                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2070
                              Filed March 21, 2018

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHANE TYLER SMITH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, James B. Malloy,

District Associate Judge.



      A defendant appeals his conviction for failure to register as a sex offender.

AFFIRMED.



      Shawn Smith of The Smith Law Firm, P.C., Ames, for appellant.

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

General, for appellee.



      Considered by Potterfield, P.J., Mullins, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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POTTERFIELD, Presiding Judge.

       Shane Smith pled guilty to failure to register as a sex offender in violation

of Iowa Code section 692A.111 (2016). Smith argues his waiver of counsel prior

to his plea and sentencing was not knowing, voluntary, and intelligent. Smith also

argues the State failed to comply with the plea agreement and his plea lacked a

factual basis.

       Smith was required to register as a sex offender under Iowa Code section

682A. A compliance check in July 2016 revealed Smith had not resided at the

shelter he had given in his registration for three weeks. Smith was charged with

failure to register as a sex offender.

       During arraignment, Smith requested a new court-appointed attorney. The

district court informed Smith that if he wanted a new attorney, he would have to

retain counsel with his own funds. Smith asked to represent himself. The court

advised against self-representation.       Later, the court advised against self-

representation again, stating:

       If at some point you change your mind and you decide you do want
       to have a court-appointed attorney, you can always reapply and I’ll
       appoint the public defender’s office. . . . But Mr. Smith, I would really
       caution you against representing yourself, and [your previously
       appointed attorney] is a very, very good attorney, and she’ll do an
       excellent job representing you. So if you change your mind, we’ll
       reappoint the public defender’s office.

About two months later, when Smith had reached a plea agreement with the

prosecutor, a plea hearing took place. Smith appeared without counsel, and the

district court engaged in a colloquy with Smith regarding his self-representation:

       The first thing I have to go through with you is that you intend to
       represent yourself and you’re waiving your right to an attorney. I’m
       not trying to talk you out of representing yourself, but I want to make
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         sure you understand you do have the right to an attorney and if you
         can’t afford counsel, I would appoint one for you at public expense.

Later the district court asked:

                   Q: Do you understand you have the right to an attorney and
         that I would appoint an attorney for you if you’re indigent? A: Yes,
         your Honor.
                   Q: Could you hire an attorney yourself if you wanted to? A:
         No, your Honor.
                   Q: Would you like to make application for court-appointed
         counsel? A: No, your Honor.
                   Q: Do you understand I would appoint one for you if you
         wished? A: Yes, your Honor.
                   Q: Do you understand that many people would consider it a
         substantial benefit to be represented by an attorney because an
         attorney trained in the law might see some defense you might have
         to the charge that you as a lay person might not see yourself? Do
         you understand that? A: Yes, your Honor.
                   Q: Further, you realize that you’re facing a jail sentence in this
         case. It’s a class “D” felony, so you’re facing up to five years in prison
         on the charge and a maximum fine of $7,500? A: Yes, your Honor.
                   ....
                   Q: Do you want to have any more time to think about whether
         you want to be represented by an attorney, or do you want to just
         simply waive your right to counsel and proceed with your guilty plea
         today? A: Yes, your Honor.
                   Q: And why are you wishing to waive your right to an attorney?
         A: . . . I just—I want to get it done with as soon as possible. I’ve been
         in jail for like 90 days now, and I’m guilty.

         Smith argues his waiver of counsel was not knowing, voluntary, and

intelligent because the district court’s colloquy regarding self-representation was

insufficient. The State agrees the colloquy during arraignment, upon which Smith’s

appellate brief relies, was insufficient but argues the district court’s pre-plea

colloquy ensured Smith’s waiver of counsel was knowing and voluntary. We

agree.

         “We conduct a de novo review when the defendant’s Sixth Amendment right

to counsel or self-representation is at issue.” State v. Johnson, 756 N.W.2d 682,
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686 (Iowa 2008). “A defendant has a Sixth and Fourteenth Amendment right to

self-representation under the United States Constitution.” State v. Cooley, 608

N.W.2d 9, 14 (Iowa 2000). “When an accused manages his own defense, he

relinquishes, as a purely factual matter, many of the traditional benefits associated

with the right to counsel. For this reason, in order to represent oneself, an accused

must knowingly and intelligently forgo those relinquished benefits.” State v. Rater,

568 N.W.2d 655, 658 (Iowa 1997).

               The Supreme Court has imposed “rigorous restrictions on the
       information that must be conveyed to a defendant, and the
       procedures that must be observed, before permitting a waiver of the
       right to counsel at trial.” A searching or formal inquiry is among the
       procedures required before an accused’s waiver of counsel may be
       accepted. While the extent of a trial court’s inquiry may vary
       depending on the nature of the offense and the background of the
       accused, some sort of meaningful colloquy must be accomplished.

Cooley, 608 N.W.2d at 14–15 (citations omitted). A voluntary and intelligent waiver

includes the “nature of the charges, the statutory offenses included within them,

the range of allowable punishments thereunder, possible defenses to the charges

and circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the whole matter.” Id. at 15.

       Here, the district court engaged in a meaningful colloquy with Smith

regarding his waiver of his right to counsel. During the plea-change hearing, the

district court discussed the nature of the charges, allowable punishments, possible

exculpatory evidence, and the benefits to representation by counsel. The court

asked the prosecutor about exculpatory evidence and the terms of the plea

agreement. Smith insisted on proceeding without counsel. Smith’s waiver of

counsel was knowing, voluntary, and intelligent.
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      Next, Smith argues the State failed to comply with the plea agreement and

his plea lacked a proper factual basis. However, Smith did not file a motion in

arrest of judgment. He cannot claim ineffective assistance of counsel as an

exception to error preservation because he represented himself. Smith claims

error should be preserved because his waiver of counsel was not knowing,

intelligent, and voluntary. Because we find Smith’s waiver of counsel was knowing,

intelligent, and voluntary, we do not reach Smith’s claims regarding the plea

agreement and a factual basis. We affirm.

      AFFIRMED.
