Amicus Curiae Brief — Iowa v. Tovar
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No. 02-1541 | Bas
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IN THE OF. I
Supreme Court of the United States
STATE OF IOWA,
Petitioner,
Vv.
FELIPE EDGARDO TOVAR,
Respondent.
On Writ of Certiorari to
the Supreme Court of lowa
BRIEF OF THE STATES OF COLORADO, ALABAMA,
ALASKA, CALIFORNIA, CONNECTICUT, FLORIDA,
HAWAI'I, IDAHO, ILLINOIS, INDIANA, KANSAS,
LOUISIANA, MAINE, MASSACHUSETTS,
MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA,
NEVADA, NEW MEXICO, NORTH DAKOTA, OHIO,
OKLAHOMA, OREGON, SOUTH CAROLINA, SOUTH
DAKOTA, TEXAS, UTAH, VERMONT, VIRGINIA,
WEST VIRGINIA AND WYOMING AS AMICI CURIAE
IN SUPPORT OF PETITIONER
KEN SALAZAR GENE C. SCHAERR*
ATTORNEY GENERAL ROBERT KLINCK
ALAN GILBERT SIDLEY AUSTIN BROWN &
SOLICITOR GENERAL WOOD LLP
JOHN D. SEIDEL 1501 K Street, N.W
ASSISTANT ATTORNEY GENERAL Washington, D.C. 20005
OFFICE OF THE ATTORNEY (202) 736-8000
GENERAL
STATE OF COLORADO
1525 Sherman St., Sth Floor
Denver, CO 80203
(303) 866-5785
Counsel for Amici Curiae
November 14, 2003 * Counsel of Record
[Additional Counsel Listed on Inside Cover and Front Pages]
7a
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001
ol
BILL PRYOR
ATTORNEY GENERAL
STATE OF ALABAMA
OFFICE OF THE ATTORNEY
GENERAL
11 South Union Street
Montgomery, AL 36130
(334) 353-3915
BILL LOCKYER
ATTORNEY GENERAL
STATE OF CALIFORNIA
1300 | Street
P.O. 944255
Sacramento, CA 94244-2550
(916) 323-1996
CHARLES J. CRIST
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY
GENERAL OF FLORIDA
The Capital Suite PL-01
Tallahassee, FL 32399-1050
(850) 414-3300
LAWRENCE G. WASDEN
IDAHO ATTORNEY GENERAL
P.O. Box 83720
Boise, ID 83720-0010
(208) 334-2400
STEVE CARTER
ATTORNEY GENERAL OF
INDIANA
Indiana Government Center
South
Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
(317) 232-6201
GREGG D. RENKES
OFFICE OF THE ATTORNEY
GENERAL OF ALASKA
1031 W. Fourth Ave.
Anchorage, AK 99501-1994
(907) 269-5100
CHRISTOPHER L. MORANO
CHIEF STATE’S ATTORNEY
300 Corporate Place
Rocky Hill, CT 06067
(860) 258-5800
MARK J. BENNETT
ATTORNEY GENERAL
STATE OF HAWAI'I
425 Queen St.
Honolulu, HI 96813
808-586-1500
LISA MADIGAN
ATTORNEY GENERAL
OFFICE OF THE ILLINOIS
ATTORNEY GENERAL
100 W. Randolph Street
12th Floor
Chicago, IL 60601
(312) 814-3698
PHILL KLINE
KANSAS ATTORNEY
GENERAL
120 S.W. 10th Avenue
Topeka, Kansas 66612
(785) 296-2215
a
RICHARD P. lEYOUB
ATTORNEY GENERAL
(225) 339-5113
THOMAS F. REILLY
ATTORNEY GENERAL OF
MASSACHUSETTS
One Ashburton Place
Boston, MA 02108.
(617) 727-2200
JEREMIAH W. (JAY) NIXON
ATTORNEY GENERAL OF
MISSOURI
S Court Building
207 W. High St.
Jefferson City, MO 65101
($73) 751-3321
JON BRUNING
ATTORNEY GENERAL OF
NEBRASKA
PO Box 98920
Lincoln, NE 68509
(402) 471-2682 7
PATRICIA A. MADRID
ATTORNEY GENERAL
STATE OF NEW MEXICO
PO Drawer 1508
Santa Fe, NM 87504-1508
(505) 827-6000
G. STEVEN ROWE
MAINE ATTORNEY GENERAL
6 State House Station
Augusta, ME 04333-0006
(207) 626-8800
MICHAEL C. MOORE
ATTORNEY GENERAL
STATE OF MISSISSIPPI
P.O. Box 220
Jackson, Mississippi 39205
(601) 359-3680
MIKE MCGRATH
MONTANA ATTORNEY
GENERAL
215 N. Sanders
P.O. Box 201401
Helena, MT 59620-1401
(406) 444-2026
BRIAN SANDOVAL
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY
GENERAL
STATE OF NEVADA
100 N. Carson St.
Carson City, NV 89701-4717
(775) 684-1100
WAYNE STENEHJEM
ATTORNEY GENERAL OF
NORTH DAKOTA
600 E. Boulevard Avenue
Bismarck, ND 58505-0040
(701) 328-2210
Jim PETRO
ATTORNEY GENERAL
STATE OF OHIO
30 E. Broad St., 17th Floor
Columbus, OH 43215
(614) 466-8980
STATE OF OREGON
HARDY MYERS
ATTORNEY GENERAL
1162 Court St. N.E.
Salem, Oregon 97301
(503) 378-4400
LAWRENCE E. LONG
ATTORNEY GENERAL
STATE OF SOUTH DAKOTA
500 E. Capital Ave.
Pierre, SD 57501-5070
(605) 773-3215
MARK L. SHURTLEFF
UTAH ATTORNEY GENERAL
236 State Capitol
Salt Lake City, UT 84114
(801) 538-9600
JERRY W. KILGORE
ATTORNEY GENERAL
COMMONWEALTH OF
VIRGINIA -
900 East Main Street
Richmond, Virginia 23219
(804) 786-2071
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF
OKLAHOMA
2300 N. Lincoln Boulevard
Suite 112
Oklahoma City, OK 73105-
4894
(405) 521-3921
HENRY D. MCMASTER
ATTORNEY GENERAL
SOUTH CAROLINA ATTORNEY
GENERALS OFFICE
P.O. Box 11549
Columbia, SC 29211-1549
(803) 734-3970
GREG ABBOTT
ATTORNEY GENERAL OF
TEXAS v
P.O. Box 12548
Austin, TX 78711-2548
(512) 936-1822
WILLIAM H. SORRELL,
ATTORNEY GENERAL
STATE OF VERMONT
109 State Street
Montpelier, VT 05609
(802) 828-3171
DARRELL V. MCGRAW, JR.
ATTORNEY GENERAL OF
WEST VIRGINIA
OFFICE OF THE ATTORNEY
GENERAL
State Capitol, Room 26-E
Charleston, WV 25305
304-558-2021
PATRICK J. CRANK
WYOMING ATTORNEY
GENERAL
123 State Capitol
Cheyenne, WY 82002
(307) 777-7841
QUESTION PRESENTED
Does the Sixth Amendment prohibit enhancement of a
current conviction with a prior conviction in which a pro se
defendant waived counsel and pled guilty, but the trial court
did not give a specific and detailed warning about the various
ways in which an attorney might be able to assist in the
defense? sas
(i)
TABLE OF CONTENTS
QUESTION PRESENTED................cccsssssssssssesesesesseeseees
TABLE OF AUTHORITIES .............ccccccsceseerseeeeseeeeeeeees
SUMMARY OF ARGUMENT ....000.0..cccccccceeeeeeeeeeeeeenes
STATEMENT OF FACTS. .........cccccccssssssscsessessssesscescosees
GETEPEPII US cecesnesccnczscescorseseeseessensvemessenssernesecantesmesnasnaee
THE COURT BELOW ERRED IN HOLDING
THAT THE SIXTH AMENDMENT INVALI-
DATES RESPONDENT’S ORIGINAL PLEA......
A. The Decision Below Ignores This Court’s
Repeated Teaching That A Waiver Of Counsel
In A Prior Conviction That Has Become Final
Is Presumed Knowing And Intelligent ...............
B. Under this Court’s Precedents, A Defendant
Can Validly Waive His Right To Counsel
Without Knowing The Exact Reasons Why An
Attorney Might Be Useful To His Defense.......
C. The lowa Supreme Court’s Opinion Flouts The
Text And History Of The Sixth Amendment .....
THE DECISION BELOW ERRED IN HOLD-
ING THAT AN INVALID WAIVER NECES-
SARILY MAKES A GUILTY PLEA UNUS-
ABLE FOR FUTURE ENHANCEMENTG.............
A. The lowa Supreme Court Misinterpreted This
Court’s Precedents, Which Allow Prior
Convictions To Be Used To Enhance
Sentences As Long As They Are Reliable .........
(iii)
iV
TABLE OF CONTENTS—continued
B. Uncounseled Guilty Pleas Are No inherently
Sa INIIUTITI TN ssicsenieccctscntinticeneiineadeasges inertia in 20
Ill. THE DECISION BELOW UNDERMINES THE
STATES’ INTEREST IN THE FINALITY OF
JUDGMENTS AND WOULD INTERFERE
WITH THE OPERATION OF ENHANCED
SENTENCING SYSTEMS NATIONWIDE
o_o eT aE eT eee eK eT 29
Vv
TABLE OF AUTHORITIES
CASES Page
Adams v. United States ex rel. McCann, 317 U.S.
SITET iinicitcnicstanesiciaiailidnianiatsdaiaianieaipasiaieiianinacegienene 7,8
Apprendi v. New Jersey, 530 U.S. 466 (2000)........ 18
Baldasar v. Illinois, 446 U.S. 222 (1980).......... 3, 16, 20
Boykin v. Alabama, 395 U.S. 238 (1969)....... 5, 6, 10, 21
Burgett v. Texas, 389 U.S. 109 (1967) ......ccccccceeeees 19
Carter v. Illinois, 329 U.S. 173 (1946) ...........ccceeee 6
Clary v. State, 818 So. 2d 686 (Fla. Dist. Ct. App.
I ccatesisitasinaineaeaasusiiaih iat claeeeaaduansiahlaiaiae 24
Custis v. United States, 511 U.S. 485 (1994).......... 3, 18,
20, 22
Daniels v. United States, 532 U.S. 374 (2001) .. 3, 18, 27
Faretta v. California, 422 U.S. 806 (1975)........... passim
Gideon v. Wainwright, 372 U.S. 335 (1963)........0.. 19
Henderson v. Morgan, 426 U.S. 637 (1976)......... 11,21
Johnson v. Zerbst, 304 U.S. 458 (1938).......... 5,6, 8, 12
Lackawanna County Dist. Attorney v. Coss, 532
U.S. 394 (2001)...............008: De enssnteeniieeninne 22, 23, 27
Lewis v. United States, 445 U.S. 55 (1980) ............ 19
Loper v. Beto, 405 U.S. 473 (1972) ..ccccccccsceeseeeeeeees 19
Nichols v. United States, 511 U.S. 738 (1994)...... 16, 20,
' 26
North Carolina v. Alford, 400 U.S. 25 (1970)........ 21
Parke v. Raley, 506 U.S. 20 (1992).......cccccseeseeeees passim
Patterson v. lilinois, 487 U.S. 285 (1988) ............ passim
Powell v. Alabama, 287 U.S. 45 (1932)... 13, 20
State v. Talbert, 622 N.W.2d 297 (lowa 2001)....... 16
Strickland v. Washington, 466 U.S. 668 (1984)...... 19
Swenson v. Municipality of Anchorage, 616 P.2d
Be EI Fe icccrecennsenemannestestnsmensiemnanserincm 25
Townsend v. Burke, 334 U.S. 736 (1948) ............. 17,21
United States v. Grayson, 438 U.S. 41 (1978)........ 18
United States v. Hartsock, 347 F.3d 1 (lst Cir.
vi
TABLE OF AUTHORITIES—continued
Page
United States v. Ruiz, 536 U.S. 622 (2002)............. 25
United States v. Tucker, 404 U.S. 443 (1972)......... 19
United States v. Van Duzee, 140 U.S. 169(1891).. 14
United States v. Watts, 519 U.S. 148 (1997)..00....... 18
Von Moltke v. Gillies, 332 U.S. 708 (1948)............ l
Williams v. New York, 337 U.S. 241 (1949)..... 3, 17, 23
Williams v. State, 616 P.2d 881 (Alaska 1980)....... 25
CONSTITUTION AND STATUTES
aera as ec ccesieersitcicitnearicieieeacbealonnidan 12
AREAS Rie ieotoeeuantonreers ane 28
nr te initial 19
ee eas ine aiectenteetaierlchiatoacliaciaa ae tala niente 23
RETR Pe nareratier Metin ne DDN OTE 23
STII ihe heietdaidtanae aetna 23
aici icine icin ceeta aia an 23
lala ae ae 23
a iiceianiiniicrill antirtatnicaisciatatiniii 23
I a 23
| STE rece aon aN 28
Colo. Rev. Stat. § 18-1.3-401(6) 0... eens 23
AE ene e er 23
| RS Eeee 23
ff EEE een 23
4, ee 23
RULES ,
A eee eR 11
8 IRE ER 24
rs I i 11
Vil
TABLE OF AUTHORITIES—continued
SCHOLARLY AUTHORITIES Page
Caroline Wolf Harlow, Defense Counsel in
Criminal Cases (Bureau of Justice Statistics,
SEITA,, TENT ichnisatciisetinntnincibidimmnisinisiditibaiennenmemmnds 26
Francis H. Heller, The Sixth Amendment to the
Constitution of the United States: A Study in
Constitutional Development (1951).........0++. 13, 14, 15
5 LaFave et al., Criminal Procedure (2d ed.
Fe envcisteinttimnmnianeniaenimnmenmmenindmename 18
2 David Rossman, Criminal Law Advocacy:
De 27
Bernard Schwartz, The Great Rights of Mankind
Senn eee T 15
B. Mitchell Simpson, Ill, A Fair Trial: Are
Indigents Charged With Misdemeanors Entitled
to Court Appointed Counsel?, 5 Roger
Williams U. L. Rev. 417 (2000) .....................0000 13
OTHER AUTHORITIES
The Concessions and Agreements of the
Proprietors, Freeholders, and Inhabitants of the
Province of West New Jersey (1677), reprinted
in | Bernard Schwartz, The Bill of Rights: A
Documentary History (1971) ....ccccccccccceeereeeeeeeees 15
Federal Sentencing Law & Practice (2003) ....... .... 23
Massachusetts Body of Liberties, Rites Rules and
Liberties concerning Juditiall proceedings
(1641), reprinted in | Bernard Schwartz, The
Bill of Rights: A Documentary History (1971)..... 14
INTERESTS OF AMICI CURIAE
Amici Curiae are States that oppose the imposition of
undue burdens on their ability to establish that a prior waiver
of counsel was knowing and intelligent. As a matter of State
law, some states already impose higher standards than the
Constitution requires. Other States provide the minimum
protection mandated by this Court’s decisions in Von Moltke
v. Gillies, 332 U.S. 708 (1948), and Patterson v. Illinois, 487
U.S. 285 (1988). Those cases hold that a defendant’s waiver
of counsel is knowing and intelligent as long as the defendant
is generally informed about the right to counsel and
understands in general terms the possible consequences of
waiving that right. /d. at 292-93.
The decision below would impose an added requirement
that a defendant wishing to plead guilty be given a new,
Miranda-type warning advising him of various specific ways
in which counsel might aid his defense. Only three states
have clearly adopted regimes that would satisfy this standard.
Guilty pleas from all other states would be at least
presumptively invalid under the lowa Supreme Court’s
approach.
Amici also oppose the ruling below because it undermines
the finality of criminal judgments, with the consequence that
numerous prior guilty pleas will be deemed unconstitutional
and incapable of being considered in determining whether a
defendant has committed crimes in the past. This would
make it virtually impossible to administer and apply
numerous recidivist statutes. Nationwide adoption of the
decision below also would overburden State judicial
processes. Trial courts would be forced to maintain
transcripts of guilty plea hearings for extended periods. And
sentencing judges would be required to expend scarce
resources reviewing the validity of prior waivers.
2
SUMMARY OF ARGUMENT
I. The lowa Supreme Court was incorrect to hold that
respondent’ waiver of his right to counsel was invalid under
the Sixth Amendment. First, the court’s decision totally
ignores this Court’s consistent teaching that, once a judgment
is final, a waiver of counsel is presumptively valid. See, e.g.,
Parke v. Raley, 506 U.S. 20, 29-31 (1992). Instead, the lowa
Supreme Court has now held that a waiver of counsel at the
guilty plea stage is presumptively invalid, and can be
rendered valid only if there was evidence in the record that
the trial judge gave three specific warnings. This per se
approach is contrary to this Court’s precedents.
Second, putting aside the presumption of validity mandated
by this Court’s decisions, the lowa Supreme Court imposed
too high a hurdle for establishing a valid waiver, one that is
inconsistent with this Court’s precedents. In Patterson v.
Illinois, the Court observed that its right to counsel cases have
taken a pragmatic approach, asking what benefits an attorney
would provide at the stage of the proceeding under review.
487 U.S. 285, 298 (1988). That case ruled that, at a
postindictment interrogation, Miranda warnings were
sufficient to make a waiver of counsel knowing and
intelligent. /d. at 293. At the other end of the spectrum, i.e.,
at trial, this Court has required a searching inquiry to validate
a waiver of counsel. See Faretta v. California, 422 U.S. 806,
835 (1975).
This case falls closer to a postindictment interrogation.
Indeed, the skills useful at the plea stage—general advice
about the elements of crimes and defenses—are useful at
every phase of the process, including postindictment
interrogation. Plea colloquies do not require the specialized
technical skills that make a lawyer particularly useful at trial.
Moreover, the guilty plea litany already provides criminal
defendants with substantial information about the
hay
3
consequences of their actions. This Court's precedents
require nothing more.
Third, the lowa Supreme Court's approach flouts the text
and history of the Sixth Amendment. The Founders
envisioned a system in which a defendant could choose
between the right to self-representation and the right to
counsel. In fact, the marked preference during the founding
period was self-representation. Yet the lowa Supreme
Court’s approach markedly prefers the right to counsel by
discouraging people from self-representation.
Il. Even if Mr. Tovar could demonstrate that his waiver of
counsel was technically insufficient, the lowa Supreme Court
incorrectly concluded that this defect rendered his guilty plea
off limits for future enhancements. The Constitution does not
preclude the use of even a constitutionally invalid prior
conviction for current enhancements as long as the prior
conviction is a reliable indicator of the defendant's conduct.
See, e.g., Custis v. United States, 511 U.S. 485, 487 (1994);
Daniels v. United States, 532 U.S. 374, 382 (2001). Given
the other procedural protections required for a guilty plea,
such a plea is generally a reliable indicator of prior conduct.
And the absence of counsel does not make it inherently
unreliable.
The record in this case illustrates the point. Here
Respondent reacily admitted his guilt in open court, and to
this day has not recanted or asserted that he had a viable
defense that an attorney could have asserted. Because Mr.
Tovar’s conviction is reliable, it may be used to enhance a
future sentence. The lowa Supreme Court's contrary ruling
was based upon a misinterpretation of Baldasar v. Illinois,
446 U.S. 222 (1980) (per curiam), and should be reversed.
Il. The decision below also undermines the States’ interest
in the finality of judgments. States have an interest in
punishing repeat offenders more severely than first-offenders.
See, e.g., Williams v. New York, 337 U.S. 241, 248 (1949);
4
Parke, 506 U.S. at27. The rule adopted below undermines
the States’ ability to pursue this interest because it makes vast
numbers of guilty pleas unusable for future enhancements. It
also imposes a substantial burden on the states to record
guilty plea proceedings and to maintain those records
practically indefinitely. It p...'udes judges from applying the
presumption of regularity, <} .eby forcing them to undertake
extensive review of prior proceedings before using
convictions for current enhancements. And it creates
perverse incentives for criminals to forego challenging
convictions for relatively modest crimes on direct appeal or
via postconviction relief, and instead to leave such challenges
to future sentencing hearings.
STATEMENT OF FACTS
Amici adopt the statement of facts in petitioner’s brief.
ARGUMENT
The question in this case is whether a prior uncounseled
guilty plea can be used to enhance a defendant’s punishment
in subsequent prosecutions when the defendant now argues
that he did not knowingly and intelligently waive his right to
counsel before entering that plea. This case is not a direct
challenge to the constitutionality of respondent’s 1996 guilty
plea, as he has never brought an action to vacate that
conviction and, at this point, would be barred from doing so.
See Pet. App. 19-20 (Carter, J. dissenting) (“Defendant's
earlier OWI conviction is still on his record and will remain
that way because the statute of limitations for seeking
postconviction relief has now run.”). Instead, respondent
challenges his conviction of an enhanced offense in 2001 on
the ground that the enhancement improperly relied upon his
1996 guilty plea, which he alleges is invalid because he did
not knowingly and intelligently waive his right to counsel at
that time.
5
Given the posture of this case, this Court must address two
independent questions. First, did respondent validly waive
his right to counsel when he entered his 1996 guilty plea?
Second, even if this waiver was not valid, does that invalidity
make enhancement of his later offense constitutionally
impermissible? As shown below (in Sections | and II,
respectively), respondent fails on both counts. Moreover, as
shown in Section III, the lowa Supreme Court’s ruling would
render unworkable a wide array of enhanced sentencing
systems adopted by the vast majority of States.
I. THE COURT BELOW ERRED IN HOLDING
THAT THE SIXTH AMENDMENT INVALIDATES
RESPONDENT’S ORIGINAL PLEA.
In the decision below, the lowa Supreme Court ruled that
“a defendant such as Tovar who chooses to plead guilty
without the assistance of an attorney must be advised of the
usefulness of an attorney and the dangers of self-
representation in order to make a knowing and intelligent
waiver of his right to counsel.” Pet. App. 18. This ruling
should be reversed because it runs counter to this Court's
waiver of counsel precedents and because it would make a
mockery of the text and history of the Sixth Amendment.
A. The Decision Below Ignores This Court's
Repeated Teaching That A Waiver Of Counsel In
A Prior Conviction That Has Become Final Is
Presumed Knowing And Intelligent.
At a most basic level, the decision below ignores this
Court’s teaching that courts should presume the
constitutionality of prior convictions absent a case-specific,
factual showing. To be sure, the Court has held that, before a
conviction becomes final, “courts indulge every reasonable
presumption against waiver of fundamental constitutional
rights and [do] not presume acquiescence in the loss of
fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938) (internal quotations omitted); see also Boykin v.
6
Alabama, 395 U.S. 238 (1969) (invalidating a guilty plea
where the record provided no evidence that the plea was
entered into voluntarily and understandingly).' Once a
conviction has become final, however, the Court has adhered
to the principle that “the judgment of a court carries with it a
presumption of regularity.” Johnson, 304 U.S. at 468. Thus,
for example, “{wjhere a defendant, without counsel,
acquiesces in a trial resulting in his conviction and later seeks
release by the extraordinary remedy of habeas corpus; the
burden of proof rests upon him to establish that he did not
competently and intelligently waive his constitutional right to
assistance of Counsel.” /d. at 468-69.
The Court expressly relied upon this presumption in the
analogous case of Carter v. Illinois, 329 U.S. 173 (1946).
There, a defendant pleaded guilty but later, after the
conviction became final, challenged his plea on the ground
that he had not knowingly waived his right to counsel. This
Court rejected his claim because nothing in the record
indicated his waiver had not been knowing and intelligent.
Id. at 177 (“A fair reading of the judgment against Carter
indicates a judicial attestation that the accused, with his rights
fully explained to him, consciously chose to dispense with
counsel.”). In Parke, the Court articulated the rationale
underlying Carter, explaining that collateral attacks on prior
guilty pleas are disfavored because they “ignore af]
presumption deeply rooted in our jurisprudence: the
‘presumption of regularity’ that attaches to final judgments.”
506 U.S. at 29, 31.
In this case, Mr. Tovar’s 1996 conviction is long since
final, and the record shows that he was aware of his right to
counsel. Thus, the presumption of regularity acts as the
' Boykin suggests nothing more than that there must be some evidence
to demonstrate that the defendant waived his right to counsel. In that case,
voluntarily waiving his nght to trial, but instead appears to have accepted
the guilty plea without comment or question. 395 U.S. at 239.
5
proper starting point for analyzing his claim of an invalid
waiver of counsel. And Carter and Parke instruct that Mr.
Tovar has the burden to overcome this presumption by
demonstrating factually that his waiver was not knowing and
intelligent.
The lowa Supreme Court’s decision, however, ignores this
presumption and instead renders any waiver of counsel at the
guilty plea stage per se invalid unless the judge gives the
defendant three specific warnings. Pet. App. 18. Moreover,
the court applied that rule here even though nothing in the
record, even today, demonstrates that Mr. Tovar did not make
this decision with “eyes open.” Adams, 317 U.S. at 279.
To the contrary, at the time of the plea, Mr. Tovar was a
college student, and therefore was not likely of substantially
reduced intelligence. Pet. App. 4. Moreover, the trial court
observed at sentencing that he (or more appropriately his
parents, who continued to support him) had sufficient means
to make him ineligible for appointed counsel. /d. at 7. He
could have retained counsel at any time. When he appeared
in court without counsel, the trial judge noted that he was
without counsel and asked whether he wished to waive
counsel. /d. at 4-5. Mr. Tovar stated that he wished to
represent himself, and was then informed of the rights that he
would be forfeiting by pleading guilty. /d. at 5-6. The judge
also explained the minimum and maximum sentences facing
Mr. Tovar—including a mandatory forty-eight hours in the
local jail. /d. at 26. After this colloquy with the Court, Mr.
Tovar still maintained his desire to plead guilty, at which
point the judge explained the elements of the crime and
discussed the facts that proved these elements. /d. at 6. To
this day, Mr. Tovar has presented no evidence of coercion,
confusion, or mistake.”
? Indeed, Mr. Tovar has not even alleged that had he been so warned, he
would have attempted to hire counsel. See generally Appellant's Brief
and Argument, /owa v. Tovar, No. 01-1558 (lowa filed Mar. 07, 2002).
8
Accordingly, the presumption of regularity recognized in
such decisions as Carter and Parke should have been
dispositive here. The lowa Supreme Court’s failure to
acknowledge and apply that presumption is sufficient grounds
for reversal.
B. Under this Court’s Precedents, A Defendant Can
Validly Waive His Right To Counsel Without
Knowing The Exact Reasons Why An Attorney
Might Be Useful To His Defense.
Aside from ignoring this Court’s presumption of regularity
for final convictions, the lowa Supreme Court’s ruling
requires substantially more than this Court has required in any
case other than those dealing with the right to counsel at trial.
Since this Court first began considering waivers of the
Sixth Amendment right to counsel, the rule has been that a
criminal defendant “may waive his Constitutional right to
assistance of counsel if he knows what he is doing and his
choice is made with eyes open.” Adams, 317 U.S. at 279.
Deciding whether there has been a knowing and intelligent
waiver is a fact-intensive, case-specific task. See, e.g.,
Johnson, 304 U.S. at 464; Adams, 317 U.S. at 278.
Accordingly, this Court has not articulated a formulaic rule
that applies in every situation. Instead, as the Court noted in
Patterson v. Illinois, 487 U.S. 285 (1988), the Court has:
taken a more pragmatic approach to the waiver
question—asking what purposes a lawyer can serve at
the particular stage of the proceeding in question, and
what assistance he could provide to an accused at that
stage—to determine the scope of the Sixth Amendment
right to counsel, and the type of warnings and
procedures that should be required before a waiver of
that right will be recognized.
Thus, he has failed to establish any prejudice from the failure to provide
the warnings mandated by the court below.
Id. at 298.
In Patterson, the Court faced the question of what
information a criminal defendant needed to waive his right to
counsel during a post-indictment interrogation. The Court
simply asked: “Was the accused . . . made sufficiently aware
of his right to...counsel...and of the possible
consequences of a decision to forgo the aid of counsel?” /d.
at 292-93. Ultimately, the Court ruled that, if the defendant
waived his right to counsel after receiving Miranda warnings,
the waiver was necessarily knowing and intelligent. /d. at
293. The Court noted that these warnings fully informed the
defendant of his rights and conveyed the consequences of not
invoking those rights (i.e., that anything he said could be used
against him at trial). /d. at 293-94. The Court observed that
the role of an attorney at a postindictment interrogation is
limited—it is merely to advise the defendant “what questions
to answer and which ones to decline to answer.” /d. at 294
n.6. And the Court expressly distinguished postindictment
questioning from trial, noting that “[a]t trial, an accused needs
an attorney to perform several varied functions—some of
which are entirely beyond even the most intelligent layman.”
Id...
At the opposite end of the spectrum, the Court addressed
the requirements for waiver at trial in Faretta v. California.
There, the Court noted that “[wJhen an accused manages his
own defense, he relinquishes, as a purely factual matter, many
of the traditional benefits associated with the right to
counsel.” 422 U.S. at 835. Accordingly, “he should be made
aware of the dangers and disadvantages of self-representation,
so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’” /d. (quoting
Adams, 217 U.S. at 279). ;
Even in that context, moreover, the Court did not require
any specific questions or admonishments to make a criminal
defendant aware of these “dangers and disadvantages.”
Instead, the Court concluded that the trial judge had fulfilled
10
his responsibility by warning Mr. Faretta that he thought it a
mistake not to accept counsel and by explaining that he would
be required to follow the “ground rules” of trial procedure.
Id. at 835-36. Thus, for a valid waiver of the right to counsel
at trial, the court need do no more than provide general
advice against waiver and admonishment that the defendant
will be required to follow accepted procedure.
This case falls between these two extremes, involving, as it
does, the decision of a criminal defendant to plead guilty.
Accordingly, such a proceeding cannot possibly require more
than this Court held in Faretta was necessary for a valid
waiver of counsel at trial.
In all events, the lowa Supreme Court incorrectly assumed
that an attorney would be particularly useful at the guilty plea
stage because an attorney would understand the elements of
the alleged crime and its defenses, which would allow for a
better assessment of whether the defendant should plead
guilty. See Pet. App. 18. In fact, however, this general
background knowledge of criminal law would be useful to a
criminal defendant at every stage of the proceeding, from
investigation through trial. Indeed, in the post-indictment
interrogation at issue in Patterson, knowledge of the elements
of crimes and their defenses would, no doubt, animate the
directions an attorney would give a client. Standing alone,
therefore, those skills cannot distinguish a post-indictment
interrogation from a plea hearing.
Indeed, in some ways, a criminal defendant needs an
attorney /ess at a guilty plea hearing than during a post-
indictment interrogation. A plea hearing is a formal judicial
proceeding, and few, if any, defendants will misjudge the
gravity of the affair. Additionally, before pleading guilty, a
defendant is provided with a wealth of information. The
judge must explain exactly what rights a defendant is giving
up by pleading guilty, including his Fifth and Sixth
Amendment procedural rights. See Boykin, 395 U.S. at 243.
Judges must also explain the punishment range and the
elements of the crime. See Henderson v. Morgan, 426 U.S.
637, 647 (1976); see also lowa R. Crim. P. 2.8; Fed. R. Crim.
P. 11. After providing this information, the judge must then
be satisfied that there are sufficient facts to demonstrate that
the defendant committed the crime and that no unlawful
coercion has led to the plea. If any defendant begins a guilty
plea hearing failing to grasp the gravity of the situation, this
colloquy with the judge will surely underscore the seriousness
of the proceeding.
By contrast, although a defendant in a post-indictment
interrogation must be informed of his Miranda rights, he need
not be informed of the elements of the crime with which he is
charged. See Patterson, 487 U.S. at 294-95 (explaining that
defendant was told of the charge but not indicating that he
was informed of the elements of the crime). Nor do Miranda
warnings necessarily make a defendant aware that what he
says might undermine a possible defense. Moreover, such
interrogations are markedly more informal than plea hearings,
which might make defendants underestimate their gravity.
In the end, then, the skills that an attorney could use to help
a defendant at the guilty plea stage are practically the same as
those that make an attorney useful during a police
interrogation. -
By contrast, an attorney must bring a whole different set of
skills to be effective at trial. She must be well versed in
procedure and evidence. /d. at 299 n.13 (“But at trial, counsel
is required to help even the most gifted layman adhere to the
rules of procedure and evidence, comprehend the subtleties of
voir dire, examine and cross-examine witnesses effectively
(including the accused), object to improper prosecution
questions, and much more.”). And she must be persuasive.
These specialized legal skills, which few if any laymen are
likely to possess, make an attorney very useful, perhaps
indispensable, at trial. But these specialized skills are far less
useful at the plea stage, as the procedure is simple and there is
no one to persuade.
12
Thus, under the Patterson analysis, it is sensible to treat
trials differently because the skills needed to navigate a trial
are likely possessed only by attorneys. Because an attorney is
so crucial at trial, this Court has reasonably required a judge
to engage in a searching inquiry to ensure that a defendant’s
waiver of counsel at trial is knowing and intelligent. But that
rationale does not apply to plea proceedings any more than
police interrogations.
The Sixth Amendment, therefore, cannot be said to require
more than an assurance that the defendant was generally
informed of his right to counsel and the consequences of
waiving that right. Mr. Tovar was so informed.
C. The lowa Supreme Court’s Opinion Flouts The
Text And History Of The Sixth Amendment.
The decision below also flouts both the text of the Sixth
Amendment and the history of the right to counsel. That
history demonstrates that, if anything, the Sixth Amendment
favored a system of self-representation but provided
defendants with an option to be represented by counsel. It
was not designed to impose any procedural requirements for
waiver of the right to counsel.
To be sure, this Court departed from this understanding of
the Sixth Amendment some seventy years ago in Johnson v.
Zerbst, where this Court first began to require a heightened
showing of the intent to voluntarily waive the right to
counsel. 304 U.S. at 464. Nevertheless, in deciding whether
to impose an additional procedural requirement, it is
important to bear in mind the pertinent textual and historical
evidence.
1. The Sixth Amendment says only that “the accused shall
enjoy the right... to have the Assistance of Counsel for his
defence.” U.S. Const. amend VI. The language of the
Amendment does not require that the government take any
action to ensure that a defendant is even aware of his right to
representation by counsel—only that the government not
13
interfere with that right. Indeed, the text of the Sixth
Amendment “does not provide merely that a defense shall be
made for the accused; it grants to the accused personally the
right to make his defense.” Faretta, 422 U.S. at 819.
The most telling aspect of the Amendment’s text is that it
speaks of the assistance of counsel. As -this Court has
previously recognized, “[t}he language and spirit of the Sixth
Amendment contemplate that counsel, like the other defense
tools guaranteed by the Amendment, shall be an aid to a
willing defendant—not an organ of the State interposed
between an unwilling defendant and his right to defend
himself personally.” /d. at 820. The language of the
Amendment, then, sets up a system in which the accused has
responsibility for choosing among the many tools available
for his defense, including the right to counsel. The
Amendment’s text, therefore, provides no basis for requiring
a judge to admonish the defendant that refusing counsel is a
poor choice, or of the reasons it might be a poor choice.
2. Nor do the Sixth Amendment’s historical roots justify
the rule adopted by the lowa Supreme Court. Throughout the
colonial and revolutionary periods, the right to counsel was
not fully recognized by English law. To the contrary, “the
law of England permitted a prisoner to be heard by counsel in
misdemeanor and treason cases only. In ordinary felony
cases the participation of counsel was prohibited.” Francis H.
Heller, The Sixth Amendment to the Constitution of the United
States: A Study in Constitutional Development 109 (1951)
(“Heller, Sixth Amendment’); see also Powell v. Alabama,
287 U.S. 45, 60 (1932). Thus, the Framers’ intent in adopting
the Sixth Amendment’s right to counsel, “was clearly to
abrogate this perverse English common law rule by
constitutional amendment and to provide the defendant with
the right to be represented by counsel, presumably of his own
choice and at his own expense.” B. Mitchell Simpson, III, A
Fair Trial: Are Indigents Charged With Misdemeanors
Entitled To Court Appointed Counsel?, 5 Roger Williams U.
14
L. Rev. 417, 425-26 (2000); accord United States v. Van
Duzee, 140 U.S. 169, 173 (1891); Heller, Sixth Amendment
109.
But nothing in the history of the Sixth Amendment suggests
an intention to impose procedural obstacles to the waiver of
counsel. To the contrary, the development of the right to
counsel in Colonial America reflects a general distrust of
lawyers. As this Court recognized in Faretta:
The colonists brought with them an appreciation of the
virtues of self-reliance and a traditional distrust of law-
yers. When the Colonies were first settled, ‘the lawyer
was synonymous with the cringing Attorneys-General
and Solicitors-General of the Crown and the arbitrary
Justices of the King’s Court, all bent on the conviction
of those who opposed the King’s prerogatives, and
twisting the law to secure convictions.’
422 U.S. at 826 (quoting C. Warren, A History of the
American Bar 7 (1911)).
This conclusion is supported by early guarantees of liberty
in the American Colonies. The first recognition of a right to
counsel in America came in 1641, when the Massachusetts
Body of Liberties proclaimed:
Every man that findeth himselfe unfit to plead his owne
cause in any Court shall have Libertie to imploy any
man against whom the Court doth not except, to helpe
him, Provided he give him noe fee or reward for his
paines.
Massachusetts Body of Liberties, Rites Rules and Liberties
concerning Juditiall proceedings 4 26 (1641), reprinted in |
Bernard Schwartz, The Bill of Rights: A Documentary History
71-84 (1971). This was a revolutionary development, that is,
“to recognize that individual liberty depended, in the last
resort, upon the courts, and to provide in detail for the rights
of litigants and accused in judicial proceedings was as
15
perceptive as it was unprecedented at that time.” Bernard
Schwartz, The Great Rights of Mankind 37 (1977).
Noticeably, however, the Bill of Liberties would not allow
counsel to be paid, consistent with the general notion at the
time that “‘it shall be a base and vile thing to plead for money
and reward.” Heller, Sixth Amendment 19 (quoting
Carolinas’ Fundamental Constitutions, Art. 70); see also The
Concessions and Agreements of the Proprietors, Freeholders,
and Inhabitants of the Province of West New Jersey ch. XXII
(1677), reprinted in | Bernard Schwartz, The Bill of Rights: A
Documentary History 129 (1971) (“no person or persons shall
be compelled to fee any attorney or counciller to plead his
cause, but that all persons have free liberty to plead his own
cause, if he please.”’).
Between these early statements and the adoption of the
Sixth Amendment in the late Eighteenth Century, the general
practice of allowing counsel to plead cases for defendants
slowly gained acceptance. As a result, by the time the Bill of
Rights was adopted, twelve of the thirteen colonies had
renounced the English common-law rule. Heller, Sixth
Amendment at 109. At the same time, however, “even where
counsel was permitted, the general practice continued to be
self-representation.” Faretta, 422 U.S. at 828 (citing H.
Rankin, Criminal Trial Proceedings in the General Court of
Colonial Virginia 89-90 (1965)).
After reviewing this history, this Court has previously
concluded that “there is no evidence that the colonists and the
Framers ever doubted the right of self-representation, or
imagined that this right might be considered inferior to the
right of assistance of counsel.” /d. at 832. In the end, then,
the drafters of the Sixth Amendment were intent on protecting
a system in which the accused could choose between self-
representation and counsel. There is no reason to believe they
meant to prefer counsel or to impede a defendant’s choice of
self-representation.
16
In short, the lowa Supreme Court’s ruling should be
overturned because it runs afoul of this Court’s precedents
and because it cannot be justified by reference to the Sixth
Amendment’s text or history.
Il. THE DECISION BELOW ERRED IN HOLDING
THAT AN INVALID WAIVER NECESSARILY
MAKES A GUILTY PLEA UNUSABLE FOR
FUTURE ENHANCEMENTS.
Even if Respondent could establish that his Sixth
Amendment rights were violated at the time of his conviction,
that would not be the end of the inquiry. For he must also
establish that such an invalid conviction cannot be used to
enhance a prior conviction. The lowa Supreme Court
interpreted this Court’s decisions in Baldasar v. Illinois, 446
U.S. 222, 226 (1980), and Nichols v. United States, 511 U.S.
738, 748-49 (1994), to mean that if Mr. Tovar did not validly
waive counsel in his 1996 guilty plea, that conviction could
not constitutionally be used to enhance his current sentence.
See Pet. App. 3 (lowa Supreme Court ruling) (citing
Baldasar, Nichols, and State v. Cooper, 343 N.W.2d 485, 486
(lowa 1984), a state case that relied heavily upon Baldasar).
Because the lowa Supreme Court’s decision on this question
was based in federal constitutional law, this Court has the
authority to evaluate whether the lowa Supreme Court
correctly interpreted federal law in reaching its conclusion. *
It did not. Under this Court’s precedents a sentencing
judge may consider ail reliable evidence in deciding what
punishment to impose on a defendant. Accordingly, a
sentencing judge may use even an invalid conviction as long
* This conclusion is not undermined by the fact that an lowa statute
requires that prior convictions used to enhance a later offense be proved
beyond a reasonable doubt. See State v. Talbert, 622 N.W.2d 297, 301
(lowa 2001). The existence of Mr. Tovar’s conviction was proved beyond
a reasonable doubt; he does not challenge that. He merely claims that, as
a matter of constitutional law, this conviction may not be used for
enhancement purposes. See Pet. App. 3-4.
17
as the defendant was not wholly denied the right to counsel at
trial, thereby rendering his conviction inherently unreliable.
A. The lowa Supreme Court Misinterpreted This
Court’s Precedents, Which Allow Prior
Convictions To Be Used To Enhance Sentences
As Long As They Are Reliable.
Contrary to the lowa Supreme Court’s conclusion, this
Court’s precedents hold that the Constitution precludes the
use of a prior conviction for enhancement only if that
conviction is an unreliable indicator of prior conduct.
Respondent cannot demonstrate that his prior guilty plea is
unreliable for that purpose.
1. In Williams v. New York, 337 U.S. 241 (1949), this
Court clearly pronounced that at sentencing a trial judge may
consider a wide array of information that may not
appropriately be considered in deciding a defendant's guilt:
A sentencing judge ...is not confined to the narrow
issue of guilt. His task within fixed statutory or
constitutional limits is to determine the type and extent
of punishment after the issue of guilt has been
determined. Highly relevant—if not essential—to his
selection of an appropriate sentence is the possession of
the fullest information possible concerning — the
defendant’s life and characteristics.
Id. at 247. The Court also noted that current sentencing
philosophy requires judges to consider more than the crime
because “the punishment should fit the offender and not
merely the crime.” /d. The trial judge must, therefore, be
allowed to consider a wide range of facts to best tailor the
punishment to the case subject only to the requirement that it
not allow materially untrue facts to affect the sentence. See
Townsend v. Burke, 334 U.S. 736, 741 (1948) (“this prisoner
was sentenced on the basis of assumptions concerning his
criminal record which were materially untrue. Such a result,
18
whether caused by carelessness or design, is inconsistent with
due process of law, and such a conviction cannot stand.”’).
Although decided over fifty years ago, Williams and
Townsend remain the touchstones for analysis of the
constitutionality of criminal sentences in non-capital cases.
See 5 LaFave et al., Criminal Proceduré § 26.4(a) (2d ed.
1999): see also United States v. Grayson, 438 U.S. 41, 45-50
(1978) (reaffirming Williams’ central premise that judges may
consider all relevant, reliable information at sentencing);
United States v. Watts, 519 U.S. 148, 151-52 (1997) (same);
Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (indicating
that Williams is still good law for non-capital cases in which
the judge sentences a defendant within the statutory range).
Thus, according to this line of cases, the lowa sentencing
court was, under the Constitution, allowed to consider all
reliable, relevant information.
2. Commensurate with the principle that the sentencing
judge is entitled to consider virtually any information about a
criminal defendant, this Court has generally been very
suspicious of attempts to attack prior convictions at current
sentencing proceedings. Indeed, the Court has repeatedly
held that, as a general rule, the Constitution does not require
that defendants be allowed to make such collateral attacks.
See, e.g., Custis v. United States, 511 U.S. 485, 487 (1994);
Daniels v. United States, 532 U.S. 374, 382 (2001); cf. Parke,
506 U.S. at 29-30 (given the “presumption of regularity” that
attaches to final judgments, a state is free to place the burden
of showing the invalidity of a prior conviction on the
defendant). This rule is based on the “interest in promoting
the finality of judgments.” Custis, 511 U.S. at 497. Indeed,
“(t}hese principles bear extra weight in cases in which the
prior convictions . . . are based on guilty pleas, because when
a guilty plea is at issue, ‘the concern with finality served by
the limitation on collateral attack has special force.’” Jd.
(quoting United States v. Timmreck, 441 U.S. 780, 784
(1979)).
19
This result is not surprising given the Court’s holding in
Williams that all information about the defendant is relevant
to the sentencing decision. Even if a prior conviction is
constitutionally infirm, it is relevant because it conveys some
information about the defendant’s past conduct.
Of course, this Court has recognized an exception to this
general rule when the constitutional violation alleged is based
on a denial of the right to counsel at trial, as in Gideon v.
Wainwright, 372 U.S. 335 (1963). That exception has been
acknowledged in decisions such as Burgett v. Texas, 389 U.S.
109 (1967) (prior conviction after trial could not be used in
defendant’s current prosecution where the defendant was not
afforded counsel); United States v. Tucker, 404 U.S. 443,
444-45 (1972) (defendant was entitled to re-sentencing after
two of his prior convictions were vacated on the grounds that
he had not been advised of, and did not validly waive, his
right to legal assistance); Loper v. Beto, 405 U.S. 473 (1972)
(plurality) (prior uncounseled convictions could not be used
to impeach a defendant).
The reason for the Burgett/Tucker exception is, no doubt,
this Court’s belief that a conviction achieved in violation of
Gideon is not a reliable indicator of past conduct. Indeed, in
Loper, this Court explained that: “‘[t}he absence of counsel
impairs the reliability of such convictions....°” /d. at 483
(quoting Gilday v. Scafati, 428 F.2d 1027, 1029 (1970)).
By contrast, in Lewis v. United States, this Court held that a
prior conviction based on a guilty plea without a valid waiver
of counsel could serve as the prerequisite felony for the
federal felon-in-possession statute, 18 U.S.C. § 1202(a)(1).
Lewis, 445 U.S. 55, 67 (1980). The Court noted that the
situation there was different from Burgett, Tucker, and Loper
because “[iJn each of these cases, this Court found that the
subsequent conviction or sentence violated the Sixth
Amendment because it depended upon the reliability of a past
uncounseled conviction.” /d; see also Strickland v.
Washington, 466 U.S. 668, 691-92 (1984) (“The purpose of
20
the Sixth Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance on
the outcome of the proceeding.”) (emphasis added); Custis,
511 U.S. at 496 (“failure to appoint counsel for an indigent
defendant was a unique constitutional defect;” and ineffective
assistance of counsel does not “rise[] to [that] level”).
In sum, the teaching of this Court’s rulings is that prior
convictions may be used to enhance a defendant's sentence so
long they are reliable indicators of the defendant’s prior
conduct.
B. Uncounseled Guilty Pleas Are Not Inherently
Unreliable.
As noted above, Burgett and Tucker dealt with allegations
of the deprivation of the right to counsel at trial. This Court
has long realized that even the most intelligent layman stands
little chance of succeeding at trial. See Powell, 287 U.S. at
69; Patterson, 487 U.S. at 299 n.13. Indeed, even an innocent
defendant often will not be able to present a sufficient defense
at trial in light of the technical rules of procedure and
evidence. Thus, when faced with a trial conviction of an
uncounseled defendant, a court cannot adequately convince
itself that the conviction was the result of the defendant's
guilt and not his incompetence at trial. Such wholly
uncounseled trial convictions are, therefore, inherently
* Neither Baldasar v. Illinois, 446 U.S. 222 (1980) (per curiam) nor
Nichols v. United States, 511 U.S. 738 (1994), undermines this principle.
Those cases dealt with a wholly different question stemming from this
Court’s “actual imprisonment” standard for the right to counsel in
misdemeanor cases. The question was whether the use of uncounseled
convictions — which were valid at the time of conviction because the
defendant was not sentenced to imprisonment — became invalid if used to
enhance future sentences. Baldasar held that such use of these
uncounseled convictions rendered them invalid. 446 U.S. at 224. This
Court later rejected this conclusion in Nichols. Sil U.S. at 748.
Noticeably, in Nichols, this Court cited Burgett, Tucker, and Williams. Id.
at 743 n.9, 747. Thus, nothing in Baldasar or Nichols alters the rule that
even an invalid conviction can be a reliable indicator of past conduct.
21
unreliable indicators of guilt. Because they are unreliable,
this Court has indicated that the Constitution requires that
they not be considered in subsequent sentencing proceeding.
See Townsend, 334 U.S. at 741.
By contrast, in a case such as this one in which a defendant
waived his right to counsel at a guilty plea hearing after being
duly informed of this right, the situation is different. First, a
judge generally will not accept a guilty plea unless the
defendant is willing to admit his guilt after being fully
apprised of his right to plead not guilty and all of the
concomitant rights that would come with a trial. See, e.g.,
Boykin, 395 U.S. at 243; Henderson, 426 U.S. at 647.
Moreover, a judge will not accept a guilty plea unless
satisfied that there is sufficient factual evidence to support a
finding of guilt. Thus, when a judge accepts a guilty plea
(whether counseled or uncounseled), there is little reason to
doubt that the defendant did, in fact, commit the crime. The
very acceptance of the plea, then, demonstrates some level of
reliability.
Mr. Tovar’s case provides an apt example. After he was
informed of his rights and the possible punishment he faced,
he admitted in open court that he was, in fact, driving and did
not contest that his blood alcohol level was well above the
legal limit. Pet. App. 6. He therefore admitted that he
committed a crime, and the judge found sufficient evidence to
support this conclusion. There is little concern that his
conviction is not a reliable indication that he committed a
crime, whether or not he might have escaped conviction if he
had retained a lawyer.
If the language of Burgett, Tucker, and Loper \eft any doubt
that a guilty plea following a waiver of counsel could be used
to enhance a future sentence, that doubt was removed by
* In the case of so called “Alford pleas”, the defendant need not admit
his guilt because he is entering a guilty plea to avoid a potentially higher
sentence. See generally North Carolina v. Alford, 400 U.S. 25 (1970).
Such pleas are irrelevant to this case because Mr. Tovar admitted his guilt.
22
Custis. There, the Court held that a defendant could not.
collaterally attack his conviction on ineffective assistance of
counsel grounds. 511 U.S. at 496; accord Lackawanna
County Dist. Attorney v. Coss, 532 U.S. 394 (2001). A claim
of ineffective assistance of counsel surely calls the reliability
of the uiderlying conviction into doubt to some extent, but
this was not deemed enough to render such a conviction off
limits for future sentencing.
The alleged violation in this case does nothing to call Mr.
Tovar’s guilt into doubt. Accordingly, the Constitution does
not exclude Mr. Tovar’s prior guilty plea from his 2001
prosecution, even if his waiver of counsel was a technical
violation of the Sixth Amendment. The lowa Supreme
Court’s contrary ruling should be reversed.
lll. THE DECISION BELOW UNDERMINES THE
STATES’ INTEREST IN THE FINALITY OF
JUDGMENTS AND WOULD INTERFERE WITH
THE OPERATION OF ENHANCED SENTEN-
CING SYSTEMS NATIONWIDE.
As a policy matter, the decision below would also
undermine the States’ powerful interest in the finality of
criminal judgments. This Court has recognized that interest
in numerous contexts. For example, in Lackawanna County,
this Court explained that “[o]nce a judgment of conviction is
entered in state court,” and once direct appeal and state and
federal postconviction remedies have been exhausted or
waived, “the defendant's conviction becomes final and the
State that secured the conviction obtains a strong interest in
preserving the integrity of the judgment.” 532 U.S. at 402-03.
The Court then noted that “[o]ther jurisdictions acquire an
interest as well, as they may then use that conviction for their
own recidivist sentencing purposes, relying on the
‘presumption of regularity’ that attaches to final judgments.”
Id. at 403 (citations omitted). Accordingly, the Court went on
to hold that “once a state conviction is no longer open to
direct or collateral attack in its own right because the
23
defendant failed to pursue those remedies while they were
available .. . the conviction may be regarded as conclusively
valid.” Jd.
The lowa Supreme Court ignored this important interest in
finality. As a result, its decision, if affirmed, would have
untoward effects on the administration of justice throughout
the Nation. Indeed, it would make the administration of
recidivist statutes very difficult.
1. This Court has long recognized that states have a valid
interest in punishing repeat criminals more severely. See,
e.g., Williams, 337 U.S. at 248; Parke, 506 U.S. at 27.
Indeed, such graduated sentencing regimes “have a long
tradition in this country that dates back to colonial times.”
Parke, 506 U.S. at 26. States and the federal government
have adopted various forms of sentencing regimes that punish
recidivists more harshly, including statutes that specifically
ratchet up the applicable punishment range for each
subsequent offense, see, e.g., lowa Code §§ 123.46, 123.91
(increased punishment for subsequent public intoxication
offense); Colo. Rev. Stat. § 18-6-801(7) (enhanced penalty
for repeated domestic violence convictions); id. §§ 18-18-
405, -406, -407 (enhanced penalties for repeated drug
offenses); 21 U.S.C. §§ 842, 843, 844a, 849, 851 (enhanced
punishment for subsequent drug offenses).
More generally, the vast majority of American sentencing
law calls on the judge to consider the defendant’s criminal
history. Under the Federal Sentencing Guidelines, for
example, one of the key factors contributing to the sentence
imposed is the defendant’s criminal history score. See, e.g.,
Federal Sentencing Law & Practice ch. 4, pt. A, cmt. (2003);
see also Colo. Rev Stat. § 18-1.3-401(6).
If this Court were to affirm the ruling below, it would
create a new rule that permits a criminal defendant to
challenge the use of a prior conviction—long since final and
no longer subject to direct or collateral attack—to enhance his
24
current sentence. Even assuming this rule would apply only
to future prosecutions, it would have widespread effects on
the criminal justice system. In future prosecutions where the
prosecution cannot show compliance with the new rule, the
guilty plea could not be used to enhance the current sentence.
Adopting the lowa Supreme Court’s rule would thus
frustrate the States’ legitimate attempts to punish recidivists
more severely than first-time offenders. Indeed, a large
number of states have expressly adopted rules that require
less searching inquiry than that required by the court below.
See Resp’ts Br. In Opp’n To Cert. at 10 (stating that
Louisiana, Michigan, South Dakota, and Texas do not require
Faretta-style inquiries for-guilty pleas); id. at 11 (describing
the regimes in Nevada, California, Illinois, North Carolina,
and Vermont as adopting a variance of the Von Moltke rule,
but not asserting that these jurisdictions require the judge to
give the admonishments now required by the lowa Supreme
Court). Under the lowa Supreme Court’s ruling, any
uncounseled guilty plea from any of these states would be
presumptively invalid and could not be used to enhance any
future sentence.
In this regard, Mr. Tovar is wrong in contending that States
that require Faretta-style advisements in pro se guilty pleas
have necessarily met the standard set by the lowa Supreme
Court. Jd. at 13. For example, Florida appears to have
adopted Faretta, but nothing in its rule governing the waiver
of counsel or in court opinions interpreting it require the trial
judge to give the specific admonishments that the lowa
Supreme Court opinion now would require. See Fla. R. Crim.
P. 3.111(d)(2)(before accepting a waiver of counsel, “the
court shall advise the defendant of the disadvantages and
dangers of self-representation”); Clary v. State, 818 So. 2d
686 (Fla. Dist. Ct. App. 2002) (reversing for the failure to
conduct a Faretta-style inquiry but not requiring any specific
admonishments). Uncounseled guilty pleas from Florida,
therefore, may very well not meet the requirements of the
25
lowa Supreme Court, rendering them off limits for future
sentencing enhancement. The same will be true with most
every State because even those States that require a more
searching inquiry do not require the specific warnings that the
lowa Supreme Court has now held must be given.°
Indeed, a close examination of state-law precedent from
around the country demonstrates that guilty pleas from only
three states—Minnesota, Oregon, and Pennsylvania—would
satisfy the lowa Supreme Court’s ruling. See App. of State
Authorities. No other state appears to require that a trial
judge give these specific warnings, and almost every state
recognizes that deciding whether a defendant knowingly and
intelligently waived his right to counsel requires a fact-
specific inquiry—an inquiry that takes precedence over any
formulaic instructions from the trial judge.’ /d. Thus, the
lowa Supreme Court’s rule would invalidate virtually every
uncounseled guilty plea nationwide.
Rendering the vast majority of guilty pleas unusable for
future sentencing enhancement would clearly have a large
impact on the administration of justice. A large number of
criminal defendants plead guilty and many do so without the
aid of counsel. See United States v. Ruiz, 536 U.S. 622, 632
(2002) (90 percent or more of the federal criminal cases are
* The same is likely true of the states that “prefer their courts to go into
detail regarding the usefulness of an attorney.” Resp’t’s Br. In Opp’n To
Cert. at 12. Alaska, for example, encourages its courts to give these
instructions, see Swenson v. Municipality of Anchorage, 616 P.2d 874,
878 n.4 (Alaska 1980), but it has upheld convictions obtained at trial
where these instructions were not given. See Williams v. State, 616 P.2d
881, 882-82 (Alaska 1980). Guilty pleas in Alaska, then, will not
necessarily satisfy the lowa Supreme Court’s new rule.
’ Colorado and certain other states have adopted stringent waiver
requirements, but none of these states has adopted the lowa Supreme
Court’s required trilogy. See generally App. of State Authorities.
Moreover, almost every state holds that a waiver made in violation of their
standards can still be knowing and intelligent based upon the totality of
the circumstances. See App. (discussion of Colorado, District of
Columbia, New Jersey, Oregon).
26
plea bargained); see also Caroline Wolf Harlow, Defense
Counsel in Criminal Cases |, 7, tbl.14 (Bureau of Justice
Statistics, November 2000) (stating that nearly thirty percent
of inmates accused of public order offenses in the nation’s 75
largest counties report that they represented themselves). The
lowa Supreme Court’s ruling would thus preclude the
operation of enhanced sentencing systems in a large number
of cases.
2. If affirmed, the decision below would also place a great
strain on judicial resources. First, it would require courts to
create voluminous records. Under the rule adopted below, a
prior uncounseled guilty plea can be used for sentencing
enhancement only if the state demonstrates that the trial judge
gave at least three specific instructions over and above the
litany required before a guilty plea. However, as this Court
observed in Nichols, “a large number of misdemeanor
convictions take place in police or justice courts which are not
of record;” thus, memorializing warnings prior to entry of a
guilty plea by a pro se defendant would require a “drastic
change in the procedures of these courts.” 511 U.S. at 748.
Even in courts of record, states do not routinely create
transcripts. In Colorado, for example, transcripts are usually
generated only when the defendant requests them on direct
appeal.
Further, the decision below would require courts to
maintain records of plea colloquies indefinitely, thereby
requiring states to maintain archives of ancient transcripts that
are now not routinely kept for an extended period of time.
See, e.g., United States v. Hartsock, 347 F.3d 1 (lst Cir.
2003) (states routinely destroy supporting — records).
Therefore, requiring the government to shoulder the burden of
persuasion would place “‘an impossible burden on the
prosecution to establish the existence of facts within the
special knowledge of the defendant.’” /d. at 7 (quoting
LaFave, Substantive Criminal Law, § 1.8 (1986)). Moreover,
states would need to create methods for sharing these
27
transcripts from state to state, so that a criminal’s out-of-state
convictions could be considered as part of his sentencing.
See Parke, 506 U.S. at 28 (noting that studies suggest that up
to two-thirds of those arrested have criminal records, often
from other jurisdictions).
In addition to the logistical problems with maintaining the
hearing transcripts, the lowa Supreme Court’s approach
would drain judicial resources by requiring courts to conduct
in-depth analysis of prior guilty pleas before they can be used
for sentence enhancement. Indeed, a judge would be required
to procure the transcript from whatever jurisdiction has it, and
then review it to ensure that the judge in the prior proceeding
gave the appropriate admonishments. This exercise would,
no doubt, occupy a good deal of judicial resources. See, e.g.,
2 David Rossman, Criminal Law Advocacy: Guilty Pleas
46.06, at 6-51 (2003) (collateral attacks can require
“examining incomplete records from far away jurisdictions in
cases long ago closed and forgotten. The practical problems
of finding the facts to support or refute a claim about the
validity of a plea in such conditions are immense.”); accord
Lackawanna County, 532 U.S. at 403.
3. Holding that a defendant may collaterally challenge a
prior guilty plea on the ground that it was not made
knowingly and intelligently would also undermine incentives
for defendants to raise these issues in the proper forum—
direct appeal and state and federal postconviction relief
proceedings. As this Court has recognized, our system
provides a defendant many opportunities to challenge the
constitutionality of his conviction—direct appeal, post-
conviction proceedings under state law, and federal habeas
proceedings. Daniels, 532 U.S. at 381. Forcing defendants to
raise claimed constitutional violations in these proceedings is
advantageous because it allows the defendants to vindicate
their constitutional rights while still allowing the State to
preserve its interest in punishing the guilty and imposing
harsher penalties on repeat offenders.
28
This case presents an apt example. Had Mr. Tovar attacked
the validity of his waiver of counsel on either direct appeal or
postconviction relief, the remedy, if he succeeded, would
have been an order vacating his guilty plea. See lowa Code
§ 822.7. This would have vindicated his constitutional right.
But it would also have returned the parties to their pre-guilty-
plea position, allowing them to proceed again without the
constitutional error. lowa would have been free to proceed to
trial on the charges. Thus, the State would have been able to
vindicate its interest in punishing those who commit crimes.”
Were Respondent to succeed in this case, however, his
prior guilty plea could not be considered in his present or
future sentencing. But the State of lowa would never be able
to remove the taint of such a ruling because, until Mr. Tovar’s
previous conviction is vacated, a new prosecution is not
allowed. See U.S. Const. amend. V (“nor shall any person be
subject for the same offence to be twice put in jeopardy of life
or limb”). Thus, regardless of the strength of the State’s
evidence against Mr. Tovar, the State would never be able to
remedy the constitutional problem and vindicate the State’s
interest in punishing the guilty (or in this case subjecting
recidivists to increased punishment). A reversal of the
decision below will force defendants to raise their claims
‘either on direct appeal or via a postconviction relief
proceeding, and thereby give prosecutors a fair opportunity to
vindicate the public’s interest in ensuring that the guilty are
punished and that recidivists are punished more severely.
In sum, the decision below would seriously undermine the
States’ important interest in the finality of criminal
convictions. Such a rule should therefore be implemented, if
at all, as a matter of state law, and not as a matter of federal
constitutiona! law.
* Indeed, given that the uncontroverted evidence demonstrated that Mr.
Tovar was driving while his blood alcohol content was .194 percent, lowa
would, no doubt, have initiated new proceedings had Mr. Tovar
successfully had his guilty plea vacated.
29
CONCLUSION
For these reasons, the decision of the Supreme Court of
lowa should be reversed.
KEN SALAZAR
ATTORNEY GENERAL
ALAN GILBERT
SOLICITOR GENERAL
JOHN D. SEIDEL
ASSISTANT ATTORNEY
GENERAL
OFFICE OF THE ATTORNEY
GENERAL
STATE OF COLORADO
1525 Sherman St., 5th Floor
Denver, CO 80203
(303) 866-5785
BILL PRYOR
ATTORNEY GENERAL.
STATE OF ALABAMA
OFFICE OF THE ATTORNEY
GENERAL
11 South Union Street
Montgomery, AL 36130
(334) 353-3915
BILL LOCKYER
ATTORNEY GENERAL
STATE OF CALIFORNIA
1300 I Street
P.O. 944255
Sacramento, CA 94244-2550
(916) 323-1996
Respectfully Submitted,
GENE C. SCHAERR*
ROBERT KLINCK
SIDLEY AUSTIN BROWN &
WOOD LLP
1501 K Street, N.W
Washington, D.C. 20005
(202) 736-8000
GREGG D. RENKES
OFFICE OF THE ATTORNEY
GENERAL OF ALASKA
1031 W. Fourth Ave.
Anchorage, AK 99501-1994
(907) 269-5100
CHRISTOPHER L. MORANO
CHIEF STATE’S ATTORNEY
300 Corporate Place
Rocky Hill, CT 06067
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CHARLES J. CRIST
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY
GENERAL OF FLORIDA
The Capital Suite PL-01
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LAWRENCE G. WASDEN
IDAHO ATTORNEY GENERAL
P.O. Box 83720
Boise, ID 83720-0010
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STEVE CARTER
ATTORNEY GENERAL OF
INDIANA
Indiana Government Center
South
Fifth Floor
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Indianapolis, IN 46204
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RICHARD P. IEYOUB
ATTORNEY GENERAL
P.O. Box 94005
22d Floor
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9005
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THOMAS F. REILLY
ATTORNEY GENERAL OF
MASSACHUSETTS
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Boston, MA 02108.
(617) 727-2200
MARK J. BENNETT
ATTORNEY GENERAL
STATE OF HAWAI'I
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Honolulu, HI 96813
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LISA MADIGAN
ATTORNEY GENERAL
OFFICE OF THE ILLINOIS
ATTORNEY GENERAL
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12th Floor
Chicago, IL 60601
(312) 814-3698
PHILL KLINE
KANSAS ATTORNEY
GENERAL
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(785) 296-2215
G. STEVEN ROWE
MAINE ATTORNEY GENERAL
6 State House Station
Augusta, ME 04333-0006
(207) 626-8800
MICHAEL C. MOORE
ATTORNEY GENERAL
STATE OF MISSISSIPPI
P.O. Box 220
Jackson, Mississippi 39205
(601) 359-3680
,
JEREMIAH W. (JAY) NIXON
ATTORNEY GENERAL OF
MISSOURI
Supreme Court Building
207 W. High St.
Jefferson City, MO 65101
(573) 751-3321
JON BRUNING
ATTORNEY GENERAL OF
NEBRASKA
PO Box 98920
Lincoln, NE 68509
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PATRICIA A. MADRID
ATTORNEY GENERAL
STATE OF NEW MEXICO
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(505) 827-6000
JiM PETRO
ATTORNEY GENERAL
STATE OF OHIO
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(614) 466-8980
STATE OF OREGON |
HARDY MYERS
ATTORNEY GENERAL
1162 Court St. N.E.
Salem, Oregon 97301
(503) 378-4400
MIKE MCGRATH
MONTANA ATTORNEY
GENERAL
215 N. Sanders
P.O. Box 201401
Helena, MT 59620-1401
(406) 444-2026
BRIAN SANDOVAL
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY
GENERAL
STATE OF NEVADA
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Carson City, NV 89701-4717
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WAYNE STENEHJEM
ATTORNEY GENERAL OF
NORTH DAKOTA
600 E. Boulevard Avenue
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(701) 328-2210
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF
OKLAHOMA
2300 N. Lincoln Boulevard
Suite 112
Oklahoma City, OK 73105-
4894
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HENRY D. MCMASTER
ATTORNEY GENERAL
SOUTH CAROLINA ATTORNEY
GENERALS OFFICE
P.O. Box 11549
Columbia, SC 29211-1549
(803) 734-3970
LAWRENCE E. LONG
ATTORNEY GENERAL
STATE OF SOUTH DAKOTA
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(605) 773-3215
MARK L. SHURTLEFF
UTAH ATTORNEY GENERAL
236 State Capitol
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JERRY W. KILGORE
ATTORNEY GENERAL
COMMONWEALTH OF
VIRGINIA
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Richmond, Virginia 23219
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PATRICK J. CRANK
WYOMING ATTORNEY
GENERAL
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GREG ABBOTT
ATTORNEY GENERAL OF
TEXAS
P.O. Box 12548
Austin, TX 78711-2548
(512) 936-1822
WILLIAM H. SORRELL,
_ ATTORNEY GENERAL
STATE OF VERMONT
109 State Street
Montpelier, VT 05609
(802) 828-3171
DARRELL V. MCGRAW, JR.
ATTORNEY GENERAL OF
WEST VIRGINIA
OFFICE OF THE ATTORNEY
GENERAL
State Capitol, Room 26-E
Charleston, WV 25305
304-558-2021
Counsel for Amici Curiae
November 14, 2003
* Counsel of Record
APPENDIX
—
i oe
APPENDIX OF STATE AUTHORITIES
Alabama: Ala. R. Crim. P. 6.1 (“A defendant may waive
his or her right to counsel in writing or on the record, after the
court has ascertained that the defendant knowingly,
intelligently, and voluntarily desires to forgo that right.”); Ex
Parte Reese, 620 So. 2d 579, 581 (Ala. 1993) (finding
requirements of Rule 6.1 were not met where there was no
evidence that trial judge engaged in a colloquy to ensure that
the waiver was knowing, intelligent, and voluntary but not
requiring any specific inquiries of admonishments that would
satisfy the lowa Supreme Court’s rule).
Alaska: Alaska R. Crim. P. 39(a) (“The court shall advise a
defendant who appears without counsel for arraignment,
change of plea, or trial of the right to be represented by
counsel, and ask if the defendant desires the aid of counsel.
The court shall not allow a defendant to proceed without an
attorney unless the defendant understands the benefits of
counsel and knowingly waives the right to counsel.”); /d.
39(b)(4) (“In the absence of a request by a defendant
otherwise entitled to appointment of counsel, the court shall
appoint counsel unless the court finds that the defendant
understands the benefits of counsel and knowingly waives the
right to counsel.”); Williams v. State, 616 P.2d 881, 882-83
(Alaska 1980) (affirming conviction of uncounseled
defendant at non-jury trial where trial judge did not give the
admonishments now required by the lowa Court).
Arizona: Ariz. R. Crim. P. 6.1(c) (“A defendant may waive
his or her rights to counsel under (a) and (b), in writing, after
the court has ascertained that he or she knowingly,
intelligently and voluntarily desires to forego them.”); State v.
Natoli, 158 Ariz. 525, 527, 764 P.2d 10, 12 (1988) (upholding
use of prior uncounseled conviction for enhancement
purposes even when there was no evidence of specific
admonishments).
2a
Arkansas: King v. State, 304 Ark. 592, 595, 804 S.W.2d
360, 361-62 (Ark. 1991) (noting that on direct appeal, “(t]he
minimum for determining whether a waiver was knowing and
intelligent is a record which shows that the accused was made
aware of the dangers and disadvantages of self-representation,
and that he understood the consequences of his choice,” and
not requiring any specific inquiries of admonishments that
would satisfy the lowa Supreme Court’s rule).
California: Cal. Penal Code § 1018 (“No plea of guilty of a
felony for which the maximum punishment is not death or life
imprisonment without the possibility of parole shall be
accepted from any defendant who does not appear with
counsel unless the court shall first fully inform him or her of
the right to counsel and unless the court shall find that the
defendant understands the right to counsel and freely waives
it, and then only if the defendant has expressly stated in open
court, to the court, that he or she does not wish to be
represented by counsel.”); People v. Paradise, 108 Cal. App.
3d. 364, 366, 166 Cal. Rptr. 484, 485 (1980) (“The issue is
whether before accepting a guilty plea to a misdemeanor a
trial court must expressly advise a defendant who appears
without counsel of the dangers and risks of self-
representation. We hold that such advisement need not
appear of record so long as the record as a whole shows that
the express waiver of counsel was intelligent and with
understanding.”).
Colorado: People v. Arguello, 772 P.2d 87, 95-96 (Colo.
1989) (holding that a judge should go through a detailed
colloquy with a defendant including advising of the dangers
of self-representation, but stating “A court’s failure to comply
substantially with this requirement does not automatically
render the waiver invalid, but is an exception which should
rarely be invoked.”); but see Martinez v. People, 166 Colo.
132, 134-35, 442 P.2d 422, 423 (1968) (upholding waiver
even though defendant was informed only that he had a right
to counsel); People v. Smith, 881 P.2d 385, 389 (Colo. App.
= ~ Se ee ee
3a
1994) (minor omissions from inquiry discussed in Arguello
did not render wavier invalid).
Connecticut: State v. Day, 233 Conn. 813, 822, 661 A.2d
539, 547 (1995) (stating that a trial judge may not accept a
waiver of counsel for trial proceedings unless the defendant
““(hjas been made aware of the dangers and disadvantages of
self- representation,’” but not requiring any specific inquiries
of admonishments that would satisfy the lowa Supreme
Court’s rule).
Delaware: Del. Super. Ct. Crim. R. 44 (“Every defendant
who is unable to obtain counsel shall be entitled to have
counsel assigned... unless, after the court has advised the
defendant of the dangers and disadvantages of acting pro se
and has found the defendant competent to do so, the
defendant waives such appointment.”); Briscoe v. State, 606
A.2d 103, 107-08 (Del. 1992) (holding that a judge must
advise defendant of the perils of acting pro se but not
requiring any specific inquiries of admonishments that would
satisfy the lowa Supreme Court’s rule).
District of Columbia: McClinton v. United States, 817
A.2d 844, 849 (D.C. 2003) (holding that a defendant “should
be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open” and
that a defendant’s waiver “must be made with an
apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and
the circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter,” but
not requiring reversal simply because the judge does not give
an instruction) (internal quotations and citations omitted),
petition for cert. filed, No. 03-7227 (U.S. Oct. 29, 2003).
Florida: Fla. R. Crim. P. 3.111(d) (stating that before
accepting a waiver of counsel, “the court shall advise the
4a
defendant of the disadvantages and dangers of self-
representation” but not requiring any specific inquiries),
Clary v. State, 818 So. 2d 686 (Fla. Dist. Ct. App. 2002)
(reversing for the failure to conduct a Faretta-style inquiry
but not requiring any specific admonishments).
Georgia: King v. State, 226 Ga. App. 576, 584, 486 S.E.2d
904, 911 (1997) (“Each plea further recites that defendant
‘freely and voluntarily waive[d] [her] right to counsel[;]’ that
she had read the accusation and the plea statement; and that
the trial court was ‘satisfied that the Defendant understands
all [her] rights. ...’ We hold the record of these guilty pleas
is adequate for an appellate court to affirm the trial court's
determination, i.e., that defendant’s waiver of the right to
counsel was knowingly and intelligently made as part of a
free and voluntary guilty plea.”) (alterations and omissions in
original), rev'd on other grounds, 270 Ga. 367, 509 S.E.2d 32
(1998).
Hawai'i: State v. Merino, 81 Haw. 198, 221-22, 915 P.2d
672, 695-96 (1996) (holding a judge did not need to
“administer a criminal procedure course” before the
defendant cotld waive counsel).
Idaho: \daho Rules of Court, Crim. R. 44(a) (“Every
defendant, who according to law is entitled to appointed
counsel, shall have counsel assigned to represent the
defendant, from initial appearance before the magistrate or
district court, unless the defendant waives such
appointment.”); State v. Maxey, 125 Idaho 505, 509, 873 P.2d
150, 154 (1994) (“We are not convinced, however, that the
judgments that confront a defendant who pleads guilty in a
misdemeanor case are sufficiently difficult to warrant a
requirement that the trial court must advise the defendant of
the problems inherent in entering a plea without counsel.”).
Illinois: WN. Sup. Ct. R. 401 (providing that waiver of ©
counsel shall occur in open court and only after the trial judge
informs defendant of the nature of the charges, the minimum
- EO UES wee
Sa
and maximum sentences, and his right to counsel); People v.
Christensen, 197 Ill. App. 3d 807, 814-15, 555 N.E.2d 422,
426-27 (1990) (holding that defendant properly waived her
right to counsel because the judge followed the instructions of
Rule 401 and did not give the specific admonishments now
required by the lowa Supreme Court).
Indiana: Shelton v. State, 181 Ind. App. 50, 55, 390 N.E.2d
1048, 1051 (1979) (“While it is better practice for the trial
judge to emphasize the importance of the assistance of
counsel and that counsel would assist the accused in
evaluating the state’s case against him, the possible defenses,
if any, to the charge and the advantages and disadvantages of
the alternative pleas, the failure to so advise is not per se
reversible error. The determination of whether there has been
an intelligent waiver of the right to counsel must depend, in
each case, upon the particular facts and circumstances
surrounding that case. . . .”).
lowa: lowa Code, R. Crim. P. 2.28 (“Every defendant who
is an indigent person as defined in lowa Code section 815.9,
is entitled to have counsel appointed to represent the
defendant at every stage of the proceedings from the
defendant’s initial appearance before the magistrate or the
court through appeal, including probation revocation
hearings, unless the defendant waives such appointment.”).
Kansas: Kan. Stat. Ann. § 22-4503 (establishing the right
to counsel for criminal defendants); State v. Armstrong, 240
Kan. 446, 453-54, 731 P.2d 249, 255-56 (1987) (applying a
Faretta-style inquiry for a waiver at a trial, and expressing
that the validity of a waiver “depends upon the particular facts
and circumstances surrounding each case, including the
accused’s background, experience and conduct” and not
requiring any specific inquiries of admonishments that would
satisfy the lowa Supreme Court’s rule).
Kentucky: Ky. R. Crim. P. 3.05(2) (“If the crime of which
the defendant is charged is punishable by confinement and the
6a
defendant is financially unable to employ counsel, the judge
shall appoint counsel to represent the defendant unless he or
she elects to proceed without counsel.”); Dunn v.
Commonwealth, 573 S.W.2d 651, 652-53 (Ky. 1978)
(rejecting defendant’s argument that his waiver of counsel at
trial was invalid because “the trial judge should have advised
him of the seriousness of the charges and of the advisability
of being represented by skilled counsel.”).
Louisiana: Louisiana Stat. Ann., Code of Crim. P. art. 511
(“The accused in every instance has the right to defend
himself and to have the assistance of counsel.”); State v.
Strain, 585 So. 2d 540, 543-44 (La. 1991) (holding that
before a judge accepts a waiver of counsel at the guilty plea
stage of a misdemeanor, the judge should determine on the
record that the waiver is knowing and intelligent, and
concluding that: “[dJjetermining the defendant’s under-
standing of his waiver of counsel in a guilty plea to an
uncomplicated misdemeanor requires less judicial inquiry
than determining his understanding of his waiver of counsel
for a felony trial” and not requiring any specific inquiries of
admonishments that would satisfy the lowa Supreme Court’s
rule).
Maine: Me. R. Crim. P. 44(a)(1) (“[T]he court shall advise
the defendant of the defendant’s right to counsel and assign
counsel to represent the defendant at every stage of the
proceeding unless the defendant elects to proceed without
counsel or has sufficient means to employ counsel.”); State v.
Morrison, 567 A.2d 1350, 1352-53 (Me. 1990) (holding that
questions of the validity of waiver of counsel should be
resolved by case-specific, fact intensive inquiry and stating:
“We refuse to create any kind of prophylactic rule by which
the conviction of any pro se defendant would be
automatically vacated, regardless of the particular facts and
circumstances surrounding that defendant's waiver of
counsel, if the trial court failed to give the defendant
7a
Miranda-like warnings of the risks of self-representation and
the benefits of counsel on the record.’’)
Maryland: Maryland Rules of Court, Crim. Causes, R. 4-
215(b) (“If a defendant who is not represented by counsel
indicates a desire to waive counsel, the court may not accept
the waiver until it determines, after an examination of the
defendant on the record conducted by the court, the State’s
Attorney, or both, that the defendant is knowingly and
voluntarily waiving the right to counsel.”); Palacorolle v.
State, 239 Md. 416, 419-21, 211 A.2d 828, 829-31 (1965)
(noting that “[t]he question of whether there has been a
knowing and voluntary waiver is largely a question of fact to
be determined as a preliminary matter by the trial judge,” and
noting that the defendant had not shown that there was a
defense that could have been asserted in his case).
Massachusetts: Mass. Rules of Court, R. Sup. Jud. Ct. 3:10
(stating that a defendant shall complete a waiver of counsel
form, which does not include a statement of the risks of
forgoing counsel); Commonwealth v. Martin, 425 Mass. 718,
719-20, 683 N.E.2d 280, 282 (1997) (“We have not
prescribed the questions that a judge must pose to an accused
who desires to represent himself nor is there any particular
piece of information that is essential to an effective waiver of
counsel.”) (internal quotations omitted).
Michigan: Mich. Comp. Laws Ann. § 763.1 (“On the trial
of every indictment or other criminal accusation, the party
accused shall be allowed to be heard by counsel and may
defend himself ... .”); People v. Dunn, 380 Mich. 693, 697,
158 N.W.2d 404, 405-06 (1968) (holding that once a
defendant was informed of his right to counsel and the
charges and then pleaded guilty, he had validly waived his
right to counsel); People v. Gonzales, 179 Mich. App. 477,
480, 446 N.W.2d 296, 298 (1989) (“In district court, a valid
waiver of counsel is effected, after the court’s presentation of
the defendant’s right to counsel ... upon the defendant’s
8a
express indication to the court that he chooses to forego the
benefits of counsel.”’).
Minnesota: 49 Minn. Stat. Ann., R. Crim. P. 5.02(3)-(4)
(stating that the judge shall not accept a waiver of counsel in a
misdemeanor case unless satisfied that it is knowing and
intelligent and stating that a judge shall not accept a waiver of
counsel in a felony or gross misdemeanor case without first
giving the defendant numerous instruction); State v. Rubin,
409 N.W.2d 504, 506 (Minn. 1987) (“As we interpret R. 5.02
and the comment to the rule, a trial court may not accept a
guilty plea to a felony or gross misdemeanor charge made by
an unrepresented defendant if the defendant has not consulted
with counsel about waiving counsel and pleading guilty.”)
Mississippi: Miss. Rules of Court, R. 8.05(3)-(5) (stating
that the court may accept waiver of counsel upon a
determination that a knowing and intelligent waiver has been
granted with an understanding of the following instructions:
that the court will not relax evidentiary or procedural rules,
nor courtroom protocol for the defendant, that the defendant
is bound to conduct himself/herself accor’ing to the same
rules as an attorney, that these rules are complex, that his/her
ability to defend himself/herself will be hampered absent
legal advice, and that proceeding pro se usually increases the
likelihood of an unfavorable outcome but not requiring that
the judge give any specific admonishments that would satisfy
the lowa Supreme Court’s rule); Matthews v. State 394 So. 2d
304, 309 (Miss. 1981) (defendant may waive right to counsel
“at any time, before or during the trial, but it must be made
with a full understanding of its disadvantages and
consequences”).
Missouri: Mo. Ann. Stat. § 600.051 (stating that a judge
may accept a signed waiver of counsel if the defendant has
been informed of the nature of the charges, that the defendant
has right to trial by jury, the maximum and minimum
permissible punishment, that any recommendations from the
prosecutor is not binding, that the defendant will most likely
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be imprisoned, and that if indigent the defendant has a right to
appointed counsel and not requiring any specific inquiries of
admonishments that would satisfy the lowa Supreme Court’s
rule).
Montana: Mont. Code Ann. § 46-8-102 (“A defendant may
waive the right to counsel when the court ascertains that the
waiver is made knowingly, voluntarily, and intelligently.”);
see generally State v. Markuson, 317 Mont. 43, 75 P.3d 298
(2003) (rejecting the defendant’s argument that he had not
validly waived his right to counsel because the judge had
failed to advise him of the dangers and disadvantages of self-
representation); State v. Wolfe, 317 Mont. 173, 75 P.3d 1271
(2003) (same).
Nebraska: State v. Green, 185 Neb. 673, 178 N.W.2d 271
(1970) (upholding a waiver of counsel in a case where
defendant was not warned that a defense attorney could give
an independent perspective or that a defense attorney might
recognize defenses he would not).
Nevada: Nev. Rev. Stat. 178.397 (“Every defendant
accused of a gross misdemeanor or felony who is financially
unable to obtain counsel is entitled to have counsel assigned
to represent him at every stage of the proceedings from his
initial appearance before a magistrate or the court through
appeal, unless he waives such appointment.”); Beals v. State,
106 Nev. 729, 732, 802 P.2d 2, 4 (1990) (per curiam) (“The
court should determine if the waiver is knowingly and
intelligently made with a penetrating and comprehensive
examination of the waiver and the circumstances surrounding
it” but not requiring any specific admonishments) (internal
quotations omitted).
New Hampshire: N.H. Rev. Stat. Ann. § 604-A:2(1)
(“Unless the defendant waives the appointment of counsel, if
the defendant indicates to the court that he is financially
unable to obtain counsel, the court shall instruct the defendant
to complete a financial affidavit in such form as designated by
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the unit of cost containment.”); State v. Herbert, 108 N.H.
332, 334-35, 235 A.2d 524, 526-27 (1967) (noting that
deciding whether waiver was valid is a fact-intensive process
and not requiring judge to give any specific admonishments).
New Jersey: State v. Williams, 663 A.2d 1378, 1388-89
(N.J. Super. Ct. Law Div. 1995) (“Defendant should be
informed of the nature of the charges he faces, the statutory
defenses to those charges, the possible range of allowable
punishment, the technical problems he may face in acting as
counsel ....” except, “when the record indicates that
defendant actually understands the risks of proceeding pro
se.)
New Mexico: State v. Montler, 85 N.M. 60, 60-61, 509
P.2d 252, 252-53 (1973) (“with regard to waiver of counsel,
no hard and fast rule can be laid down as to what must be
stated in each case in order to adequately explain an accused’s
rights before permitting him to waive counsel. Each case must
be decided on its own peculiar facts which shall include
consideration of the background, education, training,
experience and conduct of the accused”).
New York: People v. Whitted, 496 N.Y.S.2d 767, 770
(N.Y. App. Div. 1985) (“Although the searching inquiry
required to establish a knowing and voluntary decision to
proceed pro se can best be established by an appropriate
colloquy .. . there is no authority for the proposition that such
a colloquy is the exclusive method that may be used to
establish the effectiveness of the waiver.”) (citation omitted);
People v. White, 451 N.Y.S.2d 57, 61 (N.Y. 1982) (court may
grant waiver of counsel only where it has first “undertaken a
sufficiently searching inquiry for it to be reasonably assured
that the defendant appreciated the ‘dangers and
disadvantages’ of giving up the fundamental right to
counsel’’).
North Carolina: N.C. R. Indigent Def. Servs. R. !.6(a)
(“Waiver of counsel shall be effective only if the court finds
— Err
of record that at the time of waiver the indigent person acted
with full awareness of his or her rights and of the
consequences of the waiver. In making such a finding, the
court shall follow the requirements of G.S. 15A-1242 and
shall consider, among other things, such matters as the
person’s age, education, familiarity with the English
language, mental condition, and the complexity of the
matter.”); N.C. Gen. Stat. § ISA-1242 (waiver of counsel
contingent upon trial judge being satisfied, after thorough
inquiry that: defendant (1) has been advised of right to
assistance and assignment of counsel; (2) understands and
appreciates the consequences of waiver; and (3) comprehends
the nature of charges, proceedings, and range of permissible
punishment, but not requiring any specific admonishments
that would satisfy the lowa Supreme Court’s rule); State v.
Fulp, 355 N.C. 171, 176-77, 558 S.E.2d 156, 159-60 (2002)
(upholding the use of prior conviction for enhancement even
though there was no evidence that prior judge gave the
specific admonishments now required by the lowa Supreme
Court).
North Dakota: N.D. R. Crim. P., R. 44(a) (stating that,
“[ajbsent a knowing and intelligent waiver, every indigent
defendant is entitled to have counsel appointed at public
expense to represent the defendant at every stage of the
proceedings from initial appearance before a magistrate
through appeal in the courts of this state in all felony cases.”
and recognizing that this right applies to non-felony cases
where a magistrate has not determined that a sentence upon
conviction will not include imprisonment); State v. Hendrick,
543 N.W.2d 217, 221 (N.D. 1996) (treating the question of
whether a waiver of counsel was voluntary as a fact-intensive
question and upholding a waiver where there was no evidence
that the judge gave the specific admonishments now required
by the lowa Supreme Court).
Ohio: Ohio Rev. Code Ann. § 2941.021 (“Any criminal
offense which is not punishable by death or life imprisonment
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may be prosecuted by information filed in the common pleas
court by the prosecuting attorney if the defendant, after he has
been advised by the court of the nature of the charge against
him and of his rights under the constitution, is represented by
counsel or has affirmatively waived counsel by waiver in
writing and in open court prosecution by indictment.”); State
v. Welch, 28 Ohio St. 2d 31, 32-33, 274 N.E.2d 756, 757-58
(1971) (remanding a case for a hearing to determine whether
a defendant knowingly and intelligently waived his right to
counsel in a prior case but not requiring any specific inquiries
or admonishments that would satisfy the lowa Supreme
Court’s rule on remand).
Oklahoma: Okla. Stat. Ann. tit. 22, § 251 (“When the
defendant is brought before a magistrate upon an arrest, either
with or without a warrant, on a charge of having committed a
public offense, the magistrate must immediately inform him
of the charge against him, and of his right to the aid of
counsel in every stage of the proceedings, and also of his right
to waive an examination before any further proceedings are
had.”); Huckabay v. Page, 438 P.2d 645, 647 (Okla. Crim.
App. 1968) (upholding the waiver of counsel at a guilty plea
when defendant was informed of his right to counsel and the
possible punishment range); Fitzgerald v. State, 972 P.2d
1157, 1162 (Okla. Crim. App. 1998) (“This Court has
consistently refused to impose a list of factors on trial courts,
holding instead that a valid waiver is determined from the
total circumstances of each case.”)
Oregon: State v. Meyrick, 313 Or. 125, 134, 831 P.2d 666,
671 (1992) (en banc) (holding that the Oregon Constitution's
provision of the right to counsel “does not require a catechism
by the trial court, however, before the right to counsel may be
validly waived by a defendant. The failure of a trial court to
impart a particular piece of information to a defendant will
not, of itself, require reversal of a conviction if the record as a
whole shows that the defendant knew of his or her right to
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counsel and that the waiver of counsel was an intentional
relinquishment or abandonment of that known right.”)
Pennsylvania: Commonwealth v. Payson, 723 A.2d 695,
700 (Pa. Super. Ct 1998) (indicating that an effective waiver
of counsel requires a colloquy involving inquiry into the
following areas: (1) the defendant understands he has the
right to counsel; (2) the defendant understands the nature of
the charges against him; (3) the defendant is aware of the
sentencing range; (4) the defendant understands he will be
bound by all the normal rules of procedure and that counsel
would be familiar with these rules; (5) defendant understands
that there are possible defenses to these charges which
counsel might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and (6) the
defendant understands that, in addition to defenses, the
defendant has many rights that, if not timely asserted, may be
lost permanently; and that if errors occur and are not timely
objected to, or otherwise timely raised by the defendant, the
objection to these errors may be lost permanently).
Rhode Island: R.l. R. Super. Ct. 44 (“If a defendant
appears in Superior Court without counsel, the court shall
advise the defendant of his or her right to counsel and assign
counsel to represent the defendant at every stage of the
proceeding unless the defendant is able to obtain his or her
own counsel or elects to proceed without counsel.”); State v.
Briggs, 787 A.2d 479, 485 (R.1. 2001) (applying a totality of
the circumstances test to the question of waiver of counsel
and not mandating any specific admonishments)
South Carolina: S.C. Code Ann. § 17-3-10 (Recognizing
the right to counsel as required by the United States
Constitution.) Watts v. State, 347 S.C. 399, 402-03 556
S.E.2d 368, 370-71 (2001) (holding that “[i]n order to waive
the right to counsel, the accused must be (1) advised of his
right to counsel and (2) adequately warned of the dangers of
self-representation” and finding that the trial judge failed to
apprise the defendant of the dangers of self-representation.)
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(internal quotations omitted); Gardner v. State, 351 S.C. 407,
412-13, 570 S.E.2d 184, 186-87(S.C. 2002)(finding an
“absolute failure of the plea judge to ask Petitioner for a
waiver and to apprise him of the dangers of appearing pro se”
the South Carolina supreme court looked to the defendant’s
background to decide if the defendant had sufficient
background to understanding the dangers of self-
representation).
South Dakota: State v. Cashman, 49\ N.W.2d 462 (S.D.
1992) (holding that when a guilty plea is entered, a full
Faretta colloquy is not required and not requiring the specific
admonishments now required by the lowa Supreme Court).
Tennessee: Tenn. R. Crim. P. 44(a) (“The court shall...
determine whether there has been a competent and intelligent
waiver of such right by inquiring into the background,
experience and conduct of the accused and such other matters
as the court may deem appropriate.” Furthermore, a written
waiver is required and the court must “spread [the waiver]
upon the minutes of the court and [make the waiver] a part of
the record of the cause.”); State v. Armes, 673 S.W.2d 174
(Tenn. Crim. App. 1984) (holding that the waiver must be in
writing in order to be valid but not requiring the specific
admonishments required by the lowa Supreme Court).
Texas: Tex. Crim. Proc. Code Ann. art. 1.051(g) (“If a
defendant wishes to waive his right to counsel, the court shall
advise him of the dangers and disadvantages of self-
representation.”); Hatten v. State, 71 S.W.3d 332, 334 (Tex.
Crim. App. 2002) (holding that a Faretta style inquiry is not
required for guilty pleas).
Utah: Utah R. Crim. P. 8(a) (“A defendant charged with a
public offense has the right to self representation, and if
indigent, has the right to court-appointed counsel if the
defendant faces a substantial probability of deprivation of
liberty.”); State v. Arguelles, 63 P.3d 731 (Utah 2003) (stating
that a Faretta-style inquiry is preferred, but holding that the
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waiver was valid nonetheless under a_ totality-of-the-
circumstances test).
Vermont: Vt. Stat. Ann. tit. 13, § 5237 (A defendant may
waive the right to counsel, in writing, or by other record, “if
the court, at the time of or after waiver, finds of record that he
has acted with full awareness of his rights and of the
consequences of a waiver and if the waiver is otherwise
according to law. The court shall consider such factors as the
person’s age, education, and familiarity with the English
language, and the complexity of the crime involved.”) State v.
Bean, 163 Vt. 456, 460-61, 658 A.2d 940, 943 (1995)
(holding that while waiver should generally appear in the
record, “in a relatively close case the record may be
supplemented to show defendant’s actual knowledge and
understanding” and not requiring specific admonishments).
Virginia: Edwards v. Commonwealth, 21 Va. App. 116,
124, 462 S.E.2d 566, 570 (1995) (“Signing a waiver form
does not alone guarantee affirmance of a conviction, and
failure to give the specific warnings suggested by appellant
does not alone assure reversal of the conviction. All of the
circumstances as shown by the record must be considered and
an ultimate determination made whether the accused
knowingly, competently, and intelligently waived his right to
be represented by an attorney.”).
Washington: Wash. Crim. R. Limited Jurisdiction 4.1(c)(2)
(“If the defendant chooses to proceed without a lawyer, the
court shall determine on the record that the waiver is made
voluntarily, competently and with knowledge of the
consequences.”); State v. Meacham, 98 Wash. App. 1040
(1999), available at 1999 WL 1222707, at * 3, (holding that
while a Faretta-style inquiry is preferred, absent a colloquy a
waiver can be knowing if the record indicates “that the
defendant had at least a minimal knowledge of what the task
of self-representation entails, including that the defendant
understood the seriousness of the charges and knew the
maximum penalty.”’)
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West Virginia: W. Va. Code §§ 62-3-1, 62-3-la (providing
for the right to counsel, upon request and providing waiver
forms that pro se defendants must sign when entering guilty
plea, which states only that they understand their right to
counsel, the charges against them, and potential penalties that
may result); State v. Armstrong, 175 W.Va. 381, 388, 332
S.E.2d 837, 843 (1985) (holding that express waiver of right
to counsel—through a waiver form which states that
defendant understands his right to counsel—completed at
time of guilty plea was sufficient for the conviction to operate
as an enhancement in a subsequent DUI conviction),
overruled on other grounds by State v. Hopkins, 192 W.Va.
483, 453 S.E.2d 317 (1994).
Wisconsin: Wis. Stat. § 970.02(1)(b) (requiring trial judge
to inform defendant of right to appointment of counsel); State
v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716, 721 (Wis.
1997) (holding that to prove a knowing and voluntary waiver
of a defendant’s right to counsel in any case in which
defendant seeks to proceed pro se, “the circuit court must
conduct a colloquy designed to ensure that the defendant: (1)
made a deliberate choice to proceed without counsel, (2) was
aware of the difficulties and disadvantages of self-
representation, (3) was aware of the seriousness of the charge
or charges against him, and (4) was aware of the general
range of penalties that could have been imposed on him.”);
State v. Polak, 254 Wis. 2d 585, 600, 646 N.W.2d 845, 852
(Wis. Ct. App. 2002) (holding that oral colloquy,
supplemented by waiver forms signed by defendant was
sufficient to satisfy the K/essig test).
Wyoming: Wyo. Stat. Ann. § 7-6-107 (“A person who has
been advised of his rights under W.S. 7-6-105 may waive any
right provided by this act if at the time of or after waiver, the
court finds that the person has acted with full awareness of his
rights and of the consequences of a waiver and if the waiver is
otherwise made according to law. Before making its findings,
the court shall consider such factors as the person’s age,
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education, familiarity with the English language and the
complexity of the crime involved.”); Mapp v. State, 953 P.2d
140, 144 (Wyo. 1998) (“district court’s failure to conduct a
complete inquiry on the record does not require reversal when
the surrounding facts and circumstances demonstrate a
knowing and intelligent waiver’).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.