction. REVERSED AND
REMANDED.
Mark C. Smith, State Appellate Defender, Rachel C. Regenold,
Assistant Appellate Defender, and Austin Mouw, Student Legal Intern,
for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin D.
Hathaway, Assistant County Attorney, for appellee.
2
APPEL, Justice.
In this case, we consider whether a misdemeanor conviction
pursuant to a guilty plea by an incarcerated poor person who did not
have the assistance of counsel, may later be used by the State as a
predicate offense for application of a theft statute in which the crime is
enhanced if the defendant has two prior theft offenses. The district court
concluded the prior uncounseled misdemeanor conviction could be used
as an offense to trigger enhanced punishment when the facts
surrounding the prior conviction were that the defendant failed to
appear; she was arrested and held in jail for one day prior to her initial
appearance; and at the initial appearance, upon pleading guilty, she was
sentenced to one day in jail, with credit for time served.
For the reasons expressed below, we conclude that under the right
to counsel provision of article I, section 10 of the Iowa Constitution, a
misdemeanor defendant has a right to the assistance of counsel when
the defendant faces the possibility of imprisonment. Because the poor
defendant in this case was not provided the assistance of counsel and
the State stipulated there was not a valid waiver, the prior misdemeanor
conviction cannot be used as a predicate offense to enhance a later
punishment consistent with fundamental fairness demanded by the due
process clause of article I, section 9 of the Iowa Constitution. As a
result, we reverse the decision of the district court and remand for
further proceedings.
I. Factual and Procedural Background.
In June 2003, Archaletta Young was issued a citation for theft in
the fifth degree for stealing $104.28 worth of merchandise from Walmart.
See Iowa Code § 714.2(5) (2003). She failed to appear at her initial
appearance, however, and the court issued a warrant for her arrest. At
3
her initial appearance, without counsel, Young pled guilty to theft in the
fifth degree, a simple misdemeanor, and was sentenced to one day in jail
with credit for time served and received a fine.
About nine-and-one-half years later, Walmart store security
observed Young stealing $94.87 worth of clothing. The State filed a trial
information alleging theft in the third degree under Iowa Code section
714.2(3) (2011). 1 This Code section provides: “the theft of any property
not exceeding five hundred dollars in value by one who has before been
twice convicted of theft, is theft in the third degree.” Id. “Theft in the
third degree is an aggravated misdemeanor.” Id.
The State claimed Young was guilty of theft in the third degree
based on her current crime and two prior theft convictions. One of the
prior theft convictions that the State alleged supported theft in the third
degree was Young’s 2003 conviction of theft in the fifth degree. Young
does not challenge the propriety of using the other prior fifth-degree-theft
conviction as an enhancement predicate and thus no issues in this
appeal are raised in connection with that conviction. However, under the
statute, two prior fifth-degree-theft offenses are required to trigger the
elevation of a subsequent fifth-degree-theft conviction to theft in the third
degree.
Prior to trial, Young filed a motion to strike the 2003 prior theft
conviction as a basis to support the charge of third-degree theft. In her
motion, Young asserted that because she was not represented by counsel
when she pled guilty and served a term of incarceration, the conviction
was infirm under article I, sections 9 and 10 of the Iowa Constitution. As
a result, Young argued the conviction could not be used to enhance her
1The second count of the two-count trial information charged Young with
possession of a controlled substance in violation of Iowa Code section 124.401(5).
4
later crime. The State resisted, asserting that under applicable
precedent, the uncounseled misdemeanor conviction could be used to
enhance the later offense.
The trial court held a hearing on the issue. Young asked the court
to judicially notice the content of the 2003 misdemeanor file, which the
court agreed to do. The State recognized State v. Allen, 690 N.W.2d 684,
687 (Iowa 2005), stands for the proposition that a conviction cannot be
used to enhance a later crime if the defendant was denied his or her
constitutional right to counsel in the prior proceeding. The State
contended, however, that Young had no right to counsel in the 2003
simple misdemeanor proceedings because realistically in these
proceedings the defendant is given either a fine or credit for time served.
The State further argued that in cases like Young’s 2003 misdemeanor, a
defendant would not benefit from counsel because no additional term of
incarceration normally results after the entry of a guilty plea.
In rebuttal, Young noted that a client facing a simple misdemeanor
conviction should be advised that the conviction could be used later to
enhance a subsequent crime. She also asserted Iowa Rule of Criminal
Procedure 2.19(9) supported her assertion that the uncounseled
misdemeanor conviction could not be used to enhance her later crime.
The State responded that sentence enhancements are collateral
matters that do not give rise to ineffective-assistance claims. The State
further asserted that rule 2.19 does not create an independent right to
counsel.
Upon the conclusion of oral argument, the court asked the parties
to file briefs in support of their respective positions. Young repeated her
assertion that in order for a conviction to serve as a basis for
enhancement it must be constitutionally valid. Young claimed the 2003
5
simple misdemeanor could not be a predicate to enhancement because
she did not have an attorney; did not waive her right to an attorney; was
ultimately sentenced to a term of imprisonment, namely one day with
credit for time served; and received a fine. As a result, Young claimed
her 2003 conviction was constitutionally infirm and could not be used to
support an enhanced charge in the case.
In response, the State conceded Young did not have an attorney
and did not waive the right to have one. Citing Allen, 690 N.W.2d at 693,
the State argued an uncounseled simple misdemeanor conviction may be
used to enhance a later charge when the defendant was not actually
sentenced to a term of incarceration. While the State recognized Young
was incarcerated for one day for her failure to appear in court, the State
argued that the incarceration for one day was not punishment for the
underlying offense, but was designed to ensure the defendant’s presence
for the criminal proceedings. Thus, according to the State, the 2003
uncounseled simple misdemeanor conviction was not constitutionally
defective.
The district court rejected Young’s argument and found the one
day of incarceration was not additional incarceration resulting from her
guilty plea. Although Young cited the wrong rule of criminal procedure,
the court cited Iowa Rule of Criminal Procedure 2.61(2) and concluded
Young’s situation was not one in which “the defendant face[d] the
possibility of imprisonment” requiring the appointment of counsel under
the rule.
Young waived a jury trial and stipulated to a trial on the minutes.
The district court found Young guilty of theft in the third degree and
possession of a controlled substance and sentenced Young to
6
consecutive suspended sentences of two years and two years of
probation. Young appealed.
II. Standard of Review.
Constitutional issues are reviewed de novo, but when there is no
factual dispute, review is for correction of errors at law. State v. Majeres,
722 N.W.2d 179, 181 (Iowa 2006). In interpreting the Iowa Rules of
Criminal Procedure, our review is for correction of errors at law. State v.
Jones, 817 N.W.2d 11, 15 (Iowa 2012).
III. Discussion.
A. Preliminary Issues. Several preliminary aspects of this case
deserve attention. First, the State concedes that if the 2003 conviction
was obtained in violation of Young’s right to counsel, then the 2003
conviction cannot be used to enhance Young’s 2012 offense. Second, the
State concedes Young did not waive her right to counsel during the 2003
proceeding. Thus, if Young’s 2003 conviction was obtained in violation of
Young’s right to counsel under the State or Federal Constitution, it
cannot be used to enhance the 2012 offense.
There is also a potential preservation issue in this case. In the
written motion to strike the enhancement, the defendant relied on Allen,
690 N.W.2d at 263, and the right-to-counsel and due process provisions
of the Iowa Constitution. At oral argument and in postargument
submissions, the defendant also cited the right-to-counsel and due
process provisions of the United States Constitution. The district court
order explicitly considered Allen and the Iowa Constitution, but did not
address the question under the United States Constitution.
Even if there was a failure to preserve issues under the United
States Constitution, such claims, and any other claim inartfully made or
not preserved, could be resurrected under the aegis of an ineffective-
7
assistance-of-counsel claim. See State v. Brubaker, 805 N.W.2d 164, 170
(Iowa 2011) (“Failure of trial counsel to preserve error at trial can support
an ineffective-assistance-of-counsel claim.”). Because we conclude that
under the Iowa Constitution, a defendant facing the possibility of
imprisonment in a misdemeanor proceeding has a constitutional right to
counsel, Young’s uncounseled 2003 misdemeanor conviction cannot be
used to enhance her 2012 crime. As a result, any failure to preserve the
issue under the Federal Constitution or any other claim is of no
consequence.
B. Setting the Contextual Stage: Do Misdemeanor Convictions
Matter? Misdemeanors are by definition crimes less serious than
felonies. Compare Black’s Law Dictionary 736 (10th ed. 2014), with id. at
1150. An appeal involving an uncounseled misdemeanor may seem
inconsequential, but there is more under the surface. Because of high
volumes, the treatment of misdemeanors in the court system naturally
tends to emphasize efficiency over accuracy of fact-finding. See John D.
King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harv.
C.R.-C.L. L. Rev. 1, 20 & n.124 (2013) [hereinafter King]. The notion that
efficiency may trump individualized determinations in a busy courtroom
is cause for concern, particularly when our legal system relies upon the
accuracy of those determinations to support dramatically enhanced
sentences for later crimes. Given the pressures of docket management,
there is a risk that the ability of the system to function efficiently and at
low cost, rather than the reliability of fact-finding, will shape judicial
outcomes.
It is not only the need to process large volumes of cases that puts
pressure on the system provided misdemeanor defendants, but the fact
that misdemeanor defendants are often poor persons. See Erica J.
8
Hashimoto, The Price of Misdemeanor Representation, 49 Wm. & Mary L.
Rev. 461, 482–83 (2007). Being poor has two important consequences
for those accused of misdemeanors. While many misdemeanor
defendants do not face pretrial incarceration, those that do face
significant obstacles to the assertion of innocence. As Caleb Foote
demonstrated decades ago, pretrial detention significantly and adversely
impacts the truth-finding process by preventing effective assertion of
defenses and increasing pressures to plead guilty as a matter of
convenience. See Caleb Foote, Vagrancy-Type Law and Its
Administration, 104 U. Pa. L. Rev. 603, 643–47 & n.162 (1956) (noting
the lack of pretrial procedures and the speed of the judicial process as
particularly problematic in the adjudication of misdemeanor-type cases);
see also Candace McCoy, Caleb was Right: Pretrial Decisions Determine
Mostly Everything, 12 Berkeley J. Crim. L. 135, 137–38 (2007).
In addition, poor people cannot afford lawyers. And lawyers can be
important, even in misdemeanor cases. At least one often-cited study
has shown that the odds of escaping criminal liability for misdemeanor
defendants increase five-fold when the accused is represented by
counsel. See Argersinger v. Hamlin, 407 U.S. 25, 36, 92 S. Ct. 2006,
2011, 32 L. Ed. 2d 530, 538 (1972) (citing American Civil Liberties
Union, Legal Counsel for Misdemeanants Preliminary Report 1 (1970)).
The combination of administrative pressures, pretrial detention in some
cases, and the lack of the guiding hand of counsel, are powerful factors
that may distort the lens of the fact-finding process in our misdemeanor
courts. See Lawrence Herman, The Right to Counsel in Misdemeanor
Court 16–30 (1974) [hereinafter Herman].
For these reasons, the risk of an inaccurate verdict in uncounseled
misdemeanor cases is higher than in most felony prosecutions. See
9
Herman at 27 & n.61. Noting that every student of the misdemeanor
process has observed that the risk of convictions in misdemeanor court
is much higher than in felony court, a leading scholar decades ago found
it no accident that the first case reversed by the United States Supreme
Court for insufficient evidence was a misdemeanor case, Thompson v.
City of Louisville, 362 U.S. 199, 206, 80 S. Ct. 624, 629, 4 L. Ed. 2d 654,
659 (1960). See Herman at 27.
These distortions alone are reason for concern, but such concerns
about the accuracy of individual determinations of guilt in cases
involving misdemeanors are magnified by the fact that the so-called
“collateral consequences” of misdemeanor convictions are dramatically
increasing. Conviction of misdemeanors, as discussed below, may
impose a significant moral stigma and can substantially affect
employment opportunities. According to a 2010 survey performed by the
Society for Human Resource Management, seventy-three percent of
employers conducted criminal background checks on all of their
employees, with another nineteen percent performing background checks
on selected employees. See John P. Gross, What Matters More: A Day in
Jail or a Criminal Conviction, 22 Wm. & Mary Bill Rts. J. 55, 86 (2013)
[hereinafter Gross] (citing Soc’y for Human Res. Mgmt., Background
Checking: Conducting Criminal Background Checks 3 (2010) [hereinafter
Soc’y for Human Res. Mgmt.], available at http://www.shrm.org/
research/surveyfindings/articles/pages/backgroundcheckcriminalcheck
s.aspx). Fifty-one percent of respondent employers indicated that a
nonviolent misdemeanor would be “ ‘somewhat influential’ ” in
determining employment, while twenty-two percent indicated that it
would be “ ‘very influential.’ ” See id. (quoting Soc’y for Human Res.
Mgmt. at 5). The “Common Application” being completed by thousands
10
of high school seniors applying to colleges now requires disclosure of
misdemeanor and felony convictions. See Paul Marcus, Why the United
States Supreme Court Got Some (But Not a Lot) of the Sixth Amendment
Right to Counsel Analysis Right, 21 St. Thomas L. Rev. 142, 176–77
(2009) [hereinafter Marcus]. By way of further example, a misdemeanor
battery conviction can lead to deportation, Hernandez v. U.S. Att’y Gen.,
513 F.3d 1336, 1339–40 (11th Cir. 2008), a marijuana conviction can
lead to loss of student loan assistance for at least a year, 20 U.S.C.
§ 1091(r)(1) (2012), a low-level drug crime may lead to eviction from
public housing for the individual and the entire family, 42 U.S.C.
§ 1437d(l)(6), a conviction of the misdemeanor of indecent conduct can
lead to sex registration requirements, Iowa Code § 692A.103(1) (2015),
and a misdemeanor conviction of eluding an officer may lead to
suspension of a driver’s license, Iowa Code § 321.209(7). A misdemeanor
conviction can also affect professional licensure, child custody, the right
to possess a firearm, and eligibility for government assistance. See King,
48 Harv. C.R.-C.L. L. Rev. at 23–34 (describing the “panoply of severe
consequences” misdemeanants may suffer in relation to their
misdemeanor convictions); see also Gross, 22 Wm. & Mary Bill Rts. J. at
80–87 (detailing collateral consequences of misdemeanor convictions);
Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in
the Lower Criminal Courts, 45 U.C. Davis L. Rev. 277, 298–303 (2011)
(same). Collateral consequences have proliferated to the point that the
American Bar Association Standards for Criminal Justice now
recommends that each jurisdiction collect all the collateral consequences
within one section of the criminal code for ease of access for lawyers and
clients. See ABA Standards for Criminal Justice: Collateral Sanctions
11
and Discretionary Disqualification of Convicted Persons 19–2.1, at 21 (3d
ed. 2004).
Further, in the electronic age, a remote misdemeanor conviction is
no longer practically obscure. A tech-savvy functionary or a decision-
maker who hires investigative firms who specialize in unearthing such
information can easily discover a misdemeanor conviction. See King, 48
Harv. C.R.-C.L. L. Rev. at 31. Such convictions can have great capacity
to further close opportunities for poor persons who, because of their
social-economic status, already have limited opportunities. See id. (For
example, “[t]he uncounseled misdemeanor defendant who pleads guilty
to shoplifting in Oregon in exchange for a small fine may be surprised
years later when that conviction prevents her from getting a job in New
York.”).
The bottom line is that while the treatment of misdemeanor cases
by our judicial system is not likely to generate a media frenzy or rivet the
attention of the public, it does raise important issues for our criminal
justice system and those directly affected by it. Although lacking dazzle
and glitz, this case thrusts us into an inquiry as close to the heart of the
legal system as that actually experienced by thousands of Iowans.
C. Impact of Iowa Rule of Criminal Procedure 2.61(2). Young
suggests the use of her uncounseled conviction violates her due process
rights because she has a rule-based right to counsel under Iowa Rule of
Criminal Procedure 2.61(2). The United States Supreme Court has
allowed a due process collateral attack on a conviction in an
enhancement context based only on the denial of the constitutional right
to counsel established in Gideon v. Wainwright, 372 U.S. 335, 344, 83
S. Ct. 792, 796, 9 L. Ed. 2d 799, 805 (1963). See Custis v. United States,
511 U.S. 485, 496, 114 S. Ct. 1732, 1738, 128 L. Ed. 2d 517, 528
12
(1994). As emphasized in Custis, the failure to appoint counsel for an
indigent defendant amounted to “a unique constitutional defect.” Id.
Thus, there is no federally cognizable due process attack based upon a
mere rule violation.
Of course, we could come to a different conclusion applying state
law. The question of whether a rule violation provides a foundation
preventing a conviction from triggering an enhanced sentence was
considered in State v. Johnson, 38 A.3d 1270, 1276 (Me. 2012). In
Johnson, a defendant sought to collaterally attack a prior conviction in a
sentence-enhancement context on the ground that although he was
represented in the prior proceeding, he was not properly informed of his
rights under a state rule of criminal procedure. See id. (citing Me. R.
Crim. P. 5(b)–(c)). In that case, the Maine Supreme Court summarized
the authorities as standing for the proposition that
the right to collaterally attack a conviction that will enhance
a new charge or sentence should be, for solid constitutional
and policy reasons, limited to a claim that the defendant was
deprived of the fundamental Sixth Amendment right to
counsel.
Id. at 1275. The Johnson court emphasized that expanding the basis for
collaterally attacking sentences in the enhancement context beyond the
Custis rule requiring a deprivation of the constitutional right to counsel
would introduce chronic uncertainty and undermine the finality of
criminal judgments. Id. at 1278. In a footnote, the Johnson court noted
that at least eleven jurisdictions had adopted the Custis framework. See
id. at 1275 n.7 (citing Camp v. State, 221 S.W.3d 365, 369–70 (Ark.
2006); People v. Padilla, 907 P.2d 601, 606 (Colo. 1995) (en banc); State
v. Veikoso, 74 P.3d 575, 580, 582 (Haw. 2003); State v. Weber, 90 P.3d
314, 318–20 (Idaho 2004); State v. Delacruz, 899 P.2d 1042, 1049 (Kan.
13
1995); McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994);
People v. Carpentier, 521 N.W.2d 195, 199–200 (Mich. 1994); State v.
Weeks, 681 A.2d 86, 89–90 (N.H. 1996); State v. Mund, 593 N.W.2d 760,
761 (N.D. 1999); State v. Boskind, 807 A.2d 358, 360, 362–64 (Vt. 2002);
State v. Hahn, 618 N.W.2d 528, 532, 535 (Wis. 2000)).
Some state cases go somewhat beyond the Custis approach in their
application of state law. For example, in State v. Maine, 255 P.3d 64, 69
(Mont. 2011), the Montana Supreme Court was asked by the state to
adopt the Custis rule, namely, that prior convictions used for
enhancement may not be challenged under any constitutional theory
except a Gideon violation, under Montana law. The Montana court,
however, noted that “[w]e have long recognized, however, that Montana
law may be more protective of individual rights than the floor established
by federal law.” Id. at 72. Ultimately, the Montana court, under the due
process clause of the Montana Constitution, held that a defendant could
attack a prior conviction in the context of a sentence enhancement not
only when there was a Gideon violation, but also when there was
ineffective assistance of counsel. Id. at 73. While the Montana court
thus announced a rule beyond the federal caselaw, the court emphasized
that the expansion of collateral challenges extended only to cases that
were “constitutionally infirm.” Id.
In another case, Paschall v. State, 8 P.3d 851, 852 n.2 (Nev. 2000)
(per curiam), the Nevada Supreme Court likewise departed from Custis.
The Paschall court noted that Custis “merely established the floor for
federal constitutional purposes.” Id. The Paschall court declined to
apply the Custis limitations under Nevada law. Id. Paschall, however,
involved a constitutional claim, namely, whether under the Nevada
Constitution, a justice of the peace had authority to suspend certain
14
sentences. Id. at 851. Thus, the claim entertained in Paschall, like that
in Johnson, was of constitutional dimension.
New Jersey has taken a different approach. In State v. Hrycak,
877 A.2d 1209, 1211 (N.J. 2005), the New Jersey Supreme Court
considered whether a prior uncounseled conviction could count in a
sentencing enhancement proceeding. The Hrycak court relied on prior
precedent providing counsel for indigent misdemeanor defendants in
“ ‘the sound administration of justice.’ ” Id. at 1215 (quoting Rodriguez v.
Rosenblatt, 277 A.2d 216, 223 (N.J. 1971)). The court held that “a prior
uncounseled DWI conviction of an indigent is not sufficiently reliable to
permit increased jail sanctions under the enhancement statute.” Id. at
1216.
For reasons similar to those outlined in Johnson, however, we
decline to announce a rule today that prevents application of a prior
conviction in an enhancement proceeding based upon a mere rule
violation. While we are, of course, free to depart from Custis under the
Iowa Constitution, we do not think the expansion of collateral attacks on
prior convictions based upon nonconstitutional flaws makes sense. Nor
do we think expansion of the right to counsel by this court in “the sound
administration of justice” is the appropriate approach. See id. at 1215.
We have considerable discretion in supervising the operation of the
judicial branch, but we do not believe it extends so far as to allow us to
collaterally attack convictions arising from guilty pleas not on direct
appeal or in an action for postconviction relief, but in the context of the
enhancement of a subsequent crime in which there is no error of
constitutional dimension.
As a result, we are required to proceed to consider whether the use
of an uncounseled conviction in a misdemeanor proceeding to enhance
15
punishment involves a violation of constitutional dimension, namely, the
violation of the right to counsel.
D. Textual Provisions of State and Federal Constitutional
Provisions Regarding the Right to Counsel. Two separate Iowa
constitutional provisions are implicated in this case, the right to counsel
under Iowa Constitution article I, section 10, and the due process clause
under Iowa Constitution article I, section 9. As will be seen below,
although two separate Iowa constitutional provisions are implicated, the
issues tend to merge. If the failure to provide appointed counsel to a
poor person in a misdemeanor case violates the right to counsel in article
I, section 10, it would be fundamentally unfair under the due process
clause of article I, section 9 to use that conviction to enhance a later
crime. Cf. State v. Becker, 818 N.W.2d 135, 148 (Iowa 2012) (due
process protects fundamental fairness in judicial proceedings); State v.
Nail, 743 N.W.2d 535, 539 (Iowa 2007) (same).
We begin our substantive review of the right to counsel with a
review of the language of the Sixth Amendment of the United States
Constitution and what has previously been characterized as the “unique”
language of article I, section 10 of the Iowa Constitution. See McNabb v.
Osmundson, 315 N.W.2d 9, 13 (Iowa 1982). Although we decide this
case based upon the Iowa Constitution, analysis of federal law provides
context for our consideration and shows the important interplay between
state and federal constitutional law in right-to-counsel and due process
questions.
The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” U.S. Const. amend. VI. Article I, section 10 uses
similar language but adds an important additional provision.
16
Specifically, article I, section 10 provides that “[i]n all criminal
prosecutions, and in cases involving the life, or liberty of an individual,
the accused shall have a right . . . to have the assistance of counsel.”
Iowa Const. art. I, § 10 (emphasis added). Unlike its federal counterpart,
the Iowa provision is double-breasted. It has an “all criminal
prosecutions” clause and a “cases” clause involving the life or liberty of
an individual.
The language of the Sixth Amendment and article I, section 10
raise interpretive issues. Under both the United States Constitution and
the Iowa Constitution, the question that arises in the context of this case
is the meaning of the term “all criminal prosecutions.” Does the phrase
“all criminal prosecutions” literally mean every criminal prosecution, or
does it mean something else? Is the term “all criminal prosecutions”
broad enough to cover all misdemeanor cases, some misdemeanor cases,
or none at all? Even if “all criminal prosecutions” includes
misdemeanors, does it mean only that there is a right to retained
counsel, or if you are poor, does it mean there is a right to appointed
counsel?
In considering these questions under article I, section 10, it is
important to note that the mere fact the phrase “all criminal
prosecutions” is used in both the Federal and Iowa Constitutions does
not bind us to follow the prevailing federal constitutional interpretation.
We are free to follow or reject federal authority in interpreting our state
constitution depending upon our view of the strength of the reasoning in
the federal precedent. See, e.g., State v. Short, 851 N.W.2d 474, 481
(Iowa 2014) (“We may, of course, consider the persuasiveness of federal
precedent, but we are by no means bound by it.”).
17
In addition, under the Iowa Constitution but not the Federal
Constitution, there are additional interpretive issues posed by the “cases”
clause. What are we to make of the additional language in article I,
section 10 of the Iowa Constitution, not found in the Sixth Amendment,
which provides that the right to counsel extends not only to all criminal
prosecutions but also to “cases involving the . . . liberty of an individual?”
To what extent does the phrase help inform the meaning of the prior
term, “all criminal prosecutions?” And, to what extent does the “cases”
language expand the scope of the right to counsel in Iowa beyond the
right to counsel found in the Sixth Amendment as interpreted by the
United States Supreme Court?
Finally, there is a question of whether an uncounseled
misdemeanor conviction that could not validly support incarceration can
be used to increase imprisonment when the defendant commits a later
crime. If the first conviction without a lawyer cannot be used to support
a day in jail, how can that same conviction later be used to impose an
additional term of incarceration when the defendant commits another
crime?
E. Scope of the Right to Counsel in Misdemeanor Cases Under
State and Federal Constitutions.
1. Introduction. We now turn to consider the scope of the right to
counsel in misdemeanor cases. As indicated above, the question of the
scope of the right to counsel in misdemeanor cases is critical in this case
because of the relationship between the right to counsel in the 2003
proceeding and the use of the 2003 conviction to enhance the 2012
crime.
We begin with a discussion of the English common law precedent,
the adoption of state constitutions with right-to-counsel provisions more
18
expansive than the English tradition, and early state court cases dealing
with the right to counsel. Next, we examine the convoluted course of
federal constitutional law regarding the right to counsel embraced in the
Sixth Amendment. We then return to state court cases in examining the
extent to which the serpentine federal precedent has influenced state
constitutional law. Finally, we examine Iowa law regarding the right to
appointed counsel under article I, section 10 of the Iowa Constitution.
As will be seen below, we conclude article I, section 10 should not
be interpreted in a fashion similar to United States Supreme Court
precedent that requires a poor person suffer “actual imprisonment”
before being entitled to the appointment of counsel in misdemeanor
cases. Under the Iowa Constitution, we conclude that a poor person has
a right to appointed counsel when a statute authorizes imprisonment
unless the defendant validly waives that right. Because Young was
prosecuted under a statute that authorized imprisonment, was not
provided appointed counsel, and did not validly waive that right, it would
be fundamentally unfair under the due process clause of the Iowa
Constitution to use that prior conviction to enhance her later crime.
2. Early English traditions, the development of state constitutional
provisions, and early state court right-to-counsel precedents. English
common law recognized a limited right to counsel. Interestingly,
however, the English common law right to counsel extended to all
misdemeanor cases, but not to felonies. See William M. Beaney, The
Right to Counsel in American Courts 8–9 (1955) [hereinafter Beaney];
James J. Tomkovicz, The Right to the Assistance of Counsel 3 (2002)
[hereinafter Tomkovicz]. At least one theory posits that the Crown’s
interest in felony prosecution was just too great to allow all felony
defendants the right to assistance of counsel to gum up the Crown’s
19
prosecutorial efforts. See Tomkovicz at 3–6 (describing competing
theories regarding why misdemeanants were allowed counsel while felons
were not). Indeed, it seems to have been thought that serious crimes
threatened the existence of the monarchy itself. See id. at 3–4. It is also
true that at common law, private individuals, not professional
prosecutors, brought felony cases, so arguably denial of the right to
counsel did not cause a substantial imbalance in the trial of the case.
See id. at 2–3. As noted by Professor Tomkovicz, there was no likelihood
that a highly skilled prosecutor would take advantage of a less skilled
defendant. Id. at 5.
Over time, some common law judges adopted a more relaxed
attitude to the ban. See Beaney at 10; Tomkovicz at 6–8. By 1747,
Parliament enacted a provision providing for legal counsel to those
impeached by the House of Commons for high treason. Tomkovicz at 8.
Not until 1836 did Parliament eventually extend the right to counsel to
all felonies. Id.
The colonial practice with respect to the right to counsel is not well
understood. Often times, it appears trials were informal affairs
prosecuted by private parties. See id. at 9. However by the beginning of
the American Revolution, all of the colonies employed public prosecutors
to pursue criminal charges. See id.
The advent of public prosecutors seemed to have increased interest
in providing defendants with the right to assistance of counsel. See id. at
9–10. For instance, the Delaware Charter of 1701 granted “ ‘all
Criminals . . . the same Privileges of Witnesses and Council as their
Prosecutors.’ ” Id. at 10 (quoting Del. Charter of 1701, § V). The
Pennsylvania Charter of Privileges of 1701 had a similar provision. Id.
(citing Pa. Charter of Privileges of 1701, § V). Connecticut as a matter of
20
common law seems to have rejected the English limitations on the right
to counsel. Beaney at 16; Tomkovicz at 13. A number of the colonies
provided for statutory rights to counsel of varying shapes and sizes.
Some of the statutes not only allowed for representation by retained
counsel, but also provided lawyers to the accused who wanted legal
representation. See Beaney at 16, 21.
Seven of the early state constitutions provided a right to counsel.
See Tomkovicz at 11. See generally Beaney at 19–21 (describing the
right to counsel in early state constitutions). The Maryland Constitution
of 1776 provided that “in all criminal prosecutions, every man hath a
right . . . to be allowed counsel . . . .” Md. Const. of 1776, Declaration of
Rights, art. XIX. The New Jersey Constitution of 1776 provided that “all
criminals shall be admitted to the same privileges of witnesses and
counsel, as their prosecutors are or shall be entitled to.” N.J. Const. of
1776, art. XVI. The New York Constitution of 1777 stated that “in every
trial on impeachment, or indictment for crimes or misdemeanors, the
party impeached or indicted shall be allowed counsel, as in civil actions.”
N.Y. Const. of 1777, art. XXXIV. The Vermont Constitution of 1777
declared that “in all prosecutions for criminal offenses, a man hath a
right to be heard, by himself and his counsel . . . .” Vt. Const. of 1777,
ch. I, § X. The Massachusetts Constitution of 1780 provided that “every
subject shall have a right to . . . be fully heard in his defence by himself,
or his counsel at his election.” Mass. Const. of 1780, pt. I, art. XII. The
New Hampshire Constitution of 1784 provided that “[e]very subject shall
have a right . . . to be fully heard in his defence, by himself, and
counsel.” N.H. Const. of 1784, pt. I, art. XV. The Delaware Constitution
of 1792 provided that “[i]n all criminal prosecutions the accused hath a
right to be heard by himself and his counsel.” Del. Const. of 1792, art. I,
21
§ 7. Eventually, all state constitutions except Virginia had a right-to-
counsel provision of some kind, and the Virginia courts eventually held
that the right to counsel was incorporated by other state constitutional
provisions. See David Fellman, The Right to Counsel Under State Law,
1955 Wis. L. Rev. 281, 281 & n.2 (1955).
The language of these early state constitutional provisions was
plainly more expansive than the prevailing English practice. The use of
the term “all criminal prosecutions” was obviously designed to address
the gap in English law refusing to allow the right to counsel for felonies.
See Tomkovicz at 14 (“[T]he states had dramatically departed from the
restrictive English common law rule regarding retention of counsel in
serious criminal prosecutions.”). Beyond this conclusion, scholars have
not uncovered much evidence of what state constitutional framers meant
when adopting the broadly worded right to counsel language in the early
state constitutions.
The state constitutional cases regarding the right to counsel are
few and far between each other and do not represent the development of
a coherent, organized body of law. Significantly, the Iowa Territorial
Supreme Court and other state supreme courts decided in early cases
that if a person was entitled to representation by counsel but could not
pay for it, representation should be provided at state expense. See Hall
v. Washington County, 2 Greene 473, 476 (Iowa 1850) (holding a county
is liable for compensation to an attorney appointed by the court to
conduct the defense of an indigent prisoner); see also People v.
Goldenson, 19 P. 161, 168 (Cal. 1888); Cutts v. State, 45 So. 491, 491
(Fla. 1907); Delk v. State, 26 S.E. 752, 753 (Ga. 1896); Hendryx v. State,
29 N.E. 1131, 1132 (Ind. 1892); Carpenter v. County of Dane, 9 Wis. 274,
277 (1859). Further, well prior to the development of the United States
22
Supreme Court’s doctrine of ineffective assistance of counsel, state
courts were instrumental in chipping away at the theory that because an
attorney was an agent of the client, the client could not bring an
ineffectiveness claim. See generally Sara Mayeux, Ineffective Assistance
of Counsel Before Powell v. Alabama: Lessons from History for the Future
of the Right to Counsel, 99 Iowa L. Rev. 2161, 2162–84 (2014) (describing
state caselaw from the 1880s through the 1920s regarding the
foundations of current ineffective-assistance claims). Against this state
court backdrop, the United States Supreme Court decided Powell v.
Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), and Gideon,
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.
3. The Sixth Amendment and early federal constitutional law. The
United States Constitution originally, of course, did not contain a bill of
rights, which was added to the document in 1791. When James
Madison introduced language regarding the right to counsel as part of
his proposed bill of rights, there seems to have been no substantive
debate. See Beaney at 23–24. Like the earlier state constitutional
provisions, it seems clear, however, the use of the term “all criminal
prosecutions” was designed to fill the gaps in English common law and
thus should generally be considered an expansive term.
Beyond that, according to one leading commentator, the founders
seem to have left the matter of scope of the right to counsel to the courts.
See id. at 25. Maybe so, but the Supreme Court did not consider any
substantial case involving the right to counsel until the twentieth
century. Part of the reason seems to be that states enacted statutes
providing for the appointment of counsel in capital cases if not in all
felony cases generally. Further, conscientious courts may have often
found volunteer lawyers to assist the poor. See id. at 32.
 23
4. The evolution of federal constitutional law: Powell, Gideon, and
beyond. We begin our discussion of the modern right to counsel and its
due process implications with a discussion of the infamous Scottsboro
case, in which nine African-American youth were accused of raping two
white girls, a capital offense. See Powell, 287 U.S. at 49, 53 S. Ct. at 57,
77 L. Ed. at 160. The accused were tried and convicted in state court
and therefore, although the Sixth Amendment did not apply directly to
the proceedings, the Due Process Clause of the Fourteenth Amendment
was fully applicable. Id. at 60, 53 S. Ct. at 60, 77 L. Ed. at 166. The
United States Supreme Court reversed the convictions on the ground
that poor defendants in a capital case were entitled, as a matter of due
process under the Fourteenth Amendment, to effective assistance of
counsel at state expense. Id. at 71–72, 53 S. Ct. at 65, 77 L. Ed. at 172.
In Powell, Justice Sutherland eloquently spoke of the role of counsel in
defending poor defendants facing prosecution for capital crimes. He
memorably wrote:
The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with
the rules of evidence. Left without the aid of counsel he may
be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense even though he
have a perfect one. He requires the guiding hand of counsel
at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence.
24
Id. at 68–69, 53 S. Ct. at 64, 77 L. Ed. at 170. The central theme of
Justice Sutherland’s opinion was the lack of reliability of convictions
obtained without the assistance of counsel.
Justice Sutherland further noted that “[i]n a case such as this . . .
the right to have counsel appointed, when necessary, is a logical
corollary from the constitutional right to be heard by counsel.” Id. at 72,
53 S. Ct. at 65, 77 L. Ed. at 172. In other words, if there is a due
process right to retained counsel, there is also a due process right to
appointed counsel when a defendant cannot pay for retained counsel.
The fresh and clean rhetoric of Justice Sutherland inspired judges
and lawyers then, just as it inspires judges and lawyers today. What is
not generally recognized, however, is that Justice Sutherland in Powell
built his opinion largely on state court precedents, relying extensively on
such precedents for the central propositions of the case, namely that
pro forma participation of counsel does not satisfy the right to counsel,
id. at 58–59, 53 S. Ct. at 60, 77 L. Ed. at 165 (citing thirteen state court
precedents), that the right to counsel is fundamental in character, id. at
70–71, 53 S. Ct. at 64–65, 77 L. Ed. at 171 (citing eight state court
cases), and that the right to have counsel appointed when necessary is a
logical corollary from the constitutional right to be heard by counsel, id.
at 72, 53 S. Ct. at 65, 77 L. Ed. at 172. Although they are less well
known than United States Supreme Court precedents like Powell, state
court right-to-counsel decisions did much of the ice-breaking that
allowed Powell to sail into the law books.
Six years after Powell, the Court in Johnson v. Zerbst, 304 U.S.
458, 459, 58 S. Ct. 1019, 1020, 82 L. Ed. 1461, 1464 (1938), considered
whether the Sixth Amendment required counsel be appointed for
indigents in federal felony cases. In Zerbst, the defendants were accused
25
with feloniously possessing and uttering counterfeit money. Id. at 459–
60, 58 S. Ct. at 1021, 82 L. Ed. at 1464. They had no lawyer and were
tried and convicted without the assistance of counsel. Id. at 460, 58
S. Ct. at 1021, 82 L. Ed. at 1464. Because Zerbst was tried in federal
court, the Sixth Amendment applied directly to the proceeding. See id. at
463, 58 S. Ct. at 1022–23, 82 L. Ed. at 1466.
In Zerbst, the Supreme Court firmly declared that a criminal
defendant in federal court has a right to counsel and that if the
defendant could not afford counsel, counsel would be provided. Id. The
Zerbst Court underscored the point by characterizing the question in
jurisdictional terms. Id. at 467–68, 58 S. Ct. at 1024, 82 L. Ed. at 1468.
Representation by counsel was “an essential jurisdictional prerequisite to
a federal court’s authority to deprive an accused of his life or liberty.” Id.
The Zerbst Court declared that “[t]he Sixth Amendment withholds from
federal courts, in all criminal proceedings, the power and authority to
deprive an accused of his life or liberty unless he has or waives the
assistance of counsel.” Id. at 463, 58 S. Ct. at 1022–23, 82 L. Ed. at
1466 (footnote omitted). The Zerbst Court emphatically characterized the
failure to provide counsel as a “jurisdictional bar” to a valid conviction
depriving the defendant of his life or liberty. Id. at 468, 58 S. Ct. at
1024, 82 L. Ed. at 1468.
The Zerbst Court further emphasized that the Sixth Amendment
embodies
a realistic recognition of the obvious truth that the average
defendant does not have the professional legal skill to protect
himself when brought before a tribunal with power to take
his life or liberty, wherein the prosecution is presented by
experienced and learned counsel. That which is simple,
orderly, and necessary to the lawyer—to the untrained
laymen—may appear intricate, complex, and mysterious.
26
Id. at 462–63, 58 S. Ct. at 1022, 82 L. Ed. at 1465–66. As in Powell, the
central theme of Zerbst was the lack of reliability of verdicts obtained
without the assistance of counsel.
The Supreme Court next returned to considering a right-to-counsel
issue in a state court proceeding in Betts v. Brady, 316 U.S. 455, 456–
57, 62 S. Ct. 1252, 1253, 86 L. Ed. 1595, 1599 (1942), overruled by
Gideon, 372 U.S. at 339, 83 S. Ct. at 794, 9 L. Ed. 2d at 802. In Betts, a
defendant accused of robbery in a Maryland court was denied
appointment of counsel. Id. The defendant subsequently pled not guilty
and elected to be tried to the court. Id. at 457, 62 S. Ct. at 1253–54, 86
L. Ed. at 1599. The defendant summoned witnesses on his behalf, cross-
examined the State’s witnesses, and examined his own. Id. at 457, 62 S.
Ct. at 1254, 86 L. Ed. at 1599. He did not take the stand on his own
behalf and was convicted by the trial court. Id. The conviction was
upheld upon filing a writ of habeas corpus. Id. The United States
Supreme Court granted certiorari and affirmed. Id. at 473, 62 S. Ct. at
1262, 86 L. Ed. at 1607.
The Betts Court emphasized that while the Sixth Amendment
applies to trials in federal courts, it is only through the Due Process
Clause of the Fourteenth Amendment that a defendant may make a
claim from a state court conviction. Id. at 461–62, 62 S. Ct. at 1256, 86
L. Ed. at 1601. According to Betts, the Due Process Clause does not
incorporate lock, stock, and barrel the entirety of the Sixth Amendment.
Id. Instead, due process is much more flexible and fact specific. Id.
According to the Betts Court, only “in certain circumstances” would the
denial of right to counsel by a state court amount to a due process
violation under the Fourteenth Amendment. Id. The Betts Court noted
“states should not be straight-jacketed . . . by a construction of the
27
Fourteenth Amendment” advanced by the appellants. Id. at 472, 62 S.
Ct. at 1261, 86 L. Ed. at 1607. Thus, federalism concerns were an
important factor in achieving a different result than in Zerbst. With
regard to whether a poor defendant was entitled to appointed counsel for
felony cases in state court, the Betts Court declared that no definite
criteria could be developed, but that the totality of circumstances needed
to be evaluated, which included the nature of the crime, the age and
education of the defendant, the conduct of the court and prosecuting
officials, and the complicated nature of the offense charged and possible
defenses related to the charge. Id. at 472–73, 62 S. Ct. at 1261–62, 86
L. Ed. at 1607. The powerful and unequivocal emphasis in Powell and
Zerbst on the lack of reliability of uncounseled convictions gave way to a
diluted view of the right to counsel powered by federalism concerns.
Justice Black called out the majority for its departure from the
emphasis on the lack of reliability of uncounseled convictions. Id. at
474–77, 62 S. Ct. at 1262–63, 86 L. Ed. at 1607–09 (Black, J.,
dissenting). According to Justice Black, “[a] practice cannot be
reconciled with common and fundamental ideas of fairness and right,
which subjects innocent men to increased dangers of conviction merely
because of their poverty.” Id. at 476, 62 S. Ct. at 1263, 86 L. Ed. at 1609
(internal quotation marks omitted). Justice Black cited the Supreme
Court of Wisconsin, which in the case of Carpenter declared that it would
make a “ ‘mockery to secure to a pauper . . . solemn constitutional
guaranties for a full and fair trial [and then state] he must employ his
own counsel.’ ” Id. (quoting Carpenter, 9 Wis. at 276). In support of his
dissent, he attached a lengthy appendix showing that many states were
providing counsel to indigents on a categorical basis. Id. at 477–80, 62
S. Ct. at 1264–65, 86 L. Ed. at 1609–11. Although not expressed in
28
these terms, Justice Black essentially argued that the majority
approached the application of Sixth Amendment right to counsel in state
courts in lowest-common-denominator terms.
Aside from Justice Black’s protest regarding the abandonment of
the underlying rational of the right to counsel, the multifactored special-
circumstances test in Betts was unstable and encountered some
resistance in the lower courts as judges routinely found special
circumstances. See Christine S. May, Uncounseled Misdemeanor
Convictions and Their Unreliability for Sentence Enhancement Under the
United States Federal Sentencing Guidelines: Nichols v. United States,
114 S. Ct. 1921 (1994), 18 Hamline L. Rev. 231, 238 & n.86 (1994)
[hereinafter May] (citing cases). An everything-is-relevant and nothing-
is-determinative test produces wide fluctuations in results. Twenty years
later, in Gideon, Betts was overruled, the principle of Powell was
extended to noncapital felony prosecutions, and parity between the Sixth
Amendment right to appointed counsel in federal and state courts was
restored. Gideon, 372 U.S. at 345, 83 S. Ct. at 797, 9 L. Ed. 2d at 805–
06.
The facts of Gideon are well known. Gideon was charged with
breaking and entering a poolroom with intent to commit a misdemeanor,
a felony under Florida law. Id. at 336, 83 S. Ct. at 792, 9 L. Ed. 2d at
800–01. He sought appointed counsel, but the trial court advised him
that counsel could be appointed only in capital cases. Id. at 337, 83 S.
Ct. at 792, 9 L. Ed. 2d at 801. He attempted to defend himself, giving an
opening statement, cross-examining witnesses, and making a closing
statement. Id. at 337, 83 S. Ct. at 792–93, 9 L. Ed. 2d at 801. He was
found guilty and received a five-year sentence. Id. The Supreme Court
reversed, holding that the right to counsel in criminal proceedings such
29
as that faced by Gideon was fundamental to a fair trial. Id. at 344, 83 S.
Ct. at 796, 9 L. Ed. 2d at 805.
As in Powell and Zerbst, the animating principle behind Gideon
was that the “ ‘guiding hand of counsel’ ” was essential in fairly
determining the outcomes of cases in the criminal justice system. Id. at
344, 83 S. Ct. at 797, 9 L. Ed. 2d at 805 (quoting Powell, 287 U.S. at 68–
69, 53 S. Ct. at 64, 77 L. Ed. at 170). As noted by Justice Black,
“[r]eason and reflection require us to recognize that in our adversary
system of criminal justice, any person haled into court, who is too poor
to hire a lawyer, cannot be assured a fair trial unless counsel is provided
for him.” Id. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at 805. The Court in
Gideon characterized Betts as an “abrupt break” from previous precedent
and Gideon “restore[d] constitutional principles established to achieve a
fair system of justice.” Id.
While the underlying rationale of Powell and Gideon applied to all
criminal prosecutions, the holding in Powell applied only to capital
offenses and in Gideon to felonies. Gideon, 372 U.S. at 342, 345, 83 S.
Ct. at 795, 797, 9 L. Ed. 2d at 801, 805–06; Powell, 287 U.S. at 71, 53 S.
Ct. at 65, 77 L. Ed. at 171–72. Yet, Gideon made short work of the claim
that capital offenses should be distinguished from felonies, focusing not
on the severity of the crime but the need for fundamental fairness in the
underlying proceeding. 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at
805. Further, although state attorneys’ general in their amicus brief
urged the court to limit the right to appointed counsel to felonies, the
court declined to do so. Id. at 344–45, 83 S. Ct. at 796–97, 9 L. Ed. 2d at
805 (holding only that refusal to appoint counsel for an indigent accused
of a noncapital felony violated the Due Process Clause); see Brief for the
State Government Amici Curiae, Gideon v. Wainwright, 372 U.S. 335
 30
(1963) (No. 155), 1962 WL 115122, at *3, *21 (“We repeat that we are
limiting our claim to the constitutional right to representation for
felonies.”); Henry Clay Moore, Comment, The Right to Counsel for
Misdemeanants in State Courts, 20 Ark. L. Rev. 156, 158 (1966). Yet,
under Gideon, the question of whether the Sixth Amendment required
the appointment of counsel to assist the poor in misdemeanor
prosecutions remained an open question. Plainly, however, in Gideon
the dilution of Sixth Amendment rights in state court as evidenced in
Betts was abandoned in favor of the traditional rationale of the lack of
reliability of uncounseled convictions.
The United States Supreme Court in Burgett v. Texas, 389 U.S.
109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), considered the question of
whether an uncounseled conviction in state court could be used to
enhance the penalties of a later criminal conviction. Burgett was
convicted of assault with malice aforethought with intent to murder. Id.
at 110, 88 S. Ct. at 259, 19 L. Ed. 2d at 322. Pursuant to a Texas
recidivist statute, however, he faced life in prison if he had incurred four
previous felony convictions. Id. at 111, 88 S. Ct. at 260, 19 L. Ed. 2d at
322. Three of the convictions were for forgery in Tennessee. Id. During
trial, the state offered into evidence a certified copy of one of the
Tennessee convictions, which indicated that the defendant proceeded
“without Counsel.” Id. at 112, 88 S. Ct. at 260, 19 L. Ed. 2d at 323
(internal quotation marks omitted). The State then offered a second
version indicating there was “argument of counsel.” Id. (internal
quotation marks omitted). The question posed was whether an
uncounseled felony conviction could be used to enhance the punishment
for a later crime. Id. at 115–16, 88 S. Ct. at 262, 19 L. Ed. 2d at 324–25.
31
In an opinion by Justice Douglas, the Supreme Court held that the
prior Tennessee conviction could not be used to support the
enhancement. Id. The Burgett Court announced that
[t]o permit a conviction obtained in violation of Gideon v.
Wainwright to be used against a person either to support
guilt or enhance punishment for another offense is to erode
the principle of that case. Worse yet, since the defense in
the prior conviction was denial of the right to counsel, the
accused in effect suffers anew from the deprivation of that
Sixth Amendment right.
Id. at 115, 88 S. Ct. at 262, 19 L. Ed. 2d at 324–25 (citation omitted).
Justice Warren returned to the theme of lack of reliability of uncounseled
convictions, noting the case presented “a classic example of how a rule
eroding the procedural rights of a criminal defendant on trial for his life
or liberty can assume avalanche proportions, burying beneath it the
integrity of the fact-finding process.” Id. at 117, 88 S. Ct. at 263, 19
L. Ed. 2d at 326 (Warren, C.J., concurring). As with the other right-to-
counsel cases except for the overturned Betts, the focus was on the lack
of reliability of the fact-finding process when a defendant is convicted
without the assistance of counsel.
In reaching its decision, the Court seemed to put the burden on
the state to show that the defendant either received the assistance of
counsel or validly waived his or her right to counsel in the prior
proceeding. See id. at 114–15, 88 S. Ct. at 262, 19 L. Ed. 2d at 324
(majority opinion). According to the Burgett Court, presuming waiver of
counsel from a silent record was impermissible. Id.
The high court considered a similar question in United States v.
Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592, 595–96
(1972). In Tucker, a federal court imposed a sentence relying in part
upon uncounseled felony convictions. Id. at 444–45, 92 S. Ct. at 590, 30
32
L. Ed. 2d at 594–95. The Supreme Court remanded the case to the trial
court with instructions to reconsider the sentence. Id. at 448–49, 92 S.
Ct. at 592–93, 30 L. Ed. 2d at 597. Citing Burgett, the Court emphasized
that the use of an unconstitutionally obtained felony conviction would
erode the principle of Gideon. Id. (citing Burgett, 389 U.S. at 115–16, 88
S. Ct. at 262, 19 L. Ed. 2d at 324–25). The Tucker Court emphasized
that the trial court acted upon “misinformation of constitutional
magnitude.” Id. at 447, 92 S. Ct. at 592, 30 L. Ed. 2d at 596. In a
footnote, the Tucker Court further cited Gideon for the proposition that a
lawyer’s help is necessary to ensure that the poor receive a fair trial. Id.
at 447 n.5, 92 S. Ct. at 592 n.5, 30 L. Ed. 2d at 596–97 n.5 (citing
Gideon, 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at 805). Tucker
therefore remained consistent with the underlying reliability theme of
Powell, Zerbst, Gideon, and Burgett.
In Loper v. Beto, 405 U.S. 473, 483–84, 92 S. Ct. 1014, 1019–20,
31 L. Ed. 2d 374, 381–82 (1972) (plurality opinion), the Supreme Court
for a third time refused to allow an uncounseled conviction, invalid
under Gideon, to have collateral consequences. In Loper, the Supreme
Court considered a habeas corpus claim in which a state court defendant
argued it was improper for Texas prosecutors to attempt to impeach him
using an uncounseled state court felony conviction. Id. at 476–78, 92 S.
Ct. at 1016–17, 31 L. Ed. 2d at 378–79. The Supreme Court refused to
allow such impeachment. Id. at 483–84, 92 S. Ct. at 1019–20, 31 L. Ed.
2d at 381–82. According to Justice Stewart’s plurality opinion, “ ‘the
absence of counsel impairs the reliability of [uncounseled] convictions
just as much when used to impeach as when used as direct proof of
guilt.’ ” Id. at 483, 92 S. Ct. at 1019, 31 L. Ed. 2d at 382 (quoting Gilday
v. Scafati, 428 F.2d 1027, 1029 (1st Cir. 1970)). The reliability rationale
33
of Powell, Zerbst, Gideon, Burgett, and Tucker was at the heart of the
opinion.
After Gideon, the question remained whether the right to counsel
extended to misdemeanor prosecutions. Several federal appellate courts
who considered the question after Gideon held that under the Sixth
Amendment, a poor defendant was entitled to the appointment of counsel
in misdemeanor cases. See, e.g., Harvey v. Mississippi, 340 F.2d 263,
269 (5th Cir. 1965); Evans v. Rives, 126 F.2d 633, 639 (D.C. Cir. 1942).
The Court of Appeals for the Fifth Circuit in Harvey noted that while the
key right to counsel cases involved felonies, “their rationale does not
seem to depend on the often purely formal distinction between felonies
and misdemeanors.” 340 F.2d at 269. The Court of Appeals for the D.C.
Circuit in Evans emphasized that no differentiation is made in the term
“all criminal prosecutions” in the Sixth Amendment. 126 F.2d at 638.
The Supreme Court first took up the issue of the application of
Powell and Gideon principles to misdemeanor cases in Argersinger, 407
U.S. at 26–27, 92 S. Ct. at 2007–08, 32 L. Ed. 2d at 532–33. In
Argersinger, a divided Florida Supreme Court ruled that the notion that a
poor person was entitled to appointed counsel did not extend to cases in
which punishment did not exceed six months’ imprisonment. Id. at 26–
27, 92 S. Ct. at 2007, 32 L. Ed. 2d at 532–33. Because the defendant in
Argersinger was sentenced to only ninety days in jail, the Florida
Supreme Court majority concluded that Gideon and Powell did not apply.
Id.
The Supreme Court reversed. Id. at 27, 92 S. Ct. at 2008, 32
L. Ed. 2d at 533. In an opinion by Justice Douglas, the Court rejected
the proposition that principles of Powell and Gideon did not extend to
crimes punishable by imprisonment for less than six months. Id. at 32–
 34
33, 92 S. Ct. at 2010, 32 L. Ed. 2d at 535–36. Although the right to a
jury trial might be restricted to cases involving six months or more of
incarceration, Justice Douglas wrote that nothing in the history of the
right to counsel suggested a similar limitation. Id. at 29–34, 92 S. Ct. at
2009–11, 32 L. Ed. 2d at 534–37. Justice Douglas noted that cases
involving short-term imprisonment may bristle with thorny constitutional
questions that require the defendant receive the assistance of counsel in
order to receive a fair trial. Id. at 33, 92 S. Ct. at 2010, 32 L. Ed. 2d at
536. Justice Douglas further noted that counsel is needed in
misdemeanor as well as felony cases “so that the accused may know
precisely what he is doing, so that he is fully aware of the prospect of
going to jail or prison, and so that he is treated fairly by the prosecution.”
Id. at 34, 92 S. Ct. at 2011, 32 L. Ed. 2d at 536–37. While recognizing
the volume of misdemeanor cases, Justice Douglas cautioned against “an
obsession for speedy dispositions, regardless of the fairness of the
result,” id. at 34, 92 S. Ct. at 2011, 32 L. Ed. 2d at 537, and noted there
was evidence in empirical studies that misdemeanant defendants are
prejudiced from “assembly-line justice” when appointed counsel is not
provided, id. at 36, 92 S. Ct. at 2012, 32 L. Ed. 2d at 538 (internal
quotation marks omitted). Although Justice Douglas thus extended the
fundamental fairness reasoning of Powell and Gideon to misdemeanors
when a defendant was subsequently incarcerated, he expressly stated
that the court “need not consider” whether the right to counsel applied
when the “loss of liberty” is not involved. Id. at 37, 92 S. Ct. at 2012, 32
L. Ed. 2d at 538. Yet, plainly, in terms of its underlying rationale,
Argersinger adopted the reliability rationale of Powell and its long list of
progeny.
35
Justice Powell, joined by Justice Rehnquist, filed a concurring
opinion in Argersinger. Id. at 44–66, 92 S. Ct. at 2016–27, 32 L. Ed. 2d
at 542–55 (Powell, J., concurring in the result). Justice Powell urged a
more flexible, Betts-like, case-by-case approach to the question of the
entitlement of a poor person to appointed counsel when facing a crime
that was not a felony. See id. at 62–63, 92 S. Ct. at 2025, 32 L. Ed. 2d at
553. Thus, in some respects, Justice Powell thought the Argersinger
majority went too far in extending the right to appointed counsel. See id.
However, Justice Powell thought the majority opinion fell too short
as well. For instance, Justice Powell noted that the impact of a
misdemeanor conviction on employment could present a serious
consequence justifying the appointment of counsel. Id. at 47–48, 92 S.
Ct. at 2017–18, 32 L. Ed. 2d at 544–45. Further, he noted that stigma
may attach to a drunken-driving conviction and that losing a driver’s
license may be more serious for some individuals than a brief stay in jail.
Id. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544. In footnote 11, Justice
Powell cited a wide range of potential collateral consequences, as well as
academic literature related to them. Id. at 48 n.11, 92 S. Ct. at 2018
n.11, 32 L. Ed. 2d at 545 n.11. In short, in Justice Powell’s view in
1972, the collateral effects of a misdemeanor conviction “are frequently of
sufficient magnitude not to be casually described by the label ‘petty.’ ”
Id. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544.
Whether the right to counsel extended to cases in which
imprisonment was authorized by the underlying criminal statute, but did
not actually occur, was considered by the United States Supreme Court
in Scott v. Illinois, 440 U.S. 367, 368, 99 S. Ct. 1158, 1159, 59 L. Ed. 2d
383, 385–86 (1979). In Scott, the Illinois Supreme Court declined to
extend Argersinger to cases in which no imprisonment was actually
36
imposed upon the defendant. Id. at 369, 99 S. Ct. at 1160, 59 L. Ed. 2d
at 386.
The short 5–4 majority opinion in Scott was written by Justice
Rehnquist. Id. at 368, 99 S. Ct. at 1159, 59 L. Ed. 2d at 385. Harkening
back to the aberrant and overruled Betts, Justice Rehnquist stressed
federalism concerns about extending the right to counsel further than
the narrow holding of Argersinger. Id. at 372, 99 S. Ct. at 1161, 59
L. Ed. 2d at 388. He noted that because the Sixth Amendment was now
incorporated against the states, “special difficulties” arose because “state
and federal contexts are often different.” Id. He further stated that the
Supreme Court’s cases had departed from the literal meaning of the
Sixth Amendment, thereby implying that the “all criminal prosecutions”
language of the Sixth Amendment did not pose an obstacle to limiting the
right to counsel to cases involving actual imprisonment. Id. While
finding that the intentions of the Argersinger Court were not entirely
clear, the rule enunciated in that case had proved “reasonably workable”
whereas an extension of the rule would impose unpredictable but
necessarily substantial costs on the “quite diverse States.” Id. at 373, 99
S. Ct. at 1162, 59 L. Ed. 2d at 389. Thus, in the name of federalism and
practicality, the approach of Powell, Zerbst, Gideon, Burgett, Tucker, and
Argersinger was not extended to misdemeanor cases in which
imprisonment was authorized but not actually imposed in state court.
Justice Brennan, joined by Justices Marshall and Stevens,
dissented. Id. at 375–89, 99 S. Ct. at 1163–70, 59 L. Ed. 2d at 390–99
(Brennan, J., dissenting). He emphasized the language of the Sixth
Amendment, namely, that in “all criminal prosecutions,” the accused
shall enjoy the right to have the assistance of counsel. Id. at 375–76, 99
S. Ct. at 1163, 59 L. Ed. 2d at 390–91. While recognizing that
37
Argersinger took a “cautious” approach, he noted the question raised in
Scott was expressly reserved in the case. Id. at 378–79, 99 S. Ct. at
1164–65, 59 L. Ed. 2d at 392–93. According to Justice Brennan, the
Court’s precedents showed the right to counsel is more fundamental to a
fair trial than the right to a jury trial. Id. at 380, 99 S. Ct. at 1165, 59 L.
Ed. 2d at 393. Justice Brennan emphasized that unlike many traffic or
other regulatory offenses, the misdemeanor crime of theft carries with it
a “moral stigma associated with common-law crimes traditionally
recognized as indicative of moral depravity.” Id. at 380, 99 S. Ct. at
1165–66, 59 L. Ed. 2d at 393–94.
According to Justice Brennan, the constitutionally required test for
whether an accused should be afforded counsel was not an “actual
imprisonment” test but instead an “authorized imprisonment” test. Id. at
382, 99 S. Ct. at 1166, 59 L. Ed. 2d at 394. Justice Brennan saw the
“authorized imprisonment” test as more faithful to Gideon, presenting no
practical problems, and consistent with legislative judgments of the
seriousness of crime. Id. at 382–83, 99 S. Ct. at 1166–67, 59 L. Ed. 2d
at 394–95. In short, Justice Brennan called out the majority for jumping
the rails of the track plainly laid down by the Court’s prior Sixth
Amendment precedents.
The next turn of the caselaw occurred in Baldasar v. Illinois, 446
U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (per curiam),
overruled by Nichols v. United States, 511 U.S. 738, 748, 114 S. Ct. 1921,
1928, 128 L. Ed. 2d 745, 755 (1994). In Baldasar, the Supreme Court
considered a slightly different but important question not decided in
Scott, namely, whether an uncounseled conviction that did not result in
actual imprisonment under Scott could be used as a predicate for
enhancing a later offense that carried a prison term. Id. at 222, 100 S.
38
Ct. at 1585, 64 L. Ed. 2d at 171–72. A divided Illinois appellate court
concluded such an uncounseled conviction could be used as a predicate
to enhance the later crime. Id. at 223–24, 100 S. Ct. at 1586, 64 L. Ed.
2d at 172.
The judgment of the Court was announced in a per curiam opinion
and was supported by three separate concurring opinions that garnered
the support of five justices. Id. at 224–30, 100 S. Ct. at 1586–89, 64 L.
Ed. 2d at 172–76. In an opinion for himself and joined by Justices
Brennan and Stevens, Justice Stewart briefly wrote that under the
specific facts presented, the conviction violated the principles outlined in
Scott. Id. at 224, 100 S. Ct. at 1586, 64 L. Ed. 2d at 172–73 (Stewart, J.,
concurring). Justice Marshall, joined by Justices Brennan and Stevens,
wrote more broadly. Id. at 224–29, 100 S. Ct. at 1586–88, 64 L. Ed. 2d
at 173–76 (Marshall, J., concurring). He reinforced the proposition that
the petitioner had been deprived of his liberty “as a result of [the first]
criminal trial could not be clearer.” Id. at 226, 100 S. Ct. at 1587, 64 L.
Ed. 2d at 174 (internal quotation marks omitted). Justice Marshall
emphasized a conviction that could not support a one day jail sentence
could not support a subsequent conviction under a repeat offender
statute imposing lengthy incarceration. Id. at 226–27, 100 S. Ct. at
1587, 64 L. Ed. 2d at 173–74. In a third brief opinion, Justice Blackmun
concurred, noting Baldasar was entitled to counsel under his dissent in
Scott because in the underlying proceeding he faced the possibility of
incarceration for more than six months. Id. at 229–30, 100 S. Ct. at
1589, 64 L. Ed. 2d at 176 (Blackmun, J., concurring).
Justice Powell, joined by the Chief Justice, Justice White, and
Justice Rehnquist dissented. Id. at 230–35, 100 S. Ct. at 1589–92, 64 L.
Ed. 2d at 176–80 (Powell, J., dissenting). He argued the subsequent
39
enhanced conviction was valid under Scott because the defendant had
the assistance of counsel during his prosecution for the enhanced
offense. Id. at 231, 100 S. Ct. at 1589, 64 L. Ed. 2d at 177.
The multiple opinions in Baldasar caused confusion in the lower
courts. The result of the case was clear, but which opinion was the
narrowest opinion that, under the traditional approach to fractured
opinions, formed the holding of the case was less so. The courts
splintered. Many, but not all, saw the core holding of Baldasar, that an
uncounseled conviction was invalid for the purpose of collaterally
enhancing a sentence, as the precise result, relying upon Justice
Marshall’s opinion. See, e.g., United States v. Brady, 928 F.2d 844, 854
(9th Cir. 1991), abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at
1928, 128 L. Ed. 2d at 755; Lovell v. State, 678 S.W.2d 318, 320 (Ark.
1984), abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at 1928, 128
L. Ed. 2d at 755; State v. Laurick, 575 A.2d 1340, 1347 (N.J. 1990),
abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at 1928, 128 L. Ed. 2d
at 755. Other courts relied primarily on the opinion of Justice
Blackmun. See, e.g., Hlad v. State, 565 So. 2d 762, 764–67 (Fla. Dist.
Ct. App. 1990) (en banc); State v. Orr, 375 N.W.2d 171, 175–76 (N.D.
1985). Still others seem to have regarded the opinion as hopelessly
splintered and without much precedential value. See, e.g., United States
v. Eckford, 910 F.2d 216, 220 (5th Cir. 1990); May, 18 Hamline L. Rev. at
253–55 (citing various theories employed by courts in interpreting
Baldasar); Kirsten M. Nelson, Nichols v. United States and the Collateral
Use of Uncounseled Misdemeanors in Sentence Enhancement, 37 B.C. L.
Rev. 557, 570–72 (1996) (same).
The opaqueness of Baldasar was resolved for federal constitutional
purposes in Nichols, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745.
40
In Nichols, a federal criminal defendant received additional points under
United States Sentencing Guidelines as the result of a state
misdemeanor conviction for driving while under the influence for which
he was fined but not incarcerated. Id. at 740, 114 S. Ct. at 1924, 128 L.
Ed. 2d at 750. Because of the increase in points, the maximum sentence
of imprisonment increased from 210 to 235 months. Id. The defendant
claimed the increase in points was not allowed under Baldasar. Id. at
741, 114 S. Ct. at 1924, 128 L. Ed. 2d at 750. The district court
disagreed and a divided panel of the Court of Appeals for the Sixth
Circuit affirmed. Id. at 741–42, 114 S. Ct. at 1924–25, 128 L. Ed. 2d at
750–51.
A divided United States Supreme Court affirmed. Id. at 742, 114
S. Ct. at 1925, 128 L. Ed. 2d at 751. In a majority opinion by Chief
Justice Rehnquist, the Court held that a sentencing court may consider
a defendant’s previous uncounseled misdemeanor conviction in
sentencing a defendant for a subsequent offense so long as the
uncounseled misdemeanor conviction did not result in a sentence of
imprisonment. Id. at 748–49, 114 S. Ct. at 1928, 128 L. Ed. 2d at 755.
Chief Justice Rehnquist emphasized that enhancement statutes do not
change the penalty for the original uncounseled misdemeanor, but
impose penalties only for the last offense committed by the defendant.
Id. at 746–47, 114 S. Ct. at 1927, 128 L. Ed. 2d at 753–54.
Justice Blackmun, joined by Justices Stevens and Ginsburg,
dissented. Id. at 754–65, 114 S. Ct. at 1931–37, 128 L. Ed. 2d at 758–65
(Blackmun, J., dissenting). Reminiscent of Justice Brennan’s dissent in
Scott, Justice Blackmun’s opinion stressed the right to counsel applied to
“all criminal prosecutions.” Id. at 754–55, 114 S. Ct. at 1931, 128 L. Ed.
2d at 758–59. He argued the animating principle of the cases was “that
41
no indigent [should be] deprived of his liberty as a result of a proceeding
in which he lacked the guiding hand of counsel.” Id. at 757, 114 S. Ct.
at 1932, 128 L. Ed. 2d at 760. Justice Blackmun wrote that while the
subsequently enhanced conviction did not increase the penalties for the
original offense for purposes of double jeopardy, it was still undeniable
that Nichols’s uncounseled conviction resulted in more than two years’
imprisonment. Id. at 757, 114 S. Ct. at 1933, 128 L. Ed. 2d at 761.
Justice Blackmun argued that a conviction that is invalid for purposes of
the offense itself remains invalid for purposes of increasing the term of
imprisonment imposed for a subsequent offense. Id. He further argued
the majority opinion was inconsistent with Burgett and Tucker, decided
only a few years earlier. Id. at 762–63, 114 S. Ct. at 1935, 128 L. Ed. 2d
at 763–64.
Further, Justice Blackmun questioned the reliability of an
uncounseled conviction. He emphasized that a rule that an uncounseled
misdemeanor conviction can never form the basis for a term of
imprisonment is faithful to Gideon’s admonition that “ ‘any person haled
into court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided.’ ” Id. at 762, 114 S. Ct. at 1935, 128 L. Ed.
2d at 764 (quoting Gideon, 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d
at 805). He noted a study, cited by Justice Douglas in Argersinger,
showing misdemeanants represented by counsel were five times more
likely to emerge from police court with all charges dismissed as those
who have no representation. Id. at 763, 114 S. Ct. at 1936, 128 L. Ed.
2d at 764 (citing Argersinger, 407 U.S. at 36, 92 S. Ct. at 2012, 32 L. Ed.
2d at 538). According to Justice Blackmun:
Given the utility of counsel [in misdemeanor cases], the
inherent risk of unreliability in the absence of counsel, and
42
the severe sanction of incarceration that can result directly
or indirectly from an uncounseled misdemeanor, there is no
reason in law or policy to construe the Sixth Amendment to
exclude the guarantee of counsel where the conviction
subsequently results in an increased term of incarceration.
Id. In any event, both Scott and Nichols departed from the traditional
Sixth Amendment reliability rationale driven by federalism and
practicality concerns.
Most recently, the Supreme Court decided Alabama v. Shelton, 535
U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002). In Shelton, the
Supreme Court considered whether a misdemeanor assault conviction in
which a sentence of thirty-days’ imprisonment was suspended with
probation imposed was the kind of criminal proceeding entitling the
accused to a lawyer. Id. at 657–58, 122 S. Ct. at 1767, 152 L. Ed. 2d at
895. In Shelton, the Alabama Supreme Court concluded that a
suspended sentence constitutes “a term of imprisonment” under
Argersinger and Scott even though incarceration was not immediate or
inevitable. Id. at 659, 122 S. Ct. at 1768, 152 L. Ed. 2d at 896. The
Supreme Court affirmed. Id. at 674, 122 S. Ct. at 1776, 152 L. Ed. 2d at
905–06. In an opinion by Justice Ginsburg, the majority first recognized
the “actual imprisonment” test of Argersinger and Scott. Id. at 662, 122
S. Ct. at 1769–70, 152 L. Ed. 2d at 898. Applying an “actual
imprisonment” test, the Court concluded “[a] suspended sentence is a
prison term imposed for the offense of conviction.” Id. at 662, 122 S. Ct.
at 1770, 152 L. Ed. 2d at 898. The majority rejected the view that
counsel could be appointed when probation revocation was
contemplated, noting that under applicable state law, the issue at that
point was narrow and did not provide for the relitigation of the
underlying offense. Id. at 667, 122 S. Ct. at 1772, 152 L. Ed. 2d at 901.
Addressing the argument that requiring counsel in such cases would be
43
unduly burdensome, the majority noted “most jurisdictions already
provide a state-law right to appointed counsel more generous than that
afforded by the Federal Constitution.” Id. at 668, 122 S. Ct. at 1773, 152
L. Ed. 2d at 902 (citing Nichols, 511 U.S. at 748 n.12, 114 S. Ct. 1928
n.12, 128 L. Ed. 2d at 755 n.12).
Four members of the Supreme Court dissented in Shelton. Id. at
674–81, 122 S. Ct. at 1776–80, 152 L. Ed. 2d at 906–10 (Scalia, J.,
dissenting). Writing for the dissenters, Justice Scalia emphasized that
actual imprisonment was the touchstone triggering the right to counsel
under the Sixth Amendment. Id. at 675, 122 S. Ct. at 1776, 152 L. Ed.
2d at 906. The dissenters emphasized that actual imprisonment in
Shelton was only a contingency and would occur only if a future
probation violation occurred and if the state court remedy for the
probation violation was actual imprisonment. Id. at 675–76, 122 S. Ct.
at 1777, 152 L. Ed. 2d at 906–07. In other words, imposition of a
suspended sentence did not result in actual imprisonment triggering the
right to counsel under the Sixth Amendment. See id.
Finally, there is one additional case which, though not dealing with
the right of a poor person to appointed counsel in misdemeanor
prosecutions, has some bearing on the analysis. In Padilla v. Kentucky,
559 U.S. 356, 359–60, 130 S. Ct. 1473, 1478, 176 L. Ed. 2d 284, 289–90
(2010), the United States Supreme Court held that a lawyer who does not
advise a client of the immigration consequences of a criminal conviction
may provide ineffective assistance of counsel. The immigration
consequences of a criminal conviction have, of course, been considered
“collateral consequences” and ordinarily counsel have not been held to
have an obligation to explain them to a client. See id. at 375–76, 130 S.
Ct. at 1487–88, 176 L. Ed. 2d at 300 (Alito, J., concurring). However, in
44
Padilla, the Supreme Court recognized that the collateral consequences—
namely deportation—may be more significant than the sanctions
available in the underlying proceeding. Id. at 368, 130 S. Ct. at 1483,
176 L. Ed. 2d 284, 295 (majority opinion). Padilla’s recognition that the
collateral consequence of deportation may be more powerful than
criminal sanctions including “actual imprisonment” tends to undermine
the categorical rule of Scott that “actual imprisonment” is a special
sanction and is meaningfully more severe than the other consequences of
criminal convictions. If Justice Scalia is right, who wrote in dissent that
the principle in Padilla could not be contained but would expand to other
collateral consequences, then the theoretical underpinning of Scott may
be unraveling. See id. at 388–92, 130 S. Ct. at 1494–97, 176 L. Ed. 2d
284, 307–10 (Scalia, J., dissenting).
In summary, the extent to which poor people are entitled to the
assistance of counsel in misdemeanor cases has been hotly contested in
the United States Supreme Court. While the animating rationale of
Powell, Zerbst, Gideon, Burgett, Tucker, and Argersinger stressed the role
of counsel in producing fair results, the majority in Scott and Nichols
dramatically changed the emphasis to practicality considerations and
notions of federalism.
But even the “actual imprisonment” test of Scott and Nichols has
not proved satisfactory to the majority of the Court, and in Shelton, the
right to counsel was triggered by a sentence that could eventually lead to
actual incarceration. In addition, it is at least arguable that Padilla
suggests the bright-line distinction between “actual imprisonment” and
other consequences of criminal conviction may no longer be valid.
Padilla may indicate a renewed receptivity to Justice Powell’s concurring
opinion in Argersinger, which asserted that important collateral impacts
45
such as loss of employment or loss of a driver’s license might be far more
important to a poor person than a short stint in jail. See Argersinger,
407 U.S. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544–45 (Powell, J.,
concurring in the result).
Until modified by the United States Supreme Court, however, Scott
stands for the proposition that under the Sixth Amendment to the United
States Constitution, a poor misdemeanant defendant does not have a
right to counsel unless “actual imprisonment” actually occurs regardless
of the collateral consequences or the fairness of the underlying
proceeding. 440 U.S. at 369, 99 S. Ct. at 1160, 59 L. Ed. 2d at 386.
Nichols stands for the proposition that a valid misdemeanor conviction,
which includes an uncounseled misdemeanor conviction when no
imprisonment was imposed, may be used in a sentence enhancement
scheme without running afoul of the Sixth Amendment. 511 U.S. at
748–49, 114 S. Ct. at 1928, 128 L. Ed. 2d at 755. The question is: do we
reach the same results under the Iowa Constitution?
5. State law regarding the right to counsel for misdemeanants. In
order to determine whether we should follow the reasoning of United
States Supreme Court precedent in interpreting our state constitution,
the precedents of other states can be instructive. See Baldon, 829
N.W.2d at 818 (Appel, J., specially concurring) (noting other states’
constitutional analysis “can serve as a springboard for [our own]
analysis”).
As pointed out in Nichols and Shelton, state law generally provides
counsel for poor people more generously than the caselaw of the United
States Supreme Court under the Sixth Amendment. See Shelton, 535
U.S. at 668, 122 S. Ct. at 1773, 152 L. Ed. 2d at 902; Nichols, 511 U.S.
at 748 n.12, 114 S. Ct. at 1928 n.12, 128 L. Ed. 2d at 755 n.12. These
46
more generous provisions are often based in statute, rule, or the exercise
of supervisory powers by the judiciary. According to a 2009 survey, nine
states by statute provided counsel in all, or virtually all criminal
proceedings; fifteen states provided counsel for any offenses punishable
by imprisonment; eight states provided counsel for offenses punishable
by incarceration or a fine of more than a specified amount, or for any
offense with a minimal incarceration period or fine; fourteen states
provided counsel for any criminal offense except when imprisonment is
not authorized; and five states required a sentence of actual
imprisonment for a defendant to be entitled to court-appointed counsel.
See Marcus, 21 St. Thomas L. Rev. at 164–65 & nn. 141–46 (citing state
statutes).
We begin our substantive discussion of state constitutional law by
noting that prior to Scott, a number of state supreme courts held that the
“all criminal prosecutions” type language in their state constitutions was
broad enough to cover misdemeanors. See, e.g., In re Johnson, 398 P.2d
420, 422 (Cal. 1965) (noting California Constitution provides right to
counsel “in criminal prosecutions, in any court whatever,” which
includes misdemeanors); Bolkovac v. State, 98 N.E.2d 250, 252–53 (Ind.
1951) (observing Indiana Constitution provides for the right to counsel in
“all criminal prosecutions” and makes no distinction between felonies
and misdemeanors); Decker v. State, 150 N.E. 74, 76 (Ohio 1925) (noting
Ohio Constitution providing for counsel to appear “in any trial, in any
court” includes misdemeanor prosecutions); Hunter v. State, 288 P.2d
425, 428 (Okla. Crim. App. 1955) (noting the “all criminal prosecutions”
language under the Oklahoma Constitution and finding that “[n]o
distinction is drawn between a felony or misdemeanor”); Brown v. Dist.
Ct., 570 P.2d 52, 55 (Or. 1977) (en banc) (observing that “all criminal
47
prosecutions” in Oregon Constitution includes all conduct that the
legislature has defined as a criminal offense). These cases often involved
the right to retained counsel rather than appointed counsel, but if the
right to have the assistance of retained counsel in one’s defense is
fundamental to the fairness of the proceeding, how can a proceeding be
fair if a poor person is required to proceed without counsel?
With respect to the Nichols question of whether a valid but
uncounseled misdemeanor conviction can be used to enhance
incarceration in a subsequent offense, a number of state courts after
Baldasar held under their state constitutions that a poor person’s
uncounseled misdemeanor conviction could not be used to enhance a
subsequent criminal offense. See, e.g., State v. Dowd, 478 A.2d 671, 678
(Me. 1984), overruled by State v. Cook, 706 A.2d 603, 605 (Me. 1998).
After Nichols, however, a number of states changed course and
followed the new United States Supreme Court precedent. For example,
the Maine Supreme Court overruled its prior precedent under its state
constitution to conform with the new federal precedent. Cook, 706 A.2d
at 605. The West Virginia Supreme Court overruled its cases to follow
the new federal precedent. See State ex rel. Webb v. McCarty, 542 S.E.2d
63, 66–67 (W. Va. 2000) (citing State v. Hopkins, 453 S.E.2d 317, 324
(W. Va. 1994)). At the time of their decisions, these state supreme courts
generally followed a highly deferential approach to federal precedents
and, as such, their opinions are conclusory in nature. See State v.
Weeks, 681 A.2d 86, 88 (N.H. 1996); State v. Porter, 671 A.2d 1280,
1282–84 (Vt. 1996).
Several states have pursued their own path under their state
constitutions or statutes. For example, in Brisson v. State, 955 P.2d 888,
891 (Wyo. 1998), the Wyoming Supreme Court held the requirement
48
under a Wyoming statute that counsel “shall be appointed” for “serious
crimes” included cases in which incarceration was a practical possibility.
Brisson noted the clear invitation in Nichols that states were free to
implement stricter standards. Id. (citing Nichols, 511 U.S. at 748 n.12,
114 S. Ct at 1129 n.12, 128 L. Ed. 2d at 755 n.12). Although the case
involved statutory grounds, the Wyoming Supreme Court also
announced that it would “decline to follow the United States Supreme
Court’s actual incarceration approach” and cited State v. Sinagoga, 918
P.2d 228, 241 (Haw. Ct. App. 1996), overruled in part on other grounds by
State v. Veikoso, 74 P.3d 575, 583 n.8 (Haw. 2003), a case under the
Hawaii Constitution. Brisson, 955 P.2d at 891. The Brisson court
further emphasized that its concern arose from “the reliability of
uncounseled convictions.” Id. (“In order to allow a sentencing court to
consider previous convictions, we must be convinced that such
convictions are reliable.”).
Similarly, in Sinagoga, the Hawaii appellate court adopted
reasoning independent from Nichols under the Hawaii Constitution. 918
P.2d at 242 (choosing “not to follow the rationale in Nichols” in the
context of consecutive term sentencing). The Sinagoga court relied
heavily on the language of Burgett and Tucker, reasoning that the
reliability of the underlying prior convictions is the “linchpin” for due
process consideration. Id. at 238, 241. Although the Hawaii right-to-
counsel provision has distinctive language, the Sinagoga court utilized a
functional rather than textual analysis. See Haw. Const. art. I, § 14;
Sinagoga, 918 P.2d at 240 n.12, 241.
In State v. Henes, the North Dakota Supreme Court, citing state
caselaw precedent from 1985, noted that “ ‘absent a valid waiver of the
right to counsel the resulting [uncounseled misdemeanor] conviction
49
cannot, under art. I, § 12, [of the North Dakota Constitution] be used to
enhance a term of imprisonment for a subsequent offense.’ ” 763 N.W.2d
502, 505 (N.D. 2009) (quoting Orr, 375 N.W.2d at 178–79 (recognizing
“the right to counsel under [the North Dakota] Constitution is
fundamental because it enables an accused to procure a fair trial”)); see
also City of Grand Forks v. Mata, 517 N.W.2d 626, 630 (N.D. 1994) (“Orr’s
practical consequence is that, regardless of the penalty to be imposed, a
court must afford a nonindigent defendant the opportunity to retain
counsel, appoint counsel for an indigent defendant, or obtain a valid
waiver of counsel on the record if that conviction is to be used as a basis
for enhancing the penalty for a subsequent conviction.”).
In short, the North Dakota Supreme Court has followed the
fundamental fairness rationale of Powell, Zerbst, Gideon, Burgett, Tucker,
and Argersinger, and not the federalism and practicality rationales of
Scott and Nichols.
The Florida Supreme Court also recently refused to follow federal
precedent. The Florida Supreme Court has employed similar analysis
under article I, section 16 of the Florida Constitution, which declares
that in “all criminal prosecutions,” the accused has “the right . . . to be
heard in person, by counsel or both.” Fla. Const. art. I, § 16(a). The
Florida trail begins with Hlad, 585 So. 2d at 930 and State v. Beach, 592
So. 2d 237, 238 (Fla. 1992). After the Supreme Court decided Nichols, in
State v. Kelly, 999 So. 2d 1029, 1032–33 (Fla. 2008), the State of Florida
urged the Florida Supreme Court to abandon Hlad and Beach and adopt
the Nichols approach. The Florida Supreme Court declined to do so. Id.
at 1039. The court, like many of the other state supreme courts rejecting
the Nichols approach, focused on the reliability of the uncounseled
convictions. Id. at 1048–49. The Kelly court noted that the unreliability
50
of prior uncounseled misdemeanor convictions “does not turn on the
length of the prospective term of imprisonment,” but rather “on the fact
that even an uncounseled innocent gains little by contesting a ‘petty’
misdemeanor where the prosecuting attorney is offering a low fine and
community service in exchange for a guilty or no-contest plea.” Id. at
1051.
In summary, state courts too have wrestled with the questions
inherent in Scott and Nichols, with varying results. Some, but not all,
rely on state constitutional language different from the Sixth Amendment
in departing from federal precedent. Aside from linguistic differences,
those courts that emphasize the fundamental fairness principle as the
bedrock principle, rather than the federalism and practicality concerns of
Scott and Nichols, tend to follow Powell and its progeny. Jurisdictions
that are inclined to follow the federal model through a lockstep approach
even if it requires overturning recent state constitutional precedent have
tended to follow the Supreme Court’s lead.
6. Post-Gideon legislation, rulemaking, and caselaw developments
regarding the right to counsel in Iowa. We begin our discussion with
legislative and rulemaking developments. As early as 1860, the Iowa
Code provided that if a defendant “appear[s] for arraignment without
counsel, he must be informed by the court, that it is his right to have
counsel . . . and [if he] is unable to employ any, [the court must] assign
him counsel.” See Iowa Code § 4685 (1860). This right to counsel
extended not only to felons, but also to misdemeanants when the penalty
might exceed a fine of $100 or imprisonment for more than thirty days,
i.e. in the case of indictable misdemeanors (which today include serious
and aggravated misdemeanors). Id. § 4499(3); see Wright v. Denato, 178
N.W.2d 339, 342 (Iowa 1970) (holding “an indigent defendant charged
51
with an indictable misdemeanor is entitled to appointment of counsel
upon request”); Op. Iowa Att’y Gen. 160–62 (1964) (“[C]ounsel must be
appointed for indigent defendants accused of felonies and indictable
misdemeanors at the preliminary hearing.”); see also Op. Iowa Att’y Gen.
179–82 (1966) (same). Thus, long before Gideon, the statutory policy in
Iowa provided counsel for most misdemeanants.
In 1976, the Iowa legislature enacted statutory provisions
completely revising criminal procedure laws. See 1976 Iowa Acts ch.
1245, ch. 2, div. XIII (effective beginning Jan. 1, 1978) (currently found
at Iowa R. Crim. P. 2.1–.76). At that time, the legislature passed a vague
provision in a new section relating to the trial of simple misdemeanors
which stated that “[i]n appropriate cases” Iowa courts shall appoint
counsel to assist in the defense of indigent defendants. Id. § 1302, r. 42.
The following year, in 1977, the legislature changed the language to
require the appointment of counsel for indigents when the defendant
faced the “possibility of imprisonment.” 1977 Iowa Acts ch. 153, § 85.
This statutory provision was in place at the time Scott was decided. We
subsequently incorporated the “possibility of imprisonment” language
into what is now Iowa Rule of Criminal Procedure 2.61(2).
Thus, under Iowa legislative enactment and court rule, the right to
counsel in Iowa has been extended to all criminal proceedings in which
there is “a possibility of imprisonment” since before Scott was decided.
Although the Supreme Court in Scott later adopted a more restrictive
approach, the Iowa statute, replaced by the subsequent verbatim court
rule, was not altered and remains on the books today. See Iowa R. Crim.
P. 2.61(2).
We now turn to Iowa caselaw developments related to the right to
counsel. Our early cases deal with the entitlement of counsel to payment
52
pursuant to statutory provisions providing for the appointment of
counsel. See, e.g., Ferguson v. Pottawattamie County, 224 Iowa 516,
518, 278 N.W. 223, 224 (1938); Hall, 2 Greene at 476. Although these
cases evince some solicitude to the role of counsel, they have no
particular relevance to the constitutional question presented in this case.
We have considered numerous right-to-counsel cases in which the
defendant only invoked the Sixth Amendment. See, e.g., State v. Wilkins,
687 N.W.2d 263, 264–65 (Iowa 2004) (per curiam); State v. Cooper, 343
N.W.2d 485, 486 (Iowa 1984), overruled by Wilkens, 687 N.W.2d at 265;
Osmundson, 315 N.W.2d at 10. Particularly instructive is Osmundson.
In Osmundson, an indigent was facing a jail sentence for contempt of
court. 315 N.W.2d at 10. The indigent claimed he was entitled to
appointment of counsel at public expense. Id. at 11. We agreed. Id. at
14. In coming to our conclusion, we noted that “we . . . make no attempt
to arrive at our own independent interpretation of the United States
Constitution, but follow the federal decisions as we understand them.”
Id. at 13. Citing the “unique language” of article I, section 10 of the Iowa
Constitution (“In all criminal prosecutions, and in cases involving the . . .
liberty of an individual the accused shall have a right . . . to have the
assistance of counsel.”), we observed the petition did not raise the
question of whether a poor person could claim entitlement to counsel in
a contempt proceeding under it. Id. Nor were we required to examine
the Iowa rules of criminal procedure because the case was not a criminal
prosecution. Id. at 13–14.
We considered two cases after Gideon that dealt with the federal
right to counsel in misdemeanor cases. In Cooper, 343 N.W.2d at 486,
we considered whether two prior uncounseled misdemeanor convictions
could be used to enhance a theft conviction to theft in the third degree,
53
the very issue posed in this case. We concluded that they could not. Id.
In support of our holding, we cited “the reasoning in Baldasar,” “our own
view of the importance of counsel,” and “[t]he lack of reliability [of] an
uncounseled conviction.” Id. We noted the collateral consequences of
conviction on the enhanced charge could include fines, social stigma,
loss of a job, and decreased employment prospects. Id. While we cited
Sixth Amendment caselaw, we also cited two state law cases, State v.
Nordstrom, 331 N.W.2d 901, 903–05 (Minn. 1983), and State v. Grenvik,
628 P.2d 1195, 1196–97 (Or. 1981) (en banc), abrogated by State v.
Probst, 124 P.3d 1237, 1245 (Or. 2005), which precluded use of
uncounseled misdemeanors to enhance a subsequent crime under state
law. Cooper, 343 N.W.2d at 486. Among the various interpretations
swirling around the courts after Baldasar, our decision in Cooper is most
consistent with Justice Marshall’s opinion. Cf. Baldasar, 446 U.S. at
224–29, 100 S. Ct. at 1586–88, 64 L. Ed. 2d at 173–75 (Marshall, J.,
concurring).
After the Supreme Court decided Nichols, we backtracked from
Cooper and sought to follow the new federal precedent in a per curiam
opinion in Wilkins, 687 N.W.2d at 265. In Wilkins, the sole claim was
whether the use of uncounseled convictions to enhance a later crime
violated the Sixth Amendment. Id. at 264–65. No issues were raised in
Wilkins under the Iowa Constitution. See id. We stated that once the
Supreme Court ruled in Nichols, “our own view of the importance of
counsel,” id. (internal quotation marks omitted), and our concerns about
the reliability of prior convictions were now irrelevant on the federal
constitutional issue subsequently teed up and squarely decided in
Nichols. Id. (citing Cooper, 343 N.W.2d at 486). There was no
recognition of the nuance in Justice Souter’s Nichols opinion, which
54
stressed that the misdemeanor convictions were used as part of a
sentencing structure that preserved at least some discretion for the trial
court. Compare id., with Nichols, 511 U.S. at 749–54, 114 S. Ct. at
1929–31, 128 L. Ed. 2d at 755–58 (Souter, J., concurring in the
judgment). In Wilkins, there was no follow-up on the tantalizing
suggestion in Osmundson regarding the “unique language” of article I,
section 10 of the Iowa Constitution or of the Iowa Rules of Criminal
Procedure. Compare Osmundson, 315 N.W.2d at 13, with Wilkens, 687
N.W.2d at 265.
Finally, in Allen, 690 N.W.2d at 686, an indigent defendant claimed
that under the Iowa Constitution, prior uncounseled misdemeanor
convictions could not be used to enhance a subsequent crime even when
actual incarceration did not occur as required in Scott and Nichols. The
defendant did not cite a specific provision of the Iowa Constitution, but
did cite Cooper, 343 N.W.2d at 485, and generally argued the
unreliability of uncounseled convictions precluded their use in the
enhancement of the subsequent charge. Allen, 690 N.W.2d at 686–87.
In Allen, we briefly recognized the “ebb and flow” of United States
Supreme Court decisions beginning with Argersinger and ending in
Nichols. Id. at 687–89. We then proceeded to consider the Iowa
constitutional claims. Id. at 689–92. Remarkably, we did not cite the
“unique language” of article I, section 10 as in Osmundson, but instead
inaccurately declared that the language was “textually similar” to the
federal counterpart. Id. at 690. Although Allen states that other state
courts who declined to follow Nichols did so with distinctive language in
their state constitutions “authoriz[ing] the possibility of incarceration,”
id. at 690–91 (emphasis omitted), the Iowa language stating that the
55
right to counsel exists in “cases involving liberty” seems to do just that,
Iowa Const. art. I, § 10.
We declared in Allen that there must be some principled basis for
distinguishing Nichols. Allen, 690 N.W.2d at 690. But, as is apparent,
particularly in our recent cases, there is no presumption of the
correctness of federal law. See Short, 851 N.W.2d at 486–87 (noting
there is no presumption that federal construction of similar language is
correct); Baldon, 829 N.W.2d at 821 (Appel, J., specially concurring)
(“[T]here is no presumption that . . . federal law is the correct
approach.”); State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010) (same).
Instead, federal precedent has a bearing on our interpretation of state
law only to the extent its reasoning persuades us. See Ochoa, 792
N.W.2d at 267.
There are substantial reasons to question the reasoning of Nichols.
The Allen court failed to recognize that Scott, upon which Nichols
critically relied, was based upon federalism and pragmatic concerns that
had no application in Iowa. The strong emphasis in Scott on its
federalism concern about a one-size-fits-all rule for the diverse states has
no bearing on determining questions of state constitutional law that
impact only one state. In addition, although the Allen court mimicked
the speculative fiscal concerns in Scott by stating that a decision to
require counsel for poor misdemeanor defendants would impose
“significant additional burdens on the criminal justice system,” 690
N.W.2d at 692, the Allen court was apparently not familiar with Iowa’s
long standing legislative policy, now embraced in Iowa Rule of Criminal
Procedure 2.61(2), that poor persons are entitled to appointment of
counsel in misdemeanor cases when there is a “possibility of
imprisonment,” a standard consistent with Justice Brennan’s dissent in
56
Scott. See Scott, 440 U.S. at 375–89, 99 S. Ct. at 1163–70, 59 L. Ed. 2d
at 390–99 (Brennan, J., dissenting).
The Allen court also failed to recognize that in Cooper, we
emphasized our “own view of the importance of counsel,” the “lack of
reliability of uncounseled convictions,” and cited cases relying on state
law to prohibit sentencing enhancements arising from uncounseled
misdemeanor convictions. Cooper, 343 N.W.2d at 486. The powerful
language in Powell, Zerbst, Gideon, Burgett, Tucker, and Argersinger
regarding the role of counsel in promoting the reliability of the fact-
finding process in criminal proceedings regardless of the severity of
punishment is entirely ignored. The Allen opinion contains no
discussion at all about the realities of the management of the
misdemeanor docket or the Argersinger concern about “assembly-line
justice.” Argersinger, 407 U.S. at 36, 92 S. Ct. at 2012, 32 L. Ed. 2d at
538 (internal quotation marks omitted). And, the Allen court did not
evince awareness of the dramatic increase and rapid expansion of
collateral consequences for even minor offenses such as shoplifting,
theft, or vagrancy.
Finally, and understandably, the Allen court was not in a position
to consider developments that occurred after the case was decided.
Although the Allen court declared it did not “detect a trend in our sister
state courts to abandon the federal analysis,” 690 N.W.2d at 690, the
Allen court did not have the benefit of the Florida case declining to follow
Nichols, see Kelly, 999 So. 2d at 1039. It also was not aware of Padilla
and its potential undermining of the Nichols rationale. See Padilla, 559
U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 294.
For the above reasons, we conclude Allen is fundamentally flawed
and the issue presented, namely, whether the uncounseled misdemeanor
57
conviction of a poor person facing the possibility of incarceration may be
used to enhance a subsequent crime, should be considered anew.
F. Analysis of Scope of Article I, Section 10 for Misdemeanor
Cases.
1. Textual analysis. We begin our discussion by noting the force
of the plain language of the Iowa Constitution, article I, section 10. The
language provides that the right to counsel applies “in all criminal
prosecutions.” Iowa Const. art. I, § 10. It does not say some criminal
prosecutions. It does not say felonies only. And, of course, the text says
nothing at all about “actual incarceration.”
A plain reading of the constitutional text causes us to question the
reasoning of Scott and Nichols. We are not dealing with an open-textured
phrase such as “privileges and immunities” or “due process of law” which
are inherently, if not deliberately, ambiguous and require a process of
constant reinterpretation and reappraisal. We do not deny there can be
important line-interpretive questions regarding the meaning of the
phrase. There is, for instance, a substantial question as to when a
criminal prosecution begins. But the language of the “all criminal
prosecutions” provision of article I, section 10 is directed toward
providing counsel in order to avoid the risk of conviction, not the risk of
incarceration. And if this choice of language means anything, it is
difficult to avoid the conclusion that the phrase “all criminal
prosecutions” was expressly designed to avoid judicially imposed slicing
and dicing of criminal prosecutions into two or more categories. See,
e.g., In re Johnson, 398 P.2d at 422; Bolkovac, 98 N.E.2d at 255; Decker,
150 N.E. at 76; Hunter, 288 P.2d at 428; Brown, 570 P.2d at 55. The bill
of rights of the Iowa Constitution embraces the notion of “inalienable
58
rights,” not rights that shrink and disappear based upon currently
fashionable transient pragmatic assessments. See Iowa Const. art. I, § 1.
Our linguistic concerns are exacerbated by the double-breasted
nature of the Iowa Constitution’s right-to-counsel provision. Not only
does the Iowa Constitution expressly apply in “all criminal prosecutions,”
it also applies in “cases involving the life, or liberty of an individual.” Id.
art. I, § 10. Unlike the “all criminal prosecutions” language, the liberty
language of the “cases” clause is directed toward a limited category of
cases involving a person’s interest in physical liberty. See id.
We believe that liberty is “involved” in a misdemeanor prosecution
when an accused is charged under a statute that authorizes
incarceration. The founders of the Iowa Constitution intended a bill of
rights in which article I, section 10 is a part to be read in a generous
fashion, not in a cramped, stingy, or fearful fashion. According to George
Ells, Chairman of the Committee on the Preamble and Bill of Rights, the
committee wanted provisions in the Iowa Bill of Rights that “ ‘would
enlarge, and not curtail the rights of the people’ ” and would “ ‘put upon
record every guarantee that could be legitimately placed there in order
that Iowa . . . might . . . have the best and most clearly defined Bill of
Rights.’ ” Baldon, 829 N.W.2d at 810 (Appel, J., specially concurring)
(quoting 1 The Debates of the Constitutional Convention of the State of
Iowa 100 (W. Blair Lord rep., 1857) [hereinafter The Debates], available
at www.statelibraryofiowa.org/services/collections/law-library/iaconst.).
As a matter of constitutional history, it is clear the “cases”
language in the Iowa Constitution arose, at least in part, in order to
provide protections to persons subject to return to slavery under the
Federal Fugitive Slave Act. See 2 The Debates at 736–41. The inclusion
of the “cases” language was hotly debated by the drafters, as apparent
59
from spirited exchanges namely between Mr. Clark and Mr. Harris. Id.
Mr. Harris had recommended an amendment to strike such language
from section 10, which was rejected. Id. at 741. Mr. Clark contended
that
unless we have the right to make a constitution which will
secure to me the right of jury trial, if I am claimed as a
fugitive slave, without that right we are not a sovereign
people. Without that right we cannot protect every
individual member of society.
Id. at 737. What is apparent, therefore, is that one of the purposes of the
“cases” language was to guarantee the protections of article I, section 10
to those whom no formal criminal prosecution was or could be instituted,
thereby providing broader protections than the United States
Constitution. See id. at 736–41.
In this respect, the Iowa judiciary, the writers of the Iowa
Constitution of 1857, and the contemporary political branches of
government embraced a view of law that was not only independent from,
but fundamentally at odds with, federal law on the slavery issue. See
Short, 851 N.W.2d at 483; 2 The Debates at 738–39 (“I believe [the
fugitive slave law] to be unconstitutional.”) (remarks by Mr. Wilson).
But the “cases” language of article I, section 10 has broader
application than the immediate problem it was designed to ameliorate.
While it may be that the “cases” language amounts to constitutional
support for a right to counsel in qualifying civil contexts, it also strongly
suggests that if a right to counsel exists in civil cases in which “liberty” is
involved, it also must exist in criminal prosecutions in which “liberty” is
also at stake.
2. Functional or structural analysis. Aside from textual analysis,
we also find a functional analysis supports the view that a right to
60
counsel exists under the Iowa Constitution at least when imprisonment
is authorized. We note the observations of Justice Powell in his
concurring opinion in Argersinger. See 407 U.S. at 44–66, 92 S. Ct. at
2016–27, 32 L. Ed. 2d at 542–55 (Powell, J., concurring in result). While
some statutory offenses that merely impose fines may be considered
regulatory in nature and have little if any consequence, statutes that
authorize the imposition of imprisonment invariably contain a
reputational sting far beyond mere law violation. A person convicted of a
misdemeanor arising from shoplifting may have difficulty holding or
obtaining a job, particularly in the era of electronic access to information.
A driver’s license or professional license may be adversely affected. A
simple misdemeanor conviction may have other collateral impacts, such
as impairing the ability of persons to obtain educational, housing, or
other important benefits. A simple misdemeanor conviction involving
drugs could adversely impact immigration status. See generally Gabriel
J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699–700 (2002)
(observing the “imposition of collateral consequences has become an
increasingly central purpose of the modern criminal process”); Gross, 22
Wm. & Mary Bill Rts. J. at 80–87 (describing the rise of collateral
consequences over the last several decades); Jenny Roberts, Why
Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. Davis L. Rev. 277, 297–303 (2011) (noting the “most
pervasive collateral effect of a misdemeanor conviction is the ability to
find and keep work”). While the prospect of these impacts were
recognized by Justice Powell in his Argersinger concurrence, they are
even greater today. See 407 U.S. at 44–66, 92 S. Ct. at 2016–27, 32 L.
Ed. 2d at 542–55. These adverse effects must be evaluated not from the
61
perspective of comfortable middle-class judges, but from the viewpoint of
the poor with their attendant life challenges.
We also do not believe a lawyer’s help is irrelevant in misdemeanor
convictions when imprisonment is authorized. The breathtaking and
inspiring language of Justice Sutherland in Powell emphasized that “[t]he
right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel.” 287 U.S. at 68–69, 53 S.
Ct. at 64, 77 L. Ed. at 170. Simply put, a person does not get his “day in
court” without a lawyer. Although the narrow issue in Gideon was
whether the right to counsel extended to noncapital felony cases, Justice
Clark’s reasoning emphasized “there cannot constitutionally be a
difference in the quality of process based merely upon a supposed
difference in the sanction involved.” 372 U.S. at 349, 83 S. Ct. at 799, 9
L. Ed. 2d at 808 (Clark, J., concurring in the result). Similarly, much of
the rationale in Argersinger was based not on the offense charged, but
instead on the undeniable fact that in any criminal prosecution, whether
a capital offense, a felony, or a misdemeanor, complicated legal problems
may arise that the average person cannot satisfactorily navigate without
the assistance of counsel. Indeed, as pointed out by Justice Douglas in
Argersinger, the history of our jurisprudence is rife with very complicated
and important legal questions arising in the context of misdemeanor
prosecutions. See 407 U.S. at 32–34, 92 S. Ct. at 2010–11, 32 L. Ed. 2d
at 535–36 (majority opinion); see also Lawrence v. Texas, 539 U.S. 558,
578, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 525–26 (2003) (nolo
contendere plea to misdemeanor raises fundamental issues regarding
sodomy statutes); Atwater v. City of Lago Vista, 532 U.S. 318, 323, 121
S. Ct. 1536, 1541, 149 L. Ed. 2d 549, 558 (2001) (case involving seat-belt
violation raises important search and seizure issues).
62
Scott and Nichols are inconsistent with the traditionally close
relationship between the due process right to a fair trial and the right to
counsel. The heart of Gideon is concern over the fairness and reliability
of the criminal justice process. As noted in Justice Blackmun’s dissent
in Nichols, it is difficult to understand why an uncounseled misdemeanor
conviction that could not be used to support one day of incarceration can
later be used in an enhancement statute to significantly lengthen the
period of incarceration for the later crime. 511 U.S. at 757, 114 S. Ct. at
1933, 128 L. Ed. 2d at 761 (Blackmun, J., dissenting). If ensuring
fairness and reliability of criminal justice outcomes are the constitutional
forces underlying the right to counsel, an uncounseled misdemeanor
conviction cannot support incarceration directly or in subsequent cases.
See Cooper, 343 N.W.2d at 486 (citing “our own view of the importance of
counsel” and declaring “[t]he lack of reliability in an uncounseled
conviction that prevents the imposition of incarceration also prevents
enhancement of the charge”). We conclude the reasoning of Cooper and
the state court cases declining to follow Nichols is more persuasive. See
id.; Kelly, 999 So. 2d at 1048–49; Brisson, 955 P.2d at 891.
3. Iowa tradition regarding the right to counsel. Finally, we note
that statutory enactments and court rules are consistent with an
interpretation that the right to counsel extends to cases in which
imprisonment is authorized. The right to counsel established by the
Iowa legislature going back almost forty years provided for counsel when
there is a “possibility of imprisonment.” See 1977 Iowa Acts ch. 153,
§ 85. We subsequently adopted this legislative formulation as part of our
court rules. See Iowa R. Crim. P. 2.61(2). Our tradition of the right to
counsel is simply broader than that represented by Scott and Nichols.
63
The Scott fear of exposing state’s to unspecified expense simply does not
apply in Iowa.
4. Overruling Allen. In order to reach the conclusion that under
article I, section 10, a person charged with a misdemeanor offense that
authorizes imprisonment has the right to the assistance of counsel, we
must consider Allen. We see no basis for distinguishing Allen from the
present case, and we must therefore squarely address the question of
whether Allen should be overruled.
We answer that question in the affirmative for a number of
reasons. The Allen court did not consider the sweeping language of the
“all criminal prosecutions” clause or the more limited “cases” clause of
article I, section 10. Allen did not recognize that Scott was an outlier
from the prior right-to-counsel cases that emphasized the role of counsel
in ensuring fairness and reliability in criminal prosecutions and that the
federalism and pragmatic concerns cited in Scott are wholly irrelevant to
the interpretation of the Iowa Constitution. In particular, the Allen court
did not recognize the fact that forty years ago, no doubt in response to
Gideon, the Iowa legislature had provided for appointed counsel in all
cases involving the “possibility of imprisonment” and this standard was
incorporated into this court’s rules. The Allen court also did not
recognize that the fairness and reliability concerns regarding
uncounseled misdemeanor convictions are particularly acute given the
pressures inherent in the misdemeanor docket. Finally, the Allen court
did not see the inconsistency of an approach that refused to allow an
uncounseled misdemeanor conviction to support one day in jail because
of concerns about the fairness and reliability of the process, but then
allowed the same conviction to be used to substantially increase
incarceration through later application of an enhancement statute.
64
In sum, we overrule Allen. We conclude that under article I,
section 10 of the Iowa Constitution, an accused in a misdemeanor
criminal prosecution who faces the possibility of imprisonment under the
applicable criminal statute has a right to counsel. When a right to
counsel has not been afforded, any subsequent conviction cannot be
used as a predicate to increase the length of incarceration for a later
crime.
IV. Conclusion.
For the above reasons, the decision of the district court is reversed
and the case remanded to the district court for further proceedings.
REVERSED AND REMANDED.
Cady, C.J., and Wiggins and Hecht, JJ., join this opinion.
Mansfield, J., files a separate concurring opinion in which Waterman and
Zager, JJ., join. Zager, J., files a separate concurring opinion in which
Waterman and Mansfield, JJ., join.
65
#13–0983, State v. Young
MANSFIELD, Justice (concurring specially).
I too would vacate Young’s enhanced sentence, but I cannot join
the court’s opinion. Following a lengthy discussion, the court concludes
as a matter of Iowa constitutional law that “an accused in a
misdemeanor criminal prosecution who faces the possibility of
imprisonment under the applicable criminal statute has a right to
counsel.” This discussion and conclusion are unnecessary. The Iowa
Rules of Criminal Procedure already grant such a right. Rule 2.61(2)
provides, “In cases where the defendant faces the possibility of
imprisonment, the court shall appoint counsel for an indigent defendant
. . . .” Iowa R. Crim. P. 2.61(2). Why are we not deciding this case based
on the text of the rule?
Rule 2.61(2) is the defendant’s first line of argument. Young
devoted four and a half pages to this argument, making it her initial brief
point. She also wrote, “This Court will avoid unnecessary constitutional
questions by addressing those issues that are not of a constitutional
nature first.” I believe Young’s statement is correct.
Time and again, in recent years, we have proclaimed our
adherence to the doctrine of constitutional avoidance. See Hawkeye
Land Co. v. Iowa Utils. Bd., 847 N.W.2d 199, 219 (Iowa 2014); State v.
Iowa Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014); Mall Real Estate, L.L.C. v.
City of Hamburg, 818 N.W.2d 190, 200 (Iowa 2012); L.F. Noll Inc. v.
Eviglo, 816 N.W.2d 391, 398 (Iowa 2012); Simmons v. State Pub.
Defender, 791 N.W.2d 69, 73–74 (Iowa 2010).
But the principle is hardly a new one. See Hines v. Ill. Cent. Gulf
R.R., 330 N.W.2d 284, 286 (Iowa 1983) (“As previously indicated, we do
not reach the merits of these constitutional claims. We consider
66
constitutional issues on appeal only when another question is not
decisive.”); Cmty. Lutheran Sch. v. Iowa Dep’t of Job Serv., 326 N.W.2d
286, 291–92 (Iowa 1982) (“We avoid constitutional issues except when
necessary for disposition of a controversy.”); Ehlinger v. Mardorf, 285
N.W.2d 27, 28 (Iowa 1979) (“Although plaintiff asserts the trial court
erred on both statutory and constitutional grounds, we consider only the
statutory ground because we find it is determinative of the case. We
have long held we will not consider a constitutional question on appeal
when another question is decisive.”). One of our decisions makes this
point rather elegantly:
However, we are constrained by our principles of self-
restraint, including the longstanding rule that we will not
decide constitutional questions when a case can be resolved
on other grounds. See, e.g., Dubuque & D.R. Co. v. Diehl, 64
Iowa 635, 640, 21 N.W. 117, 120 (1884) (“We will not decide
a constitutional question, unless it be necessarily involved in
the case, which cannot be disposed of without the decision of
such question. If the record shows other questions which
are decisive of the case, they alone will be considered.
Courts are slow in approaching, and hesitate to decide,
constitutional questions.”)[, overruled on other grounds by
Vandewater v. Chi., Rock Island & Pac. Ry., 170 Iowa 687,
695, 153 N.W. 190, 194 (1915)]; accord State v. Button, 622
N.W.2d 480, 485 (Iowa 2001); State v. Quintero, 480 N.W.2d
50, 51 (Iowa 1992). Such judicial restraint is an essential
component of our system of federalism and separation of
powers. See generally 16 Am. Jur. 2d Constitutional Law
§§ 115–128 (1998); Lisa A. Kloppenberg, Avoiding
Constitutional Questions, 35 B.C. L. Rev. 1003 (1994).
Moreover, we recognize the law to be an evolving process that
often makes the resolution of legal questions a composite of
several cases, from which appellate courts can gain a better
view of the puzzle before arranging all the pieces. The
wisdom of this process has been revealed time and again,
and we continue to subscribe to it today.
State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).
I fail to understand why we are ignoring that doctrine here and
reaching out to decide a state constitutional question unnecessarily. The
67
majority contends that prior deprivation of the right to counsel contrary
to a rule cannot serve as the ground for attacking an enhancement.
There are several problems with the majority’s position.
In the first place, the State has not made this argument. The
State’s only response to Young’s rule 2.61(2) argument has been to
disagree with Young’s interpretation of the rule. The State does not
maintain that a prior violation of the right to counsel afforded by rule
2.61(2) is an insufficient basis for challenging an enhancement. Thus,
the majority is making its own argument for the State (although one I
doubt the State wants made).
Second, the cases cited by the majority do not support its position.
They do not address whether denial of the right to counsel in violation of
a rule can serve as the basis for an attack on a later enhancement—the
issue presented here. Rather, they address whether the enhancement
can be attacked based on violations other than denial of the right to
counsel. See, e.g., State v. Johnson, 38 A.3d 1270, 1272, 1276 (Me.
2012) (refusing to invalidate enhancement based on earlier allegedly
faulty guilty plea colloquy where the defendant had been represented).
In fact, the only out-of-state decisions that are on point go the
other way. See State v. Hrycak, 877 A.2d 1209, 1218 (N.J. 2005);
Brisson v. State, 955 P.2d 888, 891–92 (Wyo. 1998). In Hrycak, the New
Jersey Supreme Court decided that it would invalidate enhancements
based on prior uncounseled misdemeanor convictions under principles of
“the sound administration of justice” and “our [the New Jersey] Court
Rules.” See Hrycak, 877 A.2d at 1214–16 (internal quotation marks
omitted). The plain language of our rule 2.61(2) supports the same
approach here.
68
Likewise, in Brisson, the Wyoming Supreme Court held that an
uncounseled conviction in violation of a Wyoming statute could not serve
as the basis for a later enhancement. See Brisson, 955 P.2d at 891.
Thus, Brisson—like Hrycak—follows an approach similar to the one I
would follow here.
Third, the majority’s invocation of judicial restraint is curious—and
just plain backwards. The majority maintains it would go too “far” to
remedy a rule-based denial of counsel, so the court is “required to
proceed” under the Iowa Constitution. This inverts traditional notions of
judicial restraint. Suppose we adopted Young’s primary argument based
on the plain language of rule 2.61(2). Then the legislature could
potentially modify or reverse our ruling if it disagreed with it. But
because the majority has decided to fly solo under the Iowa Constitution,
and overrule our 2005 precedent without the benefit of meaningful
adversarial briefing, the legislature is stuck with our ruling absent a
constitutional amendment (or a change of heart from this court).
Another very good reason to exercise restraint here is that Young
has provided only a minimal, bare-bones state constitutional argument.
The gist of Young’s position is that we should interpret the Iowa
Constitution “more stringently.” I quote her article I, section 10
argument in its entirety:
More stringent analysis under the Iowa Constitution.
“Even where a party has not advanced a different standard
for interpreting a state constitutional provision,” our
Supreme Court “may apply the [federal] standard more
stringently than federal case law.” State v. Pals, 805 N.W.2d
767, 771–72 (Iowa 2011). See also State v. Bruegger, 773
N.W.2d 862, 883 (Iowa 2009). Our Supreme Court has
previously rejected the argument that the Iowa Constitution
should be interpreted more stringently than the federal
constitution in the right-to-counsel context. State v. Allen,
690 N.W.2d 684, 690 (Iowa 2005).
69
Since the Allen decision, our supreme court has
applied a more stringent analysis in the context of search
and seizure and cruel and unusual punishment. See e.g.,
State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (noting
that the federal constitution “makes for an admirable floor,
but it is certainly not a ceiling”); State v. Oliver, 812 N.W.2d
636, 650 (Iowa 2012) (reiterating that Iowa courts utilized a
more stringent review than federal courts in the context of
cruel and unusual punishment); State v. Ochoa, 792 N.W.2d
260, 291 (Iowa 2010) (rejecting the federal approach to
warrantless searches of parolees). The court should consider
doing the same under the right-to-counsel analysis.
Arguing that we can interpret the Iowa Constitution differently is not the
same as presenting an independent constitutional argument. While
today’s opinion displays considerable workmanship, it would not be fair
to characterize it as the outcome of an adversarial litigation process.
Even if we have to reach the constitutional issue, which we do not,
then I wonder why we are overruling State v. Allen, 690 N.W.2d 684 (Iowa
2005). We decided Allen unanimously less than a decade ago. There we
discussed (albeit in a shorter opinion) a number of the same federal and
out-of-state precedents the court discusses today. Id. at 687–88, 690–
91. We also relied on several state constitutional precedents the court
does not mention today. Id. at 690; see People v. Reichenbach, 587
N.W.2d 1, 4–7 (Mich. 1998) (finding no right to counsel for misdemeanor
defendants under the Michigan Constitution absent actual
imprisonment); State v. Woodruff, 951 P.2d 605, 616 (N.M. 1997) (finding
no right to counsel for misdemeanor defendants under the New Mexico
Constitution absent actual imprisonment). Reading Allen today, I think
that ten-year-old decision stands the test of time.
My colleagues’ rhetoric about Allen is harsh: “Remarkably, we did
not cite,” “mimicked,” “apparently not familiar,” “contains no discussion
at all,” “fundamentally flawed.” This harshness in describing a
unanimous decision of this court is unwarranted. I believe this court in
70
2005 understood how the criminal justice system operates in the real
world. 2
The majority also asserts that “the Allen court did not have the
benefit of the Florida case declining to follow Nichols.” See State v. Kelly,
999 So. 2d 1029, 1048–49 (Fla. 2008). Interested readers can peruse
Kelly for themselves and decide whether it is a game-changer. I think
not. Kelly was decided under the Florida Constitution, whose right to
counsel guarantee is framed somewhat differently than the right to
counsel in the Sixth Amendment or article I, section 10 of the Iowa
Constitution. See id. at 1050. Regardless, the reliability consideration
that propelled the Florida Supreme Court’s Kelly decision is one we
expressly considered, and rejected, in Allen. See Allen, 690 N.W.2d at
691–92. 3
2The majority also maintains that the Allen court erred in observing that the
Sixth Amendment and article I, section 10 are “textually similar.” See Allen, 690
N.W.2d at 690. In fact, they are. Both provisions apply to “all criminal prosecutions.”
Compare Iowa Const. art. I, § 10, with U.S. Const. amend. VI. Article I, section 6 also
covers another category of cases, namely, “cases involving the life, or liberty of an
individual.” Iowa Const. art. I, § 10. As noted by the majority, the contemporary
debates indicate this provision was meant to protect persons claimed to be subject to
return as fugitive slaves. See 2 The Debates of the Constitutional Convention of the State
of Iowa 736–41 (W. Blair Lord rep., 1857), available at
www.statelibraryofiowa.org/services/collections/law-library/iaconst.
3In addition, the majority mentions Hawaii and North Dakota constitutional
precedent that preceded Allen. See State v. Sinagoga, 918 P.2d 228, 242 (Haw. Ct. App.
1996), overruled in part on other grounds by State v. Veikoso, 74 P.3d 575, 582 n.8
(Haw. 2003); State v. Orr, 375 N.W.2d 171, 177–79 (N.D. 1985). However, Hawaii’s
Constitution expressly provides, “The State shall provide counsel for an indigent
defendant charged with an offense punishable by imprisonment.” Hawaii Const. art. I,
§ 14 (emphasis added). Therefore, Sinagoga is hardly a relevant precedent here. As the
North Dakota Supreme Court noted in Orr, the wording of North Dakota’s constitution
also differs from that of the Sixth Amendment. See 375 N.W.2d at 177. Regardless,
Allen’s observation remains true that “[a] strong majority of the states that have
analyzed uncounseled misdemeanor convictions under their state constitutional rights
to counsel and due process have declined to forge new and different ground.” 690
N.W.2d at 690.
71
Finally, let me address one other matter. We have previously held
the right to counsel can be waived in a written plea that includes a
waiver of counsel. See State v. Majeres, 722 N.W.2d 179, 182–83 (Iowa
2006). That did not occur here. Nothing the court has said today affects
the Majeres holding.
For the reasons indicated, I would vacate Young’s enhancement
because the prior uncounseled misdemeanor conviction did not comply
with rule 2.61(2) and Young did not waive the rule’s requirements.
Waterman and Zager, JJ., join this special concurrence.
72
#13–0983, State v. Young
ZAGER, Justice (concurring specially).
I too would vacate Young’s enhanced sentence predicated on her
prior, uncounseled plea to a simple misdemeanor. Further, I would
follow Justice Mansfield’s special concurrence’s reasoning and vacate the
sentence based on Iowa Rule of Criminal Procedure 2.61(2), which by its
plain language answers the question: “In cases where the defendant
faces the possibility of imprisonment, the court shall appoint counsel for
an indigent defendant . . . .” I write separately to emphasize the need for
district courts to adequately inquire into and document both the State’s
intentions of requesting imprisonment and a defendant’s intention to
waive counsel.
In this case, the record is devoid of any record of the initial
appearance for the prior misdemeanor. Correspondingly, it is devoid of
any record of the State’s intentions of requesting imprisonment or
whether the right to counsel was communicated to the defendant. 4 As
our rules properly note, an important inquiry at this stage of the criminal
proceedings is whether the State will be requesting imprisonment
because of the charge. See Iowa R. Crim. P. 2.61(2); accord State v.
Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (“At all critical stages of the
criminal process, the Sixth Amendment affords an accused facing
incarceration the right to counsel.” (Emphasis added.)). If the State will
4Here, we deal with the right to counsel in the context of a simple misdemeanor.
Of course, attachment of the right to counsel is different when a defendant is charged
with an indictable offense. See State v. Nelsen, 390 N.W.2d 589, 591 (Iowa 1986)
(holding when the right to counsel attaches depends on when adversary proceedings are
“commenced” by reference to state law). In either case, however, a defendant may waive
his or her right to counsel. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006)
(“Although a defendant has such a right to counsel, a defendant can choose to waive
the right to counsel.”).
73
be requesting imprisonment, the right to counsel attaches. If not, it
doesn’t. This fact is readily determined through judicial inquiry of the
State and should be noted in the initial appearance record.
Likewise, even if the right to counsel attaches, a defendant may
waive his or her right to be represented by counsel. Majeres, 722 N.W.2d
at 182 (“Although a defendant has such a right to counsel, a defendant
can choose to waive the right to counsel.”). As with the State’s intention
to pursue imprisonment, a defendant’s intention to waive the right to
counsel can be readily determined by the district court communicating
that right to the defendant and asking: “Do you want to waive your right
to counsel?” This fact should also be noted in the initial appearance
record.
While I am confident the district court made these inquiries when
the defendant appeared for her initial appearance, we have no record of
this. Consequently, this case highlights the need for district courts to
inquire into and document both the State’s intention to request
imprisonment and a defendant’s intention to waive counsel. As this case
illuminates, failure to do so can significantly affect future prosecutions.
On the other hand, the simple step of inquiring into and documenting
these matters ensures that enhanced sentences are upheld on appeal
when otherwise appropriate.
Waterman and Mansfield, JJ., join this special concurrence.