                    IN THE COURT OF APPEALS OF IOWA

                                 No. 3-1212 / 13-0386
                                  Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES ALLEN WEHR,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Webster County, Angela L. Doyle,

District Associate Judge.



      James Wehr appeals his conviction for operating while intoxicated,

claiming the court erred in refusing to allow him to proceed pro se at trial.

REVERSED AND REMANDED.



      Jennifer Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Cori Kuhn-Coleman, County Attorney, and Jennifer Benson, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
                                             2



BOWER, J.

       James Allen Wehr appeals his conviction for operating while intoxicated,

first offense. He claims the district court violated his Sixth Amendment right to

self-representation1 by refusing to allow him to represent himself at trial. The

record does not contain a specific finding by the district court that Wehr’s

morning-of-trial motion to represent himself was a tactic to delay the start of trial.

Accordingly, we reverse and remand for a new trial.

I.     Background Facts and Proceedings

       Wehr was charged with operating while intoxicated in June 2012. See

Iowa Code section 321J.2 (2011). At his July arraignment, Wehr appeared pro

se, entered a plea of not guilty, and requested a speedy trial. Trial was set for

August 21, 2012. Wehr appeared pro se the morning of trial and requested a

continuance in order to obtain counsel. Wehr waived his right to a speedy trial,

and the court continued trial to October 23, 2012.

       Wehr appeared pro se on the morning of trial. The court conducted a

colloquy and advised Wehr of his right to proceed without counsel pursuant to

Faretta v. California, 422 U.S. 806, 821 (1975).            See State v. Cooley, 608

N.W.2d 9, 14 (Iowa 2000) (recognizing a defendant’s “right to self-representation”

and requiring the district court to inform the defendant about the disadvantages




1
 Wehr’s Sixth Amendment claim is based on the United States Constitution. He does
not assert a similar violation based on the Iowa Constitution. Accordingly, we address
only the Sixth Amendment claim. See State v. Pals, 805 N.W.2d 767, 771–72 (Iowa
2011) (noting that while the language of the United States Constitution and the Iowa
Constitution may be nearly identical, “we jealously protect this court’s authority to follow
an independent approach under our state constitution”).
                                            3



of self-representation by an inquiry as long and as thorough as the

circumstances of the case demand).

       Wehr told the court he had talked to a few attorneys but he could not

afford their retainer. The court then discussed Wehr’s financial situation at length

before concluding a “deeper analysis of your financial situation makes it [clear]

that without court-appointed counsel you would not be able to have a lawyer in

this case.” The court told Wehr it would appoint the public defender to represent

him and also stated: “Because I’m going to appoint counsel for you, I’m going to

continue the trial in this matter.”

       That same day, October 23, the court filed an “Order of Continuance”

ruling “counsel should be appointed to represent [Wehr] and the jury trial

continued.” The court set a pretrial conference on October 31. The court also

filed a separate “Order of Appointment of Counsel.”

       Defense counsel filed an appearance on October 24. At the October 31

pretrial conference, Wehr’s attorney requested a continuance, and the State did

not resist. The court continued trial and set a pretrial conference on November 7,

2012. The court’s post-conference November 7 order stated “a jury trial will be

needed . . . this matter should be scheduled for a date certain.” The court also

ordered Wehr’s case “shall be tried in the LEADOFF position” on January 23 and

set a final pretrial conference on January 22.2 The court ordered the parties to

submit briefs and proposed jury instructions by January 17, 2013.




2
 The court’s original November 7 order set trial for January 22 with a pretrial conference
on January 21. The court, sua sponte, moved the trial and pretrial conference dates
                                          4



       On January 15 the court cancelled the pretrial conference “[d]ue to the

unavailability of the Court” and ordered the parties to appear for a pretrial

conference forty-five minutes before the January 23, 9:00 a.m. trial.          On the

morning of trial, the pretrial conference was held in chambers. Wehr informed

the court:

               JAMES WEHR: There is one motion at this point as a matter
       of record, I’m dismissing counsel and I will be going pro se. I don’t
       believe it’s in my best interests.
               THE COURT: Why?
               JAMES WEHR: We’ve gone through several meetings.
       Everything I bring up as far as what I feel is a violation of my rights,
       the law itself I believe to be unlawful, every time I’ve asked for a
       motion or for him to file a motion, I’ve been told it’s been frivolous.
       We’ve had several weeks, there’s a third party on here that hasn’t
       been subpoenaed or did we even depose them at all. I don’t see—
       the only thing that I’ve been pushed for is to enter a plea bargain,
       which I don’t agree with, so—and he has stated several times he
       has no defense and every defense I bring up I’ve been told it’s
       frivolous or can’t work that way, the law doesn’t work that way. I
       believe in my rights and I understand the State has their tolerance
       towards OWIs, I have zero tolerance when it comes to my rights.

       The court asked if defense counsel would like to respond.              Defense

counsel noted a response could “get into attorney-client privilege.” The hearing

then went off the record.

              THE COURT: Let’s go back on the record. The record
       should reflect that this is, in fact, the third time we’ve called a jury
       panel in on this matter.3 Initially, we had jury trial set in this matter
       due to a speedy trial demand by Defendant. Defendant at that time
       was unrepresented by counsel. On the morning of trial with a panel
       present in the courtroom, I met in chambers with Defendant and
       counsel for the State. At that time Defendant waived his right to



forward one day due to the January 21 court closure for the Martin Luther King Jr.
holiday.
3
  We note the jury venire was assembled and waiting only because the district court
cancelled Wehr’s pretrial conference set for the previous day.
                                             5



       speedy trial and asked for the appointment of counsel. Trial was
       continued due to that request.
              We again convened on a rescheduled trial date. Again
       called the jury panel in, and at that time the Court had a lengthy
       colloquy with Defendant on the record related to his representation
       by counsel.       Defendant at that time again requested the
       appointment of counsel. After the lengthy colloquy regarding
       Defendant’s ability to qualify for court-appointed counsel, the Court
       appointed the Public Defender to represent him in these matters.
              This is the third time now we have called a jury panel in to try
       this case and now Defendant is requesting that his counsel be
       dismissed. Based upon Defendant’s arguments to the Court this
       morning and the history of this case . . . I am going to decline
       Defendant’s request that counsel be dismissed. I do not find that
       Defendant has presented to the Court good cause4 for dismissal of
       counsel. In fact, based upon my lengthy conversations with
       Defendant in the past, I find that counsel should be—should
       continue to represent Defendant, so Mr. Wehr, your request that
       [Defense Counsel] be dismissed as your counsel is denied this
       morning.

       The jury trial commenced with court-appointed counsel representing

Wehr. The jury found Wehr guilty as charged.5 Wehr now appeals the court’s

ruling denying his request to represent himself at trial.



4
  A defendant who has been appointed a competent attorney must show good cause for
substitute counsel, and a defendant’s refusal without good cause to proceed with that
attorney is a voluntary waiver of the right to counsel. See State v. Martin, 608 N.W.2d
445, 449 (Iowa 2000). Where good cause does not exist to appoint substitute counsel,
the court requires a defendant “to choose between two options: continue using present
counsel or proceed pro se.” Id. (“The latter choice—proceeding pro se—requires a
careful line of questioning on the part of the trial court to determine whether the
defendant knowingly and intelligently waived his right to counsel.”); see State v. Hoppe,
88 P.3d 690, 694 (Idaho 2003) (reversing trial court’s denial of a request for self-
representation based on defendant’s failure “to show very good cause” and ruling a
court’s focus is not on the “validity” of the reason but on the “right to represent himself”—
a “defendant need not have a valid reason for seeking to act as his own attorney any
more than he or she needs a valid reason to exercise any other constitutional right”).
We note the district court did not give Wehr that choice or “conduct a careful line of
questioning” on the record.
5
   The court sentenced Wehr to ninety days in jail with all but forty-eight hours
suspended. The court ordered Wehr to pay $300 of $600 in statutory attorney fees. The
court imposed the applicable fines and surcharges, placed Wehr on supervised
probation for one year, and revoked his driver’s license for 180 days.
                                        6



II.   Standard of Review

      The parties dispute the applicable standard of review. Wehr claims our

review is de novo because his claim involves a constitutional issue—the court’s

denial of his Sixth Amendment right to represent himself. See State v. Rater,

568 N.W.2d 655, 657-58 (Iowa 1997) (stating before the Sixth Amendment right

to self-representation attaches, a defendant must voluntarily, clearly, and

unequivocally elect to proceed without counsel by knowingly and intelligently

waiving his Sixth Amendment right to counsel).

      The State claims our review is for an abuse of discretion, citing an

unpublished case: State v. James, No. 10-0307, 2011 WL 1136439, at *1–2

(Iowa Ct. App. Mar. 30, 2011) (noting other jurisdictions apply an abuse of

discretion standard where a defendant requests to represent himself during trial

but also noting our supreme court had not explicitly adopted that standard and,

therefore, conducting a de novo review of the defendant’s mid-trial request to fire

his attorney and represent himself).

      We review the constitutional issue de novo until such time as we have a

clear instruction from our supreme court to apply a different standard. See State

v. Martin, 608 N.W.2d 445, 449 (Iowa 2000) (stating we review a district court’s

denial of a request to substitute counsel for an abuse of discretion, but we review

de novo a claim the defendant’s Sixth Amendment rights were violated).
                                          7



III.     The Sixth Amendment Right to Self-Representation

         A.    Clear and Unequivocal Request by Defendant

         In 1975, the United States Supreme Court first recognized a defendant

has a constitutional right to represent himself under the Sixth Amendment.

Faretta, 422 U.S. at 821. The Court stated: “Unless the accused has acquiesced

in such representation, the defense presented is not the defense guaranteed him

by the Constitution, for, in a very real sense, it is not his defense.” Id. The Court

ruled:

         The right to defend is personal. The defendant, and not his lawyer
         or the State, will bear the personal consequences of a conviction. It
         is the defendant, therefore, who must be free personally to decide
         whether in his particular case counsel is to his advantage. And
         although he may conduct his own defense ultimately to his own
         detriment, his choice must be honored . . . .

Id. at 834 (citation omitted). In order to represent himself, the accused must

make the request “clearly and unequivocally.”        Id. at 835.   “Unlike the Sixth

Amendment right to counsel, which is in effect until waived, the right of self-

representation is not effective until asserted.” Rater, 568 N.W.2d at 658. Wehr,

at the pretrial conference on the morning of trial, “clearly and unequivocally”

invoked his constitutional right to represent himself. See id.

         B.    Timeliness of Defendant’s Request

         Faretta left several procedural questions unanswered, such as: “How soon

in the criminal proceeding must a defendant decide between proceeding by

counsel or pro se?” 422 U.S. at 852 (Blackmun, J., dissenting). Subsequently,

the United States Supreme Court ruled: “As the Faretta opinion recognized, the

right to self-representation is not absolute. The defendant must ‘voluntarily and
                                          8



intelligently’ elect to conduct his own defense and most courts require him to do

so in a timely manner.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161-

62 (2000) (emphasis added) (citations omitted) (citing John F. Decker, The Sixth

Amendment Right to Shoot Oneself in the Foot: An Assessment of the

Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall

Const. L.J. 483, 544-50 (1996)). Thus, even at the trial level “the government’s

interest in ensuring the integrity and efficiency of the trial at times outweighs the

defendant’s interest in acting as his own lawyer.” Id. at 162.

       Iowa is among a handful of jurisdictions yet to address what constitutes a

timely request under Faretta.        Wehr’s request was made at the pretrial

conference on the morning of trial, before the jury voir dire and before the jury

was impaneled. The question on appeal is whether the timing of Wehr’s request

to dismiss counsel and represent himself permitted the district court to deny his

request.6

       Our federal appellate court has ruled: “[T]he right to self-representation is

unqualified only if demanded before trial. Once trial commences, that right is

subject to the trial court’s discretion which requires a balancing of the defendant’s

legitimate interests in representing himself and the potential disruption and

possible delay of proceedings already in progress.” United States v. Wesley, 798

F.2d 1155, 1155 (8th Cir. 1986) (citation omitted).


6
  One year prior to Faretta, our supreme court recognized “the right of an accused to
represent himself becomes curtailed after commencement of the trial.” State v. Smith,
215 N.W.2d 225, 227 (Iowa 1974) (ruling a defendant waived his right to proceed pro se
by failing to make an unequivocal request—during trial the defendant asked “only to
conduct a portion of various cross-examinations” and repeatedly stated he wanted court-
appointed counsel to continue).
                                            9



       Other federal appellate courts have held a defendant’s motion for self-

representation is timely if advanced before the jury is picked—absent an

affirmative showing the motion was a tactic to secure delay. See, e.g., United

States v. Bankoff, 613 F.3d 358, 373 (3d Cir. 2010) (noting such requests had

been ruled timely “even when made on the eve of trial” and when “made on the

first day of trial but before jury selection” and concluding, “after the jury has been

empaneled—the right of self-representation is curtailed”); United States v.

Tucker, 451 F.3d 1176, 1180-82 (10th Cir. 2006) (listing cases and concluding

the “prevailing rule [holds] a motion for self-representation is timely if it is made

before the jury is impaneled, unless it is a tactic to secure delay”); United States

v. Washington, 353 F.3d 42, 46 (D.C. Cir. 2004) (stating a defendant’s request “is

timely if made before meaningful trial proceedings have begun”); United States v.

Walker, 142 F.3d 103, 108 (2d Cir. 1998) (concluding the defendant’s request—

made “after nineteen days” of voir dire and when jury selection “was virtually

completed”—was untimely); Chapman v. United States, 553 F.2d 886, 894 (5th

Cir. 1977) (recognizing courts have held “the right to self-representation is timely

if asserted before the jury is empaneled, at least where there is no suggestion

that the motion . . . is a tactic to secure delay”).

       A factually-similar case to this case is Buhl v. Cooksey, 233 F.3d 783 (3d

Cir. 2000). Defendant Buhl’s (second) request to proceed pro se was made on

the morning of trial and immediately before the jury was impaneled. 233 F.3d at

788. The trial court denied Buhl’s request, and the state appellate court affirmed

his conviction, finding the request “untimely because the judge would have had to
                                           10



continue the trial . . . .     [T]he prosecutor’s ‘legitimate demand for stability in

scheduling of cases was properly accorded priority.’” Id. (quoting State v. Buhl,

635 A.2d 562, 572 (N.J. Super. Ct. App. Div. 1994)).

       Buhl filed a petition for habeas corpus, claiming the trial court failed to

comply with Faretta.     Id.    The Third Circuit granted relief and explained an

appellate court first determines whether a defendant’s request “triggered an

inquiry under Faretta. If it did, [the appellate court] must then determine whether

the [trial] court’s inquiry was adequate”—the trial court must “fully inform [the

defendant] in some manner of the nature of the charges against him, the possible

penalties, and the dangers of self-representation.” Id. at 791. The court ruled

once Buhl asserted his right to proceed pro se, the “trial court was obligated to

undertake an appropriate inquiry under Faretta even though Buhl’s request

apparently rested upon nothing other than dissatisfaction with defense counsel.”

Id. at 794.

       The Third Circuit clarified that the trial court’s inquiry is required even

when the court suspects the defendant is “‘attempting to disrupt the

administration of justice by manipulative requests for, and dismissals of,

counsel.’” Id. at 796 (quoting United States v. Welty, 674 F.2d 185, 189 (3d Cir.

1982)). Specifically:

               A court may conclude that a defendant who intends nothing
       more than disruption and delay is not actually tendering a knowing,
       voluntary and intelligent waiver of counsel, and has not
       unequivocally asserted the constitutional right to conduct his/her
       own defense. While this determination may well present difficulties,
       it is the kind of inquiry district courts routinely make. However, the
       court cannot properly make such a determination without first
       conducting an adequate inquiry under Faretta.
                                        11




Id. at 797 (citations omitted).

       While recognizing the “right of self-representation is not a license to

disrupt the criminal calendar, or a trial in progress,” the court concluded Buhl’s

request was timely because the trial was not in progress “prior to jury selection.”

Id. at 797-98 (collecting cases from other circuits).        The Buhl court also

determined the trial court failed to conduct an adequate inquiry:

               Buhl did not request substitute counsel . . . . [I]n a case
       where a defendant only asks to proceed pro se, the court must
       make some inquiry about a defendant’s reasons for the
       request . . . . [T]he trial judge must “[t]ake particular pains in
       discharging . . . these inquiries. Perfunctory questioning is not
       sufficient. This is true even when the trial judge strongly suspects
       that the defendant’s requests are disingenuous and designed solely
       to manipulate the judicial process and to delay the trial. Although
       such tactics by an accused cannot be allowed to succeed, at the
       same time, a trial cannot be permitted to go forward when a
       defendant does not fully appreciate the impact of his actions on his
       fundamental rights.”

Id. at 798-99 (quoting Government of Virgin Islands v. James, 934 F.2d 468, 471

(3d Cir. 1991)).

       We, like the majority of courts addressing this issue, conclude a trial court

must be “permitted to distinguish between a manipulative effort to present

particular arguments and a sincere desire to dispense with the benefits of

counsel.” United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000). The

right of self-representation does not exist “to be used as a tactic for delay, for

disruption, for distortion of the system, or for manipulation of the trial process.”

Id. (internal citations omitted). But “[d]elay per se is not a sufficient ground for

denying a defendant’s constitutional right to self-representation.”         Fritz v.
                                        12



Spalding, 682 F.2d 782, 784 (9th Cir. 1982); see Avila v. Roe, 298 F.3d 750, 753

(9th Cir. 2002) (granting habeas corpus relief when a defendant’s motion was

made prior to jury selection and the trial court found the request untimely

because the jury “is waiting to come in”).

       Here, Wehr’s request was made prior to the jury being impaneled.

Consequently, most courts would rule his request timely “unless his request was

made for the purpose of delaying the proceedings.” Avila, 298 F.3d at 753; see

United States v. Washington, 596 F.3d 926, 940 (8th Cir. 2010) (stating “this

court expressly premised its holding [in Edelmann] on ‘the special facts’

present”); United States v. Edelmann, 458 F.3d 791, 809 (8th Cir. 2006)

(upholding the denial of a request to proceed pro se—made four to five days

before trial—“given the special facts of this case”); see also Tucker, 451 F.3d at

1181-82 (stating a prior case—finding untimely a request made six days before

trial—did not create a general rule at odds with other circuits’ jury-had-not-been-

impaneled general rule because the prior case’s ruling was premised on “specific

circumstances”).

       Wehr utilized counsel for three months and his reasons for seeking self-

representation included an assessment his counsel thought the defenses he

wanted to raise were frivolous. On appeal, Wehr claims he was not attempting to

delay the trial and points out he did not seek a continuance when he requested to

proceed pro se. At the time the court was notified of Wehr’s request, the court

failed to inquire whether Wehr fully appreciated the impact of his action. Rather,

the court relied upon the lack of good cause for the dismissal of his attorney and
                                         13



the history of the case. The defendant has a right to proceed pro se if the

request is timely, he fully appreciates the facts, and his request is not intended as

a delay tactic. Without a proper inquiry, the district based its decision on an

improper standard and inquiry.

       Viewing the record in the context of the above authorities, we conclude the

record is unclear as to whether Wehr’s request was an untimely request “made

for the purpose of delaying the proceedings.”        See Avila, 298 F.3d at 753.

Importantly, the district court did not ask Wehr if he was requesting a

continuance or question Wehr to probe for evidence of any dilatory intent. Nor

did the district court find Wehr’s motion was a tactic to delay the start of trial.

See United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000)

(upholding the trial court’s specific finding the request was “merely an effort to

again delay the trial” where the defendant coupled a first-day-of-trial request for

self-representation with “yet another motion for continuance to prepare” and with

a threat to “stand mute”).

       Upon our de novo review of the record—a record devoid of the necessary

on-the-record questions and findings—we reverse and remand for a new trial.

See Turner, 644 F.3d at 720 (“Even though a defendant may conduct his own

defense to his detriment by relinquishing the benefits associated with the right to

counsel, his choice must be honored.”); Rater, 568 N.W.2d at 661 (“Harmless

error analysis is not applicable to Sixth Amendment right to self-representation

questions.”).

       REVERSED AND REMANDED.
