                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1667
                               Filed April 15, 2020


ERIC PEPPERS,
     Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR JOHNSON COUNTY,
     Defendant-Appellee.
________________________________________________________________


      Certiorari to the Iowa District Court for Johnson County, Chad A. Kepros,

Judge.



      Eric Peppers petitions for writ of certiorari, claiming he received an illegal

sentence. WRIT SUSTAINED AND REMANDED.



      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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AHLERS, Judge.

       Eric Peppers petitions for writ of certiorari, claiming he received an illegal

sentence.1 In 2000, he was convicted of sexual abuse in the second degree,

domestic abuse assault with a dangerous weapon, and false imprisonment. He

was sentenced to terms of incarceration not to exceed twenty-five years, two

years, and one year, respectively for each crime, with the sentences to be served

concurrently. We affirmed his convictions on direct appeal. State v. Peppers, No.

00–283, 2001 WL 810740, at *5 (Iowa Ct. App. July 18, 2001); see also Peppers

v. State, No. 16-0715, 2017 WL 1400877, at *3 (Iowa Ct. App. Apr. 19, 2017);

Peppers v. State, No. 12–1197, 2013 WL 6116815, at *2 (Iowa Ct. App. Nov. 20,

2013); Peppers v. State, No. 07–0865, 2008 WL 2042504, at *3 (Iowa Ct. App.

May 14, 2008) (affirming the denial of his applications for postconviction relief). In

the current case, Peppers filed a pro se motion to correct an illegal sentence,

raising fourteen separate grounds.      None of the grounds were supported by

meaningful factual or legal arguments.        Instead, the motion simply listed the

grounds.2 Less than three weeks after the filing of the motion, the district court


1 Peppers filed a “notice of appeal” from the district court. By order of our supreme
court, all files in this matter are considered as a petition for writ of certiorari.
2 The paragraph of Peppers’s motion at issue reads:

       11)       The grounds for which this motion is based upon are as follows
                 a) INEFFECTIVE ASSISTANCE OF COUNSEL
                 b) JUDICIAL MISCONDUCT
                 c) DISCRIMINATION
                 d) CRUEL AND UNUSUAL PUNISHMENT
                 e) OFFICIAL MISCONDUCT
                 f) MALICIOUS PROSECUTION
                 g) COERCION
                 h) THREATS AND INTIMIDATION
                 i) RUSHE [sic] TO JUDGEMENT
                 j) RULING IS CONTRARY TO LAW AND EVIDENCE
                                          3


summarily denied it without hearing or additional filings, stating it “has reviewed

the motion and finds that it should be and is DENIED.”

       Peppers now challenges the summary denial of his pro se motion to correct

an illegal sentence. “[T]he purpose of allowing review of an illegal sentence is ‘to

permit correction at any time of an illegal sentence, not to re-examine errors

occurring at the trial or other proceedings prior to the imposition of the sentence.’”

State v. Bruegger, 773 N.W.2d 862, 871–72 (Iowa 2009) (quoting Hill v. United

States, 368 U.S. 424, 430 (1962)); see also Goodwin v. Iowa Dist. Ct., 936 N.W.2d

634, 644 (Iowa 2019) (same). “We may correct an illegal sentence at any time,

but our review of the district court’s sentence is limited to errors at law. State v.

Parker, 747 N.W.2d 196, 203 (Iowa 2008) (citations omitted).

       In support of his challenge, Peppers cites Jefferson v. Iowa District Court,

which recognized Iowa Rule of Criminal Procedure 2.28(1) “affords a right to

counsel on a motion to correct an illegal sentence.” 926 N.W.2d 519, 525 (Iowa

2019). Peppers argues the district court violated this right by summarily denying

his pro se motion. In fairness to the district court, Peppers’s motion and the order

denying the motion were both filed before Jefferson was issued, so the district

court did not have the benefit of that decision when it ruled. Thus, we must first

decide whether Jefferson applies retroactively before addressing Peppers’s

challenge on its merits.




              k)   ABUSE OF DISCRETION
              l)   RACIAL BIAS
              m)   PREJUDICE
              n)   DENAIL [sic] OF DUE PROCESS
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       To determine whether a rule announced by the supreme court is applied

retroactively, the task is to determine whether the new rule is substantive or

procedural. This determination controls whether the rule is applied prospectively

only or retroactively as well. Making this determination is complicated by the fact

that rules of retroactive application depend on context. For example, when a new

rule is set by statute, if the rule is substantive, it applies prospectively only (with

exceptions); if it is procedural, it applies retroactively as well. See, e.g., Anderson

Financial Services, LLC v. Miller, 769 N.W.2d 575, 579 (Iowa 2009). However,

when a new rule is set by supreme court decision, if the rule is substantive, it

generally applies retroactively; if it is procedural, it applies prospectively only (with

exceptions). See, e.g., Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004). Here,

we have a hybrid situation in that we have a rule of criminal procedure at issue,

which is interpreted in the same manner as a statute. See State v. Mootz, 808

N.W.2d 207, 221 (Iowa 2012) (holding “Iowa court rules have the force and effect

of law,” and therefore the rules are interpreted in the same manner as statutes).

Rule 2.28(1) is not new in that it was in effect and had been in effect for quite some

time when the district court made its ruling in this case. It is not the adoption of

rule 2.28(1) that created the “new rule” announced by Jefferson. Rather, it was

Jefferson’s interpretation of the existing rule of criminal procedure that created the

“new rule” at issue (i.e., the rule that a defendant filing a motion to correct an illegal

sentence has the right to counsel pursuant to Iowa Rule of Criminal Procedure

2.28(1)).

       Substantive rules “apply retroactively because they ‘necessarily carry a

significant risk that a defendant stands convicted of an act that the law does not
                                          5

make criminal or faces a punishment that the law cannot impose.’” Thongvanh v.

State, 938 N.W.2d 2, 11 (Iowa 2020) (quoting Schriro, 542 U.S. at 352)).

Conversely, procedural rules have a “more attenuated” connection to innocence.

Id. While Jefferson recognized a right to counsel under rule 2.28(1), it also

acknowledged “serious constitutional problems” could result from denying indigent

defenders counsel during a motion to correct an illegal sentence. 926 N.W.2d at

524–25.    Accordingly, we find the rule announced in Jefferson is needed to

address “a significant risk” of wrongful conviction or sentencing during the criminal

proceeding, and we analyze this rule as a new substantive rule set by supreme

court decision.

       The ruling in Jefferson only clarified an ambiguity as to the scope of rule

2.28(1); it did not otherwise create a new rule. Id. at 524 (finding rule 2.28(1) “is

ambiguous,” and resolving that ambiguity by determining a defendant has the right

to counsel with respect to a motion to correct an illegal sentence). Where a court

announces a new rule of substantive law that simply “clarifies” ambiguities in

existing law, federal due process requires the decision to be retroactively applied

to all cases. Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016). Since Jefferson

merely clarified an ambiguity in an existing law (i.e., rule 2.28(1)), we conclude the

rule announced in Jefferson applies retroactively and we are free to address the

merits of the challenge made by Peppers.

       Turning to the merits, Peppers acknowledges he “did not specifically

request the assistance of court appointed counsel” before the district court. On

the other hand, there is nothing in the record suggesting Peppers was advised of

his right to counsel regarding his motion. When a pro se defendant is entitled to
                                          6


counsel, the “trial court has an absolute duty to” ensure the defendant voluntarily,

knowingly, and intelligently waived counsel before continuing.              State v.

Stephenson, 608 N.W.2d 778, 782 (Iowa 2000).              This includes the court’s

obligation to inform the defendant of the defendant’s right to counsel. In re Det. of

Mead, 790 N.W.2d 104, 109 (Iowa 2010) (“Implicit in a right to counsel is the right

to be informed of that right.”); State v. Hindman, 441 N.W.2d 770, 772 (Iowa 1989).

“The information a defendant needs to waive counsel intelligently depends on the

particular facts and circumstances surrounding each case.” State v. Majeres, 722

N.W.2d 179, 182 (Iowa 2006). Here, the record contains no indication Peppers

was informed of his right to counsel or that Peppers voluntarily, knowingly, and

intelligently waived his right to counsel. Since Jefferson had not been decided at

the time Peppers filed his motion and the district court ruled upon it, these

omissions are not surprising as none of the participants in the process, including

the prosecutor and the district court, would have been aware of their obligations in

this regard. Therefore, our decision is not meant as a criticism of the district court

or anyone else. However, now that Jefferson has been decided, we are obligated

to enforce its mandates.

       Due to the fact Jefferson makes it clear Peppers had the right to counsel in

this context, it was the State’s burden to prove a valid waiver of that right. See

Stephenson, 608 N.W.2d at 782 (“[T]he burden of proving a valid waiver [of

counsel] lies with the State.”). The State’s claim that “the lack of record material

about Peppers’s eligibility for appointed counsel is a result of his own failure to

make that request” turns the duty to inform a defendant of the right to counsel and

to ensure a proper waiver of that right on its head. Because the right to counsel
                                          7


attached to Peppers’s motion to correct an illegal sentence, the court erred in

denying his pro se motion without first informing Peppers of his right to counsel,

including his right to appointed counsel upon request and verification of indigency,

and obtaining a valid waiver of his right to counsel.

       Nevertheless, the State argues Peppers had no right to counsel because

he did not provide any basis for the court to find a true illegality in his sentence.

See Jefferson, 926 N.W.2d at 525 (stating the court need not appoint counsel

when a motion only challenges the underlying conviction and does not otherwise

seek to correct an illegality in the sentence). The State asserts that, of the fourteen

grounds raised in Peppers’s motion, only “cruel and unusual punishment” is based

on the claim of an illegal sentence, but Peppers never developed or supported this

ground and he appears to have abandoned it on appeal. Considering Peppers’s

self-represented status and the denial of his motion without a hearing, it is not

surprising that his motion is underdeveloped. While it remains to be seen whether

his motion has merit, he is entitled to counsel if desired and counsel may then

withdraw if it becomes clear no basis exists to assert a claim of an illegal sentence.

See id.

       Finally, the State argues any error resulting from the denial of Peppers’s

motion was harmless. At first glance, this argument appears to have some merit.

After all, since an illegal sentence can be challenged at any time, Peppers can file

a new motion at any time and ask for counsel in conjunction with that filing. He did

not even need to wait for resolution of this certiorari proceeding to do so. In spite

of the surface-level attractiveness of the State’s argument, however, it ignores our

precedent, which holds that harmless-error analysis does not apply when a
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defendant is not represented by counsel without securing a knowing, intelligent,

and voluntary waiver of the right to counsel. See Cooley, 608 N.W.2d at 17–18.

       Because Peppers was not advised of his right to counsel and did not waive

his right to counsel, the district court erred in summarily denying his pro se motion

to correct an illegal sentence without adequately addressing the representation

issue. Therefore, we sustain the petition for writ of certiorari and remand for further

proceedings. In light of our holding, we do not address his additional claim that

the court erred by denying his motion without making additional findings.

       WRIT SUSTAINED AND REMANDED.
