No. 02-1866.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Scott County, David E. Schoenthaler, Judge.
Applicant-appellant, Debora Sue Wise, appeals the denial of her application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and William E. Davis, County Attorney.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
SACKETT, C.J.
Applicant-appellant, Debora Sue Wise, appeals the denial of her application for postconviction relief. Wise claims that the trial court was obligated to engage in a colloquy with her before allowing her to proceed without legal representation in her postconviction relief proceeding to ensure that she was waiving her right to counsel voluntarily, knowingly, and intelligently. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant pled guilty to two counts of delivery of a controlled substance, in violation of Iowa Code sections 124.401(1)(d), 124.204(4)(m), and 703.1 (1997). The district court determined that Wise made the plea voluntarily, knowingly, and intelligently and that there was a factual basis for the plea and, thus, accepted the plea.
At sentencing, Wise requested a deferred judgment. The district court denied the request for a deferred judgment and sentenced Wise to an indeterminate term not to exceed five years on each count, but the sentence was suspended.
Notice of appeal to the denial of a deferred judgment was timely filed. Wise’s appellate counsel filed a motion to withdraw as counsel, alleging the appeal was frivolous, pursuant to Iowa Rule of Appellate Procedure 104 (now rule 6.104). Appellate counsel filed a supporting brief and sent the requisite letter and copy of the brief, pursuant to rule 104, explaining to Wise the frivolousness determination and stating that if she disagreed with the analysis, she must inform the clerk of the supreme court within thirty days. Wise filed no response to appellate counsel’s motion. After an independent review of the record the supreme court determined Wise’s appeal was frivolous and dismissed the appeal pursuant to rule 104.
Wise filed an application for postconviction relief, proceeding without legal representation. The district court did not appoint counsel to represent Wise. The district court ultimately denied Wise’s application for postconviction relief. Wise appeals the district court’s denial, arguing that the district court erred by failing to make a sufficient inquiry into Wise’s waiver of her right to counsel and by failing to appoint counsel for Wise.
II. ANALYSIS.
We review for abuse of discretion. “[A]n attorney need not always be appointed to represent an indigent postconviction applicant. This perforce means such determination rests in trial court’s sound discretion.” Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974). Reversal for abuse of discretion is warranted only if the court’s discretion has been exercised “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to legal representation. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997). Along with the right to legal representation is the right to proceed without an attorney and conduct one’s own defense. Faretta, 422 U.S. at 835-36, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582; Rater, 568 N.W.2d at 658. By giving up the right to counsel one relinquishes many traditional benefits associated with the right to counsel. Faretta, 422 U.S. at 835-36, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582. Therefore, the right to counsel must be given up voluntarily, knowingly, and intelligently after being “made aware of the danger and disadvantages of self-representation.” Id. In regards to relinquishing the right to counsel, the Iowa Supreme Court has specifically stated:
[B]efore a trial court honors an accused’s request to waive the right to counsel, it must satisfy itself the defendant’s election is voluntary, knowing, and intelligent. In making this determination courts are required to engage the accused in a colloquy sufficient to apprise a defendant of the dangers and disadvantages inherent in self-representation. . . . This colloquy serves a dual purpose. It safeguards the constitutional guarantees of the accused, and by creating a formal record, it insulates the judiciary.
State v. Stephenson, 608 N.W.2d 778, 782 (Iowa 2000) (citations omitted). The duty to engage in such a colloquy is absolute and failure to engage in a colloquy constitutes reversible error. Id.
The United States Supreme Court has made clear that the Sixth Amendment right to counsel does not apply in postconviction cases. Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640, 671 (1991) (“criminal defendant has no right to counsel beyond his first appeal”); see also Leonard v. State, 461 N.W.2d 465, 467-68 (Iowa 1990). Wise cites two statutory provisions in arguing that there is a statutory right to the assistance of counsel in postconviction proceedings in Iowa. “[T]he costs and expenses of legal representation shall . . . be made available to the applicant in the preparation of the application, in the trial court, and on review if the applicant is unable to pay.” Iowa Code § 822.5 (2001). Additionally, Iowa Code section 815.10(1) states:
The court, for cause and upon its own motion . . ., shall appoint the state public defender’s designee pursuant to section 13B.4, to represent an indigent person at any stage of the . . . postconviction . . . proceedings in which the indigent person is entitled to legal assistance at public expense. . . . An appointment shall not be made unless the person is determined to be indigent under section 815.9.
Wise argues that, based on the statutory right to postconviction counsel, the duty to engage in a colloquy with the postconviction relief applicant also exists in cases where an applicant is proceeding without legal representation. Furthermore, Wise argues that the district court failed to engage in a sufficient colloquy with her.
There is no explicit reference in the statutes to the imposition of a duty on the district court to engage in a colloquy with an applicant who has chosen to represent herself. In particular, section 822.5 simply states that the costs and expenses of legal representation must be “made available to the applicant . . . if the applicant is unable to pay.” Wise does not allege that payment of the costs and expenses of legal representation was not made available to her. Furthermore, there is no indication in the record that Wise attempted to establish that she was “unable to pay” for legal representation. Thus, the rights granted to Wise by section 822.5 were not violated by the district court.
Iowa Code section 815.10 imposes a duty on the district court to appoint counsel to represent a person qualifying as indigent under section 815.9 in postconviction proceedings if the person is entitled to legal assistance. Much like section 822.5, section 815.10(1) is contingent upon Wise being indigent. Further, 815.10(1) specifically cites a provision that would enable an applicant to qualify as indigent, section 815.9. Wise made no attempt to qualify as indigent; specifically, there is no record of Wise submitting an affidavit regarding her financial status in connection with her postconviction relief application as required by section 815.9 before an attorney can be appointed.
Based on Wise’s failure to demonstrate that she was unable to pay for legal representation, Wise was not entitled to appointed counsel. Therefore, while we form no opinion as to whether the statutes cited require a colloquy before allowing one who has qualified as an indigent to proceed without legal representation in a postconviction relief proceeding, we determine that Wise did not avail herself to any of the statutory rights embodied in Iowa Code sections 822.5 and 815.10(1).
AFFIRMED.
Hecht, J. dissents.
HECHT, J., (dissenting).
I respectfully dissent. I believe the record in this case presents sufficient evidence to require the district court to engage in a colloquy inquiring into Wise’s indigency and informing her of the availability of appointed counsel. I note that Wise was indigent and had appointed counsel in the underlying criminal action. In her postconviction application she alleged difficulties with her efforts to obtain employment.
My view that a colloquy was required in this case is strongly influenced by the statutes authorizing the appointment of counsel for indigent postconviction applicants. See Iowa Code § 822.5
(2001) (“[T]he costs and expenses shall . . . be made available); see also Iowa Code § 815.10 (1) (“The court, for cause and upon its own motion . . ., shall appoint . . .”) (emphasis added). The legislature’s invocation of the word “shall” in these statutes reflects a determination that access to counsel in postconviction cases is very important.
Given the information bearing upon Wise’s indigency available to the postconviction court, I would require a colloquy informing Wise of the procedure through which she could have secured appointed counsel if her economic circumstances allowed it. Accordingly, I would reverse and remand for further postconviction proceedings.