author: GILBERTSON, Justice SABERS, Justice

text:
    2000 SD 40
    Roger H. KREBS, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee.
    Nos. 20961, 20962.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 29, 1999.
    Decided March 29, 2000.

      D. Sonny Walter, Sioux Falls, for petitioner and appellant.
    Mark Barnett, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, for appellee.
   GILBERTSON, Justice

[¶ l.j Roger Krebs (Krebs) appeals the trial court’s partial denial of his habeas corpus petition. The trial court’s order granted partial relief to Krebs holding he could attempt to reinstate his appeal from his first state habeas petition, but denied relief on all other claims. State filed a notice of review. We hold that Krebs is not entitled to habeas relief.

FACTS AND PROCEDURE

[¶ 2.] Krebs was convicted in Beadle County, South Dakota of burglary, grand theft and possession of tools with intent to commit burglary. The background and detailed facts are set forth in State v. Krebs, 504 N.W.2d 580 (S.D.1993) (Krebs I). Krebs was sentenced to fifteen years for burglary, fifteen years for grand theft and ten years for possession of tools with intent to commit burglary. Krebs appealed these convictions to this Court, and we affirmed both the convictions and sentences. In Krebs I, we held that motions for the suppression of evidence seized in a vehicle search were properly denied and the trial court did not err in allowing the state to admit prior bad acts evidence.

[¶ 3.] In 1993 Krebs filed his first pro se petition for habeas corpus relief, asserting four substantive claims: (1) trial counsel was ineffective in failing to advance an alibi defense; (2) denial of his right to a fair trial because his trial was not severed from the co-defendant; (3) denial of his right to a fair trial because alleged tampered evidence was admitted into evidence and used against him; and (4) prosecutorial misconduct. Attorney Michael Thompson (Thompson) was appointed to represent him. In April 1994, Thompson filed a motion to withdraw and a brief pursuant to Sweeney v. Leapley, 487 N.W.2d 617 (S.D.1992), asserting Krebs’ application for ha-beas corpus had no merit. In response, Krebs requested his issues be protected for federal court review. On May 23,1994, the original habeas court entered an order quashing Krebs’ writ on the merits. Krebs did not appeal this denial of habeas relief. Krebs alleges in his affidavit neither Thompson nor the original habeas court informed him of the appeal procedures found in SDCL 21-27-18.1.

[¶ 4.] Krebs filed his second pro se state petition for habeas corpus relief on November 8, 1994 reasserting the same four substantive claims. Krebs also asserted Thompson’s Sweeney brief as an additional ground for relief in this second petition. Krebs’ court-appointed counsel, Delmar “Sonny” Walter then filed an amended application for writ of habeas corpus on January 16, 1998. The second habeas court entered findings of fact, conclusions of law and an order partially granting Krebs ha-beas relief. The court found Krebs should be allowed to return to the original habeas court to seek a certificate of probable cause in order to attempt to appeal from his initial habeas judgment. The court denied habeas relief on Krebs’ ineffective assistance of counsel claim. Krebs appeals raising the following issue for our consideration:

Did Thompson render ineffective assistance of counsel in filing a Sweeney brief with the first habeas court.

STANDARD OF REVIEW

[¶ 5.] Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. New v. Weber, 1999 SD 125, ¶5, 600 N.W.2d 568, 571 (citing Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606) (other citation omitted). It is not a substitute for direct review. Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191) (other citation omitted). We are guided by a well-established standard of review:

Habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court’s findings unless they are clearly erroneous.

Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶ 8, 559 N.W.2d 554, 556) (other citations omitted). The habeas applicant has the initial burden, by a preponderance of the evidence, to prove entitlement to relief. New, 1999 SD 125, ¶ 5, 600 N.W.2d at 572 (citing Lien, 1998 SD 7, ¶ 11, 574 N.W.2d at 607). We may affirm the ruling of the habeas court if it is “right for any reason.” Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (other citation omitted).

ANALYSIS AND DECISION

[¶ 6.] Did Thompson render ineffective assistance of counsel in filing a Sweeney brief with the first habeas court.

[¶ 7.] Krebs argues Thompson rendered ineffective assistance of counsel per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) during his first habeas proceeding by filing an ineffective Sweeney brief with the habeas court. State responds Sweeney does not mandate counsel is constitutionally required at every stage of habeas corpus proceedings.

[¶ 8.] In Sweeney v. Leapley, 487 N.W.2d 617, 619-20 (S.D.1992), we held the presence of a state statute authorizing a right to counsel for habeas corpus proceedings does not create a constitutional right to counsel. We concluded, “[s]ince the defendant had no constitutional right to counsel she could not be deprived of effective assistance of counsel.” Id. The vast majority of federal courts that have examined this issue agree. State post-conviction proceedings are civil in nature, thus, “the sixth amendment right to effective assistance of counsel does not attach.” Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir.1984), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984) (citing Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.1981), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981)); Noble v. Sigler, 351 F.2d 673, 678 (8th Cir.1965), cert. denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81 (1966). See also Wise v. Williams, 982 F.2d 142, 144 (4th Cir.1992), cert. denied, 508 U.S. 964, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993) (quoting Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991) (“[T]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”)); Morin v. Rhode Island, 741 F.Supp. 32, 36 (D.R.I.1990) (citing Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.1986), cert. denied, 479 U.S. 867, 107 S.Ct. 228, 93 L.Ed.2d 155 (1986)) (Sixth Amendment’s guarantee of effective assistance of counsel does not extend to habeas corpus proceedings). “The Constitution entitles a criminal defendant to representation at the trial and sentencing stages and through the first appeal to which he has a right. However, it does not mandate representation during subsequent proceedings.” Morin, 741 F.Supp. at 36 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)).

[¶ 9.] Thus, since Kreb’s right to counsel is not granted him by the United States and South Dakota Constitutions, any right to counsel must flow from a statutory grant. SDCL 21-27-4 authorizes the appointment of an attorney in habeas proceedings in cases of indigency. Although the holding in Strickland has been well established for some time, our legislature has not seen fit to incorporate its requirements into the protections statutorily given applicants for a writ of habeas corpus.

[¶ 10.] However, Sweeney did recognize that state habeas applicants have rights granted to them by statute outside of those guaranteed by the Constitution. We held that an Anders (Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)) brief is required in habeas cases, as well as in direct appeals where counsel for the defendant determines that the client’s claim is without merit. Sweeney, 487 N.W.2d at 620. Anders/Sweeney requires:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

487 N.W.2d at 619 (citing Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498). The purpose of this requirement is to avoid “appointed counsel to brief against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain.” Id.

[¶ 11.] An examination of the An-ders/Sweeney brief filed in this case shows it falls short of the above stated requirements. In one page it disposes of all four substantive claims citing nothing in favor of Krebs and rather than keeping silent on the strength of the State’s case, bolsters the State’s arguments by concluding Krebs’ issues are “without merit,” result in no prejudice to him and he was not “denied a fair trial.”

[¶ 12.] Nevertheless our review of the record in this case establishes no unfairness, unreliability or prejudice in his underlying conviction. Krebs’ substantive issues are without merit. Based on the trial record, no attorney, even one mounting a textbook perfect all-out effort let alone one who meets the Strickland standard of competence, could have produced a different result.

[¶ 13.] Therefore we hold Krebs is not entitled to habeas relief.

[¶ 14.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 15.] SABERS, Justice, concurs specially in part and dissents in part.

SABERS, Justice

(concurring specially in part and dissenting in part).

[¶ 16.] I agree with the holding of the majority that:

Krebs is statutorily entitled to effective assistance of counsel on one occasion during habeas proceedings but I do not agree that he received it. I write specially to explain the rationale for said holding and I dissent to the result reached by the majority regarding prejudice.

[¶ 17.] I write specially to first point out that habeas corpus is not limited to violations of constitutional rights. Habeas corpus reaches jurisdictional error, constitutional error, all “causes” listed in SDCL 21-27-16(1) through (7) and other illegal detentions, including those resulting from failure to comply with “substantive statutory procedure.” Lange v. Weber, 1999 SD 138, ¶ 17, 602 N.W.2d 273, 276 (Sabers, J., concurring specially) (citing Security Sav. Bank v. Mueller, 308 N.W.2d 761, 762-63 (S.D.1981); O’Connor v. Leapley, 488 N.W.2d 421, 425 (S.D.1992) (Sabers, J., concurring specially); Petrilli v. Leapley, 491 N.W.2d 79, 86 (S.D.1992) (Sabers, J., concurring specially); Black v. Class, 1997 SD 22, ¶ 34, 560 N.W.2d 544, 552 (Sabers, J., concurring specially); Lykken v. Class, 1997 SD 29, ¶ 34, 561 N.W.2d 302, 309 (Sabers, J., dissenting)).

[¶ 18.] The right to effective assistance of counsel at trial is guaranteed by the Sixth Amendment of the United States Constitution and applies to trials in state courts through the Fourteenth Amendment of the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799, 804-06 (1963). However, the United States Supreme Court has declared that there is no constitutional right to an attorney in state post-conviction proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991) (citations omitted). Therefore, whether a convicted criminal has the right to counsel during habeas proceedings is a question for states to determine.

[¶ 19.] The South Dakota Legislature has required that counsel be appointed for indigent prisoners in habeas proceedings:

If a person has been committed, detained, imprisoned or restrained of his liberty ... and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of ha-beas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall appoint counsel....

SDCL 21-27-4. Even though Krebs did not have a constitutional right to counsel during his first habeas proceeding, he did have a statutory right to counsel.

[¶ 20.] Obviously, this statutory right to counsel is not restricted to the appointment of a person who merely fulfills the requirements of obtaining a license to practice law in South Dakota. There is an inherent requirement that the attorney be competent and provide adequate representation. See Iovieno v. Comm’r of Correction, 242 Conn. 689, 699 A.2d 1003, 1010 (1997) (claim of ineffective assistance of post-conviction counsel is a viable claim because statute requires the appointment of post-conviction counsel) (citing Lozada v. Warden, 223 Conn. 834, 613 A.2d 818, 821-24 (1992)). The rationale is best explained by the Lozada court: “[i]t would be absurd to have the right to appointed counsel who is not required to be competent:”

‘[C]ounsel should be appointed in post conviction matters.... When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.’

Lozada, 613 A.2d at 821 (emphasis added) (quoting Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965)) (citing United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988) (“an indigent federal probationer’s statutory right to appointed counsel at a probation revocation hearing ... ‘would be meaningless if it did not embody a requirement that counsel be effective as well as merely present.’”)). To require counsel and permit less than effective counsel during representation would be to assert that the purpose of this statute is meaningless, the purpose of our judicial system is meaningless and our Rules of Professional Conduct do not apply in habe-as.

[¶21.] Krebs is statutorily entitled to effective assistance of counsel on one occasion during habeas proceedings. Therefore, the issue is whether attorney Thompson rendered ineffective assistance of counsel in filing a “purported” Sweeney brief favorable to his withdrawal with the first habeas court. In order to prevail on a claim of ineffective assistance of counsel, Krebs must show that his counsel’s performance was deficient and that this deficient performance actually prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To show actual prejudice, Krebs must demonstrate that, but for trial counsel’s deficient performance, there is a reasonable probability that the result of the trial would have been different. Id.

[¶22.] Since 1992, we have required court-appointed attorneys to follow specific procedures when they believe that the ha-beas case is wholly frivolous. See Sweeney v. Leapley, 487 N.W.2d 617, 620 (S.D.1992) (recognizing that South Dakota affords more protection for defendants in habeas proceedings than required by the United States Supreme Court). Sweeney was based on Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498-99 (1967). After a thorough examination of the case, if the attorney determines that his client’s case is frivolous, he may request permission to withdraw. However, that request must “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. at 619. This does not mean that the brief set forth all the reasons why the attorney believes the case is frivolous. On the contrary, this means that the brief set forth the client’s arguments in the best manner possible. This is the only method which enables the court, rather than counsel, to determine whether the case is in fact frivolous.

[¶ 23.] Thompson filed a motion to withdraw, accompanied by a brief, in April of 1994. Krebs, however, argues that Thompson’s “no merit” brief was “written for the State — or, at the very least, to support Thompson’s own personal desires to be relieved of further representation.” More specifically, one of Krebs’ claims on habeas was that his trial counsel was ineffective in failing to interview or call an alibi witness for Krebs. Thompson did not even attempt to investigate the location or proffered testimony of the alibi witness. Instead, he drafted a Sweeney brief, which was devoid of the subject of the alibi witness. Clearly, this selective editing of the subject matter is contrary to the letter and spirit of Anders and our Sweeney decision. See Sweeney, 487 N.W.2d at 619 (stating that it is the court, not counsel, who “decided whether the case is wholly frivolous.”). The Sweeney brief is supposed to help, not harm, the petitioner. Thompson’s violation of the Sweeney requirements amounts to prejudicial ineffective assistance of counsel.

[¶ 24.] The purpose of the first habeas was to challenge the effectiveness of his attorney at trial. We have often stated that a direct appeal is not the appropriate method to assert ineffective assistance of counsel claims. State v. Cochrun, 434 N.W.2d 370, 373 (S.D.1989) (citations omitted); State v. Davis, 401 N.W.2d 721, 725-26 (S.D.1987) (citations omitted); State v. Tchida, 347 N.W.2d 338, 339 (S.D.1984); State v. McBride, 296 N.W.2d 551, 556 (S.D.1980). See also Fernandez v. Cook, 783 P.2d 547, 550 (Utah 1989) (stating: “[t]he sixth amendment right to effective assistance of counsel is imperiled if an alleged violation of that right cannot be raised for the first time in a habeas corpus proceeding when the allegedly ineffective trial counsel also represented the defendant on appeal and failed to raise the issue at that stage.”). Rather, habeas corpus is the more appropriate forum in which to assert these claims. Tchida, 347 N.W.2d at 339 (recognizing that one exception applies which allows the issue of incompetent counsel to be raised on direct appeal: “when the representation was ‘so casual that the trial record evidences a manifest usurpation of appellant’s constitutional rights.’ ”) (quoting State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982)).

[¶ 25.] The State also argued that Krebs was not entitled to bring a second habeas proceeding based on the doctrine of res judicata. I disagree.

[¶ 26.] “The doctrine of res judicata serves as claim preclusion to prevent relit-igation of an issue actually litigated or which could have been properly raised and determined in a prior action.” SDDS, Inc. v. South Dakota, 1997 SD 114, ¶ 16, 569 N.W.2d 289, 295 (quoting Hogg v. Siebrecht, 464 N.W.2d 209, 211 (S.D.1990)). “The purpose behind the doctrine is to protect parties ‘from being subjected twice to the same cause of action, since public policy is best served when litigation has a finality.’ ” Id. (quoting Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993)).

[¶ 27.] In determining whether res judi-cata applies, this court considers, among other factors, whether there was a final judgment on the merits. See D.G. v. D.M.K., 1996 SD 144, ¶27, 557 N.W.2d 235, 240 (quoting Wintersteen v. Benning, 513 N.W.2d 920, 921 (S.D.1994) (other citations omitted)). “A judgment on the merits is one which is based on legal rights as distinguished from mere matters of practice, procedure and jurisdiction.” Chicago & Northwestern Railway Co. v. Gillis, 80 S.D. 617, 129 N.W.2d 532, 535 (1964) (citation omitted).

[¶ 28.] Because Krebs was deprived of his statutory right to effective assistance of habeas counsel, his first habeas was dismissed based on an improper Sweeney brief. Furthermore, neither Thompson nor the first habeas court advised Krebs that he could appeal the first habeas court’s decision, which accepted Thompson’s “no merit” brief. Therefore, his first habeas did not receive substantive consideration on the merits. Although Krebs receives that consideration under the majority opinion, I dissent as to the conclusion reached.

[¶ 29.] In summary, Krebs was provided ineffective assistance of counsel at trial. Therefore, pursuant to our rationale above, Krebs correctly brought his ineffective assistance of counsel claim in habeas court. However, he was provided with ineffective assistance of counsel during his first habeas proceeding. In the interest of justice and fairness, Krebs was entitled to effective assistance of counsel on one occasion. However, Krebs was denied this right at trial and during his habeas. Now, the majority opinion tells Krebs that he had a statutory right to assistance of counsel in habeas, and a right to effective counsel, but that he has not shown sufficient prejudice. I disagree and therefore, dissent.

      . We note there was a four-year lapse before the amended application for writ of habeas corpus was filed on January 16, 1998. It appears from the record the reason for this was that two other attorneys were appointed by the court before Walter was appointed. Sioux Falls attorney Jamie Haworth was appointed by the court on November 17, 1994. On March 5, 1996, Haworth moved to be discharged as Krebs’ counsel, and was discharged on March 8, 1996. Attorney Steve Binger, of Sioux Falls, was appointed by the court on March 11, 1996, but was discharged in 1997. Subsequently Walter was appointed Krebs' counsel on October 28, 1997.


source: Caselaw Access Project

author: CARTER, Justice. NEUMAN, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Charles Glenn HARRINGTON, Appellant.
    No. 98-1971.
    Supreme Court of Iowa.
    March 22, 2000.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey K. Noble, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Charles Glenn Harrington, appeals from the sentence imposed following his conviction of false imprisonment in violation of Iowa Code section 710.7 (1997). Because we find that defendant received an illegal sentence, we affirm the conviction but vacate the sentence. The case is remanded to the district court for resen-tencing.

Defendant was originally charged with robbery in the first degree and kidnapping in the third degree. The robbery offense was dismissed prior to trial. In connection with the trial on the kidnapping charge, the State presented evidence that the defendant had attempted to sexually abuse the victim. The jury did not convict defendant of the kidnapping offense but rather of a lesser included offense of false imprisonment. In answer to a special interrogatory submitted to the jury, it found that defendant had committed the crime (false imprisonment) with the intent to commit sexual abuse.

At sentencing it was stipulated that the defendant had previously been convicted of a sexually predatory offense. The sentencing judge concluded that, based on the jury’s answer to the interrogatory, the present offense was also a sexually predatory offense and thus was subject to an enhanced sentence under Iowa Code section 901A.2(1). In so concluding, the district court indicated that it believed the conviction for false imprisonment met the statutory definition of a sexually predatory offense because it had been an attempt to commit kidnapping as defined in section 710.1.

Before considering the issue of statutory interpretation that is presented, we must exercise our authority to correct an illegal sentence at any time. Defendant’s previous conviction of a sexually predatory offense took place on July 6, 1994. In State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999), this court held that the statute under which this defendant was sentenced did not apply retroactively so as to allow enhanced punishment based on convictions occurring before the act became effective on July 1, 1996. This decision was not available to the district court at the time of sentencing. Because the enhanced sentence that was imposed was an illegal sentence based on the Tomquist decision, we vacate the sentence and remand the case to the district court for resentencing.

Our inquiry does not end at this point. The question raised on this appeal concerning whether defendant’s false-imprisonment conviction was a sexually predatory offense is not moot because courts are required to make prospective determinations of offenses that may so qualify under section 901A.4(2). The statutory definition of a sexually predatory offense is as follows:

1. As used in this chapter, the term “sexually predatory offense ” means any serious or aggravated misdemeanor or felony which constitutes:
a. A violation of any provision of chapter 709.
b. A violation of any of the following if the offense involves sexual abuse, attempted sexual abuse, or intent to commit sexual abuse:
(1) Murder as defined in section 707.1.
(2) Kidnapping as defined in section 710.1.
(3) Burglary as defined in section 713.1.
(4) Child endangerment under section 726.6, subsection 1, paragraph “e ”.
c. Sexual exploitation of a minor in violation of section 728.12, subsection 1.
d. Pandering involving a minor in violation of section 725.3, subsection 2.
e. Any offense involving an attempt to commit an offense contained in this section.
f. An offense under prior law of this state or an offense committed in another jurisdiction which would constitute an equivalent offense under paragraphs “a” through “e ”.

Iowa Code § 901A.1(1).

Based on the jury’s answer to the interrogatory, we conclude that the defendant’s false-imprisonment conviction was a sexually predatory offense. It falls under sub-part e of the definitional statute relating to “[a]ny offense involving an attempt to commit an offense contained in this section.” The district court believed that the false-imprisonment conviction qualified as an attempt to commit kidnapping, an offense contained in section 901A.1. While we are not in agreement with that conclusion, we think that, based on the jury’s answer to the interrogatory, the false-imprisonment offense involved an attempt to commit another offense contained in section 901A.1. That offense was sexual abuse, which is contained in subpart a of that section, which designates “any provision of chapter 709.”

For the reasons stated, we affirm defendant’s conviction but vacate his sentence. The case is remanded to the district court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

All justices concur except NEUMAN, LAVORATO, and SNELL, JJ., who dissent.

NEUMAN, Justice

(concurring in part and dissenting in part).

I concur in the result because I agree our decision in Tomquist compels that we vacate Harrington’s sentence and remand for resentencing. But I differ with the majority’s analysis concerning false imprisonment as a sexually predatory offense. Having correctly recognized that false imprisonment is not the same as attempt to commit kidnapping, the majority concludes it constitutes an attempted violation of chapter 709 (sexual abuse). I respectfully disagree.

The enhanced sentencing provisions of Iowa Code section 901A.2 plainly require conviction of an offense defined in section 901 A. 1 as sexually predatory before the enhancement applies. All we have here is a jury’s interrogatory answer pertinent to a conviction nowhere included in section 901A.1. The crime of false imprisonment for which Harrington stands convicted may well have been sexually motivated, as the jury found. But the crime has not thereby been transformed into a sex abuse conviction under chapter 709, nor does it otherwise meet the statutory definition of sexually predatory offense.

LAVORATO and SNELL, JJ., join this concurrence in part and dissent in part.


author: LARSON, Justice.

text:
    CITY OF WATERLOO, Iowa, Appellant, v. BLACK HAWK MUTUAL INSURANCE ASSOCIATION, Appellee.
    No. 98-0408.
    Supreme Court of Iowa.
    March 22, 2000.

      Darrell G. Meyer, Special Assistant City Attorney, and San-Ki Han, Assistant City Attorney, Waterloo, for appellant.
    Steven J. Pace and Diane Kutzko of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellee.
   LARSON, Justice.

The City of Waterloo has appealed a declaratory judgment by the district court finding that Black Hawk Mutual Insurance Association (Black Hawk), which had insured a house in the City of Waterloo, was not subject to the demolition-reserve requirements of Iowa Code section 515.150 (1993). We affirm.

I. Facts and Prior Proceedings.

Kerry and Christine Corcoran owned a rental house in Waterloo that was damaged by fire in July 1994. Black Hawk was the fire insurer. In June 1995 the Corcorans entered into a settlement with Black Hawk under which Black Hawk paid them $15,750. In October 1995 the city sent a letter to Black Hawk requesting it to provide a demolition reserve on the loss as required by Iowa Code section 515.150. Black Hawk declined, claiming as an Iowa Code chapter 518 mutual association it was not subject to the demolition-reserve requirements of section 515.150.

The city brought this declaratory-judgment action to resolve the issue. The parties agreed to a stipulation of facts and agreed to limit the record to those facts. Despite that agreement, the city submitted a trial brief to which was attached a letter that had not been included in the stipulation. In response, Black Hawk filed a motion to strike the entire trial brief. The district court stated orally at the declaratory-judgment hearing that it would not consider the letter because it was outside the stipulation.

In the court’s written ruling, it held that Black Hawk is not subject to the demolition-reserve requirements of section 515.150.' The city filed a motion for clarification under Iowa Rule of Civil Procedure 179(b). The court ruled on the motion but did not grant the city the relief it requested. The city appealed.

II. The Jurisdictional Issue.

Black Hawk moved to dismiss the appeal on the ground it was not timely, and we ordered the motion to be submitted with the appeal. The city resists the motion to dismiss, claiming the appeal was timely because it was taken within thirty days of the court’s ruling on the city’s motion to enlarge findings under rule 179(b). See Tenney v. Atlantic Assocs., 594 N.W.2d 11, 13 (Iowa 1999) (179(b) motion extends time for appeal). Black Hawk rejoins that the motion was not a proper 179(b) motion because it was not based on fact-findings by the court. (If so, it would be ineffective to extend the time for appeal. See Tenney, 594 N.W.2d at 14.)

These are the facts underlying the 179(b) motion: When the “tainted” letter was attached to Black Hawk’s trial brief, the city moved to strike the entire brief, not just the offending letter. Its motion to strike said “[t]he entire ... brief is tainted and should not be considered by the Court in any way as it is impossible to consider [any portion] of the brief independent of the tainted portion.” The court did not file a separate ruling on the motion to strike, but its final decision stated it “has not given consideration to any portion of the city’s reply brief which is premised upon or addresses the content of [the letter].” (Emphasis added.) This language in the court’s ruling apparently left the city in some doubt about whether the court had disregarded more of its brief than just the offending letter. It filed a 179(b) motion, stating:

1. This court stated in the above referenced decision that “In deciding the petition for declaratory judgment the court has not given any consideration to exhibit A attached to the city’s reply brief and has not given consideration to any portion of the city’s reply brief which is premised upon or addresses the content of [the letter].”
2. Plaintiff seeks clarification as to what specific portions of its Reply Brief were “stricken” or improper, or were considered to be premised upon or addressed the content of [the letter].

Black Hawk contends this was not a proper motion under rule 179(b) because it did not ask the court to reexamine the facts; rather, it only made a procedural inquiry as to what parts of the city’s brief had been disregarded.

Although the motion was not clear, we believe it at least minimally complied with rule 179(b); it attempted to alert the court to the facts set out in the city’s brief that might not have been considered by the court if, as the city suspected, the court had disregarded all evidence “premised upon or addressing] the content” of the letter. Cf. Tenney, 594 N.W.2d at 14 (motion pointing out evidence in record possibly overlooked by court and asking court to modify judgment in view of the evidence held proper use of rule 179(b)).

We conclude the motion was a proper use of rule 179(b), and the appeal from the ruling on that motion was therefore timely. See Tenney, 594 N.W.2d at 13.

III. The Statutory-Interpretation Issue.

Iowa Code section 515.150(1), the statute in question, provides:

An insurer shall reserve ten thousand dollars or ten percent, whichever amount is greater, of the payment for damages to the property excluding personal property on which the insurer has issued a fire and casualty insurance policy as demolition cost reserve if the following are applicable:
a. The property is located within the corporate limits of a city.

The issue of whether Iowa Code section 515.150 applies outside of chapter 515 has never been decided. The city argues for a melding of section 515.150 into chapter 518 because, according to it, it makes good policy sense. Black Hawk responds it cannot be done if the legislature did not intend it.

We begin with the observation that neither chapter 515 nor chapter 518 suggests that any of their provisions are interchangeable. Chapter 515 is broad in scope, covering all corporations formed for the purpose of providing insurance other than life insurance. Iowa Code § 515.1. Chapter 515 is a much older chapter, first appearing in the 1873 Code, while chapter 518 was first enacted in 1965. See 1965 Iowa Acts ch. 401. Associations under chapter 518 have a more restricted scope of authority. Under section 518.11, they are authorized to insure only against loss or damage by (1) any perils “resulting in physical loss or damage to property,” (2) theft of personal property, and (3) “[i]nju-ry, sickness or death of animals and the furnishing of veterinary services.” These associations are not authorized to write liability insurance. Also, under chapter 518, the properties that may be insured are limited to (1) farm properties including residences and other buildings; (2) buildings used in agricultural processing; (3) city residences; and (4) churches, schools, and community buildings. Iowa Code § 518.12.

Just as the types of insurance and property covered by chapter 518 associations are more abbreviated, so is the scope of the statutory provisions themselves. Approximately seventy sections under chapter 515 have no equivalent provisions under chapter 518. If we were to accept the city’s argument that we should read section 515.150 into chapter 518 because it would be good public policy, the same argument could be made to adopt other provisions from chapter 515. For example, section 515.138 provides a standardized policy form and provides for permissible variations from it; chapter 518 has no similar provision. It might be argued that, from a policy standpoint, such a provision should be engrafted on chapter 518. However, transplanting provisions of chapter 515 into chapter 518 would blur the distinctions between two separate chapters without any indication from the legislature that this was intended.

When Iowa Code section 515.150 was adopted in 1988, both chapters 515 and 518 were in existence. Yet, the legislature added the demolition-reserve provision only to chapter 515. See 1988 Iowa Acts ch. 1176, § 1. If the legislature had intended to apply the demolition-reserve requirement to county mutuals under chapter 518, we believe it would have added a similar provision to that chapter.

Iowa Code section 518.11 lends further support to Black Hawk’s claim that chapter 518 should not be read to include the demolition provision of section 515.150. Section 518.11 provides in part:

Such contracts of insurance [by county mutuals] shall be subject only to such provisions as are contained in this chapter and shall consist of:
An application on blanks furnished by the association and signed by the insured or the insured’s representatives;
A policy issued by the association in accordance with its rules, and approved by the commissioner of insurance.

(Emphasis added.)

The stipulation of facts submitted by the parties included a letter from the insurance division of the Iowa Department of Commerce. This letter expressed the view that, based on a memorandum of intent provided by the legislature and accompanying the bill creating chapter 518, “[i]t was not the intent of the Iowa General Assembly to impose regulations other than those explicitly noted in chapter 518 upon county mutual associations.” Under our rules of interpretation, we may consider administrative construction of a statute. Iowa Code § 4.6(6); In re G.J.A., 547 N.W.2d 3, 6 (Iowa 1996).

For the reasons discussed, we hold we have jurisdiction of the appeal and that the district court correctly ruled that Black Hawk is not subject to the demolition-reserve provisions of Iowa Code section 515.150. Accordingly, we affirm.

AFFIRMED.

All justices concur except CARTER, J., who takes no part.


author: LAVORATO, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. William G. MARTIN, Appellant.
    No. 98-1394.
    Supreme Court of Iowa.
    March 22, 2000.

      Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Mike L. Wolf, County Attorney, and Bruce A. Ingham, Assistant County Attorney, for appellee.
   LAVORATO, Justice.

A jury convicted the defendant, William G. Martin, of forgery. He appeals from a judgment of conviction and sentence, contending that the district court erred in allowing him to represent himself without determining that he made a knowing and intelligent waiver of his Sixth Amendment right to counsel. We agree and reverse and remand for a new trial.

I. Background Facts and Proceedings.

In early October 1996, Martin presented a personal check to Harold Shadle upon a long-closed account of a person named Robert Black. The check was made payable to Harold Shadle for $500 and was signed with Robert Black’s name. Black’s signature on the check was allegedly a forgery.

When he presented the check to Shadle, Martin told Shadle that he — Martin— would have to get some money to his grandmother in Chicago to make the check good. Shadle later learned the check had been drawn upon a closed account. When Shadle confronted Martin about the closed account, Martin told Shadle that he would “make it right.”

On February 26,1997, the State charged Martin with a forgery in violation of Iowa Code sections 715A.2(l)(b) and 715A.2(2)(a) (1995). The district court appointed John (Jack) Wolfe to represent Martin, who pled not guilty to the charge.

After several delays, the district court eventually scheduled a jury trial for Monday, February 2, 1998. On Friday, January 30, 1998, the court held an unscheduled hearing on Martin’s request to discharge Wolfe as his trial counsel. Martin argued a conflict of interest existed between Wolfe and him. Following a painstaking and patient examination of Martin and Wolfe, the district court found there was no conflict of interest.

The court rejected Martin’s request that the court appoint him a new attorney and rejected his motion for continuance. Instead, the court gave Martin three choices: keep Wolfe as his attorney, hire new counsel, or represent himself. The court recommended on two occasions that Martin keep Wolfe as his attorney. Nevertheless, Martin persisted in his opposition to Wolfe representing him and declared that he did not even want Wolfe in the courtroom. The court ultimately switched Wolfe’s role to standby counsel.

The trial started as scheduled on the following Monday. During the State’s case in chief, Martin acted as his own counsel, and Wolfe waited outside the courtroom in a standby capacity. Martin gave his own opening statement. The State called two witnesses, Black and Sha-dle. Martin crossed-examined both witnesses. After the State rested, Martin moved unsuccessfully to dismiss the charge on the basis that the State had failed to prove he was the person who had written the forged check. Martin also unsuccessfully moved to continue the case. Wolfe was present only for the in-chambers discussion of the motion to continue.

On Tuesday, Martin began his case in chief. Wolfe remained outside the courtroom. Martin called two witnesses, whom he personally questioned. Martin rested following examination of the second witness. Out of the presence of the jury, the court began a discussion on the proposed instructions. It was at this point that Wolfe entered the chambers at Martin’s request. Wolfe moved successfully to reopen the case so that three witnesses could be questioned — Martin; Black, who had previously testified; and Melissa Kuhse, the mother of Martin’s infant child.

Martin questioned Black and Kuhse. Martin then testified on his own behalf, with Wolfe conducting the direct and redirect examination. However, at the close of redirect, Martin told Wolfe to pose to him a series of questions that Wolfe had not yet asked. Following these questions, Martin’s examination was closed. Martin then questioned Kuhse, following which, Martin rested. The State called a rebuttal witness whom Martin cross-examined.

Martin, Wolfe, the prosecutor, and the . court met in chambers to discuss jury instructions. Wolfe declined to give a final argument on Martin’s behalf, explaining that, because he was not in the courtroom during the first half of the trial, “it would be bordering on incompetence, for me to attempt to do so.” Martin thereafter delivered his own final argument.

After a brief deliberation, the jury returned a guilty verdict on the forgery charge. This was not surprising in view of Martin’s inept cross-examination of the State’s witnesses who demolished not only his credibility but his defense as well.

Substitute counsel — appointed by the district court — represented Martin at his sentencing. A different judge sentenced Martin to an indeterminate five-year term of imprisonment, which was suspended in favor of two years’ probation.

II. Issues on Appeal.

Martin contends the district court erred in allowing him to represent himself without determining that he made a knowing and intelligent waiver of his Sixth Amendment right to counsel. The State responds that this case does not involve a denial of Sixth Amendment rights. Rather, the State argues, the issue is whether the district court abused its discretion in denying Martin’s request for substitution of counsel before trial. In the alternative, the State argues that, even if Martin had not waived assistance of counsel, the active role of Wolfe at trial cured any constitutional defect.

III. Scope of Review.

To the extent this appeal concerns the district court’s denial of substitute counsel, our review is for abuse of discretion. See State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994). Our review is de novo regarding Martin’s claim that his Sixth Amendment rights were violated. See State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997).

IV. Substitute Counsel.

A defendant must show sufficient cause to justify the appointment of substitute counsel. Webb, 516 N.W.2d at 828. Sufficient cause includes “ ‘a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.’ ” Id. (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991)). In addition, the court must balance “ ‘the defendant’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.’ ” Id. (quoting United States v. Swinney, 970 F.2d 494, 499 (8th Cir.1992)).

Martin does not contend that the district court abused its discretion in not appointing substitute counsel. In fact, in oral arguments, his appellate counsel conceded that the district court was correct when it concluded there was no conflict between Martin and Wolfe justifying appointment of substitute counsel.

Nevertheless, we agree with Martin that this is not the end of the inquiry. If the district court does not appoint substitute counsel, the court effectively requires a defendant (as occurred here) to choose between two options: continue using present counsel or proceed pro se. However, this “forced choice” of self-representation still implicates constitutional protections:

If the district court has made the appropriate inquiries and has determined that a continuance for substitution of counsel is not warranted, the court can then properly insist that the defendant choose between representation by his existing counsel and proceeding pro se. The court, however, has the responsibility of ensuring that any choice of self-representation is made knowingly and intelligently, with an awareness of the dangers and disadvantages inherent in defending oneself.

United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982) (emphasis added) (citations omitted); see also Young v. Lockhart, 892 F.2d 1348, 1351 (8th Cir.1989); United States ex rel. Axselle v. Redman, 624 F.Supp. 332, 337 (D.Del.1985); Briscoe v. State, 606 A.2d 103, 107 (Del.1992).

As Welty makes clear, this forced choice requires a defendant to choose between two constitutional options: proceeding with counsel or proceeding pro se. 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. That brings us to the question of whether the district court erred in permitting Martin to represent himself without determining that Martin had made a knowing and intelligent waiver of his right to counsel.

V.Was There a Valid Waiver?

The Sixth Amendment to the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance Of Counsel for his defense.” U.S. Const. amend. VI. The Fourteenth Amendment of the Federal Constitution makes this right binding on the states. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975). Faretta interpreted the Sixth Amendment to mean that it “does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Id. at 819, 95 S.Ct. at 2533, 45 L.Ed.2d at 572.

The Sixth Amendment right to counsel is in effect until waived. Rater, 568 N.W.2d at 658. In contrast, the Sixth Amendment right to self-representation is not effective until asserted. Id. Before the right to self-representation attaches, the defendant must voluntarily elect to proceed without counsel by “knowingly and intelligently” waiving his or her Sixth Amendment right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582; Rater, 568 N.W.2d at 658. The defendant’s request to proceed without counsel must be “clear and unequivocal.” Id. In addition, “courts ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights .... ” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938) (footnotes omitted) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177, 1180 (1937)).

Before a trial court accepts the defendant’s request to proceed pro se, the court must make the defendant “aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582 (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)); accord Rater, 568 N.W.2d at 658. “[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Faretta, 422 U.S. at 833 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46.

In State v. Spencer, 519 N.W.2d 357, 360 n. 1 (Iowa 1994), we pointed the bench and bar to a model inquiry for determining a knowing and intelligent waiver of counsel. The model inquiry is found in 1 Bench Book for United States District Judges 1.02-2 (3d ed.1986), as well as United States v. McDowell, 814 F.2d 245, 251-52 (6th Cir.1987). See also Spencer v. Ault, 941 F.Supp. 832, 843-44 (N.D.Iowa 1996). Another excellent model is found in the Iowa Bench Book, 5-37 to 5—41 (1999). We suggest either model inquiry in forced-choice situations such as the one here.

The State concedes, and we agree, that the district court permitted Martin to proceed pro se without any colloquy about the hazards of self-representation and therefore did not determine whether Martin’s choice of self-representation was made knowingly and intelligently. (Martin’s choice, however, was voluntary because a refusal without good cause to proceed with able appointed counsel is a “voluntary” waiver. United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir.1997).) The record reveals the district court did nothing more than merely recommend on two separate occasions that Martin keep Wolfe as his counsel at trial. While we sympathize with the frustration and exasperation of the district court, “ ‘even well-founded suspicions of intentional delay and manipulative tactics can provide no substitute for the inquiries necessary to protect a defendant’s constitutional rights.’ ” McMahon v. Fulcomer, 821 F.2d 934, 943 (3rd Cir.1987) (quoting Welty, 674 F.2d at 189).

Nevertheless, the State insists that, under the facts of this case, we need not reverse. The State argues that, although the Faretta colloquy was lacking in this case, this constitutional defect was cured when Martin allowed Wolfe to assume representation during the trial. That brings us to the State’s alternative argument.

VI. Was Martin’s Invalid Waiver Cured By the Appointment of Standby Counsel and Standby Counsel’s Participation in the Trial?

In addition to recognizing a defendant’s Sixth Amendment right to self-representation in Faretta, the Supreme Court also held that a trial court may appoint “ ‘standby counsel’ ” to assist the pro se defendant in the defense. 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46. The trial court may appoint standby counsel even over the defendant’s objection. Id. The purpose of the appointment of such counsel is “to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id.

In McKaskle v. Wiggins, the Court spelled out what role standby counsel may play consistent with the protection of the defendant’s Faretta rights. 465 U.S. 168, 170, 104 S.Ct. 944, 947, 79 L.Ed.2d 122, 128 (1984). In spelling out that role, the Court imposed two general limitations upon standby counsel’s unsolicited participation at trial. First, “[t]he pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” Id. at 174, 104 S.Ct. at 949, 79 L.Ed.2d at 131; see also Rater, 568 N.W.2d at 658. Therefore, “[i]f standby counsel’s participation over the defendant’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.” McKaskle, 465 U.S. at 178, 104 S.Ct. at 951, 79 L.Ed.2d at 133.

Second, “participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.” Id.; accord Rater, 568 N.W.2d at 658.

As we said in Rater, “[ejssentially, standby counsel,has two purposes — to act as a safety net to ensure that the litigant receives a fair hearing of his claims and to allow the trial to proceed without the undue delays likely to arise when a layman presents his own case.” 568 N.W.2d at 658.

In McKaskle, the Court also recognized that the defendant can waive his or her Faretta rights:

Participation by counsel with a pro se defendant’s express approval is, of course, constitutionally unobjectionable. A defendant’s invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense. Such participation also diminishes any general claim that counsel unreasonably interfered with the defendant’s right to appear in the status of one defending himself.

Id. at 182, 104 S.Ct. at 953, 79 L.Ed.2d at 136.

Given this limited role of standby counsel, it is well-settled that “the appointment of standby counsel is insufficient to satisfy the Sixth Amendment right to counsel when the court has failed to conduct an inquiry to ensure the defendant’s waiver of that right was knowing and intelligent.” Rater, 568 N.W.2d at 661 (citing United States v. Sandles, 23 F.3d 1121, 1128 (7th Cir.1994); United States v. Padilla, 819 F.2d 952, 956-57 (10th Cir. 1987)). The State, however, argues that, when standby counsel actually plays an active role in the criminal proceedings, then that involvement is sufficient to cure a defective waiver. The State cites only McKaskle to support its argument.

McKaskle is not directly on point because the Court did not explain how participation of counsel could cure a defective waiver. Rather, the court was explaining how a defendant who invites the participation of counsel may not later claim that counsel inappropriately interfered with defendant’s right to self-representation in violation of the defendant’s Sixth Amendment right to self-representation.

Nevertheless, some courts have used McKaskle’s control-of-litigation standard in assessing whether standby counsel’s participation cured the defective waiver. On this point, we note the Court in McKaskle concluded that standby counsel’s participation in the trial did not interfere with the defendant’s control over his defense. McKaskle, 465 U.S. at 185, 104 S.Ct. at 954, 79 L.Ed.2d at 137. Significantly, in that case, standby counsel’s participation consisted of informing the court of the whereabouts of witnesses, supplying the defendant with a form needed to elect to go to the jury at the punishment phase of the trial, explaining to the defendant that he should not argue his case while questioning a witness, and questioning a witness to lay a proper foundation for the introduction of an exhibit. Id.

In Briscoe standby counsel participated in the presentation of the defendant’s defense by making the opening statement, raising several objections, proffering evidence at the defendant’s request, completing the direct examination of one witness, and making several motions. Nevertheless, the appellate court concluded that notwithstanding this participation, the defendant, not standby counsel, “continued to conduct all other aspects of his own defense and to make all of the strategic decisions normally made by counsel.” Briscoe, 606 A.2d at 111 (citing McKaskle, 465 U.S. at 176-77, 104 S.Ct. at 949-50, 79 L.Ed.2d at 132). The court further concluded that “the record in this case does not support a conclusion that [the defendant’s] standby counsel in any sense controlled the course of the litigation or undermined [the defendant’s] ‘appearance before the jury in the status of a pro se defendant.’ ” Id. (quoting McKaskle, 465 U.S. at 185, 104 S.Ct. at 954, 79 L.Ed.2d at 137). Based on this reasoning, the court held that standby counsel’s participation “did not cure the defendant’s admittedly ineffective waiver of his Sixth Amendment right to counsel.” Id.

Similarly, in United States ex rel. Axselle v. Redman, the federal district court recognized that under certain circumstances the performance of standby counsel may cure a defective waiver. 624 F.Supp. at 339 (a case of forced choice between proceeding with present counsel or proceeding pro se). However, the court concluded this was not one of those cases. Standby counsel at the defendant’s request made an objection for him and moved for a mistrial that was overruled. Counsel also made three later objections and a motion for judgment of acquittal. On the last day of trial, the defendant specifically asked counsel to address the court on his behalf to introduce certain documents into evidence. The defendant conducted the examination of witnesses, testified in his own behalf, and made the opening and closing arguments to the jury. Citing McKaskle, the court refused to interpret defendant’s requests of standby counsel as proof that counsel controlled the course of the litigation. Id. at 340.

Here, Wolfe’s participation fell well short of curing the defective waiver. Martin unquestionably controlled his defense. The record reveals that Martin formulated and directed his defense theories. He made an opening statement, conducted most of the examination and cross-examination of witnesses, made a motion for judgment of acquittal, and made a final argument.

In contrast, Wolfe’s role was limited. He was out of the courtroom during all of the State’s case in chief and half way through Martin’s defense. The only witness he examined was Martin, and the record shows that Martin directed a portion of this questioning. While Wolfe did make a motion to reopen the case, he made the motion at Martin’s request. Wolfe also introduced certain evidence, but again this happened only after Martin requested Wolfe’s assistance to do so.

VII. Should Harmless Error Analysis Apply?

Although the State did not raise the issue in its brief, a question arose in oral arguments whether we should employ a harmless-error analysis. Rater controls on this question. In Rater, a forced-choice case, we held that whether the defendant was actually prejudiced by the district court’s failure to conduct a sufficient inquiry was irrelevant. 568 N.W.2d at 661. We said this was so because a “[h]armless error analysis is not applicable to Sixth Amendment right to self-representation questions.” Id.; see also Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471 (1986) (recognizing that harmless-error analysis does not apply in all contexts and noting that the doctrine presupposes that a defendant is represented by counsel); Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702 (1942) (“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”); United States v. Allen, 895 F.2d 1577, 1579-80 (10th Cir.1990) (“[T]he right to counsel ‘is so basic to a fair trial that [its] infraction can never be treated as harmless error.’ ” (quoting Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300, 313-14 (1988))); United States v. Balough, 820 F.2d 1485, 1489-90 (9th Cir.1987) (holding that harmless-error analysis is inappropriate when defendant does not knowingly and intelligently waive right to counsel). We reaffirm our position in Rater and therefore decline to employ a harmless-error analysis.

VIII. Disposition.

In sum, we conclude the district court erred in allowing Martin to represent himself without determining whether he made a knowing and intelligent waiver of his right to counsel. As a result, Martin’s Sixth Amendment right to counsel was violated. The district court’s appointment of standby counsel and counsel’s participation at trial did not cure the defective waiver. Finally, we conclude a harmless-error analysis is not appropriate. We therefore reverse and remand for new trial.

REVERSED AND REMANDED.

All justices concur except CARTER and LARSON, JJ., who dissent, and McGIVERIN, C.J., who takes no part.

CARTER, Justice

(dissenting).

I dissent.

This defendant proceeded without an attorney, not because he preferred to appear pro se, but because he chose to match his will against that of the trial court with respect to the judge’s decision not to give him a different court-appointed attorney. The loss of the court-appointed attorney that had been provided to him was the inevitable result of that decision. The situation did not warrant a special inquiry or admonition from the court concerning pro se representation. Defendant should not be granted any relief.

LARSON, J., joins this dissent.