Iowa v. Tovar, Felipe (03/08/2004)

BY AYESHA TEJPAR, MEDILL NEWS SERVICE

For most people, one night spent drinking is usually forgotten after the next mornings hangover. But not for Felipe Edgardo Tovar. The decision that the Iowa State University student made one wintry night in 1996, when he took the wheel after a few drinks, is one that continues to impact his life.

In December 1996, Tovar, 21 at the time, was charged with "operating a vehicle under the influence," -- an OWI. Tovar pleaded guilty, as did several other defendants, and waived his right to an attorney. Four years later, his uncounseled plea returned to haunt him.

On Dec. 7, 2000, police stopped Tovar at 2:09 a.m. on Burlington Street in Iowa City. The officers said they spotted a silver Honda Accord traveling without headlights and at an unusually high rate of speed. Tovar was charged with another OWI -- his third in four years -- as well as driving with a barred license.

In Iowa, the laws for drunk driving are strict and clear-cut. Tovar previously pleaded guilty in 1998 for his second OWI conviction. Sentences for a third offense can range up to five years in prison, which is a dramatic increase from the 2-day sentence Tovar received in college.

According to Tovar's attorney, Theresa Wilson, the Iowa statute classifies the first OWI offense as a serious misdemeanor; the second offense is an aggravated assault; and the third would be considered a Class D felony.

The court found Tovar guilty of his third offense in 2000, and sentenced him to 30 days in jail. Although he did plead guilty in 1996 and 1998 to OWI charges, he did not think his prior convictions should be used to enhance his third conviction sentencing. His attorneys argued that his first conviction could not be counted against him because it was an invalid waiver of his 6th Amendment right to counsel.

The district court in Johnson County rejected Tovars argument, and the court of appeals affirmed.

In his argument to the Iowa Supreme Court, Tovar claimed that his first guilty plea was an invalid waiver because the judge did not properly warn him about the potential consequences of entering a guilty plea without an attorney.

At that hearing in 1996, the trial judge had said: "If you would enter a plea of not guilty, not only would you have the right to a trial, you would have the right to be represented by an attorney at that trial, including a court appointed attorney. That attorney could help you select a jury, question and cross-examine the State's witnesses, present evidence in your behalf and make arguments to the judge and jury on your behalf. But, if you plead guilty, not only do you give up your right to a trial, you give up your right to be represented by an attorney at that trial."

The court continued by asking Tovar if he understood the terms to pleading guilty, and Tovar agreed.

The judge then determined there was a factual basis for Tovars plea because Tovar admitted to driving a car, and he did not challenge the blood alcohol tests, which showed a level of .194.

Iowa Deputy Attorney General Douglas Marek pointed out that this case does not even question Tovars guilt in the first conviction, but rather whether or not Tovar understood that an attorney might be able to identify defenses that he was unaware of.

Before the Iowa Supreme Court, Tovar claimed that it was the courts duty upon his first conviction to make him aware of the dangers of pleading guilty without an attorney. The State of Iowa disagreed, given the "simplicity of the charges" in that case.

Tovar's attorneys said that while a person may understand what it means to drive while intoxicated, he or she may not understand when police searches and tests are illegal. Test results can be excluded from evidence when unlawful police activity takes place. While no indication of police foul play was found in Tovar's case, suppressing evidence would be one of the only meaningful defenses in an OWI case.

On Jan. 23, 2003, the Iowa Supreme Court ruled 4-3 in favor of Tovar, stating that those who "plead guilty without the assistance of an attorney must be advised of the usefulness of an attorney and the dangers of self-representation to make a knowing and intelligent waiver of [their] right to counsel."

The opinion imposes the responsibility on the court to make sure that a defendant understands the charges against him and what the punishable range for their crime is.

"The trial judge [will] advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked," Justice Marsha Ternus wrote for the majority.

The defendant must be told that "by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether it is wise to plead guilty."

In dissent, Justice James Carter wrote that when a defendant enters a guilty plea -- understanding his crime and knowing his guilt -- "the Iowa Supreme Courts requirement of additional inquiry into factual or legal defenses creates an unnecessary burden."

Carter added that at the time of Tovars first guilty plea, the judge advised him of his right to counsel, but on his own will, he gave up his Constitutional rights. This ruling undermines his "solemn confession of guilt in open court."

He also wrote that based on the statute of limitations, Tovar can no longer contest his earlier OWI conviction, unless there is a "convincing showing that [the] defendant was not guilty with regard to the first OWI conviction or that some compelling federal authority requires that it be disregarded."

Iowa's attorneys petitioned for a writ of certiorari to the U.S. Supreme Court because of the conflicting opinions between the Iowa Supreme Court and other courts.

"If [defendants] decide to waive the right [to counsel], thats all the 6th Amendment requires, especially in cases where the elements of the offense are easy to understand and lightly punished," Iowa prosecutor Marek later said.

On Sept. 30, 2003, one week before the start of the 2003-04 term, the Court accepted review in the case and allowed Tovar to have his court costs waived.

On March 8, 2004, the Court held against Tovar, holding unanimously that neither of the warnings ordered by the Iowa Supreme Court is mandated by the 6th Amendment. Writing for the Court, Justice Ruth Bader Ginsburg concluded that the 6th Amendment right to counsel is satisfied when the trial court informs an accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.