IN THE COURT OF APPEALS OF IOWA

No. 19-1718

Filed October 21, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CURTIS EDWARD HAWKINS,

Defendant-Appellant.

________________________________________________________________

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

District Associate Judge.

Defendant appeals from his conviction and sentence for operating while 

intoxicated, third offense. AFFIRMED.

Daniel J. Rothman and Nicholas A. Carda of McEnroe, Gotsdiner, Brewer, 

Steinbach and Rothman P.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

We are asked to travel back to 2007 to answer the question presented here. 

Without the benefit of legal counsel, Curtis Hawkins pled guilty to operating while 

intoxicated (OWI), first offense. When asked if he wanted to proceed without 

counsel, Hawkins answered, “Yes, I do.” Hawkins pled guilty again in 2016 to a 

second offense OWI. After being charged with a third OWI, Hawkins learned the 

previous convictions for OWI served as grounds for enhanced punishment.

On appeal, he challenges the use of his first, uncounseled conviction for 

OWI as an enhancement in this case. We agree with the State that Hawkins failed 

to show his prior waiver of counsel was not made competently, knowingly, and 

intelligently. For the reasons set out below, we affirm the trial court’s ruling.

Facts and Proceedings. 

On April 9, 2019, Hawkins was charged with OWI, third offense. His first 

OWI charge was resolved by an uncounseled guilty plea on September 4, 2007. 

Because Hawkins had sufficient income to hire his own counsel, he was not offered 

legal counsel at the State’s expense. Still, he chose to forgo counsel in the OWI, 

first offense matter. At the 2007 plea hearing, the court addressed the waiver of 

an attorney with the thirty-three year old college-educated Hawkins:

THE COURT: All right. And, Mr. Hawkins, I’ll ask you the 

same question. You’re charged also with operating while 

intoxicated, section 321J.2 of the Iowa Code. I see that you made 

an initial appearance on August 14th. At that time you were informed 

of your right to have court-appointed attorney and the judge that saw 

you indicated that you had sufficient income to hire your own 

attorney. Has anything changed about your financial circumstances 

since then, Mr. Hawkins?

HAWKINS: No, Your Honor, it has not.

THE COURT: Do you wish to proceed today without an 

attorney then?
3

HAWKINS: Yes, I do.

Later in the plea proceeding the trial court again addressed the right to counsel, 

stating:

You do have to answer out loud so she can get your response. Then 

at this point, I would like to tell you of the rights that you would be 

giving up if you should decide to plead guilty here today and, as I 

said, basically you have the right to a trial and each of you would 

have the right to have an attorney with you at that trial if you chose 

to have one. You wouldn’t have to have one, but you could choose 

to have one and if you couldn’t afford one, we could appoint one for 

you.

Hawkins proceeded to plead guilty after indicating he understood he was giving up 

his rights. He was sentenced to two days in jail, a fine, and surcharges. 

Unfortunately, this was not the end of Hawkins legal troubles. In 2016, he was 

charged with OWI, second offense. With the help of legal counsel in the second 

2016 OWI case, Hawkins again pled guilty. 

Now, after being charged with a third OWI and realizing that his criminal 

history complicates the current case, Hawkins filed a motion to adjudicate law 

points. In that motion, he argued his first conviction for OWI could not be used to 

enhance his current charge because he pled guilty without the benefit of counsel

and was not advised of the dangers of self-representation. The trial court denied 

the motion. After a trial on the minutes, Hawkins was found guilty and sentenced 

to an indeterminate term not to exceed five years in prison, all suspended but for 

thirty days, less time served, and placed on probation for not less than two but no 

more than five years. Hawkins was also required to pay a fine, court costs, and 

surcharges. Hawkins appeals the conviction and sentence.
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Preservation of Error and Standard of Review. 

The State asserts that Hawkins failed to preserve error on his claim that the 

holding of State v. Tovar 1 should be adopted under article I, section 10 of the Iowa 

Constitution. The State claims that Hawkins never made that argument below. 

Yet we find in the record below that Hawkins preserved this argument.2 Hawkins’s 

basic argument at trial was that Iowa cases following the Tovar analysis should 

require the trial court to “make the defendant aware of the dangers and 

disadvantages of self-representation so that the record will establish that he knows 

 

1

Iowa v. Tovar, 541 U.S. 77, 78–79 (2004) overruled State v. Tovar, 656 N.W.2d 

112, 121 (Iowa 2003). In State v. Tovar, our supreme court found that the 

defendant’s guilty plea was constitutionally inadequate (under the federal 

constitution) because waiver of a right to an attorney was not knowing and 

intelligent. 656 N.W.2d at 121. Our supreme court ruled that a defendant must be 

advised specifically that waiving counsel’s assistance “in deciding whether to plead 

guilty” (1) entails “the risk that a viable defense will be overlooked” and (2) deprives 

them of “the opportunity to obtain an independent opinion on whether, under the 

facts and applicable law, it is wise to plead guilty.” Id. The United States Supreme 

Court held 

neither warning is mandated by the Sixth Amendment. The 

constitutional requirement is satisfied when the trial court informs the 

accused of the nature of the charges against him, of his right to be 

counseled regarding his plea, and of the range of allowable 

punishments attendant upon the entry of a guilty plea.

Tovar, 541 U.S. at 81.

2 Hawkins argued:

The most likely language and what we believe would be the most 

appropriate language is still the Tovar—State vs. Tovar case 

language; but even if this court believes that, well, we’ve got a clear 

U.S. Supreme Court case that says that’s not part of the federal 

constitution, and according to the State in this case no Iowa case 

that says it should be part of the Iowa constitution—which after 

reading [State v. Hannan, 732 N.W.2d 45 (Iowa 2007)] we

respectfully disagree—we still believe that Hannan sets out a clear 

statement on page fifty-three that a sufficient colloquy for waiving 

an attorney at least references in some way possible defenses to a 

charge and circumstances in mitigation.

(Emphasis added.)
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what he is doing and his choice is made with eyes open.” Hawkins continued with 

arguments referencing the Iowa Constitution, and the trial court noted

Now, I believe the Tovar case sets a lower standard than obviously 

Justice [Ternus] raised in the initial Tovar decision by the Iowa 

Supreme Court. Our Iowa Supreme Court has also shown that it is 

not bound just by the U.S. Constitution in protecting an individual’s 

rights, that they will proceed under the Iowa Constitution which has 

been alleged here also; but at this stage I will find that the State can 

use that, so I’ll deny your request. 

(Emphasis added.) 

So, we address the waiver issue under both the United States and Iowa 

Constitutions. State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (finding an 

argument, even one implicating constitutional rights, is preserved when it is raised 

and decided by the trial court).

Generally, we review constitutional claims de novo. State v. Majeres, 722 

N.W.2d 179, 181 (Iowa 2006). But, as is the case here, where there is no factual 

dispute and the only issue is whether a court may constitutionally use a prior 

uncounseled misdemeanor conviction to enhance a subsequent crime, our review 

is for the correction of errors at law. Id.

Analysis. 

Hawkins waived counsel for his 2007 guilty plea proceeding. Under both 

the United States Constitution and the Iowa Constitution, at critical stages of the 

criminal process an accused has the right to counsel. Id. at 182. And a plea 

proceeding is a critical part of the process. Id. But a defendant may waive the 

right to counsel. Id. With this focus here on Hawkins’s uncounseled conviction, 

he had the burden to show that his waiver of counsel was not knowingly and 

intelligently made with sufficient awareness of relevant circumstances. Id. at 182; 
6

see also State v. Taylor, No. 10-1555, 2011 WL 3689010, at *2 (Iowa Ct. App. Aug.

24, 2011) (clarifying that the burden of proof depends on whether there is a direct 

challenge to a conviction, in which case the State has the burden, or if it involves 

an attack on an uncounseled conviction, then the defendant has the burden to 

show involuntary waiver). Still when waiver of counsel is at the plea stage of 

proceedings, as opposed to the trial stage, the defendant “requires less rigorous 

warnings as to the waiver of plea counsel.” Majeres, 722 N.W.2d at 182. 

To put it simply, Hawkins argues the colloquy required at the time of his 

2007 plea had to include notice that a plea to OWI might be used as an 

enhancement for future convictions and he should have been told that an attorney 

would be able to “see things you could not see as a layperson.” While Hawkins 

urged that Hannan controls and requires the court to both admonish a defendant 

as to the usefulness of an attorney and address the dangers of continuing without 

counsel, that case involved a defendant representing himself pro se at the trial 

stage. See 732 N.W.2d at 52–53. We find that at the plea stage, Majeres is 

applicable rather than Hannan.

Majeres also faced a third-offense OWI charge. Majeres, 722 N.W.2d at 

181. In the first-offense case she pled guilty with the guidance of legal counsel. 

Id. But, by written guilty plea, Majeres pled guilty to an OWI, second offense,

without the benefit of an attorney. Id. Her written plea “acknowledged the charge 

against her as OWI, second offense; her right to counsel; her right to plead not 

guilty; the attendant rights of trial; the maximum and minimum sentences; and that 

her plea was being made intelligently and voluntarily.” Id. When faced with an 

enhanced punishment for her third-offense OWI, Majeres argued that the
7

uncounseled OWI, second offense, could not be used to enhance the charge to 

OWI, third offense. Id. Disagreeing with her position, the court in Majeres found

Majeres failed to meet her burden of proving she did not voluntarily, 

knowingly, and intelligently waive her right to counsel in the Sioux 

County proceeding. In the present case, Majeres testified she did 

not have the money for an attorney and decided not to apply for 

court-appointed counsel in the Sioux County proceeding. When 

questioned why she did not apply for court-appointed counsel, she 

responded, “I didn’t feel I wanted one or needed one.” Prior to 

entering her plea of guilty in that case, Majeres obtained a copy of 

the police report and reviewed it. She acknowledged there was 

nothing in the police report that led her to believe she wanted to 

speak to an attorney prior to entering her guilty plea. She further 

testified she was comfortable in proceeding on her own without an 

attorney.

Id. at 183. Even though the supreme court analyzed the waiver issue under the 

United States Constitution instead of our state constitution, it was noted that the 

Iowa Constitution was in line with the United State Constitution regarding the use 

of uncounseled misdemeanor convictions. Id. at 182 (“Iowa’s right-to-counsel 

guarantee affords no greater protection than the federal constitution regarding the 

use of prior uncounseled misdemeanor convictions . . . .”). When the trial court 

informs the defendant of the nature of the charges against that person, of their

right to be counseled regarding their plea and about the range of allowable 

punishments the Sixth Amendment is satisfied. Id. Majeres received those 

protections in her written plea agreement. And Hawkins received those same 

protections at his 2007 plea proceeding. Because the written plea agreement, 

which does not require informing the defendant of the dangers and disadvantages 

inherent in self-representation is acceptable, the open courtroom colloquy 

involving Hawkins is also acceptable.
8

Based on the reasoning above, we find Hawkins’s 2007 plea proceeding 

met the requirements of the Sixth Amendment to the United States Constitution 

and article I, section 10 of the Iowa Constitution. Thus, the prior uncounseled plea 

to a misdemeanor that resulted in incarceration may be used to enhance the 

offense in this present criminal proceeding.

Conclusion.

We affirm the trial court ruling.

AFFIRMED.