                 IN THE SUPREME COURT OF IOWA
                             No. 13–0983

                          Filed April 3, 2015

                        Amended July 17, 2015


STATE OF IOWA,

      Appellee,

vs.

ARCHALETTA LATRICE YOUNG,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Carol L.

Coppola, Judge.



      The defendant in a criminal proceeding appeals from an enhanced

sentence imposed on her present conviction for third-degree theft by the

use of a prior uncounseled misdemeanor conviction. REVERSED AND

REMANDED.


      Mark C. Smith, State Appellate Defender, Rachel C. Regenold,

Assistant Appellate Defender, and Austin Mouw, Student Legal Intern,

for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, John P. Sarcone, County Attorney, and Kevin D.

Hathaway, Assistant County Attorney, for appellee.
                                     2

APPEL, Justice.

      In this case, we consider whether a misdemeanor conviction

pursuant to a guilty plea by an incarcerated poor person who did not

have the assistance of counsel, may later be used by the State as a

predicate offense for application of a theft statute in which the crime is

enhanced if the defendant has two prior theft offenses. The district court

concluded the prior uncounseled misdemeanor conviction could be used

as   an   offense   to trigger   enhanced punishment         when the   facts

surrounding the prior conviction were that the defendant failed to

appear; she was arrested and held in jail for one day prior to her initial

appearance; and at the initial appearance, upon pleading guilty, she was

sentenced to one day in jail, with credit for time served.

      For the reasons expressed below, we conclude that under the right

to counsel provision of article I, section 10 of the Iowa Constitution, a

misdemeanor defendant has a right to the assistance of counsel when

the defendant faces the possibility of imprisonment. Because the poor

defendant in this case was not provided the assistance of counsel and

the State stipulated there was not a valid waiver, the prior misdemeanor

conviction cannot be used as a predicate offense to enhance a later

punishment consistent with fundamental fairness demanded by the due

process clause of article I, section 9 of the Iowa Constitution.        As a

result, we reverse the decision of the district court and remand for

further proceedings.

      I. Factual and Procedural Background.

      In June 2003, Archaletta Young was issued a citation for theft in

the fifth degree for stealing $104.28 worth of merchandise from Walmart.

See Iowa Code § 714.2(5) (2003).         She failed to appear at her initial

appearance, however, and the court issued a warrant for her arrest. At
                                        3

her initial appearance, without counsel, Young pled guilty to theft in the

fifth degree, a simple misdemeanor, and was sentenced to one day in jail

with credit for time served and received a fine.

      About nine-and-one-half years later, Walmart store security

observed Young stealing $94.87 worth of clothing. The State filed a trial

information alleging theft in the third degree under Iowa Code section

714.2(3) (2011). 1 This Code section provides: “the theft of any property

not exceeding five hundred dollars in value by one who has before been

twice convicted of theft, is theft in the third degree.” Id. “Theft in the

third degree is an aggravated misdemeanor.” Id.

      The State claimed Young was guilty of theft in the third degree

based on her current crime and two prior theft convictions. One of the

prior theft convictions that the State alleged supported theft in the third

degree was Young’s 2003 conviction of theft in the fifth degree. Young

does not challenge the propriety of using the other prior fifth-degree-theft

conviction as an enhancement predicate and thus no issues in this

appeal are raised in connection with that conviction. However, under the

statute, two prior fifth-degree-theft offenses are required to trigger the

elevation of a subsequent fifth-degree-theft conviction to theft in the third

degree.

      Prior to trial, Young filed a motion to strike the 2003 prior theft

conviction as a basis to support the charge of third-degree theft. In her

motion, Young asserted that because she was not represented by counsel

when she pled guilty and served a term of incarceration, the conviction

was infirm under article I, sections 9 and 10 of the Iowa Constitution. As

a result, Young argued the conviction could not be used to enhance her

      1The   second count of the two-count trial information charged Young with
possession of a controlled substance in violation of Iowa Code section 124.401(5).
                                     4

later crime.    The State resisted, asserting that under applicable

precedent, the uncounseled misdemeanor conviction could be used to

enhance the later offense.

      The trial court held a hearing on the issue. Young asked the court

to judicially notice the content of the 2003 misdemeanor file, which the

court agreed to do. The State recognized State v. Allen, 690 N.W.2d 684,

687 (Iowa 2005), stands for the proposition that a conviction cannot be

used to enhance a later crime if the defendant was denied his or her

constitutional right to counsel in the prior proceeding.            The State

contended, however, that Young had no right to counsel in the 2003

simple     misdemeanor    proceedings    because    realistically   in   these

proceedings the defendant is given either a fine or credit for time served.

The State further argued that in cases like Young’s 2003 misdemeanor, a

defendant would not benefit from counsel because no additional term of

incarceration normally results after the entry of a guilty plea.

      In rebuttal, Young noted that a client facing a simple misdemeanor

conviction should be advised that the conviction could be used later to

enhance a subsequent crime. She also asserted Iowa Rule of Criminal

Procedure 2.19(9) supported her assertion that the uncounseled

misdemeanor conviction could not be used to enhance her later crime.

      The State responded that sentence enhancements are collateral

matters that do not give rise to ineffective-assistance claims. The State

further asserted that rule 2.19 does not create an independent right to

counsel.

      Upon the conclusion of oral argument, the court asked the parties

to file briefs in support of their respective positions. Young repeated her

assertion that in order for a conviction to serve as a basis for

enhancement it must be constitutionally valid. Young claimed the 2003
                                      5

simple misdemeanor could not be a predicate to enhancement because

she did not have an attorney; did not waive her right to an attorney; was

ultimately sentenced to a term of imprisonment, namely one day with

credit for time served; and received a fine. As a result, Young claimed

her 2003 conviction was constitutionally infirm and could not be used to

support an enhanced charge in the case.

      In response, the State conceded Young did not have an attorney

and did not waive the right to have one. Citing Allen, 690 N.W.2d at 693,

the State argued an uncounseled simple misdemeanor conviction may be

used to enhance a later charge when the defendant was not actually

sentenced to a term of incarceration. While the State recognized Young

was incarcerated for one day for her failure to appear in court, the State

argued that the incarceration for one day was not punishment for the

underlying offense, but was designed to ensure the defendant’s presence

for the criminal proceedings.      Thus, according to the State, the 2003

uncounseled simple misdemeanor conviction was not constitutionally

defective.

      The district court rejected Young’s argument and found the one

day of incarceration was not additional incarceration resulting from her

guilty plea. Although Young cited the wrong rule of criminal procedure,

the court cited Iowa Rule of Criminal Procedure 2.61(2) and concluded

Young’s situation was not one in which “the defendant face[d] the

possibility of imprisonment” requiring the appointment of counsel under

the rule.

      Young waived a jury trial and stipulated to a trial on the minutes.

The district court found Young guilty of theft in the third degree and

possession   of   a   controlled   substance   and   sentenced   Young   to
                                     6

consecutive suspended sentences of two years and two years of

probation. Young appealed.

      II. Standard of Review.

      Constitutional issues are reviewed de novo, but when there is no

factual dispute, review is for correction of errors at law. State v. Majeres,

722 N.W.2d 179, 181 (Iowa 2006).         In interpreting the Iowa Rules of

Criminal Procedure, our review is for correction of errors at law. State v.

Jones, 817 N.W.2d 11, 15 (Iowa 2012).

      III. Discussion.

      A. Preliminary Issues.     Several preliminary aspects of this case

deserve attention. First, the State concedes that if the 2003 conviction

was obtained in violation of Young’s right to counsel, then the 2003

conviction cannot be used to enhance Young’s 2012 offense. Second, the

State concedes Young did not waive her right to counsel during the 2003

proceeding. Thus, if Young’s 2003 conviction was obtained in violation of

Young’s right to counsel under the State or Federal Constitution, it

cannot be used to enhance the 2012 offense.

      There is also a potential preservation issue in this case.      In the

written motion to strike the enhancement, the defendant relied on Allen,

690 N.W.2d at 263, and the right-to-counsel and due process provisions

of the Iowa Constitution.      At oral argument and in postargument

submissions, the defendant also cited the right-to-counsel and due

process provisions of the United States Constitution. The district court

order explicitly considered Allen and the Iowa Constitution, but did not

address the question under the United States Constitution.

      Even if there was a failure to preserve issues under the United

States Constitution, such claims, and any other claim inartfully made or

not preserved, could be resurrected under the aegis of an ineffective-
                                     7

assistance-of-counsel claim. See State v. Brubaker, 805 N.W.2d 164, 170

(Iowa 2011) (“Failure of trial counsel to preserve error at trial can support

an ineffective-assistance-of-counsel claim.”). Because we conclude that

under the Iowa Constitution, a defendant facing the possibility of

imprisonment in a misdemeanor proceeding has a constitutional right to

counsel, Young’s uncounseled 2003 misdemeanor conviction cannot be

used to enhance her 2012 crime. As a result, any failure to preserve the

issue under the Federal Constitution or any other claim is of no

consequence.

        B. Setting the Contextual Stage: Do Misdemeanor Convictions

Matter?      Misdemeanors are by definition crimes less serious than

felonies. Compare Black’s Law Dictionary 736 (10th ed. 2014), with id. at

1150.     An appeal involving an uncounseled misdemeanor may seem

inconsequential, but there is more under the surface. Because of high

volumes, the treatment of misdemeanors in the court system naturally

tends to emphasize efficiency over accuracy of fact-finding. See John D.

King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harv.

C.R.-C.L. L. Rev. 1, 20 & n.124 (2013) [hereinafter King]. The notion that

efficiency may trump individualized determinations in a busy courtroom

is cause for concern, particularly when our legal system relies upon the

accuracy of those determinations to support dramatically enhanced

sentences for later crimes. Given the pressures of docket management,

there is a risk that the ability of the system to function efficiently and at

low cost, rather than the reliability of fact-finding, will shape judicial

outcomes.

        It is not only the need to process large volumes of cases that puts

pressure on the system provided misdemeanor defendants, but the fact

that misdemeanor defendants are often poor persons.            See Erica J.
                                   8

Hashimoto, The Price of Misdemeanor Representation, 49 Wm. & Mary L.

Rev. 461, 482–83 (2007). Being poor has two important consequences

for those accused of misdemeanors.           While many misdemeanor

defendants do not face pretrial incarceration, those that do face

significant obstacles to the assertion of innocence.     As Caleb Foote

demonstrated decades ago, pretrial detention significantly and adversely

impacts the truth-finding process by preventing effective assertion of

defenses and increasing pressures to plead guilty as a matter of

convenience.      See   Caleb   Foote,   Vagrancy-Type   Law     and   Its

Administration, 104 U. Pa. L. Rev. 603, 643–47 & n.162 (1956) (noting

the lack of pretrial procedures and the speed of the judicial process as

particularly problematic in the adjudication of misdemeanor-type cases);

see also Candace McCoy, Caleb was Right: Pretrial Decisions Determine

Mostly Everything, 12 Berkeley J. Crim. L. 135, 137–38 (2007).

      In addition, poor people cannot afford lawyers. And lawyers can be

important, even in misdemeanor cases.      At least one often-cited study

has shown that the odds of escaping criminal liability for misdemeanor

defendants increase five-fold when the accused is represented by

counsel.   See Argersinger v. Hamlin, 407 U.S. 25, 36, 92 S. Ct. 2006,

2011, 32 L. Ed. 2d 530, 538 (1972) (citing American Civil Liberties

Union, Legal Counsel for Misdemeanants Preliminary Report 1 (1970)).

The combination of administrative pressures, pretrial detention in some

cases, and the lack of the guiding hand of counsel, are powerful factors

that may distort the lens of the fact-finding process in our misdemeanor

courts.    See Lawrence Herman, The Right to Counsel in Misdemeanor

Court 16–30 (1974) [hereinafter Herman].

      For these reasons, the risk of an inaccurate verdict in uncounseled

misdemeanor cases is higher than in most felony prosecutions.          See
                                        9

Herman at 27 & n.61.         Noting that every student of the misdemeanor

process has observed that the risk of convictions in misdemeanor court

is much higher than in felony court, a leading scholar decades ago found

it no accident that the first case reversed by the United States Supreme

Court for insufficient evidence was a misdemeanor case, Thompson v.

City of Louisville, 362 U.S. 199, 206, 80 S. Ct. 624, 629, 4 L. Ed. 2d 654,

659 (1960). See Herman at 27.

      These distortions alone are reason for concern, but such concerns

about the accuracy of individual determinations of guilt in cases

involving misdemeanors are magnified by the fact that the so-called

“collateral consequences” of misdemeanor convictions are dramatically

increasing.     Conviction of misdemeanors, as discussed below, may

impose     a   significant   moral   stigma      and   can   substantially   affect

employment opportunities. According to a 2010 survey performed by the

Society for Human Resource Management, seventy-three percent of

employers conducted criminal background checks on all of their

employees, with another nineteen percent performing background checks

on selected employees. See John P. Gross, What Matters More: A Day in

Jail or a Criminal Conviction, 22 Wm. & Mary Bill Rts. J. 55, 86 (2013)

[hereinafter Gross] (citing Soc’y for Human Res. Mgmt., Background

Checking: Conducting Criminal Background Checks 3 (2010) [hereinafter

Soc’y for Human Res. Mgmt.], available at http://www.shrm.org/

research/surveyfindings/articles/pages/backgroundcheckcriminalcheck

s.aspx).   Fifty-one percent of respondent employers indicated that a

nonviolent     misdemeanor      would       be   “ ‘somewhat    influential’ ”   in

determining employment, while twenty-two percent indicated that it

would be “ ‘very influential.’ ”     See id. (quoting Soc’y for Human Res.

Mgmt. at 5). The “Common Application” being completed by thousands
                                    10

of high school seniors applying to colleges now requires disclosure of

misdemeanor and felony convictions. See Paul Marcus, Why the United

States Supreme Court Got Some (But Not a Lot) of the Sixth Amendment

Right to Counsel Analysis Right, 21 St. Thomas L. Rev. 142, 176–77

(2009) [hereinafter Marcus]. By way of further example, a misdemeanor

battery conviction can lead to deportation, Hernandez v. U.S. Att’y Gen.,

513 F.3d 1336, 1339–40 (11th Cir. 2008), a marijuana conviction can

lead to loss of student loan assistance for at least a year, 20 U.S.C.

§ 1091(r)(1) (2012), a low-level drug crime may lead to eviction from

public housing for the individual and the entire family, 42 U.S.C.

§ 1437d(l)(6), a conviction of the misdemeanor of indecent conduct can

lead to sex registration requirements, Iowa Code § 692A.103(1) (2015),

and a misdemeanor conviction of eluding an officer may lead to

suspension of a driver’s license, Iowa Code § 321.209(7). A misdemeanor

conviction can also affect professional licensure, child custody, the right

to possess a firearm, and eligibility for government assistance. See King,

48 Harv. C.R.-C.L. L. Rev. at 23–34 (describing the “panoply of severe

consequences”      misdemeanants    may      suffer   in   relation   to   their

misdemeanor convictions); see also Gross, 22 Wm. & Mary Bill Rts. J. at

80–87 (detailing collateral consequences of misdemeanor convictions);

Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in

the Lower Criminal Courts, 45 U.C. Davis L. Rev. 277, 298–303 (2011)

(same). Collateral consequences have proliferated to the point that the

American     Bar   Association   Standards     for    Criminal   Justice   now

recommends that each jurisdiction collect all the collateral consequences

within one section of the criminal code for ease of access for lawyers and

clients.   See ABA Standards for Criminal Justice: Collateral Sanctions
                                    11

and Discretionary Disqualification of Convicted Persons 19–2.1, at 21 (3d

ed. 2004).

      Further, in the electronic age, a remote misdemeanor conviction is

no longer practically obscure.   A tech-savvy functionary or a decision-

maker who hires investigative firms who specialize in unearthing such

information can easily discover a misdemeanor conviction. See King, 48

Harv. C.R.-C.L. L. Rev. at 31. Such convictions can have great capacity

to further close opportunities for poor persons who, because of their

social-economic status, already have limited opportunities. See id. (For

example, “[t]he uncounseled misdemeanor defendant who pleads guilty

to shoplifting in Oregon in exchange for a small fine may be surprised

years later when that conviction prevents her from getting a job in New

York.”).

      The bottom line is that while the treatment of misdemeanor cases

by our judicial system is not likely to generate a media frenzy or rivet the

attention of the public, it does raise important issues for our criminal

justice system and those directly affected by it. Although lacking dazzle

and glitz, this case thrusts us into an inquiry as close to the heart of the

legal system as that actually experienced by thousands of Iowans.

      C. Impact of Iowa Rule of Criminal Procedure 2.61(2). Young

suggests the use of her uncounseled conviction violates her due process

rights because she has a rule-based right to counsel under Iowa Rule of

Criminal Procedure 2.61(2).      The United States Supreme Court has

allowed a due process collateral attack on a conviction in an

enhancement context based only on the denial of the constitutional right

to counsel established in Gideon v. Wainwright, 372 U.S. 335, 344, 83

S. Ct. 792, 796, 9 L. Ed. 2d 799, 805 (1963). See Custis v. United States,

511 U.S. 485, 496, 114 S. Ct. 1732, 1738, 128 L. Ed. 2d 517, 528
                                     12

(1994). As emphasized in Custis, the failure to appoint counsel for an

indigent defendant amounted to “a unique constitutional defect.”         Id.

Thus, there is no federally cognizable due process attack based upon a

mere rule violation.

       Of course, we could come to a different conclusion applying state

law.   The question of whether a rule violation provides a foundation

preventing a conviction from triggering an enhanced sentence was

considered in State v. Johnson, 38 A.3d 1270, 1276 (Me. 2012).           In

Johnson, a defendant sought to collaterally attack a prior conviction in a

sentence-enhancement context on the ground that although he was

represented in the prior proceeding, he was not properly informed of his

rights under a state rule of criminal procedure. See id. (citing Me. R.

Crim. P. 5(b)–(c)). In that case, the Maine Supreme Court summarized

the authorities as standing for the proposition that

       the right to collaterally attack a conviction that will enhance
       a new charge or sentence should be, for solid constitutional
       and policy reasons, limited to a claim that the defendant was
       deprived of the fundamental Sixth Amendment right to
       counsel.

Id. at 1275. The Johnson court emphasized that expanding the basis for

collaterally attacking sentences in the enhancement context beyond the

Custis rule requiring a deprivation of the constitutional right to counsel

would introduce chronic uncertainty and undermine the finality of

criminal judgments. Id. at 1278. In a footnote, the Johnson court noted

that at least eleven jurisdictions had adopted the Custis framework. See

id. at 1275 n.7 (citing Camp v. State, 221 S.W.3d 365, 369–70 (Ark.

2006); People v. Padilla, 907 P.2d 601, 606 (Colo. 1995) (en banc); State

v. Veikoso, 74 P.3d 575, 580, 582 (Haw. 2003); State v. Weber, 90 P.3d

314, 318–20 (Idaho 2004); State v. Delacruz, 899 P.2d 1042, 1049 (Kan.
                                      13

1995); McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994);

People v. Carpentier, 521 N.W.2d 195, 199–200 (Mich. 1994); State v.

Weeks, 681 A.2d 86, 89–90 (N.H. 1996); State v. Mund, 593 N.W.2d 760,

761 (N.D. 1999); State v. Boskind, 807 A.2d 358, 360, 362–64 (Vt. 2002);

State v. Hahn, 618 N.W.2d 528, 532, 535 (Wis. 2000)).

        Some state cases go somewhat beyond the Custis approach in their

application of state law. For example, in State v. Maine, 255 P.3d 64, 69

(Mont. 2011), the Montana Supreme Court was asked by the state to

adopt    the   Custis   rule,   namely,     that   prior   convictions   used   for

enhancement may not be challenged under any constitutional theory

except a Gideon violation, under Montana law.               The Montana court,

however, noted that “[w]e have long recognized, however, that Montana

law may be more protective of individual rights than the floor established

by federal law.” Id. at 72. Ultimately, the Montana court, under the due

process clause of the Montana Constitution, held that a defendant could

attack a prior conviction in the context of a sentence enhancement not

only when there was a Gideon violation, but also when there was

ineffective assistance of counsel.        Id. at 73.   While the Montana court

thus announced a rule beyond the federal caselaw, the court emphasized

that the expansion of collateral challenges extended only to cases that

were “constitutionally infirm.” Id.

        In another case, Paschall v. State, 8 P.3d 851, 852 n.2 (Nev. 2000)

(per curiam), the Nevada Supreme Court likewise departed from Custis.

The Paschall court noted that Custis “merely established the floor for

federal constitutional purposes.”         Id.   The Paschall court declined to

apply the Custis limitations under Nevada law. Id. Paschall, however,

involved a constitutional claim, namely, whether under the Nevada

Constitution, a justice of the peace had authority to suspend certain
                                     14

sentences. Id. at 851. Thus, the claim entertained in Paschall, like that

in Johnson, was of constitutional dimension.

        New Jersey has taken a different approach.     In State v. Hrycak,

877 A.2d 1209, 1211 (N.J. 2005), the New Jersey Supreme Court

considered whether a prior uncounseled conviction could count in a

sentencing enhancement proceeding. The Hrycak court relied on prior

precedent providing counsel for indigent misdemeanor defendants in

“ ‘the sound administration of justice.’ ” Id. at 1215 (quoting Rodriguez v.

Rosenblatt, 277 A.2d 216, 223 (N.J. 1971)). The court held that “a prior

uncounseled DWI conviction of an indigent is not sufficiently reliable to

permit increased jail sanctions under the enhancement statute.” Id. at

1216.

        For reasons similar to those outlined in Johnson, however, we

decline to announce a rule today that prevents application of a prior

conviction in an enhancement proceeding based upon a mere rule

violation. While we are, of course, free to depart from Custis under the

Iowa Constitution, we do not think the expansion of collateral attacks on

prior convictions based upon nonconstitutional flaws makes sense. Nor

do we think expansion of the right to counsel by this court in “the sound

administration of justice” is the appropriate approach. See id. at 1215.

We have considerable discretion in supervising the operation of the

judicial branch, but we do not believe it extends so far as to allow us to

collaterally attack convictions arising from guilty pleas not on direct

appeal or in an action for postconviction relief, but in the context of the

enhancement of a subsequent crime in which there is no error of

constitutional dimension.

        As a result, we are required to proceed to consider whether the use

of an uncounseled conviction in a misdemeanor proceeding to enhance
                                      15

punishment involves a violation of constitutional dimension, namely, the

violation of the right to counsel.

      D. Textual Provisions of State and Federal Constitutional

Provisions Regarding the Right to Counsel.                Two separate Iowa

constitutional provisions are implicated in this case, the right to counsel

under Iowa Constitution article I, section 10, and the due process clause

under Iowa Constitution article I, section 9.          As will be seen below,

although two separate Iowa constitutional provisions are implicated, the

issues tend to merge.       If the failure to provide appointed counsel to a

poor person in a misdemeanor case violates the right to counsel in article

I, section 10, it would be fundamentally unfair under the due process

clause of article I, section 9 to use that conviction to enhance a later

crime.    Cf. State v. Becker, 818 N.W.2d 135, 148 (Iowa 2012) (due

process protects fundamental fairness in judicial proceedings); State v.

Nail, 743 N.W.2d 535, 539 (Iowa 2007) (same).

      We begin our substantive review of the right to counsel with a

review of the language of the Sixth Amendment of the United States

Constitution and what has previously been characterized as the “unique”

language of article I, section 10 of the Iowa Constitution. See McNabb v.

Osmundson, 315 N.W.2d 9, 13 (Iowa 1982).           Although we decide this

case based upon the Iowa Constitution, analysis of federal law provides

context for our consideration and shows the important interplay between

state and federal constitutional law in right-to-counsel and due process

questions.

      The Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel

for his defence.”    U.S. Const. amend. VI.       Article I, section 10 uses

similar   language    but     adds   an    important    additional   provision.
                                       16

Specifically, article I, section 10 provides that “[i]n all criminal

prosecutions, and in cases involving the life, or liberty of an individual,

the accused shall have a right . . . to have the assistance of counsel.”

Iowa Const. art. I, § 10 (emphasis added). Unlike its federal counterpart,

the Iowa provision is double-breasted.             It has an “all criminal

prosecutions” clause and a “cases” clause involving the life or liberty of

an individual.

      The language of the Sixth Amendment and article I, section 10

raise interpretive issues. Under both the United States Constitution and

the Iowa Constitution, the question that arises in the context of this case

is the meaning of the term “all criminal prosecutions.” Does the phrase

“all criminal prosecutions” literally mean every criminal prosecution, or

does it mean something else?         Is the term “all criminal prosecutions”

broad enough to cover all misdemeanor cases, some misdemeanor cases,

or   none   at   all?    Even   if   “all   criminal   prosecutions”   includes

misdemeanors, does it mean only that there is a right to retained

counsel, or if you are poor, does it mean there is a right to appointed

counsel?

      In considering these questions under article I, section 10, it is

important to note that the mere fact the phrase “all criminal

prosecutions” is used in both the Federal and Iowa Constitutions does

not bind us to follow the prevailing federal constitutional interpretation.

We are free to follow or reject federal authority in interpreting our state

constitution depending upon our view of the strength of the reasoning in

the federal precedent.    See, e.g., State v. Short, 851 N.W.2d 474, 481

(Iowa 2014) (“We may, of course, consider the persuasiveness of federal

precedent, but we are by no means bound by it.”).
                                      17

      In addition, under the Iowa Constitution but not the Federal

Constitution, there are additional interpretive issues posed by the “cases”

clause.   What are we to make of the additional language in article I,

section 10 of the Iowa Constitution, not found in the Sixth Amendment,

which provides that the right to counsel extends not only to all criminal

prosecutions but also to “cases involving the . . . liberty of an individual?”

To what extent does the phrase help inform the meaning of the prior

term, “all criminal prosecutions?” And, to what extent does the “cases”

language expand the scope of the right to counsel in Iowa beyond the

right to counsel found in the Sixth Amendment as interpreted by the

United States Supreme Court?

      Finally,   there   is   a   question   of   whether   an   uncounseled

misdemeanor conviction that could not validly support incarceration can

be used to increase imprisonment when the defendant commits a later

crime. If the first conviction without a lawyer cannot be used to support

a day in jail, how can that same conviction later be used to impose an

additional term of incarceration when the defendant commits another

crime?

      E. Scope of the Right to Counsel in Misdemeanor Cases Under
State and Federal Constitutions.

      1. Introduction. We now turn to consider the scope of the right to

counsel in misdemeanor cases. As indicated above, the question of the

scope of the right to counsel in misdemeanor cases is critical in this case

because of the relationship between the right to counsel in the 2003

proceeding and the use of the 2003 conviction to enhance the 2012

crime.

      We begin with a discussion of the English common law precedent,

the adoption of state constitutions with right-to-counsel provisions more
                                    18

expansive than the English tradition, and early state court cases dealing

with the right to counsel.    Next, we examine the convoluted course of

federal constitutional law regarding the right to counsel embraced in the

Sixth Amendment. We then return to state court cases in examining the

extent to which the serpentine federal precedent has influenced state

constitutional law. Finally, we examine Iowa law regarding the right to

appointed counsel under article I, section 10 of the Iowa Constitution.

      As will be seen below, we conclude article I, section 10 should not

be interpreted in a fashion similar to United States Supreme Court

precedent that requires a poor person suffer “actual imprisonment”

before being entitled to the appointment of counsel in misdemeanor

cases. Under the Iowa Constitution, we conclude that a poor person has

a right to appointed counsel when a statute authorizes imprisonment

unless the defendant validly waives that right.      Because Young was

prosecuted under a statute that authorized imprisonment, was not

provided appointed counsel, and did not validly waive that right, it would

be fundamentally unfair under the due process clause of the Iowa

Constitution to use that prior conviction to enhance her later crime.

      2. Early English traditions, the development of state constitutional

provisions, and early state court right-to-counsel precedents.     English

common law recognized a limited right to counsel.            Interestingly,

however, the English common law right to counsel extended to all

misdemeanor cases, but not to felonies.     See William M. Beaney, The

Right to Counsel in American Courts 8–9 (1955) [hereinafter Beaney];

James J. Tomkovicz, The Right to the Assistance of Counsel 3 (2002)

[hereinafter Tomkovicz].     At least one theory posits that the Crown’s

interest in felony prosecution was just too great to allow all felony

defendants the right to assistance of counsel to gum up the Crown’s
                                       19

prosecutorial efforts.      See Tomkovicz at 3–6 (describing competing

theories regarding why misdemeanants were allowed counsel while felons

were not).     Indeed, it seems to have been thought that serious crimes

threatened the existence of the monarchy itself. See id. at 3–4. It is also

true    that   at   common    law,   private   individuals,   not   professional

prosecutors, brought felony cases, so arguably denial of the right to

counsel did not cause a substantial imbalance in the trial of the case.

See id. at 2–3. As noted by Professor Tomkovicz, there was no likelihood

that a highly skilled prosecutor would take advantage of a less skilled

defendant. Id. at 5.

        Over time, some common law judges adopted a more relaxed

attitude to the ban.      See Beaney at 10; Tomkovicz at 6–8.         By 1747,

Parliament enacted a provision providing for legal counsel to those

impeached by the House of Commons for high treason. Tomkovicz at 8.

Not until 1836 did Parliament eventually extend the right to counsel to

all felonies. Id.

        The colonial practice with respect to the right to counsel is not well

understood.         Often times, it appears trials were informal affairs

prosecuted by private parties. See id. at 9. However by the beginning of

the American Revolution, all of the colonies employed public prosecutors

to pursue criminal charges. See id.

        The advent of public prosecutors seemed to have increased interest

in providing defendants with the right to assistance of counsel. See id. at

9–10.     For instance, the Delaware Charter of 1701 granted “ ‘all

Criminals . . . the same Privileges of Witnesses and Council as their

Prosecutors.’ ”      Id. at 10 (quoting Del. Charter of 1701, § V).         The

Pennsylvania Charter of Privileges of 1701 had a similar provision. Id.

(citing Pa. Charter of Privileges of 1701, § V). Connecticut as a matter of
                                     20

common law seems to have rejected the English limitations on the right

to counsel. Beaney at 16; Tomkovicz at 13. A number of the colonies

provided for statutory rights to counsel of varying shapes and sizes.

Some of the statutes not only allowed for representation by retained

counsel, but also provided lawyers to the accused who wanted legal

representation. See Beaney at 16, 21.

      Seven of the early state constitutions provided a right to counsel.

See Tomkovicz at 11.     See generally Beaney at 19–21 (describing the

right to counsel in early state constitutions). The Maryland Constitution

of 1776 provided that “in all criminal prosecutions, every man hath a

right . . . to be allowed counsel . . . .” Md. Const. of 1776, Declaration of

Rights, art. XIX. The New Jersey Constitution of 1776 provided that “all

criminals shall be admitted to the same privileges of witnesses and

counsel, as their prosecutors are or shall be entitled to.” N.J. Const. of

1776, art. XVI. The New York Constitution of 1777 stated that “in every

trial on impeachment, or indictment for crimes or misdemeanors, the

party impeached or indicted shall be allowed counsel, as in civil actions.”

N.Y. Const. of 1777, art. XXXIV.      The Vermont Constitution of 1777

declared that “in all prosecutions for criminal offenses, a man hath a

right to be heard, by himself and his counsel . . . .” Vt. Const. of 1777,

ch. I, § X. The Massachusetts Constitution of 1780 provided that “every

subject shall have a right to . . . be fully heard in his defence by himself,

or his counsel at his election.” Mass. Const. of 1780, pt. I, art. XII. The

New Hampshire Constitution of 1784 provided that “[e]very subject shall

have a right . . . to be fully heard in his defence, by himself, and

counsel.” N.H. Const. of 1784, pt. I, art. XV. The Delaware Constitution

of 1792 provided that “[i]n all criminal prosecutions the accused hath a

right to be heard by himself and his counsel.” Del. Const. of 1792, art. I,
                                    21

§ 7.   Eventually, all state constitutions except Virginia had a right-to-

counsel provision of some kind, and the Virginia courts eventually held

that the right to counsel was incorporated by other state constitutional

provisions. See David Fellman, The Right to Counsel Under State Law,

1955 Wis. L. Rev. 281, 281 & n.2 (1955).

       The language of these early state constitutional provisions was

plainly more expansive than the prevailing English practice. The use of

the term “all criminal prosecutions” was obviously designed to address

the gap in English law refusing to allow the right to counsel for felonies.

See Tomkovicz at 14 (“[T]he states had dramatically departed from the

restrictive English common law rule regarding retention of counsel in

serious criminal prosecutions.”). Beyond this conclusion, scholars have

not uncovered much evidence of what state constitutional framers meant

when adopting the broadly worded right to counsel language in the early

state constitutions.

       The state constitutional cases regarding the right to counsel are

few and far between each other and do not represent the development of

a coherent, organized body of law.       Significantly, the Iowa Territorial

Supreme Court and other state supreme courts decided in early cases

that if a person was entitled to representation by counsel but could not

pay for it, representation should be provided at state expense. See Hall

v. Washington County, 2 Greene 473, 476 (Iowa 1850) (holding a county

is liable for compensation to an attorney appointed by the court to

conduct the defense of an indigent prisoner); see also People v.

Goldenson, 19 P. 161, 168 (Cal. 1888); Cutts v. State, 45 So. 491, 491

(Fla. 1907); Delk v. State, 26 S.E. 752, 753 (Ga. 1896); Hendryx v. State,

29 N.E. 1131, 1132 (Ind. 1892); Carpenter v. County of Dane, 9 Wis. 274,

277 (1859). Further, well prior to the development of the United States
                                    22

Supreme Court’s doctrine of ineffective assistance of counsel, state

courts were instrumental in chipping away at the theory that because an

attorney was an agent of the client, the client could not bring an

ineffectiveness claim. See generally Sara Mayeux, Ineffective Assistance

of Counsel Before Powell v. Alabama: Lessons from History for the Future

of the Right to Counsel, 99 Iowa L. Rev. 2161, 2162–84 (2014) (describing

state caselaw from the 1880s through the 1920s regarding the

foundations of current ineffective-assistance claims). Against this state

court backdrop, the United States Supreme Court decided Powell v.

Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), and Gideon,

372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.

      3. The Sixth Amendment and early federal constitutional law. The

United States Constitution originally, of course, did not contain a bill of

rights, which was added to the document in 1791.             When James

Madison introduced language regarding the right to counsel as part of

his proposed bill of rights, there seems to have been no substantive

debate.    See Beaney at 23–24.      Like the earlier state constitutional

provisions, it seems clear, however, the use of the term “all criminal

prosecutions” was designed to fill the gaps in English common law and

thus should generally be considered an expansive term.

      Beyond that, according to one leading commentator, the founders

seem to have left the matter of scope of the right to counsel to the courts.

See id. at 25. Maybe so, but the Supreme Court did not consider any

substantial case involving the right to counsel until the twentieth

century.   Part of the reason seems to be that states enacted statutes

providing for the appointment of counsel in capital cases if not in all

felony cases generally.   Further, conscientious courts may have often

found volunteer lawyers to assist the poor. See id. at 32.
                                    23

      4. The evolution of federal constitutional law: Powell, Gideon, and

beyond. We begin our discussion of the modern right to counsel and its

due process implications with a discussion of the infamous Scottsboro

case, in which nine African-American youth were accused of raping two

white girls, a capital offense. See Powell, 287 U.S. at 49, 53 S. Ct. at 57,

77 L. Ed. at 160. The accused were tried and convicted in state court

and therefore, although the Sixth Amendment did not apply directly to

the proceedings, the Due Process Clause of the Fourteenth Amendment

was fully applicable. Id. at 60, 53 S. Ct. at 60, 77 L. Ed. at 166. The

United States Supreme Court reversed the convictions on the ground

that poor defendants in a capital case were entitled, as a matter of due

process under the Fourteenth Amendment, to effective assistance of

counsel at state expense. Id. at 71–72, 53 S. Ct. at 65, 77 L. Ed. at 172.

In Powell, Justice Sutherland eloquently spoke of the role of counsel in

defending poor defendants facing prosecution for capital crimes.         He

memorably wrote:

      The right to be heard would be, in many cases, of little avail
      if it did not comprehend the right to be heard by counsel.
      Even the intelligent and educated layman has small and
      sometimes no skill in the science of law. If charged with
      crime, he is incapable, generally, of determining for himself
      whether the indictment is good or bad. He is unfamiliar with
      the rules of evidence. Left without the aid of counsel he may
      be put on trial without a proper charge, and convicted upon
      incompetent evidence, or evidence irrelevant to the issue or
      otherwise inadmissible.      He lacks both the skill and
      knowledge adequately to prepare his defense even though he
      have a perfect one. He requires the guiding hand of counsel
      at every step in the proceedings against him. Without it,
      though he be not guilty, he faces the danger of conviction
      because he does not know how to establish his innocence.
                                    24

Id. at 68–69, 53 S. Ct. at 64, 77 L. Ed. at 170. The central theme of

Justice Sutherland’s opinion was the lack of reliability of convictions

obtained without the assistance of counsel.

      Justice Sutherland further noted that “[i]n a case such as this . . .

the right to have counsel appointed, when necessary, is a logical

corollary from the constitutional right to be heard by counsel.” Id. at 72,

53 S. Ct. at 65, 77 L. Ed. at 172.       In other words, if there is a due

process right to retained counsel, there is also a due process right to

appointed counsel when a defendant cannot pay for retained counsel.

      The fresh and clean rhetoric of Justice Sutherland inspired judges

and lawyers then, just as it inspires judges and lawyers today. What is

not generally recognized, however, is that Justice Sutherland in Powell

built his opinion largely on state court precedents, relying extensively on

such precedents for the central propositions of the case, namely that

pro forma participation of counsel does not satisfy the right to counsel,

id. at 58–59, 53 S. Ct. at 60, 77 L. Ed. at 165 (citing thirteen state court

precedents), that the right to counsel is fundamental in character, id. at

70–71, 53 S. Ct. at 64–65, 77 L. Ed. at 171 (citing eight state court

cases), and that the right to have counsel appointed when necessary is a

logical corollary from the constitutional right to be heard by counsel, id.

at 72, 53 S. Ct. at 65, 77 L. Ed. at 172.     Although they are less well

known than United States Supreme Court precedents like Powell, state

court right-to-counsel decisions did much of the ice-breaking that

allowed Powell to sail into the law books.

      Six years after Powell, the Court in Johnson v. Zerbst, 304 U.S.

458, 459, 58 S. Ct. 1019, 1020, 82 L. Ed. 1461, 1464 (1938), considered

whether the Sixth Amendment required counsel be appointed for

indigents in federal felony cases. In Zerbst, the defendants were accused
                                     25

with feloniously possessing and uttering counterfeit money. Id. at 459–

60, 58 S. Ct. at 1021, 82 L. Ed. at 1464. They had no lawyer and were

tried and convicted without the assistance of counsel.        Id. at 460, 58

S. Ct. at 1021, 82 L. Ed. at 1464. Because Zerbst was tried in federal

court, the Sixth Amendment applied directly to the proceeding. See id. at

463, 58 S. Ct. at 1022–23, 82 L. Ed. at 1466.

      In Zerbst, the Supreme Court firmly declared that a criminal

defendant in federal court has a right to counsel and that if the

defendant could not afford counsel, counsel would be provided. Id. The

Zerbst Court underscored the point by characterizing the question in

jurisdictional terms. Id. at 467–68, 58 S. Ct. at 1024, 82 L. Ed. at 1468.

Representation by counsel was “an essential jurisdictional prerequisite to

a federal court’s authority to deprive an accused of his life or liberty.” Id.

The Zerbst Court declared that “[t]he Sixth Amendment withholds from

federal courts, in all criminal proceedings, the power and authority to

deprive an accused of his life or liberty unless he has or waives the

assistance of counsel.” Id. at 463, 58 S. Ct. at 1022–23, 82 L. Ed. at

1466 (footnote omitted). The Zerbst Court emphatically characterized the

failure to provide counsel as a “jurisdictional bar” to a valid conviction

depriving the defendant of his life or liberty.    Id. at 468, 58 S. Ct. at

1024, 82 L. Ed. at 1468.

      The Zerbst Court further emphasized that the Sixth Amendment

embodies

      a realistic recognition of the obvious truth that the average
      defendant does not have the professional legal skill to protect
      himself when brought before a tribunal with power to take
      his life or liberty, wherein the prosecution is presented by
      experienced and learned counsel. That which is simple,
      orderly, and necessary to the lawyer—to the untrained
      laymen—may appear intricate, complex, and mysterious.
                                     26

Id. at 462–63, 58 S. Ct. at 1022, 82 L. Ed. at 1465–66. As in Powell, the

central theme of Zerbst was the lack of reliability of verdicts obtained

without the assistance of counsel.

       The Supreme Court next returned to considering a right-to-counsel

issue in a state court proceeding in Betts v. Brady, 316 U.S. 455, 456–

57, 62 S. Ct. 1252, 1253, 86 L. Ed. 1595, 1599 (1942), overruled by

Gideon, 372 U.S. at 339, 83 S. Ct. at 794, 9 L. Ed. 2d at 802. In Betts, a

defendant accused of robbery in a Maryland court was denied

appointment of counsel. Id. The defendant subsequently pled not guilty

and elected to be tried to the court. Id. at 457, 62 S. Ct. at 1253–54, 86

L. Ed. at 1599. The defendant summoned witnesses on his behalf, cross-

examined the State’s witnesses, and examined his own. Id. at 457, 62 S.

Ct. at 1254, 86 L. Ed. at 1599. He did not take the stand on his own

behalf and was convicted by the trial court.     Id.   The conviction was

upheld upon filing a writ of habeas corpus.      Id.   The United States

Supreme Court granted certiorari and affirmed. Id. at 473, 62 S. Ct. at

1262, 86 L. Ed. at 1607.

       The Betts Court emphasized that while the Sixth Amendment

applies to trials in federal courts, it is only through the Due Process

Clause of the Fourteenth Amendment that a defendant may make a

claim from a state court conviction. Id. at 461–62, 62 S. Ct. at 1256, 86

L. Ed. at 1601.   According to Betts, the Due Process Clause does not

incorporate lock, stock, and barrel the entirety of the Sixth Amendment.

Id.   Instead, due process is much more flexible and fact specific.    Id.

According to the Betts Court, only “in certain circumstances” would the

denial of right to counsel by a state court amount to a due process

violation under the Fourteenth Amendment. Id. The Betts Court noted

“states should not be straight-jacketed . . . by a construction of the
                                    27

Fourteenth Amendment” advanced by the appellants. Id. at 472, 62 S.

Ct. at 1261, 86 L. Ed. at 1607.      Thus, federalism concerns were an

important factor in achieving a different result than in Zerbst.       With

regard to whether a poor defendant was entitled to appointed counsel for

felony cases in state court, the Betts Court declared that no definite

criteria could be developed, but that the totality of circumstances needed

to be evaluated, which included the nature of the crime, the age and

education of the defendant, the conduct of the court and prosecuting

officials, and the complicated nature of the offense charged and possible

defenses related to the charge. Id. at 472–73, 62 S. Ct. at 1261–62, 86

L. Ed. at 1607. The powerful and unequivocal emphasis in Powell and

Zerbst on the lack of reliability of uncounseled convictions gave way to a

diluted view of the right to counsel powered by federalism concerns.

      Justice Black called out the majority for its departure from the

emphasis on the lack of reliability of uncounseled convictions.        Id. at

474–77, 62 S. Ct. at 1262–63, 86 L. Ed. at 1607–09 (Black, J.,

dissenting).   According to Justice Black, “[a] practice cannot be

reconciled with common and fundamental ideas of fairness and right,

which subjects innocent men to increased dangers of conviction merely

because of their poverty.” Id. at 476, 62 S. Ct. at 1263, 86 L. Ed. at 1609

(internal quotation marks omitted).      Justice Black cited the Supreme

Court of Wisconsin, which in the case of Carpenter declared that it would

make a “ ‘mockery to secure to a pauper . . . solemn constitutional

guaranties for a full and fair trial [and then state] he must employ his

own counsel.’ ” Id. (quoting Carpenter, 9 Wis. at 276). In support of his

dissent, he attached a lengthy appendix showing that many states were

providing counsel to indigents on a categorical basis. Id. at 477–80, 62

S. Ct. at 1264–65, 86 L. Ed. at 1609–11.       Although not expressed in
                                    28

these terms, Justice Black essentially argued that the majority

approached the application of Sixth Amendment right to counsel in state

courts in lowest-common-denominator terms.

      Aside from Justice Black’s protest regarding the abandonment of

the underlying rational of the right to counsel, the multifactored special-

circumstances test in Betts was unstable and encountered some

resistance in the lower courts as judges routinely found special

circumstances.     See Christine S. May, Uncounseled Misdemeanor

Convictions and Their Unreliability for Sentence Enhancement Under the

United States Federal Sentencing Guidelines: Nichols v. United States,

114 S. Ct. 1921 (1994), 18 Hamline L. Rev. 231, 238 & n.86 (1994)

[hereinafter May] (citing cases). An everything-is-relevant and nothing-

is-determinative test produces wide fluctuations in results. Twenty years

later, in Gideon, Betts was overruled, the principle of Powell was

extended to noncapital felony prosecutions, and parity between the Sixth

Amendment right to appointed counsel in federal and state courts was

restored. Gideon, 372 U.S. at 345, 83 S. Ct. at 797, 9 L. Ed. 2d at 805–

06.

      The facts of Gideon are well known.      Gideon was charged with

breaking and entering a poolroom with intent to commit a misdemeanor,

a felony under Florida law. Id. at 336, 83 S. Ct. at 792, 9 L. Ed. 2d at

800–01. He sought appointed counsel, but the trial court advised him

that counsel could be appointed only in capital cases. Id. at 337, 83 S.

Ct. at 792, 9 L. Ed. 2d at 801. He attempted to defend himself, giving an

opening statement, cross-examining witnesses, and making a closing

statement. Id. at 337, 83 S. Ct. at 792–93, 9 L. Ed. 2d at 801. He was

found guilty and received a five-year sentence. Id. The Supreme Court

reversed, holding that the right to counsel in criminal proceedings such
                                    29

as that faced by Gideon was fundamental to a fair trial. Id. at 344, 83 S.

Ct. at 796, 9 L. Ed. 2d at 805.

       As in Powell and Zerbst, the animating principle behind Gideon

was that the “ ‘guiding hand of counsel’ ” was essential in fairly

determining the outcomes of cases in the criminal justice system. Id. at

344, 83 S. Ct. at 797, 9 L. Ed. 2d at 805 (quoting Powell, 287 U.S. at 68–

69, 53 S. Ct. at 64, 77 L. Ed. at 170).      As noted by Justice Black,

“[r]eason and reflection require us to recognize that in our adversary

system of criminal justice, any person haled into court, who is too poor

to hire a lawyer, cannot be assured a fair trial unless counsel is provided

for him.” Id. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at 805. The Court in

Gideon characterized Betts as an “abrupt break” from previous precedent

and Gideon “restore[d] constitutional principles established to achieve a

fair system of justice.” Id.

       While the underlying rationale of Powell and Gideon applied to all

criminal prosecutions, the holding in Powell applied only to capital

offenses and in Gideon to felonies. Gideon, 372 U.S. at 342, 345, 83 S.

Ct. at 795, 797, 9 L. Ed. 2d at 801, 805–06; Powell, 287 U.S. at 71, 53 S.

Ct. at 65, 77 L. Ed. at 171–72. Yet, Gideon made short work of the claim

that capital offenses should be distinguished from felonies, focusing not

on the severity of the crime but the need for fundamental fairness in the

underlying proceeding. 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at

805.   Further, although state attorneys’ general in their amicus brief

urged the court to limit the right to appointed counsel to felonies, the

court declined to do so. Id. at 344–45, 83 S. Ct. at 796–97, 9 L. Ed. 2d at

805 (holding only that refusal to appoint counsel for an indigent accused

of a noncapital felony violated the Due Process Clause); see Brief for the

State Government Amici Curiae, Gideon v. Wainwright, 372 U.S. 335
                                    30

(1963) (No. 155), 1962 WL 115122, at *3, *21 (“We repeat that we are

limiting our claim to the constitutional right to representation for

felonies.”); Henry Clay Moore, Comment, The Right to Counsel for

Misdemeanants in State Courts, 20 Ark. L. Rev. 156, 158 (1966).         Yet,

under Gideon, the question of whether the Sixth Amendment required

the appointment of counsel to assist the poor in misdemeanor

prosecutions remained an open question.        Plainly, however, in Gideon

the dilution of Sixth Amendment rights in state court as evidenced in

Betts was abandoned in favor of the traditional rationale of the lack of

reliability of uncounseled convictions.

      The United States Supreme Court in Burgett v. Texas, 389 U.S.

109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), considered the question of

whether an uncounseled conviction in state court could be used to

enhance the penalties of a later criminal conviction.         Burgett was

convicted of assault with malice aforethought with intent to murder. Id.

at 110, 88 S. Ct. at 259, 19 L. Ed. 2d at 322.       Pursuant to a Texas

recidivist statute, however, he faced life in prison if he had incurred four

previous felony convictions. Id. at 111, 88 S. Ct. at 260, 19 L. Ed. 2d at

322. Three of the convictions were for forgery in Tennessee. Id. During

trial, the state offered into evidence a certified copy of one of the

Tennessee convictions, which indicated that the defendant proceeded

“without Counsel.”   Id. at 112, 88 S. Ct. at 260, 19 L. Ed. 2d at 323

(internal quotation marks omitted).       The State then offered a second

version indicating there was “argument of counsel.”           Id. (internal

quotation marks omitted).        The question posed was whether an

uncounseled felony conviction could be used to enhance the punishment

for a later crime. Id. at 115–16, 88 S. Ct. at 262, 19 L. Ed. 2d at 324–25.
                                      31

        In an opinion by Justice Douglas, the Supreme Court held that the

prior     Tennessee   conviction   could   not   be   used   to   support   the

enhancement. Id. The Burgett Court announced that

        [t]o permit a conviction obtained in violation of Gideon v.
        Wainwright to be used against a person either to support
        guilt or enhance punishment for another offense is to erode
        the principle of that case. Worse yet, since the defense in
        the prior conviction was denial of the right to counsel, the
        accused in effect suffers anew from the deprivation of that
        Sixth Amendment right.

Id. at 115, 88 S. Ct. at 262, 19 L. Ed. 2d at 324–25 (citation omitted).

Justice Warren returned to the theme of lack of reliability of uncounseled

convictions, noting the case presented “a classic example of how a rule

eroding the procedural rights of a criminal defendant on trial for his life

or liberty can assume avalanche proportions, burying beneath it the

integrity of the fact-finding process.”    Id. at 117, 88 S. Ct. at 263, 19

L. Ed. 2d at 326 (Warren, C.J., concurring). As with the other right-to-

counsel cases except for the overturned Betts, the focus was on the lack

of reliability of the fact-finding process when a defendant is convicted

without the assistance of counsel.

        In reaching its decision, the Court seemed to put the burden on

the state to show that the defendant either received the assistance of

counsel or validly waived his or her right to counsel in the prior

proceeding. See id. at 114–15, 88 S. Ct. at 262, 19 L. Ed. 2d at 324

(majority opinion). According to the Burgett Court, presuming waiver of

counsel from a silent record was impermissible. Id.

        The high court considered a similar question in United States v.

Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592, 595–96

(1972).    In Tucker, a federal court imposed a sentence relying in part

upon uncounseled felony convictions. Id. at 444–45, 92 S. Ct. at 590, 30
                                    32

L. Ed. 2d at 594–95. The Supreme Court remanded the case to the trial

court with instructions to reconsider the sentence. Id. at 448–49, 92 S.

Ct. at 592–93, 30 L. Ed. 2d at 597. Citing Burgett, the Court emphasized

that the use of an unconstitutionally obtained felony conviction would

erode the principle of Gideon. Id. (citing Burgett, 389 U.S. at 115–16, 88

S. Ct. at 262, 19 L. Ed. 2d at 324–25). The Tucker Court emphasized

that the trial court acted upon “misinformation of constitutional

magnitude.”   Id. at 447, 92 S. Ct. at 592, 30 L. Ed. 2d at 596.       In a

footnote, the Tucker Court further cited Gideon for the proposition that a

lawyer’s help is necessary to ensure that the poor receive a fair trial. Id.

at 447 n.5, 92 S. Ct. at 592 n.5, 30 L. Ed. 2d at 596–97 n.5 (citing

Gideon, 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d at 805). Tucker

therefore remained consistent with the underlying reliability theme of

Powell, Zerbst, Gideon, and Burgett.

      In Loper v. Beto, 405 U.S. 473, 483–84, 92 S. Ct. 1014, 1019–20,

31 L. Ed. 2d 374, 381–82 (1972) (plurality opinion), the Supreme Court

for a third time refused to allow an uncounseled conviction, invalid

under Gideon, to have collateral consequences. In Loper, the Supreme

Court considered a habeas corpus claim in which a state court defendant

argued it was improper for Texas prosecutors to attempt to impeach him

using an uncounseled state court felony conviction. Id. at 476–78, 92 S.

Ct. at 1016–17, 31 L. Ed. 2d at 378–79. The Supreme Court refused to

allow such impeachment. Id. at 483–84, 92 S. Ct. at 1019–20, 31 L. Ed.

2d at 381–82.    According to Justice Stewart’s plurality opinion, “ ‘the

absence of counsel impairs the reliability of [uncounseled] convictions

just as much when used to impeach as when used as direct proof of

guilt.’ ” Id. at 483, 92 S. Ct. at 1019, 31 L. Ed. 2d at 382 (quoting Gilday

v. Scafati, 428 F.2d 1027, 1029 (1st Cir. 1970)). The reliability rationale
                                   33

of Powell, Zerbst, Gideon, Burgett, and Tucker was at the heart of the

opinion.

      After Gideon, the question remained whether the right to counsel

extended to misdemeanor prosecutions. Several federal appellate courts

who considered the question after Gideon held that under the Sixth

Amendment, a poor defendant was entitled to the appointment of counsel

in misdemeanor cases. See, e.g., Harvey v. Mississippi, 340 F.2d 263,

269 (5th Cir. 1965); Evans v. Rives, 126 F.2d 633, 639 (D.C. Cir. 1942).

The Court of Appeals for the Fifth Circuit in Harvey noted that while the

key right to counsel cases involved felonies, “their rationale does not

seem to depend on the often purely formal distinction between felonies

and misdemeanors.” 340 F.2d at 269. The Court of Appeals for the D.C.

Circuit in Evans emphasized that no differentiation is made in the term

“all criminal prosecutions” in the Sixth Amendment. 126 F.2d at 638.

      The Supreme Court first took up the issue of the application of

Powell and Gideon principles to misdemeanor cases in Argersinger, 407

U.S. at 26–27, 92 S. Ct. at 2007–08, 32 L. Ed. 2d at 532–33.           In

Argersinger, a divided Florida Supreme Court ruled that the notion that a

poor person was entitled to appointed counsel did not extend to cases in

which punishment did not exceed six months’ imprisonment. Id. at 26–

27, 92 S. Ct. at 2007, 32 L. Ed. 2d at 532–33. Because the defendant in

Argersinger was sentenced to only ninety days in jail, the Florida

Supreme Court majority concluded that Gideon and Powell did not apply.

Id.

      The Supreme Court reversed.       Id. at 27, 92 S. Ct. at 2008, 32

L. Ed. 2d at 533. In an opinion by Justice Douglas, the Court rejected

the proposition that principles of Powell and Gideon did not extend to

crimes punishable by imprisonment for less than six months. Id. at 32–
                                     34

33, 92 S. Ct. at 2010, 32 L. Ed. 2d at 535–36. Although the right to a

jury trial might be restricted to cases involving six months or more of

incarceration, Justice Douglas wrote that nothing in the history of the

right to counsel suggested a similar limitation. Id. at 29–34, 92 S. Ct. at

2009–11, 32 L. Ed. 2d at 534–37.          Justice Douglas noted that cases

involving short-term imprisonment may bristle with thorny constitutional

questions that require the defendant receive the assistance of counsel in

order to receive a fair trial. Id. at 33, 92 S. Ct. at 2010, 32 L. Ed. 2d at

536.    Justice Douglas further noted that counsel is needed in

misdemeanor as well as felony cases “so that the accused may know

precisely what he is doing, so that he is fully aware of the prospect of

going to jail or prison, and so that he is treated fairly by the prosecution.”

Id. at 34, 92 S. Ct. at 2011, 32 L. Ed. 2d at 536–37. While recognizing

the volume of misdemeanor cases, Justice Douglas cautioned against “an

obsession for speedy dispositions, regardless of the fairness of the

result,” id. at 34, 92 S. Ct. at 2011, 32 L. Ed. 2d at 537, and noted there

was evidence in empirical studies that misdemeanant defendants are

prejudiced from “assembly-line justice” when appointed counsel is not

provided, id. at 36, 92 S. Ct. at 2012, 32 L. Ed. 2d at 538 (internal

quotation marks omitted). Although Justice Douglas thus extended the

fundamental fairness reasoning of Powell and Gideon to misdemeanors

when a defendant was subsequently incarcerated, he expressly stated

that the court “need not consider” whether the right to counsel applied

when the “loss of liberty” is not involved. Id. at 37, 92 S. Ct. at 2012, 32

L. Ed. 2d at 538.     Yet, plainly, in terms of its underlying rationale,

Argersinger adopted the reliability rationale of Powell and its long list of

progeny.
                                    35

       Justice Powell, joined by Justice Rehnquist, filed a concurring

opinion in Argersinger. Id. at 44–66, 92 S. Ct. at 2016–27, 32 L. Ed. 2d

at 542–55 (Powell, J., concurring in the result). Justice Powell urged a

more flexible, Betts-like, case-by-case approach to the question of the

entitlement of a poor person to appointed counsel when facing a crime

that was not a felony. See id. at 62–63, 92 S. Ct. at 2025, 32 L. Ed. 2d at

553.   Thus, in some respects, Justice Powell thought the Argersinger

majority went too far in extending the right to appointed counsel. See id.

       However, Justice Powell thought the majority opinion fell too short

as well.    For instance, Justice Powell noted that the impact of a

misdemeanor conviction on employment could present a serious

consequence justifying the appointment of counsel. Id. at 47–48, 92 S.

Ct. at 2017–18, 32 L. Ed. 2d at 544–45. Further, he noted that stigma

may attach to a drunken-driving conviction and that losing a driver’s

license may be more serious for some individuals than a brief stay in jail.

Id. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544. In footnote 11, Justice

Powell cited a wide range of potential collateral consequences, as well as

academic literature related to them. Id. at 48 n.11, 92 S. Ct. at 2018

n.11, 32 L. Ed. 2d at 545 n.11.      In short, in Justice Powell’s view in

1972, the collateral effects of a misdemeanor conviction “are frequently of

sufficient magnitude not to be casually described by the label ‘petty.’ ”

Id. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544.

       Whether the right to counsel extended to cases in which

imprisonment was authorized by the underlying criminal statute, but did

not actually occur, was considered by the United States Supreme Court

in Scott v. Illinois, 440 U.S. 367, 368, 99 S. Ct. 1158, 1159, 59 L. Ed. 2d

383, 385–86 (1979).     In Scott, the Illinois Supreme Court declined to

extend Argersinger to cases in which no imprisonment was actually
                                     36

imposed upon the defendant. Id. at 369, 99 S. Ct. at 1160, 59 L. Ed. 2d

at 386.

      The short 5–4 majority opinion in Scott was written by Justice

Rehnquist. Id. at 368, 99 S. Ct. at 1159, 59 L. Ed. 2d at 385. Harkening

back to the aberrant and overruled Betts, Justice Rehnquist stressed

federalism concerns about extending the right to counsel further than

the narrow holding of Argersinger.        Id. at 372, 99 S. Ct. at 1161, 59

L. Ed. 2d at 388. He noted that because the Sixth Amendment was now

incorporated against the states, “special difficulties” arose because “state

and federal contexts are often different.” Id. He further stated that the

Supreme Court’s cases had departed from the literal meaning of the

Sixth Amendment, thereby implying that the “all criminal prosecutions”

language of the Sixth Amendment did not pose an obstacle to limiting the

right to counsel to cases involving actual imprisonment.          Id.   While

finding that the intentions of the Argersinger Court were not entirely

clear, the rule enunciated in that case had proved “reasonably workable”

whereas an extension of the rule would impose unpredictable but

necessarily substantial costs on the “quite diverse States.” Id. at 373, 99

S. Ct. at 1162, 59 L. Ed. 2d at 389. Thus, in the name of federalism and

practicality, the approach of Powell, Zerbst, Gideon, Burgett, Tucker, and

Argersinger   was   not   extended   to    misdemeanor    cases   in    which

imprisonment was authorized but not actually imposed in state court.

      Justice Brennan, joined by Justices Marshall and Stevens,

dissented. Id. at 375–89, 99 S. Ct. at 1163–70, 59 L. Ed. 2d at 390–99

(Brennan, J., dissenting).    He emphasized the language of the Sixth

Amendment, namely, that in “all criminal prosecutions,” the accused

shall enjoy the right to have the assistance of counsel. Id. at 375–76, 99

S. Ct. at 1163, 59 L. Ed. 2d at 390–91.             While recognizing that
                                      37

Argersinger took a “cautious” approach, he noted the question raised in

Scott was expressly reserved in the case.       Id. at 378–79, 99 S. Ct. at

1164–65, 59 L. Ed. 2d at 392–93.        According to Justice Brennan, the

Court’s precedents showed the right to counsel is more fundamental to a

fair trial than the right to a jury trial. Id. at 380, 99 S. Ct. at 1165, 59 L.

Ed. 2d at 393. Justice Brennan emphasized that unlike many traffic or

other regulatory offenses, the misdemeanor crime of theft carries with it

a “moral stigma associated with common-law crimes traditionally

recognized as indicative of moral depravity.”       Id. at 380, 99 S. Ct. at

1165–66, 59 L. Ed. 2d at 393–94.

      According to Justice Brennan, the constitutionally required test for

whether an accused should be afforded counsel was not an “actual

imprisonment” test but instead an “authorized imprisonment” test. Id. at

382, 99 S. Ct. at 1166, 59 L. Ed. 2d at 394. Justice Brennan saw the

“authorized imprisonment” test as more faithful to Gideon, presenting no

practical problems, and consistent with legislative judgments of the

seriousness of crime. Id. at 382–83, 99 S. Ct. at 1166–67, 59 L. Ed. 2d

at 394–95. In short, Justice Brennan called out the majority for jumping

the rails of the track plainly laid down by the Court’s prior Sixth

Amendment precedents.

      The next turn of the caselaw occurred in Baldasar v. Illinois, 446

U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (per curiam),

overruled by Nichols v. United States, 511 U.S. 738, 748, 114 S. Ct. 1921,

1928, 128 L. Ed. 2d 745, 755 (1994). In Baldasar, the Supreme Court

considered a slightly different but important question not decided in

Scott, namely, whether an uncounseled conviction that did not result in

actual imprisonment under Scott could be used as a predicate for

enhancing a later offense that carried a prison term. Id. at 222, 100 S.
                                    38

Ct. at 1585, 64 L. Ed. 2d at 171–72. A divided Illinois appellate court

concluded such an uncounseled conviction could be used as a predicate

to enhance the later crime. Id. at 223–24, 100 S. Ct. at 1586, 64 L. Ed.

2d at 172.

      The judgment of the Court was announced in a per curiam opinion

and was supported by three separate concurring opinions that garnered

the support of five justices. Id. at 224–30, 100 S. Ct. at 1586–89, 64 L.

Ed. 2d at 172–76.     In an opinion for himself and joined by Justices

Brennan and Stevens, Justice Stewart briefly wrote that under the

specific facts presented, the conviction violated the principles outlined in

Scott. Id. at 224, 100 S. Ct. at 1586, 64 L. Ed. 2d at 172–73 (Stewart, J.,

concurring). Justice Marshall, joined by Justices Brennan and Stevens,

wrote more broadly. Id. at 224–29, 100 S. Ct. at 1586–88, 64 L. Ed. 2d

at 173–76 (Marshall, J., concurring). He reinforced the proposition that

the petitioner had been deprived of his liberty “as a result of [the first]

criminal trial could not be clearer.” Id. at 226, 100 S. Ct. at 1587, 64 L.

Ed. 2d at 174 (internal quotation marks omitted).         Justice Marshall

emphasized a conviction that could not support a one day jail sentence

could not support a subsequent conviction under a repeat offender

statute imposing lengthy incarceration.     Id. at 226–27, 100 S. Ct. at

1587, 64 L. Ed. 2d at 173–74. In a third brief opinion, Justice Blackmun

concurred, noting Baldasar was entitled to counsel under his dissent in

Scott because in the underlying proceeding he faced the possibility of

incarceration for more than six months.      Id. at 229–30, 100 S. Ct. at

1589, 64 L. Ed. 2d at 176 (Blackmun, J., concurring).

      Justice Powell, joined by the Chief Justice, Justice White, and

Justice Rehnquist dissented. Id. at 230–35, 100 S. Ct. at 1589–92, 64 L.

Ed. 2d at 176–80 (Powell, J., dissenting).     He argued the subsequent
                                    39

enhanced conviction was valid under Scott because the defendant had

the assistance of counsel during his prosecution for the enhanced

offense. Id. at 231, 100 S. Ct. at 1589, 64 L. Ed. 2d at 177.

      The multiple opinions in Baldasar caused confusion in the lower

courts.   The result of the case was clear, but which opinion was the

narrowest opinion that, under the traditional approach to fractured

opinions, formed the holding of the case was less so.           The courts

splintered. Many, but not all, saw the core holding of Baldasar, that an

uncounseled conviction was invalid for the purpose of collaterally

enhancing a sentence, as the precise result, relying upon Justice

Marshall’s opinion. See, e.g., United States v. Brady, 928 F.2d 844, 854

(9th Cir. 1991), abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at

1928, 128 L. Ed. 2d at 755; Lovell v. State, 678 S.W.2d 318, 320 (Ark.

1984), abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at 1928, 128

L. Ed. 2d at 755; State v. Laurick, 575 A.2d 1340, 1347 (N.J. 1990),

abrogated by Nichols, 511 U.S. at 748, 114 S. Ct. at 1928, 128 L. Ed. 2d

at 755.     Other courts relied primarily on the opinion of Justice

Blackmun. See, e.g., Hlad v. State, 565 So. 2d 762, 764–67 (Fla. Dist.

Ct. App. 1990) (en banc); State v. Orr, 375 N.W.2d 171, 175–76 (N.D.

1985).    Still others seem to have regarded the opinion as hopelessly

splintered and without much precedential value. See, e.g., United States

v. Eckford, 910 F.2d 216, 220 (5th Cir. 1990); May, 18 Hamline L. Rev. at

253–55 (citing various theories employed by courts in interpreting

Baldasar); Kirsten M. Nelson, Nichols v. United States and the Collateral

Use of Uncounseled Misdemeanors in Sentence Enhancement, 37 B.C. L.

Rev. 557, 570–72 (1996) (same).

      The opaqueness of Baldasar was resolved for federal constitutional

purposes in Nichols, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745.
                                    40

In Nichols, a federal criminal defendant received additional points under

United    States   Sentencing   Guidelines    as   the   result   of   a   state

misdemeanor conviction for driving while under the influence for which

he was fined but not incarcerated. Id. at 740, 114 S. Ct. at 1924, 128 L.

Ed. 2d at 750. Because of the increase in points, the maximum sentence

of imprisonment increased from 210 to 235 months. Id. The defendant

claimed the increase in points was not allowed under Baldasar. Id. at

741, 114 S. Ct. at 1924, 128 L. Ed. 2d at 750.            The district court

disagreed and a divided panel of the Court of Appeals for the Sixth

Circuit affirmed. Id. at 741–42, 114 S. Ct. at 1924–25, 128 L. Ed. 2d at

750–51.

      A divided United States Supreme Court affirmed. Id. at 742, 114

S. Ct. at 1925, 128 L. Ed. 2d at 751.        In a majority opinion by Chief

Justice Rehnquist, the Court held that a sentencing court may consider

a   defendant’s    previous   uncounseled     misdemeanor     conviction     in

sentencing a defendant for a subsequent offense so long as the

uncounseled misdemeanor conviction did not result in a sentence of

imprisonment. Id. at 748–49, 114 S. Ct. at 1928, 128 L. Ed. 2d at 755.

Chief Justice Rehnquist emphasized that enhancement statutes do not

change the penalty for the original uncounseled misdemeanor, but

impose penalties only for the last offense committed by the defendant.

Id. at 746–47, 114 S. Ct. at 1927, 128 L. Ed. 2d at 753–54.

      Justice Blackmun, joined by Justices Stevens and Ginsburg,

dissented. Id. at 754–65, 114 S. Ct. at 1931–37, 128 L. Ed. 2d at 758–65

(Blackmun, J., dissenting). Reminiscent of Justice Brennan’s dissent in

Scott, Justice Blackmun’s opinion stressed the right to counsel applied to

“all criminal prosecutions.” Id. at 754–55, 114 S. Ct. at 1931, 128 L. Ed.

2d at 758–59. He argued the animating principle of the cases was “that
                                    41

no indigent [should be] deprived of his liberty as a result of a proceeding

in which he lacked the guiding hand of counsel.” Id. at 757, 114 S. Ct.

at 1932, 128 L. Ed. 2d at 760. Justice Blackmun wrote that while the

subsequently enhanced conviction did not increase the penalties for the

original offense for purposes of double jeopardy, it was still undeniable

that Nichols’s uncounseled conviction resulted in more than two years’

imprisonment.     Id. at 757, 114 S. Ct. at 1933, 128 L. Ed. 2d at 761.

Justice Blackmun argued that a conviction that is invalid for purposes of

the offense itself remains invalid for purposes of increasing the term of

imprisonment imposed for a subsequent offense. Id. He further argued

the majority opinion was inconsistent with Burgett and Tucker, decided

only a few years earlier. Id. at 762–63, 114 S. Ct. at 1935, 128 L. Ed. 2d

at 763–64.

      Further, Justice Blackmun questioned the reliability of an

uncounseled conviction. He emphasized that a rule that an uncounseled

misdemeanor conviction can never form the basis for a term of

imprisonment is faithful to Gideon’s admonition that “ ‘any person haled

into court, who is too poor to hire a lawyer, cannot be assured a fair trial

unless counsel is provided.’ ” Id. at 762, 114 S. Ct. at 1935, 128 L. Ed.

2d at 764 (quoting Gideon, 372 U.S. at 344, 83 S. Ct. at 796, 9 L. Ed. 2d

at 805).     He noted a study, cited by Justice Douglas in Argersinger,

showing misdemeanants represented by counsel were five times more

likely to emerge from police court with all charges dismissed as those

who have no representation. Id. at 763, 114 S. Ct. at 1936, 128 L. Ed.

2d at 764 (citing Argersinger, 407 U.S. at 36, 92 S. Ct. at 2012, 32 L. Ed.

2d at 538). According to Justice Blackmun:

      Given the utility of counsel [in misdemeanor cases], the
      inherent risk of unreliability in the absence of counsel, and
                                         42
        the severe sanction of incarceration that can result directly
        or indirectly from an uncounseled misdemeanor, there is no
        reason in law or policy to construe the Sixth Amendment to
        exclude the guarantee of counsel where the conviction
        subsequently results in an increased term of incarceration.

Id.    In any event, both Scott and Nichols departed from the traditional

Sixth    Amendment       reliability   rationale   driven   by   federalism   and

practicality concerns.

        Most recently, the Supreme Court decided Alabama v. Shelton, 535

U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002). In Shelton, the

Supreme Court considered whether a misdemeanor assault conviction in
which a sentence of thirty-days’ imprisonment was suspended with

probation imposed was the kind of criminal proceeding entitling the

accused to a lawyer. Id. at 657–58, 122 S. Ct. at 1767, 152 L. Ed. 2d at

895.      In Shelton, the Alabama Supreme Court concluded that a

suspended sentence constitutes “a term of imprisonment” under

Argersinger and Scott even though incarceration was not immediate or

inevitable. Id. at 659, 122 S. Ct. at 1768, 152 L. Ed. 2d at 896. The

Supreme Court affirmed. Id. at 674, 122 S. Ct. at 1776, 152 L. Ed. 2d at

905–06. In an opinion by Justice Ginsburg, the majority first recognized

the “actual imprisonment” test of Argersinger and Scott. Id. at 662, 122

S. Ct. at 1769–70, 152 L. Ed. 2d at 898.                    Applying an “actual

imprisonment” test, the Court concluded “[a] suspended sentence is a

prison term imposed for the offense of conviction.” Id. at 662, 122 S. Ct.

at 1770, 152 L. Ed. 2d at 898.            The majority rejected the view that

counsel     could   be     appointed      when     probation     revocation   was

contemplated, noting that under applicable state law, the issue at that

point was narrow and did not provide for the relitigation of the

underlying offense. Id. at 667, 122 S. Ct. at 1772, 152 L. Ed. 2d at 901.

Addressing the argument that requiring counsel in such cases would be
                                    43

unduly burdensome, the majority noted “most jurisdictions already

provide a state-law right to appointed counsel more generous than that

afforded by the Federal Constitution.” Id. at 668, 122 S. Ct. at 1773, 152

L. Ed. 2d at 902 (citing Nichols, 511 U.S. at 748 n.12, 114 S. Ct. 1928

n.12, 128 L. Ed. 2d at 755 n.12).

      Four members of the Supreme Court dissented in Shelton. Id. at

674–81, 122 S. Ct. at 1776–80, 152 L. Ed. 2d at 906–10 (Scalia, J.,

dissenting). Writing for the dissenters, Justice Scalia emphasized that

actual imprisonment was the touchstone triggering the right to counsel

under the Sixth Amendment. Id. at 675, 122 S. Ct. at 1776, 152 L. Ed.

2d at 906.    The dissenters emphasized that actual imprisonment in

Shelton was only a contingency and would occur only if a future

probation violation occurred and if the state court remedy for the

probation violation was actual imprisonment. Id. at 675–76, 122 S. Ct.

at 1777, 152 L. Ed. 2d at 906–07.        In other words, imposition of a

suspended sentence did not result in actual imprisonment triggering the

right to counsel under the Sixth Amendment. See id.

      Finally, there is one additional case which, though not dealing with

the right of a poor person to appointed counsel in misdemeanor

prosecutions, has some bearing on the analysis. In Padilla v. Kentucky,

559 U.S. 356, 359–60, 130 S. Ct. 1473, 1478, 176 L. Ed. 2d 284, 289–90

(2010), the United States Supreme Court held that a lawyer who does not

advise a client of the immigration consequences of a criminal conviction

may provide ineffective assistance of counsel.          The immigration

consequences of a criminal conviction have, of course, been considered

“collateral consequences” and ordinarily counsel have not been held to

have an obligation to explain them to a client. See id. at 375–76, 130 S.

Ct. at 1487–88, 176 L. Ed. 2d at 300 (Alito, J., concurring). However, in
                                    44

Padilla, the Supreme Court recognized that the collateral consequences—

namely deportation—may be more significant than the sanctions

available in the underlying proceeding. Id. at 368, 130 S. Ct. at 1483,

176 L. Ed. 2d 284, 295 (majority opinion). Padilla’s recognition that the

collateral consequence of deportation may be more powerful than

criminal sanctions including “actual imprisonment” tends to undermine

the categorical rule of Scott that “actual imprisonment” is a special

sanction and is meaningfully more severe than the other consequences of

criminal convictions. If Justice Scalia is right, who wrote in dissent that

the principle in Padilla could not be contained but would expand to other

collateral consequences, then the theoretical underpinning of Scott may

be unraveling. See id. at 388–92, 130 S. Ct. at 1494–97, 176 L. Ed. 2d

284, 307–10 (Scalia, J., dissenting).

      In summary, the extent to which poor people are entitled to the

assistance of counsel in misdemeanor cases has been hotly contested in

the United States Supreme Court.         While the animating rationale of

Powell, Zerbst, Gideon, Burgett, Tucker, and Argersinger stressed the role

of counsel in producing fair results, the majority in Scott and Nichols

dramatically changed the emphasis to practicality considerations and

notions of federalism.

      But even the “actual imprisonment” test of Scott and Nichols has

not proved satisfactory to the majority of the Court, and in Shelton, the

right to counsel was triggered by a sentence that could eventually lead to

actual incarceration.    In addition, it is at least arguable that Padilla

suggests the bright-line distinction between “actual imprisonment” and

other consequences of criminal conviction may no longer be valid.

Padilla may indicate a renewed receptivity to Justice Powell’s concurring

opinion in Argersinger, which asserted that important collateral impacts
                                   45

such as loss of employment or loss of a driver’s license might be far more

important to a poor person than a short stint in jail. See Argersinger,

407 U.S. at 48, 92 S. Ct. at 2018, 32 L. Ed. 2d at 544–45 (Powell, J.,

concurring in the result).

      Until modified by the United States Supreme Court, however, Scott

stands for the proposition that under the Sixth Amendment to the United

States Constitution, a poor misdemeanant defendant does not have a

right to counsel unless “actual imprisonment” actually occurs regardless

of the collateral consequences or the fairness of the underlying

proceeding. 440 U.S. at 369, 99 S. Ct. at 1160, 59 L. Ed. 2d at 386.

Nichols stands for the proposition that a valid misdemeanor conviction,

which includes an uncounseled misdemeanor conviction when no

imprisonment was imposed, may be used in a sentence enhancement

scheme without running afoul of the Sixth Amendment.         511 U.S. at

748–49, 114 S. Ct. at 1928, 128 L. Ed. 2d at 755. The question is: do we

reach the same results under the Iowa Constitution?

      5. State law regarding the right to counsel for misdemeanants. In

order to determine whether we should follow the reasoning of United

States Supreme Court precedent in interpreting our state constitution,

the precedents of other states can be instructive.      See Baldon, 829

N.W.2d at 818 (Appel, J., specially concurring) (noting other states’

constitutional analysis “can serve as a springboard for [our own]

analysis”).

      As pointed out in Nichols and Shelton, state law generally provides

counsel for poor people more generously than the caselaw of the United

States Supreme Court under the Sixth Amendment.         See Shelton, 535

U.S. at 668, 122 S. Ct. at 1773, 152 L. Ed. 2d at 902; Nichols, 511 U.S.

at 748 n.12, 114 S. Ct. at 1928 n.12, 128 L. Ed. 2d at 755 n.12. These
                                      46

more generous provisions are often based in statute, rule, or the exercise

of supervisory powers by the judiciary. According to a 2009 survey, nine

states by statute provided counsel in all, or virtually all criminal

proceedings; fifteen states provided counsel for any offenses punishable

by imprisonment; eight states provided counsel for offenses punishable

by incarceration or a fine of more than a specified amount, or for any

offense with a minimal incarceration period or fine; fourteen states

provided counsel for any criminal offense except when imprisonment is

not   authorized;   and   five   states    required   a   sentence   of   actual

imprisonment for a defendant to be entitled to court-appointed counsel.

See Marcus, 21 St. Thomas L. Rev. at 164–65 & nn. 141–46 (citing state

statutes).

      We begin our substantive discussion of state constitutional law by

noting that prior to Scott, a number of state supreme courts held that the

“all criminal prosecutions” type language in their state constitutions was

broad enough to cover misdemeanors. See, e.g., In re Johnson, 398 P.2d

420, 422 (Cal. 1965) (noting California Constitution provides right to

counsel “in criminal prosecutions, in any court whatever,” which

includes misdemeanors); Bolkovac v. State, 98 N.E.2d 250, 252–53 (Ind.

1951) (observing Indiana Constitution provides for the right to counsel in

“all criminal prosecutions” and makes no distinction between felonies

and misdemeanors); Decker v. State, 150 N.E. 74, 76 (Ohio 1925) (noting

Ohio Constitution providing for counsel to appear “in any trial, in any

court” includes misdemeanor prosecutions); Hunter v. State, 288 P.2d

425, 428 (Okla. Crim. App. 1955) (noting the “all criminal prosecutions”

language under the Oklahoma Constitution and finding that “[n]o

distinction is drawn between a felony or misdemeanor”); Brown v. Dist.

Ct., 570 P.2d 52, 55 (Or. 1977) (en banc) (observing that “all criminal
                                    47

prosecutions” in Oregon Constitution includes all conduct that the

legislature has defined as a criminal offense). These cases often involved

the right to retained counsel rather than appointed counsel, but if the

right to have the assistance of retained counsel in one’s defense is

fundamental to the fairness of the proceeding, how can a proceeding be

fair if a poor person is required to proceed without counsel?

      With respect to the Nichols question of whether a valid but

uncounseled    misdemeanor     conviction   can   be   used     to   enhance

incarceration in a subsequent offense, a number of state courts after

Baldasar held under their state constitutions that a poor person’s

uncounseled misdemeanor conviction could not be used to enhance a

subsequent criminal offense. See, e.g., State v. Dowd, 478 A.2d 671, 678

(Me. 1984), overruled by State v. Cook, 706 A.2d 603, 605 (Me. 1998).

      After Nichols, however, a number of states changed course and

followed the new United States Supreme Court precedent. For example,

the Maine Supreme Court overruled its prior precedent under its state

constitution to conform with the new federal precedent. Cook, 706 A.2d

at 605. The West Virginia Supreme Court overruled its cases to follow

the new federal precedent. See State ex rel. Webb v. McCarty, 542 S.E.2d

63, 66–67 (W. Va. 2000) (citing State v. Hopkins, 453 S.E.2d 317, 324

(W. Va. 1994)). At the time of their decisions, these state supreme courts

generally followed a highly deferential approach to federal precedents

and, as such, their opinions are conclusory in nature.          See State v.

Weeks, 681 A.2d 86, 88 (N.H. 1996); State v. Porter, 671 A.2d 1280,

1282–84 (Vt. 1996).

      Several states have pursued their own path under their state

constitutions or statutes. For example, in Brisson v. State, 955 P.2d 888,

891 (Wyo. 1998), the Wyoming Supreme Court held the requirement
                                    48

under a Wyoming statute that counsel “shall be appointed” for “serious

crimes” included cases in which incarceration was a practical possibility.

Brisson noted the clear invitation in Nichols that states were free to

implement stricter standards. Id. (citing Nichols, 511 U.S. at 748 n.12,

114 S. Ct at 1129 n.12, 128 L. Ed. 2d at 755 n.12). Although the case

involved   statutory   grounds,   the    Wyoming   Supreme   Court   also

announced that it would “decline to follow the United States Supreme

Court’s actual incarceration approach” and cited State v. Sinagoga, 918

P.2d 228, 241 (Haw. Ct. App. 1996), overruled in part on other grounds by

State v. Veikoso, 74 P.3d 575, 583 n.8 (Haw. 2003), a case under the

Hawaii Constitution.     Brisson, 955 P.2d at 891.    The Brisson court

further emphasized that its concern arose from “the reliability of

uncounseled convictions.” Id. (“In order to allow a sentencing court to

consider previous convictions, we must be convinced that such

convictions are reliable.”).

      Similarly, in Sinagoga, the Hawaii appellate court adopted

reasoning independent from Nichols under the Hawaii Constitution. 918

P.2d at 242 (choosing “not to follow the rationale in Nichols” in the

context of consecutive term sentencing).      The Sinagoga court relied

heavily on the language of Burgett and Tucker, reasoning that the

reliability of the underlying prior convictions is the “linchpin” for due

process consideration. Id. at 238, 241. Although the Hawaii right-to-

counsel provision has distinctive language, the Sinagoga court utilized a

functional rather than textual analysis.    See Haw. Const. art. I, § 14;

Sinagoga, 918 P.2d at 240 n.12, 241.

      In State v. Henes, the North Dakota Supreme Court, citing state

caselaw precedent from 1985, noted that “ ‘absent a valid waiver of the

right to counsel the resulting [uncounseled misdemeanor] conviction
                                    49

cannot, under art. I, § 12, [of the North Dakota Constitution] be used to

enhance a term of imprisonment for a subsequent offense.’ ” 763 N.W.2d

502, 505 (N.D. 2009) (quoting Orr, 375 N.W.2d at 178–79 (recognizing

“the right to counsel under [the North Dakota] Constitution is

fundamental because it enables an accused to procure a fair trial”)); see

also City of Grand Forks v. Mata, 517 N.W.2d 626, 630 (N.D. 1994) (“Orr’s

practical consequence is that, regardless of the penalty to be imposed, a

court must afford a nonindigent defendant the opportunity to retain

counsel, appoint counsel for an indigent defendant, or obtain a valid

waiver of counsel on the record if that conviction is to be used as a basis

for enhancing the penalty for a subsequent conviction.”).

      In short, the North Dakota Supreme Court has followed the

fundamental fairness rationale of Powell, Zerbst, Gideon, Burgett, Tucker,

and Argersinger, and not the federalism and practicality rationales of

Scott and Nichols.

      The Florida Supreme Court also recently refused to follow federal

precedent.   The Florida Supreme Court has employed similar analysis

under article I, section 16 of the Florida Constitution, which declares

that in “all criminal prosecutions,” the accused has “the right . . . to be

heard in person, by counsel or both.” Fla. Const. art. I, § 16(a). The

Florida trail begins with Hlad, 585 So. 2d at 930 and State v. Beach, 592

So. 2d 237, 238 (Fla. 1992). After the Supreme Court decided Nichols, in

State v. Kelly, 999 So. 2d 1029, 1032–33 (Fla. 2008), the State of Florida

urged the Florida Supreme Court to abandon Hlad and Beach and adopt

the Nichols approach. The Florida Supreme Court declined to do so. Id.

at 1039. The court, like many of the other state supreme courts rejecting

the Nichols approach, focused on the reliability of the uncounseled

convictions. Id. at 1048–49. The Kelly court noted that the unreliability
                                   50

of prior uncounseled misdemeanor convictions “does not turn on the

length of the prospective term of imprisonment,” but rather “on the fact

that even an uncounseled innocent gains little by contesting a ‘petty’

misdemeanor where the prosecuting attorney is offering a low fine and

community service in exchange for a guilty or no-contest plea.” Id. at

1051.

        In summary, state courts too have wrestled with the questions

inherent in Scott and Nichols, with varying results. Some, but not all,

rely on state constitutional language different from the Sixth Amendment

in departing from federal precedent.    Aside from linguistic differences,

those courts that emphasize the fundamental fairness principle as the

bedrock principle, rather than the federalism and practicality concerns of

Scott and Nichols, tend to follow Powell and its progeny. Jurisdictions

that are inclined to follow the federal model through a lockstep approach

even if it requires overturning recent state constitutional precedent have

tended to follow the Supreme Court’s lead.

        6. Post-Gideon legislation, rulemaking, and caselaw developments

regarding the right to counsel in Iowa.   We begin our discussion with

legislative and rulemaking developments.     As early as 1860, the Iowa

Code provided that if a defendant “appear[s] for arraignment without

counsel, he must be informed by the court, that it is his right to have

counsel . . . and [if he] is unable to employ any, [the court must] assign

him counsel.”    See Iowa Code § 4685 (1860).      This right to counsel

extended not only to felons, but also to misdemeanants when the penalty

might exceed a fine of $100 or imprisonment for more than thirty days,

i.e. in the case of indictable misdemeanors (which today include serious

and aggravated misdemeanors). Id. § 4499(3); see Wright v. Denato, 178

N.W.2d 339, 342 (Iowa 1970) (holding “an indigent defendant charged
                                        51

with an indictable misdemeanor is entitled to appointment of counsel

upon request”); Op. Iowa Att’y Gen. 160–62 (1964) (“[C]ounsel must be

appointed for indigent defendants accused of felonies and indictable

misdemeanors at the preliminary hearing.”); see also Op. Iowa Att’y Gen.

179–82 (1966) (same). Thus, long before Gideon, the statutory policy in

Iowa provided counsel for most misdemeanants.

      In      1976,   the   Iowa   legislature   enacted   statutory   provisions

completely revising criminal procedure laws.          See 1976 Iowa Acts ch.

1245, ch. 2, div. XIII (effective beginning Jan. 1, 1978) (currently found

at Iowa R. Crim. P. 2.1–.76). At that time, the legislature passed a vague

provision in a new section relating to the trial of simple misdemeanors

which stated that “[i]n appropriate cases” Iowa courts shall appoint

counsel to assist in the defense of indigent defendants. Id. § 1302, r. 42.

The following year, in 1977, the legislature changed the language to

require the appointment of counsel for indigents when the defendant

faced the “possibility of imprisonment.” 1977 Iowa Acts ch. 153, § 85.

This statutory provision was in place at the time Scott was decided. We

subsequently incorporated the “possibility of imprisonment” language

into what is now Iowa Rule of Criminal Procedure 2.61(2).

      Thus, under Iowa legislative enactment and court rule, the right to

counsel in Iowa has been extended to all criminal proceedings in which

there is “a possibility of imprisonment” since before Scott was decided.

Although the Supreme Court in Scott later adopted a more restrictive

approach, the Iowa statute, replaced by the subsequent verbatim court

rule, was not altered and remains on the books today. See Iowa R. Crim.

P. 2.61(2).

      We now turn to Iowa caselaw developments related to the right to

counsel. Our early cases deal with the entitlement of counsel to payment
                                     52

pursuant to statutory provisions providing for the appointment of

counsel.     See, e.g., Ferguson v. Pottawattamie County, 224 Iowa 516,

518, 278 N.W. 223, 224 (1938); Hall, 2 Greene at 476. Although these

cases evince some solicitude to the role of counsel, they have no

particular relevance to the constitutional question presented in this case.

         We have considered numerous right-to-counsel cases in which the

defendant only invoked the Sixth Amendment. See, e.g., State v. Wilkins,

687 N.W.2d 263, 264–65 (Iowa 2004) (per curiam); State v. Cooper, 343

N.W.2d 485, 486 (Iowa 1984), overruled by Wilkens, 687 N.W.2d at 265;

Osmundson, 315 N.W.2d at 10. Particularly instructive is Osmundson.

In Osmundson, an indigent was facing a jail sentence for contempt of

court.     315 N.W.2d at 10.    The indigent claimed he was entitled to

appointment of counsel at public expense. Id. at 11. We agreed. Id. at

14. In coming to our conclusion, we noted that “we . . . make no attempt

to arrive at our own independent interpretation of the United States

Constitution, but follow the federal decisions as we understand them.”

Id. at 13. Citing the “unique language” of article I, section 10 of the Iowa

Constitution (“In all criminal prosecutions, and in cases involving the . . .

liberty of an individual the accused shall have a right . . . to have the

assistance of counsel.”), we observed the petition did not raise the

question of whether a poor person could claim entitlement to counsel in

a contempt proceeding under it. Id. Nor were we required to examine

the Iowa rules of criminal procedure because the case was not a criminal

prosecution. Id. at 13–14.

         We considered two cases after Gideon that dealt with the federal

right to counsel in misdemeanor cases. In Cooper, 343 N.W.2d at 486,

we considered whether two prior uncounseled misdemeanor convictions

could be used to enhance a theft conviction to theft in the third degree,
                                   53

the very issue posed in this case. We concluded that they could not. Id.

In support of our holding, we cited “the reasoning in Baldasar,” “our own

view of the importance of counsel,” and “[t]he lack of reliability [of] an

uncounseled conviction.” Id. We noted the collateral consequences of

conviction on the enhanced charge could include fines, social stigma,

loss of a job, and decreased employment prospects. Id. While we cited

Sixth Amendment caselaw, we also cited two state law cases, State v.

Nordstrom, 331 N.W.2d 901, 903–05 (Minn. 1983), and State v. Grenvik,

628 P.2d 1195, 1196–97 (Or. 1981) (en banc), abrogated by State v.

Probst, 124 P.3d 1237, 1245 (Or. 2005), which precluded use of

uncounseled misdemeanors to enhance a subsequent crime under state

law.   Cooper, 343 N.W.2d at 486.     Among the various interpretations

swirling around the courts after Baldasar, our decision in Cooper is most

consistent with Justice Marshall’s opinion.   Cf. Baldasar, 446 U.S. at

224–29, 100 S. Ct. at 1586–88, 64 L. Ed. 2d at 173–75 (Marshall, J.,

concurring).

       After the Supreme Court decided Nichols, we backtracked from

Cooper and sought to follow the new federal precedent in a per curiam

opinion in Wilkins, 687 N.W.2d at 265. In Wilkins, the sole claim was

whether the use of uncounseled convictions to enhance a later crime

violated the Sixth Amendment. Id. at 264–65. No issues were raised in

Wilkins under the Iowa Constitution. See id. We stated that once the

Supreme Court ruled in Nichols, “our own view of the importance of

counsel,” id. (internal quotation marks omitted), and our concerns about

the reliability of prior convictions were now irrelevant on the federal

constitutional issue subsequently teed up and squarely decided in

Nichols.   Id. (citing Cooper, 343 N.W.2d at 486).        There was no

recognition of the nuance in Justice Souter’s Nichols opinion, which
                                      54

stressed that the misdemeanor convictions were used as part of a

sentencing structure that preserved at least some discretion for the trial

court.     Compare id., with Nichols, 511 U.S. at 749–54, 114 S. Ct. at

1929–31, 128 L. Ed. 2d at 755–58 (Souter, J., concurring in the

judgment).      In Wilkins, there was no follow-up on the tantalizing

suggestion in Osmundson regarding the “unique language” of article I,

section 10 of the Iowa Constitution or of the Iowa Rules of Criminal

Procedure. Compare Osmundson, 315 N.W.2d at 13, with Wilkens, 687

N.W.2d at 265.

         Finally, in Allen, 690 N.W.2d at 686, an indigent defendant claimed

that under the Iowa Constitution, prior uncounseled misdemeanor

convictions could not be used to enhance a subsequent crime even when

actual incarceration did not occur as required in Scott and Nichols. The

defendant did not cite a specific provision of the Iowa Constitution, but

did cite Cooper, 343 N.W.2d at 485, and generally argued the

unreliability of uncounseled convictions precluded their use in the

enhancement of the subsequent charge. Allen, 690 N.W.2d at 686–87.

         In Allen, we briefly recognized the “ebb and flow” of United States

Supreme Court decisions beginning with Argersinger and ending in

Nichols.     Id. at 687–89.    We then proceeded to consider the Iowa

constitutional claims. Id. at 689–92. Remarkably, we did not cite the

“unique language” of article I, section 10 as in Osmundson, but instead

inaccurately declared that the language was “textually similar” to the

federal counterpart. Id. at 690. Although Allen states that other state

courts who declined to follow Nichols did so with distinctive language in

their state constitutions “authoriz[ing] the possibility of incarceration,”

id. at 690–91 (emphasis omitted), the Iowa language stating that the
                                      55

right to counsel exists in “cases involving liberty” seems to do just that,

Iowa Const. art. I, § 10.

      We declared in Allen that there must be some principled basis for

distinguishing Nichols. Allen, 690 N.W.2d at 690. But, as is apparent,

particularly in our recent cases, there is no presumption of the

correctness of federal law.    See Short, 851 N.W.2d at 486–87 (noting

there is no presumption that federal construction of similar language is

correct); Baldon, 829 N.W.2d at 821 (Appel, J., specially concurring)

(“[T]here is no presumption that . . . federal law is the correct

approach.”); State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010) (same).

Instead, federal precedent has a bearing on our interpretation of state

law only to the extent its reasoning persuades us.             See Ochoa, 792

N.W.2d at 267.

      There are substantial reasons to question the reasoning of Nichols.

The Allen court failed to recognize that Scott, upon which Nichols

critically relied, was based upon federalism and pragmatic concerns that

had no application in Iowa.       The strong emphasis in Scott on its

federalism concern about a one-size-fits-all rule for the diverse states has

no bearing on determining questions of state constitutional law that

impact only one state. In addition, although the Allen court mimicked

the speculative fiscal concerns in Scott by stating that a decision to

require counsel for poor misdemeanor defendants would impose

“significant additional burdens on the criminal justice system,” 690

N.W.2d at 692, the Allen court was apparently not familiar with Iowa’s

long standing legislative policy, now embraced in Iowa Rule of Criminal

Procedure 2.61(2), that poor persons are entitled to appointment of

counsel   in   misdemeanor    cases    when   there   is   a    “possibility   of

imprisonment,” a standard consistent with Justice Brennan’s dissent in
                                    56

Scott. See Scott, 440 U.S. at 375–89, 99 S. Ct. at 1163–70, 59 L. Ed. 2d

at 390–99 (Brennan, J., dissenting).

      The Allen court also failed to recognize that in Cooper, we

emphasized our “own view of the importance of counsel,” the “lack of

reliability of uncounseled convictions,” and cited cases relying on state

law to prohibit sentencing enhancements arising from uncounseled

misdemeanor convictions.     Cooper, 343 N.W.2d at 486.       The powerful

language in Powell, Zerbst, Gideon, Burgett, Tucker, and Argersinger

regarding the role of counsel in promoting the reliability of the fact-

finding process in criminal proceedings regardless of the severity of

punishment is entirely ignored.          The Allen opinion contains no

discussion at all about the realities of the management of the

misdemeanor docket or the Argersinger concern about “assembly-line

justice.” Argersinger, 407 U.S. at 36, 92 S. Ct. at 2012, 32 L. Ed. 2d at

538 (internal quotation marks omitted).      And, the Allen court did not

evince awareness of the dramatic increase and rapid expansion of

collateral consequences for even minor offenses such as shoplifting,

theft, or vagrancy.

      Finally, and understandably, the Allen court was not in a position

to consider developments that occurred after the case was decided.

Although the Allen court declared it did not “detect a trend in our sister

state courts to abandon the federal analysis,” 690 N.W.2d at 690, the

Allen court did not have the benefit of the Florida case declining to follow

Nichols, see Kelly, 999 So. 2d at 1039. It also was not aware of Padilla

and its potential undermining of the Nichols rationale. See Padilla, 559

U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 294.

      For the above reasons, we conclude Allen is fundamentally flawed

and the issue presented, namely, whether the uncounseled misdemeanor
                                       57

conviction of a poor person facing the possibility of incarceration may be

used to enhance a subsequent crime, should be considered anew.
     F. Analysis of Scope of Article I, Section 10 for Misdemeanor
Cases.
       1. Textual analysis. We begin our discussion by noting the force

of the plain language of the Iowa Constitution, article I, section 10. The

language provides that the right to counsel applies “in all criminal

prosecutions.” Iowa Const. art. I, § 10. It does not say some criminal

prosecutions. It does not say felonies only. And, of course, the text says

nothing at all about “actual incarceration.”

       A plain reading of the constitutional text causes us to question the

reasoning of Scott and Nichols. We are not dealing with an open-textured

phrase such as “privileges and immunities” or “due process of law” which

are inherently, if not deliberately, ambiguous and require a process of

constant reinterpretation and reappraisal. We do not deny there can be

important line-interpretive questions regarding the meaning of the

phrase.     There is, for instance, a substantial question as to when a

criminal prosecution begins.        But the language of the “all criminal

prosecutions” provision of article I, section 10 is directed toward

providing counsel in order to avoid the risk of conviction, not the risk of

incarceration.     And if this choice of language means anything, it is

difficult   to   avoid   the   conclusion   that   the   phrase   “all   criminal

prosecutions” was expressly designed to avoid judicially imposed slicing

and dicing of criminal prosecutions into two or more categories.             See,

e.g., In re Johnson, 398 P.2d at 422; Bolkovac, 98 N.E.2d at 255; Decker,

150 N.E. at 76; Hunter, 288 P.2d at 428; Brown, 570 P.2d at 55. The bill

of rights of the Iowa Constitution embraces the notion of “inalienable
                                       58

rights,” not rights that shrink and disappear based upon currently

fashionable transient pragmatic assessments. See Iowa Const. art. I, § 1.

       Our linguistic concerns are exacerbated by the double-breasted

nature of the Iowa Constitution’s right-to-counsel provision.        Not only

does the Iowa Constitution expressly apply in “all criminal prosecutions,”

it also applies in “cases involving the life, or liberty of an individual.” Id.

art. I, § 10. Unlike the “all criminal prosecutions” language, the liberty

language of the “cases” clause is directed toward a limited category of

cases involving a person’s interest in physical liberty. See id.

       We believe that liberty is “involved” in a misdemeanor prosecution

when    an    accused   is   charged   under   a   statute   that   authorizes

incarceration. The founders of the Iowa Constitution intended a bill of

rights in which article I, section 10 is a part to be read in a generous

fashion, not in a cramped, stingy, or fearful fashion. According to George

Ells, Chairman of the Committee on the Preamble and Bill of Rights, the

committee wanted provisions in the Iowa Bill of Rights that “ ‘would

enlarge, and not curtail the rights of the people’ ” and would “ ‘put upon

record every guarantee that could be legitimately placed there in order

that Iowa . . . might . . . have the best and most clearly defined Bill of

Rights.’ ”   Baldon, 829 N.W.2d at 810 (Appel, J., specially concurring)

(quoting 1 The Debates of the Constitutional Convention of the State of

Iowa 100 (W. Blair Lord rep., 1857) [hereinafter The Debates], available

at www.statelibraryofiowa.org/services/collections/law-library/iaconst.).

       As a matter of constitutional history, it is clear the “cases”

language in the Iowa Constitution arose, at least in part, in order to

provide protections to persons subject to return to slavery under the

Federal Fugitive Slave Act. See 2 The Debates at 736–41. The inclusion

of the “cases” language was hotly debated by the drafters, as apparent
                                      59

from spirited exchanges namely between Mr. Clark and Mr. Harris. Id.

Mr. Harris had recommended an amendment to strike such language

from section 10, which was rejected. Id. at 741. Mr. Clark contended

that

       unless we have the right to make a constitution which will
       secure to me the right of jury trial, if I am claimed as a
       fugitive slave, without that right we are not a sovereign
       people.     Without that right we cannot protect every
       individual member of society.

Id. at 737. What is apparent, therefore, is that one of the purposes of the

“cases” language was to guarantee the protections of article I, section 10

to those whom no formal criminal prosecution was or could be instituted,

thereby   providing    broader    protections   than    the   United    States

Constitution. See id. at 736–41.

       In this respect, the Iowa judiciary, the writers of the Iowa

Constitution of 1857, and the contemporary political branches of

government embraced a view of law that was not only independent from,
but fundamentally at odds with, federal law on the slavery issue. See

Short, 851 N.W.2d at 483; 2 The Debates at 738–39 (“I believe [the

fugitive slave law] to be unconstitutional.”) (remarks by Mr. Wilson).

       But the “cases” language of article I, section 10 has broader

application than the immediate problem it was designed to ameliorate.

While it may be that the “cases” language amounts to constitutional

support for a right to counsel in qualifying civil contexts, it also strongly

suggests that if a right to counsel exists in civil cases in which “liberty” is

involved, it also must exist in criminal prosecutions in which “liberty” is

also at stake.

       2. Functional or structural analysis. Aside from textual analysis,

we also find a functional analysis supports the view that a right to
                                      60

counsel exists under the Iowa Constitution at least when imprisonment

is authorized.    We note the observations of Justice Powell in his

concurring opinion in Argersinger. See 407 U.S. at 44–66, 92 S. Ct. at

2016–27, 32 L. Ed. 2d at 542–55 (Powell, J., concurring in result). While

some statutory offenses that merely impose fines may be considered

regulatory in nature and have little if any consequence, statutes that

authorize   the   imposition    of   imprisonment   invariably   contain   a

reputational sting far beyond mere law violation. A person convicted of a

misdemeanor arising from shoplifting may have difficulty holding or

obtaining a job, particularly in the era of electronic access to information.

A driver’s license or professional license may be adversely affected.      A

simple misdemeanor conviction may have other collateral impacts, such

as impairing the ability of persons to obtain educational, housing, or

other important benefits.      A simple misdemeanor conviction involving

drugs could adversely impact immigration status. See generally Gabriel

J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the

Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699–700 (2002)

(observing the “imposition of collateral consequences has become an

increasingly central purpose of the modern criminal process”); Gross, 22

Wm. & Mary Bill Rts. J. at 80–87 (describing the rise of collateral

consequences over the last several decades); Jenny Roberts, Why

Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal

Courts, 45 U.C. Davis L. Rev. 277, 297–303 (2011) (noting the “most

pervasive collateral effect of a misdemeanor conviction is the ability to

find and keep work”).       While the prospect of these impacts were

recognized by Justice Powell in his Argersinger concurrence, they are

even greater today. See 407 U.S. at 44–66, 92 S. Ct. at 2016–27, 32 L.

Ed. 2d at 542–55. These adverse effects must be evaluated not from the
                                    61

perspective of comfortable middle-class judges, but from the viewpoint of

the poor with their attendant life challenges.

      We also do not believe a lawyer’s help is irrelevant in misdemeanor

convictions when imprisonment is authorized.       The breathtaking and

inspiring language of Justice Sutherland in Powell emphasized that “[t]he

right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel.” 287 U.S. at 68–69, 53 S.

Ct. at 64, 77 L. Ed. at 170. Simply put, a person does not get his “day in

court” without a lawyer.     Although the narrow issue in Gideon was

whether the right to counsel extended to noncapital felony cases, Justice

Clark’s reasoning emphasized “there cannot constitutionally be a

difference in the quality of process based merely upon a supposed

difference in the sanction involved.” 372 U.S. at 349, 83 S. Ct. at 799, 9

L. Ed. 2d at 808 (Clark, J., concurring in the result). Similarly, much of

the rationale in Argersinger was based not on the offense charged, but

instead on the undeniable fact that in any criminal prosecution, whether

a capital offense, a felony, or a misdemeanor, complicated legal problems

may arise that the average person cannot satisfactorily navigate without

the assistance of counsel. Indeed, as pointed out by Justice Douglas in

Argersinger, the history of our jurisprudence is rife with very complicated

and important legal questions arising in the context of misdemeanor

prosecutions. See 407 U.S. at 32–34, 92 S. Ct. at 2010–11, 32 L. Ed. 2d

at 535–36 (majority opinion); see also Lawrence v. Texas, 539 U.S. 558,

578, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 525–26 (2003) (nolo

contendere plea to misdemeanor raises fundamental issues regarding

sodomy statutes); Atwater v. City of Lago Vista, 532 U.S. 318, 323, 121

S. Ct. 1536, 1541, 149 L. Ed. 2d 549, 558 (2001) (case involving seat-belt

violation raises important search and seizure issues).
                                    62

      Scott and Nichols are inconsistent with the traditionally close

relationship between the due process right to a fair trial and the right to

counsel. The heart of Gideon is concern over the fairness and reliability

of the criminal justice process. As noted in Justice Blackmun’s dissent

in Nichols, it is difficult to understand why an uncounseled misdemeanor

conviction that could not be used to support one day of incarceration can

later be used in an enhancement statute to significantly lengthen the

period of incarceration for the later crime. 511 U.S. at 757, 114 S. Ct. at

1933, 128 L. Ed. 2d at 761 (Blackmun, J., dissenting).          If ensuring

fairness and reliability of criminal justice outcomes are the constitutional

forces underlying the right to counsel, an uncounseled misdemeanor

conviction cannot support incarceration directly or in subsequent cases.

See Cooper, 343 N.W.2d at 486 (citing “our own view of the importance of

counsel” and declaring “[t]he lack of reliability in an uncounseled

conviction that prevents the imposition of incarceration also prevents

enhancement of the charge”). We conclude the reasoning of Cooper and

the state court cases declining to follow Nichols is more persuasive. See

id.; Kelly, 999 So. 2d at 1048–49; Brisson, 955 P.2d at 891.

      3. Iowa tradition regarding the right to counsel.   Finally, we note

that statutory enactments and court rules are consistent with an

interpretation that the right to counsel extends to cases in which

imprisonment is authorized.     The right to counsel established by the

Iowa legislature going back almost forty years provided for counsel when

there is a “possibility of imprisonment.”   See 1977 Iowa Acts ch. 153,

§ 85. We subsequently adopted this legislative formulation as part of our

court rules. See Iowa R. Crim. P. 2.61(2). Our tradition of the right to

counsel is simply broader than that represented by Scott and Nichols.
                                     63

The Scott fear of exposing state’s to unspecified expense simply does not

apply in Iowa.

      4. Overruling Allen. In order to reach the conclusion that under

article I, section 10, a person charged with a misdemeanor offense that

authorizes imprisonment has the right to the assistance of counsel, we

must consider Allen. We see no basis for distinguishing Allen from the

present case, and we must therefore squarely address the question of

whether Allen should be overruled.

      We answer that question in the affirmative for a number of

reasons. The Allen court did not consider the sweeping language of the

“all criminal prosecutions” clause or the more limited “cases” clause of

article I, section 10.   Allen did not recognize that Scott was an outlier

from the prior right-to-counsel cases that emphasized the role of counsel

in ensuring fairness and reliability in criminal prosecutions and that the

federalism and pragmatic concerns cited in Scott are wholly irrelevant to

the interpretation of the Iowa Constitution. In particular, the Allen court

did not recognize the fact that forty years ago, no doubt in response to

Gideon, the Iowa legislature had provided for appointed counsel in all

cases involving the “possibility of imprisonment” and this standard was

incorporated into this court’s rules.       The Allen court also did not

recognize   that   the    fairness   and   reliability   concerns   regarding

uncounseled misdemeanor convictions are particularly acute given the

pressures inherent in the misdemeanor docket. Finally, the Allen court

did not see the inconsistency of an approach that refused to allow an

uncounseled misdemeanor conviction to support one day in jail because

of concerns about the fairness and reliability of the process, but then

allowed the same conviction to be used to substantially increase

incarceration through later application of an enhancement statute.
                                     64

      In sum, we overrule Allen.      We conclude that under article I,

section 10 of the Iowa Constitution, an accused in a misdemeanor

criminal prosecution who faces the possibility of imprisonment under the

applicable criminal statute has a right to counsel.      When a right to

counsel has not been afforded, any subsequent conviction cannot be

used as a predicate to increase the length of incarceration for a later

crime.

      IV. Conclusion.

      For the above reasons, the decision of the district court is reversed

and the case remanded to the district court for further proceedings.

      REVERSED AND REMANDED.

      Cady, C.J., and Wiggins and Hecht, JJ., join this opinion.

Mansfield, J., files a separate concurring opinion in which Waterman and

Zager, JJ., join. Zager, J., files a separate concurring opinion in which

Waterman and Mansfield, JJ., join.
                                     65

                                                  #13–0983, State v. Young

MANSFIELD, Justice (concurring specially).

      I too would vacate Young’s enhanced sentence, but I cannot join

the court’s opinion. Following a lengthy discussion, the court concludes

as a matter of Iowa constitutional law that “an accused in a

misdemeanor     criminal   prosecution    who   faces    the   possibility   of

imprisonment under the applicable criminal statute has a right to

counsel.”   This discussion and conclusion are unnecessary.         The Iowa

Rules of Criminal Procedure already grant such a right.         Rule 2.61(2)

provides, “In cases where the defendant faces the possibility of

imprisonment, the court shall appoint counsel for an indigent defendant

. . . .” Iowa R. Crim. P. 2.61(2). Why are we not deciding this case based

on the text of the rule?

      Rule 2.61(2) is the defendant’s first line of argument.          Young

devoted four and a half pages to this argument, making it her initial brief

point. She also wrote, “This Court will avoid unnecessary constitutional

questions by addressing those issues that are not of a constitutional

nature first.” I believe Young’s statement is correct.

      Time and again, in recent years, we have proclaimed our

adherence to the doctrine of constitutional avoidance.         See Hawkeye

Land Co. v. Iowa Utils. Bd., 847 N.W.2d 199, 219 (Iowa 2014); State v.

Iowa Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014); Mall Real Estate, L.L.C. v.

City of Hamburg, 818 N.W.2d 190, 200 (Iowa 2012); L.F. Noll Inc. v.

Eviglo, 816 N.W.2d 391, 398 (Iowa 2012); Simmons v. State Pub.

Defender, 791 N.W.2d 69, 73–74 (Iowa 2010).

      But the principle is hardly a new one. See Hines v. Ill. Cent. Gulf

R.R., 330 N.W.2d 284, 286 (Iowa 1983) (“As previously indicated, we do

not reach the merits of these constitutional claims.            We consider
                                    66

constitutional issues on appeal only when another question is not

decisive.”); Cmty. Lutheran Sch. v. Iowa Dep’t of Job Serv., 326 N.W.2d

286, 291–92 (Iowa 1982) (“We avoid constitutional issues except when

necessary for disposition of a controversy.”); Ehlinger v. Mardorf, 285

N.W.2d 27, 28 (Iowa 1979) (“Although plaintiff asserts the trial court

erred on both statutory and constitutional grounds, we consider only the

statutory ground because we find it is determinative of the case.       We

have long held we will not consider a constitutional question on appeal

when another question is decisive.”). One of our decisions makes this

point rather elegantly:

      However, we are constrained by our principles of self-
      restraint, including the longstanding rule that we will not
      decide constitutional questions when a case can be resolved
      on other grounds. See, e.g., Dubuque & D.R. Co. v. Diehl, 64
      Iowa 635, 640, 21 N.W. 117, 120 (1884) (“We will not decide
      a constitutional question, unless it be necessarily involved in
      the case, which cannot be disposed of without the decision of
      such question. If the record shows other questions which
      are decisive of the case, they alone will be considered.
      Courts are slow in approaching, and hesitate to decide,
      constitutional questions.”)[, overruled on other grounds by
      Vandewater v. Chi., Rock Island & Pac. Ry., 170 Iowa 687,
      695, 153 N.W. 190, 194 (1915)]; accord State v. Button, 622
      N.W.2d 480, 485 (Iowa 2001); State v. Quintero, 480 N.W.2d
      50, 51 (Iowa 1992). Such judicial restraint is an essential
      component of our system of federalism and separation of
      powers. See generally 16 Am. Jur. 2d Constitutional Law
      §§ 115–128 (1998); Lisa A. Kloppenberg, Avoiding
      Constitutional Questions, 35 B.C. L. Rev. 1003 (1994).
      Moreover, we recognize the law to be an evolving process that
      often makes the resolution of legal questions a composite of
      several cases, from which appellate courts can gain a better
      view of the puzzle before arranging all the pieces. The
      wisdom of this process has been revealed time and again,
      and we continue to subscribe to it today.

State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).

      I fail to understand why we are ignoring that doctrine here and

reaching out to decide a state constitutional question unnecessarily. The
                                   67

majority contends that prior deprivation of the right to counsel contrary

to a rule cannot serve as the ground for attacking an enhancement.

There are several problems with the majority’s position.

      In the first place, the State has not made this argument.       The

State’s only response to Young’s rule 2.61(2) argument has been to

disagree with Young’s interpretation of the rule.    The State does not

maintain that a prior violation of the right to counsel afforded by rule

2.61(2) is an insufficient basis for challenging an enhancement. Thus,

the majority is making its own argument for the State (although one I

doubt the State wants made).

      Second, the cases cited by the majority do not support its position.

They do not address whether denial of the right to counsel in violation of

a rule can serve as the basis for an attack on a later enhancement—the

issue presented here.    Rather, they address whether the enhancement

can be attacked based on violations other than denial of the right to

counsel.     See, e.g., State v. Johnson, 38 A.3d 1270, 1272, 1276 (Me.

2012) (refusing to invalidate enhancement based on earlier allegedly

faulty guilty plea colloquy where the defendant had been represented).

      In fact, the only out-of-state decisions that are on point go the

other way.     See State v. Hrycak, 877 A.2d 1209, 1218 (N.J. 2005);

Brisson v. State, 955 P.2d 888, 891–92 (Wyo. 1998). In Hrycak, the New

Jersey Supreme Court decided that it would invalidate enhancements

based on prior uncounseled misdemeanor convictions under principles of

“the sound administration of justice” and “our [the New Jersey] Court

Rules.”     See Hrycak, 877 A.2d at 1214–16 (internal quotation marks

omitted).    The plain language of our rule 2.61(2) supports the same

approach here.
                                      68

      Likewise, in Brisson, the Wyoming Supreme Court held that an

uncounseled conviction in violation of a Wyoming statute could not serve

as the basis for a later enhancement.       See Brisson, 955 P.2d at 891.

Thus, Brisson—like Hrycak—follows an approach similar to the one I

would follow here.

      Third, the majority’s invocation of judicial restraint is curious—and

just plain backwards.       The majority maintains it would go too “far” to

remedy a rule-based denial of counsel, so the court is “required to

proceed” under the Iowa Constitution. This inverts traditional notions of

judicial restraint. Suppose we adopted Young’s primary argument based

on the plain language of rule 2.61(2).         Then the legislature could

potentially modify or reverse our ruling if it disagreed with it.      But

because the majority has decided to fly solo under the Iowa Constitution,

and overrule our 2005 precedent without the benefit of meaningful

adversarial briefing, the legislature is stuck with our ruling absent a

constitutional amendment (or a change of heart from this court).

      Another very good reason to exercise restraint here is that Young

has provided only a minimal, bare-bones state constitutional argument.

The gist of Young’s position is that we should interpret the Iowa

Constitution “more stringently.”        I quote her article I, section 10

argument in its entirety:

            More stringent analysis under the Iowa Constitution.
      “Even where a party has not advanced a different standard
      for interpreting a state constitutional provision,” our
      Supreme Court “may apply the [federal] standard more
      stringently than federal case law.” State v. Pals, 805 N.W.2d
      767, 771–72 (Iowa 2011). See also State v. Bruegger, 773
      N.W.2d 862, 883 (Iowa 2009). Our Supreme Court has
      previously rejected the argument that the Iowa Constitution
      should be interpreted more stringently than the federal
      constitution in the right-to-counsel context. State v. Allen,
      690 N.W.2d 684, 690 (Iowa 2005).
                                    69
             Since the Allen decision, our supreme court has
      applied a more stringent analysis in the context of search
      and seizure and cruel and unusual punishment. See e.g.,
      State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (noting
      that the federal constitution “makes for an admirable floor,
      but it is certainly not a ceiling”); State v. Oliver, 812 N.W.2d
      636, 650 (Iowa 2012) (reiterating that Iowa courts utilized a
      more stringent review than federal courts in the context of
      cruel and unusual punishment); State v. Ochoa, 792 N.W.2d
      260, 291 (Iowa 2010) (rejecting the federal approach to
      warrantless searches of parolees). The court should consider
      doing the same under the right-to-counsel analysis.

Arguing that we can interpret the Iowa Constitution differently is not the

same as presenting an independent constitutional argument.               While

today’s opinion displays considerable workmanship, it would not be fair

to characterize it as the outcome of an adversarial litigation process.

      Even if we have to reach the constitutional issue, which we do not,

then I wonder why we are overruling State v. Allen, 690 N.W.2d 684 (Iowa

2005). We decided Allen unanimously less than a decade ago. There we

discussed (albeit in a shorter opinion) a number of the same federal and

out-of-state precedents the court discusses today. Id. at 687–88, 690–

91. We also relied on several state constitutional precedents the court

does not mention today.       Id. at 690; see People v. Reichenbach, 587

N.W.2d 1, 4–7 (Mich. 1998) (finding no right to counsel for misdemeanor

defendants    under     the    Michigan     Constitution   absent     actual

imprisonment); State v. Woodruff, 951 P.2d 605, 616 (N.M. 1997) (finding

no right to counsel for misdemeanor defendants under the New Mexico

Constitution absent actual imprisonment). Reading Allen today, I think

that ten-year-old decision stands the test of time.

      My colleagues’ rhetoric about Allen is harsh: “Remarkably, we did

not cite,” “mimicked,” “apparently not familiar,” “contains no discussion

at all,” “fundamentally flawed.”         This harshness in describing a

unanimous decision of this court is unwarranted. I believe this court in
                                           70

2005 understood how the criminal justice system operates in the real

world. 2

       The majority also asserts that “the Allen court did not have the

benefit of the Florida case declining to follow Nichols.” See State v. Kelly,

999 So. 2d 1029, 1048–49 (Fla. 2008).               Interested readers can peruse

Kelly for themselves and decide whether it is a game-changer. I think

not. Kelly was decided under the Florida Constitution, whose right to

counsel guarantee is framed somewhat differently than the right to

counsel in the Sixth Amendment or article I, section 10 of the Iowa

Constitution. See id. at 1050. Regardless, the reliability consideration

that propelled the Florida Supreme Court’s Kelly decision is one we

expressly considered, and rejected, in Allen. See Allen, 690 N.W.2d at

691–92. 3



       2The  majority also maintains that the Allen court erred in observing that the
Sixth Amendment and article I, section 10 are “textually similar.” See Allen, 690
N.W.2d at 690. In fact, they are. Both provisions apply to “all criminal prosecutions.”
Compare Iowa Const. art. I, § 10, with U.S. Const. amend. VI. Article I, section 6 also
covers another category of cases, namely, “cases involving the life, or liberty of an
individual.” Iowa Const. art. I, § 10. As noted by the majority, the contemporary
debates indicate this provision was meant to protect persons claimed to be subject to
return as fugitive slaves. See 2 The Debates of the Constitutional Convention of the State
of     Iowa     736–41      (W.    Blair    Lord     rep.,     1857),    available      at
www.statelibraryofiowa.org/services/collections/law-library/iaconst.
       3In  addition, the majority mentions Hawaii and North Dakota constitutional
precedent that preceded Allen. See State v. Sinagoga, 918 P.2d 228, 242 (Haw. Ct. App.
1996), overruled in part on other grounds by State v. Veikoso, 74 P.3d 575, 582 n.8
(Haw. 2003); State v. Orr, 375 N.W.2d 171, 177–79 (N.D. 1985). However, Hawaii’s
Constitution expressly provides, “The State shall provide counsel for an indigent
defendant charged with an offense punishable by imprisonment.” Hawaii Const. art. I,
§ 14 (emphasis added). Therefore, Sinagoga is hardly a relevant precedent here. As the
North Dakota Supreme Court noted in Orr, the wording of North Dakota’s constitution
also differs from that of the Sixth Amendment. See 375 N.W.2d at 177. Regardless,
Allen’s observation remains true that “[a] strong majority of the states that have
analyzed uncounseled misdemeanor convictions under their state constitutional rights
to counsel and due process have declined to forge new and different ground.” 690
N.W.2d at 690.
                                   71

      Finally, let me address one other matter. We have previously held

the right to counsel can be waived in a written plea that includes a

waiver of counsel. See State v. Majeres, 722 N.W.2d 179, 182–83 (Iowa

2006). That did not occur here. Nothing the court has said today affects

the Majeres holding.

      For the reasons indicated, I would vacate Young’s enhancement

because the prior uncounseled misdemeanor conviction did not comply

with rule 2.61(2) and Young did not waive the rule’s requirements.

      Waterman and Zager, JJ., join this special concurrence.
                                          72

                                                         #13–0983, State v. Young

ZAGER, Justice (concurring specially).

       I too would vacate Young’s enhanced sentence predicated on her

prior, uncounseled plea to a simple misdemeanor.                   Further, I would

follow Justice Mansfield’s special concurrence’s reasoning and vacate the

sentence based on Iowa Rule of Criminal Procedure 2.61(2), which by its

plain language answers the question: “In cases where the defendant

faces the possibility of imprisonment, the court shall appoint counsel for

an indigent defendant . . . .” I write separately to emphasize the need for

district courts to adequately inquire into and document both the State’s

intentions of requesting imprisonment and a defendant’s intention to

waive counsel.

       In this case, the record is devoid of any record of the initial

appearance for the prior misdemeanor. Correspondingly, it is devoid of

any record of the State’s intentions of requesting imprisonment or

whether the right to counsel was communicated to the defendant. 4 As

our rules properly note, an important inquiry at this stage of the criminal

proceedings is whether the State will be requesting imprisonment

because of the charge.         See Iowa R. Crim. P. 2.61(2); accord State v.
Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (“At all critical stages of the

criminal process, the Sixth Amendment affords an accused facing

incarceration the right to counsel.” (Emphasis added.)). If the State will


       4Here,  we deal with the right to counsel in the context of a simple misdemeanor.
Of course, attachment of the right to counsel is different when a defendant is charged
with an indictable offense. See State v. Nelsen, 390 N.W.2d 589, 591 (Iowa 1986)
(holding when the right to counsel attaches depends on when adversary proceedings are
“commenced” by reference to state law). In either case, however, a defendant may waive
his or her right to counsel. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006)
(“Although a defendant has such a right to counsel, a defendant can choose to waive
the right to counsel.”).
                                    73

be requesting imprisonment, the right to counsel attaches.       If not, it

doesn’t. This fact is readily determined through judicial inquiry of the

State and should be noted in the initial appearance record.

      Likewise, even if the right to counsel attaches, a defendant may

waive his or her right to be represented by counsel. Majeres, 722 N.W.2d

at 182 (“Although a defendant has such a right to counsel, a defendant

can choose to waive the right to counsel.”). As with the State’s intention

to pursue imprisonment, a defendant’s intention to waive the right to

counsel can be readily determined by the district court communicating

that right to the defendant and asking: “Do you want to waive your right

to counsel?”   This fact should also be noted in the initial appearance

record.

      While I am confident the district court made these inquiries when

the defendant appeared for her initial appearance, we have no record of

this. Consequently, this case highlights the need for district courts to

inquire into and document both the State’s intention to request

imprisonment and a defendant’s intention to waive counsel. As this case

illuminates, failure to do so can significantly affect future prosecutions.

On the other hand, the simple step of inquiring into and documenting

these matters ensures that enhanced sentences are upheld on appeal

when otherwise appropriate.

      Waterman and Mansfield, JJ., join this special concurrence.
