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State v. Tovar6/19/2002
Felipe Tovar appeals from the judgment and sentence following his conviction for operating while intoxicated, third offense, and driving while license barred in violation of Iowa Code sections 321J .2 and 321.561 (1999). We affirm.
I. FACTUAL BACKGROUND AND PROCEEDINGS.
On the evening of December 7, 2000, Iowa City Police Officer Steve Kivi observed Felipe Tovar driving without his headlights illuminated. When Kivi stopped the vehicle, Tovar handed him an Illinois driver's license that belonged to his passenger. Another officer arrived shortly thereafter and both detected a strong odor of alcohol and signs of intoxication. The officers administered a preliminary breath test, which indicated a blood alcohol concentration of .148. Tovar was arrested and taken to the Iowa City police station where he declined to provide a breath sample.
The State charged Tovar with operating while intoxicated (OWI), third offense, [FN1] and driving while license barred. [FN2] Tovar pled not guilty to both charges. Tovar filed a motion for adjudication of law points regarding a 1996 OWI conviction entered upon a guilty plea. In his motion, Tovar contended the 1996 conviction could not be used to enhance his OWI charge because his plea was uncounseled. At Tovar's 1996 arraignment, the following colloquy took place:
FN1. Tovar pled guilty to operating while intoxicated in 1996 and 1998.
FN2. Tovar was banned from driving until May 20, 2003.
THE COURT: Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived application for a court appointed attorney. Did you want to represent yourself at today's hearing?
THE DEFENDANT: Yes, sir.
THE COURT: And are you charged in your true and correct name?
THE DEFENDANT: Yes, sir.
THE COURT: And did you want me to read that information to you or did you want to waive the reading?
THE DEFENDANT: Waive the reading.
THE COURT: And how do you wish to plead?
THE DEFENDANT: Guilty.
* * *
THE COURT: Mr. Tovar, your age?
THE DEFENDANT: Twenty-one.
THE COURT: Your education?
THE DEFENDANT: Currently in college.
THE COURT: So you, of course, read and write the English language?
THE DEFENDANT: Yes.
* * *
THE COURT: ... if you continue with this desire to plead guilty, there are certain rights that each one of you will be giving up and I now will explain those rights to you. First of all, if you enter a plea of not guilty, you would be entitled to a speedy and a public trial by jury. But, if you plead guilty, you give up your right to have a trial of any kind on your charge. Do you understand that ... Mr. Tovar?
THE DEFENDANT: Yes, sir.
* * *
THE COURT: If you would enter a plea of not guilty, not only would you have a right to a trial, you would have a 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, if any, 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. Do you understand that ... Mr. Tovar?
*2 THE DEFENDANT: Yes, sir.
* * *
THE COURT: Mr. Tovar ... you have been charged with operating while intoxicated. That charge carries a maximum penalty of up to a year in jail and up to a $1000.00 fine and the mandatory minimum fine (sic) of two days in jail and a $500.00 fine. Do you understand that, Mr. Tovar?
THE DEFENDANT: Yes, sir.
During the 1996 plea proceedings, the following relevant exchange, regarding waiver of counsel, took place:
THE COURT: Mr. Tovar, I note that you are appearing here today without having an attorney present
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