Amicus Curiae Brief — Iowa v. Tovar

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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

(860) 258-5800

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

RICHARD P. IEYOUB

ATTORNEY GENERAL

P.O. Box 94005

22d Floor

Baton Rouge, LA 70804-

9005

(225) 339-5113

THOMAS F. REILLY

ATTORNEY GENERAL OF

MASSACHUSETTS

One Ashburton Place

Boston, MA 02108.

(617) 727-2200

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

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

(402) 471-2682

PATRICIA A. MADRID

ATTORNEY GENERAL

STATE OF NEW MEXICO

PO Drawer 1508

Santa Fe, NM 87504-1508

(505) 827-6000

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

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

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

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

PATRICK J. CRANK

WYOMING ATTORNEY

GENERAL

123 State Capitol

Cheyenne, WY 82002

(307) 777-7841

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.)

1 4a

(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,

17a

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.

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