State of Iowa v. Kerry Jerome Owens Jr. ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-2089
Filed January 13, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KERRY JEROME OWENS JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Winneshiek County, Richard D.
Stochl, Judge.
The defendant appeals his conviction for public intoxication (third offense).
AFFIRMED.
Nicholas Hay of Hay Law, P.L.C., Waukon, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
The defendant Kerry Owens Jr., pleaded guilty by way of written plea to
public intoxication (third offense) in violation of Iowa Code sections 123.46(2) and
123.91 (2013). The written guilty plea contained an admission the defendant has
twice before been convicted of public intoxication. The defendant was sentenced
to two years’ incarceration, said sentence suspended; placed in a residential
facility for up to one year or until maximum benefits were achieved; and placed
on probation for a period not to exceed two years.
In this direct appeal, the defendant contends the predicate misdemeanor
convictions were uncounseled and cannot be used to enhance his sentence in
this case. See State v. Young, 863 N.W.2d 249, 281 (Iowa 2015) (“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.”). The
defendant did not raise this issue in the district court in any fashion. Cf. id. at 251
(explaining the defendant raised the issue in a motion to strike and requested the
district court take judicial notice of the content of the predicate misdemeanor file).
Where, as here, the issue was not raised in any fashion below, we are unable to
determine whether the defendant’s right to counsel attached in his prior
misdemeanor cases, whether he was afforded the right to counsel in his prior
misdemeanor cases, or whether he waived his right to counsel in his prior
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misdemeanor cases. See State v. Washington, 832 N.W.2d 650, 655-56 (Iowa
2013) (“However, the general rule is that it is not proper for the court to consider
or take judicial notice of the records of the same court in a different proceeding
without an agreement of the parties.”). Accordingly, we preserve the defendant’s
claim for possible postconviction-relief proceedings. See State v. Straw, 709
N.W.2d 128, 138 (Iowa 2006).
AFFIRMED.