IN THE COURT OF APPEALS OF IOWA
No. 20

- 1681 Filed November 23, 2021
STATE OF IOWA, Plaintiff

- Appellee,

vs. MARK DAVID HOTZLER , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Pocahontas County, Kurt J. Stoebe , Judge.

A defendant challenges his convictions for stalking, harassment, and burglary

. REVERSED AND REMANDED.

Martha J. Lucey , State Appellate Defender, and Josh Irwin , Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, and Zachary Miller , Assistant Attorney General, for appellee.

Considered by Vaitheswaran, P.J. , and Tabor and Ma y, JJ.2

TABOR , Judge

. After representing himself, Mark Hotzler received guilty verdicts for t w o counts of s talking as a third or subsequent offense , two counts of first

- degree harassment, and one count of third

- degree burglary. Now he requests a new trial, arguing h e did not validly waive his right to counsel . Because we agree, as does the State, that the district court’s colloquy did not establish a knowing, intelligent, and voluntary waiver of counsel, we reverse and remand for a new trial. 1
A brief foray into the facts suffices . At trial, Hotzler testified that he “fell very much in love” with his nurse when he was receiving psychiatric treatment in the hospital in 2004

. But she limited her contact with Holtzer to her profession al role. Yet he would no t take no for an answer. Over the course of sixteen years, Hotzler would show up at the nurse’ s home and place of employment, le ave her gifts, and

wr i te her unwelcomed letters. 2 His conduct led to prior stalking convictions, no contact orders, and the present charges

. For these present charges, Hotzler asked to represent himself. Despite its reservations, the district court granted Hotzler’s request and appointed standby counsel. After the close of evidence, the jury convic ted Hotzler on two counts of

1 Hotzler also argues his conviction s w ere based on insufficient evidence or, in the alternative, that the verdicts were against the weight of the evidence. But because he did not preserve his sufficiency argument, we cannot reach it. See Meier v. Senecaut

, 641 N .W.2d 532, 537 (Iowa 2002); see also State v. Treptow , 960 N.W.2d 98, 109 (Iowa 2021) (rejecting plain error and collecting cases doing same ). A nd b ecause the remedy for a successful weight

- of

- the

- evidence claim is a new trial, and we’re already remanding for retrial, we need not address that alternative ground for relief

. See Iowa R. Crim. P. 2.24(2)(b)(6). 2 Hotzler even filed a “motion to marry” the nurse after this trial, asserting he would “walk a country mile” to be with her and, indeed, had “done that over and over again.”3

stalking, two counts of first

- degree harassment, and one count of third

- degree burglary. The district court denied Hotzler’s request for a new trial and sentenced
him to a term not to exceed twenty

- nine years

. We now turn t o the law. The U nited States Constitution grants a right to self

- representation

. See Faretta v. California , 422 U.S. 806, 834 (1975). B ut before defendants may exercise this option , the district court must ensure that the y knowing ly, voluntarily , and in telligent ly waive their right to counsel

. Iowa v. Tovar , 541 U.S. 77, 87

– 88 (2004). To that end, the district court “ must investigate as long and as thoroughly as the circumstances of the case ” demand. State v. Cooley , 608 N.W.2d 9, 15 (Iowa 2000) (quoting Von Moltke v. Gillies , 332 U.S. 708, 723

– 24 (1948)). Hotzler argues

— and the State concedes

— that his waiver was ineffective in two respects

. 3 First, the district court’s colloquy with Hotzler was incomplete. Seco nd, the court allowed Hotzler to proceed without counsel despite recognizing issues with the waiver.
T o the first point, courts impose “rigorous restrictions on the information that must be conveyed to the defendant, and procedures that must be observed, before permitting a waiver of the right to counsel at trial.” Patterson v. Illinois , 487 U.S. 285, 298 (1988). Fleshing out that rigor, our supreme court has stated : [Valid waivers] must be made with an apprehension of the nature of the charges, the stat utory offenses included within them, the range of allowable punishments thereunder, possible defenses to the

3 Because this issue concerns constitutional rights, our review is de novo. State v. Martin , 608 N.W.2d 445, 450 (Iowa 2000).4 charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. Cooley , 608 N.W.2d at 15 (quoting Von Moltke , 332 U.S. at 724 ); see also State
v. Jones , No. 19

- 0494, 2020 WL 3264377, at *4 ( Iowa Ct. App. June 17, 2020) ( quoting sample colloquy)

. But here the district court did not meet this standard, discussing only some of the six pending charges and omitting information about lesser

- included offenses and possible punishments , among other things

. Colloquy aside, the court itself recognized issues with the waiver, stating:
The court is not convince d that the defendant’s waiver of counsel has been done knowingly and intelligently. However, he is adamant in his desire to proceed pro se. The Court, therefore, ratifies the confirmation of . . . standby counsel to be available as a resource for the def endant during the course of the trial.
Because Hotzler’s insistence did not discharge the court’ s duty to ensure that he properly waived his right to counsel, the court shouldn’t have accepted the waiver

. See Cooley

, 608 N.W.2d at 15 (“A waiver that is n ot voluntary and intelligent cannot be accepted. In other words, [it] . . . is not valid.”). For the foregoing reasons, we agree with the parties. W e reverse and remand for a new trial. REVERSED AND REMANDED.