                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0595
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROMEO CASINO HARDIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      The defendant challenges his sentence for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       In 1996, Romeo Hardin, then fifteen years old, killed Augustus Nance.

Hardin was convicted of murder in the first degree, in violation of Iowa Code

sections 707.1 and 707.2 (1995), and sentenced to life in prison without the

possibility of parole.   Almost twenty years later, his sentence was vacated

pursuant to a newly-created sentencing scheme for juvenile offenders.            See

State v. Null, 836 N.W.2d 41, 74–75 (Iowa 2013); State v. Pearson, 836 N.W.2d

88, 95–98 (Iowa 2013); State v. Ragland, 836 N.W.2d 107, 121–22 (Iowa 2013).

The district court held a resentencing hearing and sentenced Hardin to life in

prison without the possibility of parole. Subsequently, in State v. Sweet, 879

N.W.2d 811, 839 (Iowa 2016), the supreme court held “juvenile offenders may

not be sentenced to life in prison without the possibility of parole.” The supreme

court vacated Hardin’s sentence and remanded the case for resentencing in

accord with Sweet. See State v. Hardin, No. 14-0978, 2016 WL 4958157, at *1

(Iowa Sept. 16, 2016).     On remand, Hardin waived his right to counsel and

elected to represent himself during the sentencing hearing. The district court

sentenced Hardin to life in prison with the possibility of parole. Hardin timely filed

this appeal.

       Hardin contends he is entitled to a new sentencing hearing because his

waiver of the right to counsel was not knowing and voluntary. We review a claim

that a defendant’s right to counsel was violated de novo. See State v. Martin,

608 N.W.2d 445, 449 (Iowa 2000).         The State has the burden of proving a

defendant’s waiver of counsel is valid. See State v. Rater, 568 N.W.2d 655, 660

(Iowa 1997).
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       In a state criminal proceeding, the defendant has a Sixth and Fourteenth

Amendment right to counsel at all critical stages of the criminal proceeding and

the corollary right to self-representation. See Iowa v. Tovar, 541 U.S. 77, 80–81

(2004) (providing right to counsel exists “at all critical stages of the criminal

process”); Faretta v. California, 422 U.S. 806, 821 (1975) (“The Sixth

Amendment does not provide merely that a defense shall be made for the

accused; it grants to the accused personally the right to make his defense.”).1

Sentencing is a critical stage of the criminal process at which the defendant has

the right to counsel and the right to self-representation. See State v. Boggs, 741

N.W.2d 492, 506 (Iowa 2007).

       Before the right to self-representation attaches, the defendant must

voluntarily elect to proceed without counsel by “knowingly and intelligently”

waiving his Sixth Amendment right to counsel. Faretta, 422 U.S. at 835; see

Rater, 568 N.W.2d at 658. Before the district court accepts the request, the court

must make the defendant “aware of the dangers and disadvantages of self-

representation, so that the record will establish that the defendant ‘knows what

he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835

(quoting Adams v. United States, 317 U.S. 269, 279 (1942)). This requires the

district court to conduct a colloquy with the defendant. See Hannan v. State, 732

N.W.2d 45, 55 (Iowa 2007).        The degree of inquiry required varies with the
1
 The defendant also raises a claim under article I, section 10 of the Iowa Constitution.
The Iowa Supreme Court has not explicitly recognized a right to self-representation
arising under the Iowa Constitution. We need not recognize such a right to resolve the
defendant’s claim. The defendant does not suggest the Iowa claim would be resolved
any differently than his federal claim. “Where a party raises issues under the Iowa
Constitution and the Federal Constitution, but does not suggest a different standard be
applied under the Iowa Constitution, we generally apply the federal standard.” State v.
Edouard, 854 N.W.2d 421, 452 (Iowa 2014) (Appel, J., concurring specially).
                                         4

circumstances of the case and the stage of the proceedings. See Tovar, 541

U.S. at 88. The waiver inquiry must consider “what purposes a lawyer can serve

at the particular stage of the proceedings in question, and what assistance he

could provide to an accused at that stage” before a waiver will be granted.

Patterson v. Illinois, 487 U.S. 285, 298 (1988). The Court defines “the scope of

the right to counsel by a pragmatic assessment of the usefulness of counsel to

the accused at the particular proceeding, and the dangers to the accused of

proceeding without counsel.” Id.; see also State v. Cooley, 608 N.W.2d 9, 15

(Iowa 2000).

      We conclude the colloquy was sufficient to establish Hardin knowingly and

voluntarily waived his right to counsel and knowingly and voluntarily elected to

represent himself during the sentencing hearing. “District court judges are often

called upon to navigate the ‘thin line’ presented in cases such as this, where they

must refrain from ‘improperly allowing the defendant to proceed pro se, thereby

violating his right to counsel, and improperly having the defendant proceed with

counsel, thereby violating his right to self-representation.’” Hannan, 732 N.W.2d

at 54 (quoting Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995)). Here, the

district court appropriately navigated this thin line.   The district court advised

Hardin of the nature of the proceeding. The district court advised Hardin that

Hardin would be advantaged by retaining counsel during the sentencing

proceeding and disadvantaged by representing himself. The district court also

explicitly inquired of Hardin whether his decision was knowing and voluntary.

Hardin answered in the affirmative. Hardin was clear and unequivocal that he

wished to proceed without counsel and represent himself.
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      While Hardin is correct that the district court failed to explicitly advise him

of the possible sentence prior to accepting Hardin’s waiver, we conclude that fact

is of little consequence under the circumstances. First, the sentencing hearing at

issue was the third sentencing hearing in this case. Hardin was thus familiar with

the sentencing process. Second, at the second sentencing hearing, Hardin also

sought to represent himself and went through a colloquy and signed a written

waiver of counsel. Hardin was thus familiar with his right to counsel and his right

to self-representation and the risks associated with proceeding on his own.

Third, there was only one statutorily authorized sentence available to the district

court: a life sentence with the immediate possibility of parole. See Iowa Code §

902.1(2)(a)(3). The ultimate utility of counsel was thus limited. Finally, Hardin

agreed to have stand-by counsel available, and the district court appointed

stand-by counsel.

      Hardin also contends his waiver was not knowing and voluntary because

the district court failed to warn him of the possibility of waiving future claims.

Specifically, he argues he could have built a better record to support claims

related to the practices and procedures of the parole board in assessing his

fitness for parole.   This argument is unavailing.      The district court had no

obligation to inform the defendant of the practices and procedures of the parole

board and potential claims related to the same. Those practices are subject to

challenge in an administrative appeal and are only subject to judicial review upon

exhaustion of administrative remedies. See Johnson v. Iowa Dep’t of Corrs., 635

N.W.2d 487, 489 (Iowa Ct. App. 2001). Hardin, should he desire, will have the

opportunity to assert his claims in administrative proceedings.
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      Hardin raises several additional challenges in his pro se briefs. His non-

jurisdictional claims are time-barred and not subject to the exception for

“ground[s] of fact or law that could not have been raised within the applicable

time period.” See Iowa Code § 822.3, .8; see also Hardin v. State, No. 10-1308,

2012 WL 1864347, at *1 n.1 (Iowa Ct. App. May 23, 2012) (dismissing similar

claims raised by this defendant in an earlier proceeding). Hardin’s jurisdictional

challenges are without merit.      See Iowa Const. art. V, § 6; Iowa Code

§§ 602.6101, 803.1(1)(a)-(d), 803.1(2).

      For the foregoing reasons, we affirm the defendant’s sentence.

      AFFIRMED.
