State of Iowa v. James Allen Wehr , 852 N.W.2d 495 ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1212 / 13-0386
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES ALLEN WEHR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
James Wehr appeals his conviction for operating while intoxicated,
claiming the court erred in refusing to allow him to proceed pro se at trial.
REVERSED AND REMANDED.
Jennifer Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Cori Kuhn-Coleman, County Attorney, and Jennifer Benson, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
2
BOWER, J.
James Allen Wehr appeals his conviction for operating while intoxicated,
first offense. He claims the district court violated his Sixth Amendment right to
self-representation1 by refusing to allow him to represent himself at trial. The
record does not contain a specific finding by the district court that Wehr’s
morning-of-trial motion to represent himself was a tactic to delay the start of trial.
Accordingly, we reverse and remand for a new trial.
I. Background Facts and Proceedings
Wehr was charged with operating while intoxicated in June 2012. See
Iowa Code section 321J.2 (2011). At his July arraignment, Wehr appeared pro
se, entered a plea of not guilty, and requested a speedy trial. Trial was set for
August 21, 2012. Wehr appeared pro se the morning of trial and requested a
continuance in order to obtain counsel. Wehr waived his right to a speedy trial,
and the court continued trial to October 23, 2012.
Wehr appeared pro se on the morning of trial. The court conducted a
colloquy and advised Wehr of his right to proceed without counsel pursuant to
Faretta v. California, 422 U.S. 806, 821 (1975). See State v. Cooley, 608
N.W.2d 9, 14 (Iowa 2000) (recognizing a defendant’s “right to self-representation”
and requiring the district court to inform the defendant about the disadvantages
1
Wehr’s Sixth Amendment claim is based on the United States Constitution. He does
not assert a similar violation based on the Iowa Constitution. Accordingly, we address
only the Sixth Amendment claim. See State v. Pals, 805 N.W.2d 767, 771–72 (Iowa
2011) (noting that while the language of the United States Constitution and the Iowa
Constitution may be nearly identical, “we jealously protect this court’s authority to follow
an independent approach under our state constitution”).
3
of self-representation by an inquiry as long and as thorough as the
circumstances of the case demand).
Wehr told the court he had talked to a few attorneys but he could not
afford their retainer. The court then discussed Wehr’s financial situation at length
before concluding a “deeper analysis of your financial situation makes it [clear]
that without court-appointed counsel you would not be able to have a lawyer in
this case.” The court told Wehr it would appoint the public defender to represent
him and also stated: “Because I’m going to appoint counsel for you, I’m going to
continue the trial in this matter.”
That same day, October 23, the court filed an “Order of Continuance”
ruling “counsel should be appointed to represent [Wehr] and the jury trial
continued.” The court set a pretrial conference on October 31. The court also
filed a separate “Order of Appointment of Counsel.”
Defense counsel filed an appearance on October 24. At the October 31
pretrial conference, Wehr’s attorney requested a continuance, and the State did
not resist. The court continued trial and set a pretrial conference on November 7,
2012. The court’s post-conference November 7 order stated “a jury trial will be
needed . . . this matter should be scheduled for a date certain.” The court also
ordered Wehr’s case “shall be tried in the LEADOFF position” on January 23 and
set a final pretrial conference on January 22.2 The court ordered the parties to
submit briefs and proposed jury instructions by January 17, 2013.
2
The court’s original November 7 order set trial for January 22 with a pretrial conference
on January 21. The court, sua sponte, moved the trial and pretrial conference dates
4
On January 15 the court cancelled the pretrial conference “[d]ue to the
unavailability of the Court” and ordered the parties to appear for a pretrial
conference forty-five minutes before the January 23, 9:00 a.m. trial. On the
morning of trial, the pretrial conference was held in chambers. Wehr informed
the court:
JAMES WEHR: There is one motion at this point as a matter
of record, I’m dismissing counsel and I will be going pro se. I don’t
believe it’s in my best interests.
THE COURT: Why?
JAMES WEHR: We’ve gone through several meetings.
Everything I bring up as far as what I feel is a violation of my rights,
the law itself I believe to be unlawful, every time I’ve asked for a
motion or for him to file a motion, I’ve been told it’s been frivolous.
We’ve had several weeks, there’s a third party on here that hasn’t
been subpoenaed or did we even depose them at all. I don’t see—
the only thing that I’ve been pushed for is to enter a plea bargain,
which I don’t agree with, so—and he has stated several times he
has no defense and every defense I bring up I’ve been told it’s
frivolous or can’t work that way, the law doesn’t work that way. I
believe in my rights and I understand the State has their tolerance
towards OWIs, I have zero tolerance when it comes to my rights.
The court asked if defense counsel would like to respond. Defense
counsel noted a response could “get into attorney-client privilege.” The hearing
then went off the record.
THE COURT: Let’s go back on the record. The record
should reflect that this is, in fact, the third time we’ve called a jury
panel in on this matter.3 Initially, we had jury trial set in this matter
due to a speedy trial demand by Defendant. Defendant at that time
was unrepresented by counsel. On the morning of trial with a panel
present in the courtroom, I met in chambers with Defendant and
counsel for the State. At that time Defendant waived his right to
forward one day due to the January 21 court closure for the Martin Luther King Jr.
holiday.
3
We note the jury venire was assembled and waiting only because the district court
cancelled Wehr’s pretrial conference set for the previous day.
5
speedy trial and asked for the appointment of counsel. Trial was
continued due to that request.
We again convened on a rescheduled trial date. Again
called the jury panel in, and at that time the Court had a lengthy
colloquy with Defendant on the record related to his representation
by counsel. Defendant at that time again requested the
appointment of counsel. After the lengthy colloquy regarding
Defendant’s ability to qualify for court-appointed counsel, the Court
appointed the Public Defender to represent him in these matters.
This is the third time now we have called a jury panel in to try
this case and now Defendant is requesting that his counsel be
dismissed. Based upon Defendant’s arguments to the Court this
morning and the history of this case . . . I am going to decline
Defendant’s request that counsel be dismissed. I do not find that
Defendant has presented to the Court good cause4 for dismissal of
counsel. In fact, based upon my lengthy conversations with
Defendant in the past, I find that counsel should be—should
continue to represent Defendant, so Mr. Wehr, your request that
[Defense Counsel] be dismissed as your counsel is denied this
morning.
The jury trial commenced with court-appointed counsel representing
Wehr. The jury found Wehr guilty as charged.5 Wehr now appeals the court’s
ruling denying his request to represent himself at trial.
4
A defendant who has been appointed a competent attorney must show good cause for
substitute counsel, and a defendant’s refusal without good cause to proceed with that
attorney is a voluntary waiver of the right to counsel. See State v. Martin, 608 N.W.2d
445, 449 (Iowa 2000). Where good cause does not exist to appoint substitute counsel,
the court requires a defendant “to choose between two options: continue using present
counsel or proceed pro se.” Id. (“The latter choice—proceeding pro se—requires a
careful line of questioning on the part of the trial court to determine whether the
defendant knowingly and intelligently waived his right to counsel.”); see State v. Hoppe,
88 P.3d 690, 694 (Idaho 2003) (reversing trial court’s denial of a request for self-
representation based on defendant’s failure “to show very good cause” and ruling a
court’s focus is not on the “validity” of the reason but on the “right to represent himself”—
a “defendant need not have a valid reason for seeking to act as his own attorney any
more than he or she needs a valid reason to exercise any other constitutional right”).
We note the district court did not give Wehr that choice or “conduct a careful line of
questioning” on the record.
5
The court sentenced Wehr to ninety days in jail with all but forty-eight hours
suspended. The court ordered Wehr to pay $300 of $600 in statutory attorney fees. The
court imposed the applicable fines and surcharges, placed Wehr on supervised
probation for one year, and revoked his driver’s license for 180 days.
6
II. Standard of Review
The parties dispute the applicable standard of review. Wehr claims our
review is de novo because his claim involves a constitutional issue—the court’s
denial of his Sixth Amendment right to represent himself. See State v. Rater,
568 N.W.2d 655, 657-58 (Iowa 1997) (stating before the Sixth Amendment right
to self-representation attaches, a defendant must voluntarily, clearly, and
unequivocally elect to proceed without counsel by knowingly and intelligently
waiving his Sixth Amendment right to counsel).
The State claims our review is for an abuse of discretion, citing an
unpublished case: State v. James, No. 10-0307, 2011 WL 1136439, at *1–2
(Iowa Ct. App. Mar. 30, 2011) (noting other jurisdictions apply an abuse of
discretion standard where a defendant requests to represent himself during trial
but also noting our supreme court had not explicitly adopted that standard and,
therefore, conducting a de novo review of the defendant’s mid-trial request to fire
his attorney and represent himself).
We review the constitutional issue de novo until such time as we have a
clear instruction from our supreme court to apply a different standard. See State
v. Martin, 608 N.W.2d 445, 449 (Iowa 2000) (stating we review a district court’s
denial of a request to substitute counsel for an abuse of discretion, but we review
de novo a claim the defendant’s Sixth Amendment rights were violated).
7
III. The Sixth Amendment Right to Self-Representation
A. Clear and Unequivocal Request by Defendant
In 1975, the United States Supreme Court first recognized a defendant
has a constitutional right to represent himself under the Sixth Amendment.
Faretta, 422 U.S. at 821. The Court stated: “Unless the accused has acquiesced
in such representation, the defense presented is not the defense guaranteed him
by the Constitution, for, in a very real sense, it is not his defense.” Id. The Court
ruled:
The right to defend is personal. The defendant, and not his lawyer
or the State, will bear the personal consequences of a conviction. It
is the defendant, therefore, who must be free personally to decide
whether in his particular case counsel is to his advantage. And
although he may conduct his own defense ultimately to his own
detriment, his choice must be honored . . . .
Id. at 834 (citation omitted). In order to represent himself, the accused must
make the request “clearly and unequivocally.” Id. at 835. “Unlike the Sixth
Amendment right to counsel, which is in effect until waived, the right of self-
representation is not effective until asserted.” Rater, 568 N.W.2d at 658. Wehr,
at the pretrial conference on the morning of trial, “clearly and unequivocally”
invoked his constitutional right to represent himself. See id.B. Timeliness of Defendant’s Request
Faretta left several procedural questions unanswered, such as: “How soon
in the criminal proceeding must a defendant decide between proceeding by
counsel or pro se?” 422 U.S. at 852 (Blackmun, J., dissenting). Subsequently,
the United States Supreme Court ruled: “As the Faretta opinion recognized, the
right to self-representation is not absolute. The defendant must ‘voluntarily and
8
intelligently’ elect to conduct his own defense and most courts require him to do
so in a timely manner.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161-
62 (2000) (emphasis added) (citations omitted) (citing John F. Decker, The Sixth
Amendment Right to Shoot Oneself in the Foot: An Assessment of the
Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall
Const. L.J. 483, 544-50 (1996)). Thus, even at the trial level “the government’s
interest in ensuring the integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.” Id. at 162.
Iowa is among a handful of jurisdictions yet to address what constitutes a
timely request under Faretta. Wehr’s request was made at the pretrial
conference on the morning of trial, before the jury voir dire and before the jury
was impaneled. The question on appeal is whether the timing of Wehr’s request
to dismiss counsel and represent himself permitted the district court to deny his
request.6
Our federal appellate court has ruled: “[T]he right to self-representation is
unqualified only if demanded before trial. Once trial commences, that right is
subject to the trial court’s discretion which requires a balancing of the defendant’s
legitimate interests in representing himself and the potential disruption and
possible delay of proceedings already in progress.” United States v. Wesley, 798
F.2d 1155, 1155 (8th Cir. 1986) (citation omitted).
6
One year prior to Faretta, our supreme court recognized “the right of an accused to
represent himself becomes curtailed after commencement of the trial.” State v. Smith,
215 N.W.2d 225, 227 (Iowa 1974) (ruling a defendant waived his right to proceed pro se
by failing to make an unequivocal request—during trial the defendant asked “only to
conduct a portion of various cross-examinations” and repeatedly stated he wanted court-
appointed counsel to continue).
9
Other federal appellate courts have held a defendant’s motion for self-
representation is timely if advanced before the jury is picked—absent an
affirmative showing the motion was a tactic to secure delay. See, e.g., United
States v. Bankoff, 613 F.3d 358, 373 (3d Cir. 2010) (noting such requests had
been ruled timely “even when made on the eve of trial” and when “made on the
first day of trial but before jury selection” and concluding, “after the jury has been
empaneled—the right of self-representation is curtailed”); United States v.
Tucker, 451 F.3d 1176, 1180-82 (10th Cir. 2006) (listing cases and concluding
the “prevailing rule [holds] a motion for self-representation is timely if it is made
before the jury is impaneled, unless it is a tactic to secure delay”); United States
v. Washington, 353 F.3d 42, 46 (D.C. Cir. 2004) (stating a defendant’s request “is
timely if made before meaningful trial proceedings have begun”); United States v.
Walker, 142 F.3d 103, 108 (2d Cir. 1998) (concluding the defendant’s request—
made “after nineteen days” of voir dire and when jury selection “was virtually
completed”—was untimely); Chapman v. United States, 553 F.2d 886, 894 (5th
Cir. 1977) (recognizing courts have held “the right to self-representation is timely
if asserted before the jury is empaneled, at least where there is no suggestion
that the motion . . . is a tactic to secure delay”).
A factually-similar case to this case is Buhl v. Cooksey, 233 F.3d 783 (3d
Cir. 2000). Defendant Buhl’s (second) request to proceed pro se was made on
the morning of trial and immediately before the jury was impaneled. 233 F.3d at
788. The trial court denied Buhl’s request, and the state appellate court affirmed
his conviction, finding the request “untimely because the judge would have had to
10
continue the trial . . . . [T]he prosecutor’s ‘legitimate demand for stability in
scheduling of cases was properly accorded priority.’” Id. (quoting State v. Buhl,
635 A.2d 562, 572 (N.J. Super. Ct. App. Div. 1994)).
Buhl filed a petition for habeas corpus, claiming the trial court failed to
comply with Faretta. Id. The Third Circuit granted relief and explained an
appellate court first determines whether a defendant’s request “triggered an
inquiry under Faretta. If it did, [the appellate court] must then determine whether
the [trial] court’s inquiry was adequate”—the trial court must “fully inform [the
defendant] in some manner of the nature of the charges against him, the possible
penalties, and the dangers of self-representation.” Id. at 791. The court ruled
once Buhl asserted his right to proceed pro se, the “trial court was obligated to
undertake an appropriate inquiry under Faretta even though Buhl’s request
apparently rested upon nothing other than dissatisfaction with defense counsel.”
Id. at 794.
The Third Circuit clarified that the trial court’s inquiry is required even
when the court suspects the defendant is “‘attempting to disrupt the
administration of justice by manipulative requests for, and dismissals of,
counsel.’” Id. at 796 (quoting United States v. Welty, 674 F.2d 185, 189 (3d Cir.
1982)). Specifically:
A court may conclude that a defendant who intends nothing
more than disruption and delay is not actually tendering a knowing,
voluntary and intelligent waiver of counsel, and has not
unequivocally asserted the constitutional right to conduct his/her
own defense. While this determination may well present difficulties,
it is the kind of inquiry district courts routinely make. However, the
court cannot properly make such a determination without first
conducting an adequate inquiry under Faretta.
11
Id. at 797 (citations omitted).
While recognizing the “right of self-representation is not a license to
disrupt the criminal calendar, or a trial in progress,” the court concluded Buhl’s
request was timely because the trial was not in progress “prior to jury selection.”
Id. at 797-98 (collecting cases from other circuits). The Buhl court also
determined the trial court failed to conduct an adequate inquiry:
Buhl did not request substitute counsel . . . . [I]n a case
where a defendant only asks to proceed pro se, the court must
make some inquiry about a defendant’s reasons for the
request . . . . [T]he trial judge must “[t]ake particular pains in
discharging . . . these inquiries. Perfunctory questioning is not
sufficient. This is true even when the trial judge strongly suspects
that the defendant’s requests are disingenuous and designed solely
to manipulate the judicial process and to delay the trial. Although
such tactics by an accused cannot be allowed to succeed, at the
same time, a trial cannot be permitted to go forward when a
defendant does not fully appreciate the impact of his actions on his
fundamental rights.”
Id. at 798-99 (quoting Government of Virgin Islands v. James, 934 F.2d 468, 471
(3d Cir. 1991)).
We, like the majority of courts addressing this issue, conclude a trial court
must be “permitted to distinguish between a manipulative effort to present
particular arguments and a sincere desire to dispense with the benefits of
counsel.” United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000). The
right of self-representation does not exist “to be used as a tactic for delay, for
disruption, for distortion of the system, or for manipulation of the trial process.”
Id. (internal citations omitted). But “[d]elay per se is not a sufficient ground for
denying a defendant’s constitutional right to self-representation.” Fritz v.
12
Spalding, 682 F.2d 782, 784 (9th Cir. 1982); see Avila v. Roe, 298 F.3d 750, 753
(9th Cir. 2002) (granting habeas corpus relief when a defendant’s motion was
made prior to jury selection and the trial court found the request untimely
because the jury “is waiting to come in”).
Here, Wehr’s request was made prior to the jury being impaneled.
Consequently, most courts would rule his request timely “unless his request was
made for the purpose of delaying the proceedings.” Avila, 298 F.3d at 753; see
United States v. Washington, 596 F.3d 926, 940 (8th Cir. 2010) (stating “this
court expressly premised its holding [in Edelmann] on ‘the special facts’
present”); United States v. Edelmann, 458 F.3d 791, 809 (8th Cir. 2006)
(upholding the denial of a request to proceed pro se—made four to five days
before trial—“given the special facts of this case”); see also Tucker, 451 F.3d at
1181-82 (stating a prior case—finding untimely a request made six days before
trial—did not create a general rule at odds with other circuits’ jury-had-not-been-
impaneled general rule because the prior case’s ruling was premised on “specific
circumstances”).
Wehr utilized counsel for three months and his reasons for seeking self-
representation included an assessment his counsel thought the defenses he
wanted to raise were frivolous. On appeal, Wehr claims he was not attempting to
delay the trial and points out he did not seek a continuance when he requested to
proceed pro se. At the time the court was notified of Wehr’s request, the court
failed to inquire whether Wehr fully appreciated the impact of his action. Rather,
the court relied upon the lack of good cause for the dismissal of his attorney and
13
the history of the case. The defendant has a right to proceed pro se if the
request is timely, he fully appreciates the facts, and his request is not intended as
a delay tactic. Without a proper inquiry, the district based its decision on an
improper standard and inquiry.
Viewing the record in the context of the above authorities, we conclude the
record is unclear as to whether Wehr’s request was an untimely request “made
for the purpose of delaying the proceedings.” See Avila, 298 F.3d at 753.
Importantly, the district court did not ask Wehr if he was requesting a
continuance or question Wehr to probe for evidence of any dilatory intent. Nor
did the district court find Wehr’s motion was a tactic to delay the start of trial.
See United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000)
(upholding the trial court’s specific finding the request was “merely an effort to
again delay the trial” where the defendant coupled a first-day-of-trial request for
self-representation with “yet another motion for continuance to prepare” and with
a threat to “stand mute”).
Upon our de novo review of the record—a record devoid of the necessary
on-the-record questions and findings—we reverse and remand for a new trial.
See Turner, 644 F.3d at 720 (“Even though a defendant may conduct his own
defense to his detriment by relinquishing the benefits associated with the right to
counsel, his choice must be honored.”); Rater, 568 N.W.2d at 661 (“Harmless
error analysis is not applicable to Sixth Amendment right to self-representation
questions.”).
REVERSED AND REMANDED.