author: RUSCH, Circuit Judge.

text:
    2004 SD 129
    Robert REYNOLDS, Petitioner and Appellant, v. DOUGLAS SCHOOL DISTRICT # 51-1 and Douglas Board of Education, Respondents and Appellees.
    No. 23042.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Dec. 15, 2004.
    Anne Plooster, South Dakota Education Association, Pierre, South Dakota, for petitioner and appellant.
    Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, for respondents and appellees.
   RUSCH, Circuit Judge.

[¶ 1.] This is an appeal from an order granting Douglas School District’s (District) motion for summary judgment. We affirm for a different reason.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Teachers at the District, including Robert Reynolds (Reynolds), are employed under a collective bargaining agreement negotiated between the District and the Douglas Education Association (DEA). The relevant negotiated agreement, signed on April 23, 2001, covered the 2001-2002 and 2002-2003 school years. The agreement addressed issues of wages, rates of pay, hours of employment and other conditions of employment. Article X of the agreement gave the superintendent broad powers to assign, reassign, or transfer teachers. It provided:

Each employee of the Board of Education shall be assigned to a specific position at the direction of the superintendent of schools and may be trans ferred to any other position as the superintendent may direct.
Transfers may be at the initiative of the superintendent or other administrative officers for any purpose, which, in the judgment of the superintendent, is for the welfare of the employee or the schools. An administrative transfer or reassignment shall be made only after a conference between the teacher involved, the superintendent, and the teacher’s immediate supervisor, at which time the teacher will be notified of the reason therefore, (emphasis supplied).

[¶ 3.] The negotiated agreement also contained a grievance procedure (Article V) to deal with any “violation, misinterpretation or inequitable application of any of the terms of this Agreement.” The grievance procedure provided for consideration of grievances at four levels: 1) the principal, 2) the superintendent, 3) the Board of Education, and 4) the Department of Labor.

[¶ 4.] Reynolds has been employed by the District since the 1984-1985 school year as a middle school teacher. He was also the head high school track coach for the District since the 1985-1986 school year. In 1999-2000 and 2000-2001, Reynolds’ performance evaluation as head track coach showed areas of concern and recommended non-reassignment. Reynolds disagreed with these evaluations and provided written rebuttals. During the 2001-2002 school year, Reynolds was paid as head track coach, but did not perform any coaching duties.

[¶ 5.] On March 20, 2002, Reynolds received a notice of non-renewal of his head high school track coach position. Reynolds requested a hearing under the continuing contract law (SDCL 13-43-6.2 et seq) within the required time. However, on May 14, 2002, the District decided not to go forward with the non-renewal proceedings. On May 29, 2002, Reynolds entered into a contract for the 2002-2003 school year which included the head high school track coach position. On that same day the school superintendent met with Reynolds and his immediate supervisor and advised Reynolds that pursuant to Article X of the negotiated agreement he was being transferred to the position of middle school assistant track coach at exactly the same pay that he would have received as the head high school track coach. In making the transfer the superintendent fully complied with the procedural requirements of Article X of the negotiated agreement. On June 10, 2002, the School Board approved the transfer.

[¶ 6.] Reynolds then filed a grievance under Article V of the negotiated agreement. He completed the first two steps of that procedure prior to filing this SDCL 13^16-1 appeal on August 26, 2002. After filing this appeal but before the District became aware of it, Reynolds completed the third step of the grievance procedure. The fourth step is still pending.

[¶ 7.] This matter was presented to the trial court on cross motions for summary judgment. The trial court found that this was a transfer not a non-renewal and, as such, was governed by the terms of the negotiated agreement between the District and the DEA, that Reynolds agreed to the terms of the negotiated agreement and was bound by it and that, following the transfer, Reynolds had a job and a coaching position and that his salary was not affected in any way.

DECISION

[¶ 8.] Reynolds was not entitled to the relief which he sought for another reason. Under the negotiated agreement, transfer decisions are made by and within the discretion of the superintendent. There is no provision in Article X providing that transfers are to be made by the school board or subject to the school board’s review. Therefore, except in the case of a grievance under Article V, there is nothing in the negotiated agreement that gives the school board authority to approve or disapprove the superintendent’s transfers. Reynolds concedes that this was an unnecessary step. Consequently, to the extent that Reynolds sought to appeal from a substantive decision of the school board making the transfer decisions, the circuit court did not have jurisdiction over the appeal. As this Court indicated in In re Appeal From Decision of Yankton County Commission, 2003 SD 109, ¶ 21, 670 N.W.2d 34, 41: “[bjecausé the permit decision was not before the County Commission, the circuit court had no jurisdiction to review the County Commission’s decision under SDCL 7-8-28.”

[¶ 9.] Neither did the circuit court acquire jurisdiction by means of the grievance. The reassignment or transfer decision is subject to the grievance procedure provided in Article V of the negotiated agreement. Although Reynolds pursued that grievance, he filed this appeal before the school board made its decision and he has never completed step four of the grievance procedure. In fact, his grievance is still pending before the Department of Labor.

[¶ 10.] “It is a settled rule of judicial administration that ‘no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ Failure to exhaust remedies is a jurisdictional defect.” Small v. State, 2003 SD 29, ¶ 16, 659 N.W.2d 15, 18-19 (quoting Jansen v. Lemmon Federal Credit Union, 1997 SD 44, ¶ 7, 562 N.W.2d 122, 124). (citations omitted).

[¶ 11.] Therefore, we affirm the judgment of the circuit court, although for a different reason.

[¶ 12.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 13.] RUSCH, Circuit Judge, for SABERS, Justice, disqualified.

      . The evaluations reported that Reynolds failed to meet expectations in two categories of student relations, i.e., enthusiasm and communication with individual players, and in two administrative areas, i.e., organization of staff and communication with coaches.

      . This is an appeal from the June 10, 2002, decision of the school board under SDCL 13-46-1 which provides:
      From a decision made by any school board, or by a special committee created by any provision of the school law ..., an appeal may be taken to the circuit court by any person aggrieved, or by any party to the proceedings, or by any school district interested, within ninety days after the rendering of such decision.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2004 SD 130
    Noelle DUBRAY, Appellee, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellant.
    No. 23241.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Dec. 15, 2004.

      Neil Carsrud, Dakota Plains Legal Services, Mission, South Dakota, Attorney for appellee.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dákota, Attorney for appellant.
   ZINTER, Justice.

[¶ 1.] Noelle DuBray challenged a Department of Social Services (DSS) decision to place her name on the Central Registry of Child Abuse and Neglect. An administrative decision was entered in favor of DSS, and DuBray appealed to circuit court. The circuit court reversed, concluding that DuBray . had been deprived of a meaningful due process hearing because DSS’s case was based entirely upon three documents that were hearsay. DSS appeals. We affirm the circuit court.

Facts and Procedural History

[¶ 2.] On August 12, 2000, the Rosebud Sioux Tribal police were dispatched to an apartment complex where DuBray lived. When the officers arrived at DuBray’s unlocked apartment, they found her one-and-a-half year old child asleep in the bedroom. No one else was present. Law enforcement took the child to the police department until DSS arrived. When DuBray was located, she was intoxicated. DuBray was arrested for child neglect and was later charged with underage consumption of alcohol and open container.

[¶ 3.] On July 21, 2002, DuBray was informed that DSS had “substantiated [a] report of abuse and neglect” by her because of the August 12, 2000 incident of leaving her daughter alone. DuBray was also informed that she had 80 days to request an informal review of DSS’s proposal to place her name on the Central Registry. DuBray requested and received an informal review. Her request to be removed from the Central Registry was denied because “the department [had] investigated and substantiated, by a preponderance of the evidence, a report of abuse or neglect.” DuBray then requested a formal administrative hearing. In that formal proceeding, the hearing examiner admitted three documents into evidence over DuBray’s hearsay objection. The documents were the sole evidence used to prove the alleged abuse and neglect. The documents were a DSS intake worksheet, a Rosebud Sioux Police Department’s Offense/Incident report, and a DSS narrative outline of its involvement in this case. Based upon these three documents, the hearing examiner upheld DuBray’s placement on the Central Registry.

[¶ 4.] DuBray appealed to circuit court. DSS later filed a motion to dismiss because DuBray failed to serve her brief in a timely manner. DuBray moved to excuse the default, alleging that an error occurred when her file was placed in Dakota Plains Legal Services’ tickler system. The circuit court excused the default, finding that good cause had been established.

[¶ 5.] Following the submission of briefs and argument, the circuit court entered findings of fact and conclusions of law reversing the administrative decision. The circuit court noted that the sole evidence admitted at the administrative hearing was “hearsay and multiple hearsay.” Considering this method of proof, the circuit court concluded that DuBray had been deprived of a meaningful due process hearing in which she could have cross-examined the witnesses against her.

[¶ 6.] DSS appeals raising three issues, which we consolidate into:

1. Whether DuBray was deprived of a meaningful due process hearing because DSS’s sole evidence was inadmissible hearsay.
2. Whether the circuit court erred in excusing the default and not dismissing DuBray’s appeal because her appellate brief was not timely.

Analysis and Decision

Hearsay

[¶ 7.] DSS contends that the circuit court erred in reversing the hearing examiner’s decision to admit the three documents. DSS argues that the documents were either: (1) admissible under an Administrative Procedures Act statute (SDCL 1-26-19) that waives the rules of evidence when the documents are “of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs,” or (2) were admissible under the business records (SDCL 19-16-10, Rule 803(6)) and public records (SDCL 19-16-12, Rule 803(8)) exceptions to the hearsay rule.

[¶ 8.] Evidentiary rulings are reviewed under ah abuse of discretion standard. State v. Milk, 519 N.W.2d 313, 315 (S.D.1994) (citing Zens v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 479 N.W.2d 155, 159 (S.D.1991)). However, admission of evidence in violation of a rule of evidence is an error of law that constitutes an abuse of discretion. Sawyer v. Farm Bureau Mut. Ins. Co., 2000 SD 144, ¶ 26, 619 N.W.2d 644, 651 (citation omitted).

[¶ 9.] The rules of evidence generally apply in administrative proceedings. SDCL 1-26-19 provides in relevant part:

In contested cases:

(1) Irrelevant, incompetent, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied under statutory provisions and in the trial of civil cases in the circuit courts of this state, or as may be provided in statutes relating to the specific agency, shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not otherwise admissible thereunder may be admitted except where precluded by statute if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced sub- ' stantially, any part of the evidence may be received in written form;
(2) A party may conduct cross-examinations required for a full and true disclosure of the facts;

Thus, unless it falls within an exception, hearsay is not admissible in administrative proceedings. Dail v. South Dakota Real Estate Commission, 257 N.W.2d 709, 712 (S.D.1977).

[¶ 10.] DSS first argues that the general exception in the foregoing provision of the Administrative Procedures Act applies. “To come within [that] exception, hearsay must meet a two-pronged test: It must be probative of a fact not reasonably susceptible of proof under normal rules, and it must be of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.” Dail, 257 N.W.2d at 712; SDCL 1-26-19. However, on appeal, DSS only addresses the second prong, arguing that “the three exhibits were a type of document commonly relied upon by reasonably prudent persons in the conduct of their affairs.” DSS fails to even address the first prong, requiring a showing that the hearsay must be probative of a fact not reasonably susceptible of proof under normal rules. Because this first prong disposes of this issue, we address it first.

[¶ 11.] At the hearing, Mimi Olson, a DSS supervisor, provided the only foundational testimony for the exhibits. She indicated that a social worker, Forest Keefe, prepared the intake worksheet and the narrative outline, while the Rosebud Police Department prepared the investigative report. However, Olson failed to establish that the facts within the exhibits were not reasonably susceptible of proof under the normal rules of evidence. While there was testimony that Keefe was no longer employed by the Department, there was no evidence that either Keefe or the investigating police officer were unavailable to testify. Because DSS failed to make the foundational showing that the hearsay was probative of facts not reasonably susceptible of proof under normal rules, the exhibits were erroneously admitted under the Administrative Procedures Act exception in SDCL 1-26-19.

[¶ 12.] We also note that there is a third Administrative Procedures Act requirement that DSS failed to meet. SDCL 1-26-19 provides that “subject to” the two foundational prongs, written evidence may be submitted if the interests of the parties are not substantially prejudiced. DSS argues there was no prejudice because “the admission of the exhibits in their written form would have been identical to the testimony that the police officer or social worker would have presented.” DSS also argues that DuBray was not prejudiced because she was given the opportunity to rebut the documentary evidence. However, both arguments fail to acknowledge that the use of hearsay constituted substantial prejudice because it deprived DuBray of any opportunity to confront and cross-examine the only witnesses who made substantive allegations of abuse and neglect against her. Therefore, DSS also failed to satisfy this prejudice test, and SDCL 1-26-19 did not authorize admission of the documents.

[¶ 13.] Alternatively, DSS argues that the exhibits were admissible under the rules of evidence. DSS first contends that all three exhibits “clearly fall within the business records exception to the hearsay rule_” We disagree.

[¶ 14.] The business records exception, found in SDCL 19-16-10 (Rule 803(6)), provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4, [(Rule 802),] even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

[¶ 15.] Prior to use of the business records exception, a proper foundation must be made through the “testimony of the custodian or other qualified witness.” Id “The custodian of the records ... ‘need not be in control of or have individual knowledge of the particular ... records ..., but need only be familiar with the [business’s] recordkeeping practices.’ ” United States v. Weinstock, 153 F.3d 272, 276 (6thCir.l998) (citation omitted). However, “[a] proper foundation consists of testimony ‘that a document has been prepared and kept in the course of a regularly-conducted business activity.’” Brown, 480 N.W.2d at 768 (citations omitted) (emphasis in original).

[¶ 16.] In this case, the foundational testimony for the intake worksheet was absent. Olson testified that the intake worksheet was prepared by Keefe, and that Keefe was an investigative social worker for the Department. Olson also testified that, as district supervisor, she had access to all the files that were assigned to the workers by the supervisors, and that Olson supervised Keefe’s supervisor. However, that was the extent of the foundational support for this proffered business record.

[¶ 17.] Most troubling here is the fact that this foundational showing omitted the core elements of the exception. Olson never testified that the preparation of the intake worksheet was a routine practice of DSS or that the worksheet was made in the regular course of business. See Wein-stock, 153 F.3d at 276 (noting that the theory behind the business records exception is that a person preparing a record has an incentive to be accurate, therefore “[r]ecords prepared in the course of regularly conducted business activity are particularly reliable... ”). Even though we may surmise that it is common practice for DSS to prepare some type of intake worksheet, DSS was required to provide an evidentiary foundation that this worksheet had been prepared and kept in the ordinary course of business. See Brown, 480 N.W.2d at 763 (citations omitted). Because DSS failed to provide that foundation, the intake worksheet was not admissible under the business records exception. See United States v. Freidin, 849 F.2d 716, 723 (2dCir.1988) (stating that a memorandum was inadmissible under the business records exception because there was no testimony that it was made in the “regular practice” of business); Collins v. Kibort, 143 F.3d 331, 337 (7thCir.1998) (stating that hospital bills were inadmissible because there was no testimony as to the hospitals regular business practice in maintaining billing records).

[¶ 18.] The narrative outline and police report were also foundationally deficient. Olson testified that the narrative outline detailed the investigation, the interviews, and the contacts that Keefe made as the social worker in this case. Although Olson did testify that this narrative outline was prepared in the ordinary course of business, we believe that a social worker’s investigative report of an abuse and neglect charge is just like the narrative portion of an'investigative police report. Both are generally inadmissible because of the inherent unreliability of the ultimate sources of information. See Brown v. State, 274 Ga. 31, 549 S.E.2d 107, 109 (2001) (concluding that the trial court erred in allowing “a police officer to read into evidence the narrative portion of a police report of which he had no personal knowledge and did not prepare”).

[¶ 19.] As the Georgia Supreme Court noted, investigating allegations of criminal conduct is unlike the process used to collect the information that is admissible as a business record. Id. Rather,

[T]he information collected by police officers frequently consists of circumstances that are neither easily definable nor entirely concrete. Unlike the business world where objective information may be gathered in the stream of commerce, police work is often heavily influenced by the beliefs, impressions, and, at times, hunches of the investigating officer. It is because of these difficulties that police report narratives do not fit easily within the business records exception to the hearsay rule. Thus, while the narrative portion of a police report may meet the technical requirements of the statute, it does not have the reliability inherent in other documents that courts have traditionally considered to be business records. We conclude that the narratives contained in police reports generated in connection with police investigations are not the appropriate subject of an exception to the hearsay rule.

Id. The Georgia Supreme Court further observed that:

Were we to conclude that the police report narrative in this case were admissible, serious public policy implications would result.... [A] major alteration in the administration of our system of criminal prosecutions may result.. Because almost all prosecutions are based on incidents in which witness statements are taken and those, along with police officers’ statements, are made part of some police agency’s reporting system, it is reasonable to expect that in the future it might be the rare case in which the witnesses actually come to court and testify.

Id. at 110-111 (citation omitted). A further rationale for excluding police reports (and the analytically similar abuse and neglect investigative reports) “is that the statements of bystanders that police officers incorporate within the record are typically not made pursuant to a routine business duty.” Reeves v. King, 534 So.2d 1107, 1114 (Ala.1988) (citation omitted). The statements made “by witnesses to a crime and recorded by officers are not made in the regular course of the witness’ business,” resulting in a lack of reliability. State v. Bertul, 664 P.2d 1181, 1184 (Utah 1983).

[¶ 20.] In this case, Olson testified that the narrative outline “talks concisely about the investigation, the interviews, and the contacts that were made by the social worker.” A review of the outline reflects that it contains statements from people other than DuBray and Keefe, such as DuBray’s mother and the mother of the babysitter that DuBray alleges -was in charge of the child on the night in question. Both of these individuals have far different motives in reporting the facts of this incident than people reporting regularly conducted business activities.

[¶ 21.] We therefore conclude that the DSS narrative outline was not admissible as a business record. The foregoing discussion also excludes the investigative police report. See also, Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260, 264 (1972) (agreeing that the settled rule is that the report of an investigating officer is not admissible as it is hearsay).

[¶ 22.] DSS alternatively argues that the police report is admissible under the public records exception found in SDCL 19-16-12 (Rule 803(8)), which provides:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
(1) The activities of the office or agency; or
(2) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; or
(3) In civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, are not excluded by § 19-16-4, even though the de-clarant is available as a witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

“Public records will be admitted ‘unless the sources of information or other circumstances indicate lack of trustworthiness’ as set forth in SDCL 19-16-12 [Rule 803(8) ].” State ex rel. Maeschen v. Wittstruck, 377 N.W.2d 137, 139 (S.D.1985).

[¶ 23.] DSS relies on State v. Beynon, 484 N.W.2d 898, 905 (S.D.1992), for the proposition that police reports are admissible as public records. However, Beynon only permitted the use of police reports in rebuttal after they had been extensively referred to by the opposing party and it was necessary to refer to them under the doctrine of completeness. Id. at 904-905. Absent this use, Beynon noted that police reports are not generally admissible under the public records exception “against an accused in a criminal case as they constitute inadmissible hearsay.” Id. at 905. Beynon further stated “that the exception [could] not be used by prosecutors in order to prove their case in chief by means of a report rather than by bringing in the officer to testify.” Id. at n9 (citations omitted). Consequently, Beynon does not support admission of the police report under the public records exception.

[¶ 24.] DSS further suggests admissibility of all documents because DuBray did not provide evidence indicating that the exhibits were not trustworthy. However, DSS fails to recognize that, “[generally, records are shown to be reliable in the course of establishing the elements of the exception,” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 803.08[6][a] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2004). In this case, DSS, as the proponent of the evidence, bore the burden of establishing the elements of the exceptions, but failed to do so. Therefore, DSS, as the proponent of the evidence, failed in its burden of establishing that documents were trustworthy and admissible as business and public records.

[¶ 25.] DSS finally argues that even if there was error in admitting the documents, a reversal is not required. DSS points out that the party asserting error must also show that their substantial rights were affected. Sawyer, 2000 SD 144, ¶ 27, 619 N.W.2d at 651 (citation omitted). However, as was previously discussed, DuBray was substantially prejudiced by the admission of hearsay because it completely deprived her of the ability to confront, and cross-examine the witnesses against her. We agree'with the trial court that the admission of such evidence deprived DuBray of her fundamental right to a meaningful, due process hearing. She was therefore prejudiced.

Discretion to permit untimely briefs

[¶ 26.] DSS asserts that the trial court erred in granting relief from Du-Bray’s default in filing her opening brief. DSS argues that the briefing time limits in SDCL 1-26-33.2 are mandatory and leave no room for a trial courts discretionary relief from a default. We disagree.

[¶ 27.] DuBray served her notice of appeal on January 17, 2003. On January 22, 2003, DuBray filed a request for transcript of the administrative hearing^ and she was provided the transcript on February 13, 2003. Púrsuaní to SDCL 1-26-33.2, Du-Bray had thirty days after service of the transcript in which to serve her brief.

[¶ 28.] However, DuBray failed to meet this deadline. On April 22, 2003, DSS filed a motion to dismiss the appeal because of DuBray’s failure to timely serve her brief. On April 23, 2003, DuBray filed a motion for relief from default. After a hearing on July 3, 2003, DuBray was granted relief from the default. She was also ordered to file her brief no later than July 31, 2003.

[¶ 29.] Thus, DuBray timely filed her notice of appeal, but she failed to timely file her brief and that default was excused for good cause shown. This Court has previously stated that under our analogous rules of appellate procedure “only failure to timely serve and file the notice of appeal is jurisdictionally fatal to an appeals validity, while lesser omissions may be subject to sanctions.” Western States Land Cattle Co., Inc., v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D.1990). DSS has advanced no reason or authority to adopt a different rule for administrative appeals. Therefore, we conclude that because the failure to timely file a brief is not jurisdictional, the circuit court had discretion to excuse the default.

[¶ 30.] DSS finally complains that Du-Bray was given 135 days to file her brief, while DSS had only the statutory thirty days. We note however, that the hearing to consider DuBray’s motion for relief from default was not held until July 3, 2003, almost four months after DuBray moved to excuse the default. Furthermore, following the hearing, DuBray’s brief was not ordered to be filed until July 31, 2003. Thus, while 135 days may have expired from the original date that Du-Bray’s brief was due, a prompt motion to excuse the default was filed, almost four months of the delay occurred in conducting a hearing on the motion, and DuBray’s brief was ultimately filed as ordered by the court. Therefore, this is not a case of a 135 day unexplained failure of an appellant to file a brief.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . The incident that resulted in DuBray's placement on the Central Registry occurred on August 12, 2000. The record indicates that in February, 2002, DuBray authorized DSS to screen her name against the Central Registry for substantiated abuse and neglect reports. The record does not otherwise explain the two-year delay between the initial incident and the administrative review.

      . Because DSS did not satisfy the first foundational prong, we usually would not address the second prong requiring that a reasonably prudent person would rely upon this type of evidence in the conduct of their affairs. We do, however, note that DSS failed to establish that two of the three documents were of a type commonly relied upon by reasonably prudent people in the conduct of their affairs. No such showing was made with respect to the intake worksheet and the narrative outline. Moreover, the only showing made with respect to the police report was that DSS relies on police reports “depending upon the circumstances.”

      . Like the Georgia Supreme Court, we also:
      "... do not address the admissibility of other information not contained in the narrative of the police report. Certain information, such as the time, date and location of an arrest, may be properly admitted under the business records exception under our analysis. Other information that requires the reporting officer to make a conclusion or express an opinion is not admissible. However, since only the narrative portion was read into evidence in this case, we need not address this issue further.” Id. at 110, n. 2.

      . "Several states have prohibited or strongly disapproved the admission of police reports under the business records exception to the hearsay rule when offered by the state. Reeves v. King, 534 So.2d 1107, 1114 (Ala.1988); Wilson v. State, 756 P.2d 307, 312 (Alaska App.1988); Wallin v. Ins. Co. of North America, 268 Ark. 847, 596 S.W.2d 716 (1980); Bolin v. State, 736 So.2d 1160, 1167 (Fla.1999); People v. Gayton, 293 Ill.App.3d 442, 228 Ill.Dec. 229, 688 N.E.2d 1206 (1997); Bacher v. State, 686 N.E.2d 791, n. 4 (Ind.1997); State v. Smith, 594 So.2d 467, 476 (La.Ct.App.1991); Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669 (1990); Snyder v. Portland Traction Co., 182 Or. 344, 185 P.2d 563 (1947); State v. Bertul, 664 P.2d 1181, 1184 (Utah 1983). See also Montgomery v. U.S., 517 A.2d 313, 316 (D.C.1986) (distinguishing between police reports that are prepared in the anticipation of litigation and those that merely record routine facts that are used primarily for internal administrative purposes).”

        Brown, 549 S.E.2d at 110, n. 3.

      . DSS has not argued that the intake worksheet and the narrative outline are admissible as public records. We therefore decline to consider that question.

      . SDCL 1-26-33.2 provides:
      Unless otherwise ordered by the circuit court, the appellant shall serve a brief within thirty days after the delivery of the transcript of the contested case hearing to counsel for the parties or to the parties if unrepresented by counsel .or within thirty days after the agency record is transmitted to the circuit court pursuant to § 1-26-33, whichever event occurs later. The appellee shall serve a brief within thirty days after the service of the brief of appellant, or in the case of multiple appellants, within thirty days after service of the last appellant's brief. The appellant may serve a reply brief within ten days after service of appel-lee's brief, or in the case of multiple appel-lees, within ten days after service of the last appellee's brief. Pursuant to § 15-6-5(d), briefs may not be made a part of the record.


author: WIGGINS, Justice.

text:
    Peggy HANEY and Michelle Jared, Personal Representatives of the Estate of Sylvia Kitchen, Deceased, Appellants, v. Eallen KITCHEN, Appellee.
    No. 03-1522.
    Supreme Court of Iowa.
    Jan. 7, 2005.
    Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for appellants.
    Rand S. Wonio and Troy A. Howell of Lane & Waterman, LLP, Davenport, for appellee.
   WIGGINS, Justice.

The Estate of Sylvia Kitchen filed a claim against a previous executor, Eallen Kitchen, for E alien’s failure to file an amended inheritance tax return requesting a refund for overpayment of the inheritance tax. The district court concluded on the facts and circumstances of this case Eallen did not have a duty to make a claim for a refund. Because we conclude Eallen did not have a duty to file an amended return requesting a refund, we affirm its decision.

I. Background Facts and Procedure.

After Sylvia Kitchen died on February 27, 1997, the probate court admitted her January 5, 1994 will to probate. Under the 1994 will, she left most of her estate to a niece, Janice Sanders, and her late-husband’s nephew, Eallen, whom she named as executor. Under a prior 1993 will, which the 1994 will expressly revoked, the bulk of her estate went to Tod Haney and his wife, Peggy Haney.

Shortly after the court admitted the 1994 will to probate, Tod Haney, Peggy Haney, Michelle Trotter, Colleen Clark, and Galen Clark (collectively known as the “Objectors”) entered into an agreement to file a petition to set aside the 1994 will. The Objectors agreed that if they were successful in their action to set aside the will, they would hot probate the 1993 will and would instead divide the estate one half to the Haneys and one half to the remaining Objectors. The Objectors filed their petition in April 1997.

The inheritance tax return was due December 1, 1997. In February 1998, Eal-len filed the Iowa inheritance tax return late and paid inheritance taxes of $97,994. Of this total, $95,505 of the taxes was attributable to the shares of Eallen and Janice. In December 1999, a jury found the 1994 will was the product of Eallen’s and Janice’s undue influence. Therefore, the district court set aside the will. Eal-len appealed. During the pendency of the appeal, Eallen posted a supersedeas bond.

On three occasions after the entry of the judgment on the jury verdict, the Objectors attempted to remove Eallen as the executor so they could file an amended inheritance tax return seeking a refund of the overpayment of taxes paid by Eallen under the 1994 will. The Objectors filed the first application in December 1999, which the district court denied in April 2000. The Objectors filed the second application in May 2000, which the district court also denied. In October 2001, the court of appeals affirmed the district court’s judgment setting aside the 1994 will. Eallen filed a timely application for further review with this court. In November 2001, the Objectors filed their third application to remove Eallen as executor. On January 4, 2002, before the district court ruled on the third application, this court denied Eallen’s application for further review. Shortly after we denied the application, Eallen resigned as executor.

On January 24, the successor personal representatives of the estate filed an amended inheritance return, requesting a refund of $87,268.01. The department of revenue rejected the refund request as being untimely. A claim for refund “that has not been filed with the department within three years after the tax payment upon which a refund or. credit is claimed became due, or one year after the tax payment was made, whichever time is later” is untimely. Iowa Code § 450.94(3) (1997). The last day to file a claim for a refund would have been December 1, 2000, three years from December 1, 1997, the date the tax payment was due. The successor personal representatives unsuccessfully appealed the department’s ruling.

In January 2002, the estate brought an equity action against Eallen requesting him to make restitution on an insurance policy. The estate amended its petition in June adding a count alleging Eallen “is liable and chargeable under section 633.160 of the Iowa Code for his neglect, unreasonable delay, and failure to file a claim for refund on an amended inheritance tax return.” The estate made no other claims against Eallen in connection with the inheritance tax return.

Prior to trial, the parties settled the claim on the insurance policy. As to the inheritance tax matter, the district court concluded Eallen did not have a duty to file either a claim for a refund or a protective claim, contingent upon losing his appeal. The district court based its conclusion on the premise the Objectors as the ultimate beneficiaries of the estate had an equal right or even a superior right to the executor to make a claim for a refund for any overpayment of the inheritance tax. Based on this conclusion, the district court dismissed the estate’s claim concerning the inheritance tax matter. The Objectors appeal.

II. Issue.

Did the executor of the estate breach his duty under Iowa Code section 633.160 for failing to file an amended inheritance tax return and claim a refund for the overpayment of taxes?

III. Scope of Review.

Our review is de novo because the district court tried the matter in equity. Iowa R.App. P. 6.4; see also In re Estate of Bliven, 236 N.W.2d 366, 369 (Iowa 1975).

IV. Analysis.

The liability of a fiduciary is set forth in section 633.160, which contains the following language:

Every fiduciary shall be liable and chargeable in the fiduciary’s accounts for neglect or unreasonable delay in collecting the credits or other assets of the estate or in selling, mortgaging or leasing the property of the estate; for neglect in paying over money or delivering property of the estate the fiduciary shall have in the fiduciary’s hands; for failure to account for or to close the estate within the time provided by this Code; for any loss to the estate arising from the fiduciary’s embezzlement or commingling of the assets of the estate with other property; for loss to the estate through self-dealing; for any loss to the estate arising from wrongful acts or omissions of any cofiduciaries which the fiduciary could have prevented by the exercise of ordinary care; and for any other negligent or willful act or nonfea-sance in the fiduciary’s administration of the estate by which loss to the estate arises.

Iowa Code § 633.160. The last two provisions of section 633.160 holding a fiduciary liable “for any loss to the estate arising from wrongful acts or omissions of any cofiduciaries which the fiduciary could have prevented by the exercise of ordinary care,” or “for any other negligent or willful act or nonfeasance in the fiduciary’s administration of the estate by which loss to the estate arises” are applicable to the estate’s action against Eallen. Thus, if Eallen negligently or willfully failed to perform his tax responsibilities, the estate may hold him liable for any loss to the estate. To find Eallen was negligent or willful in the performance of his tax responsibilities, we must determine whether he breached his duty to the estate for failing to file the amended return under the facts and circumstances of this case. To determine whether Eallen had a duty to file the amended return, we must first examine the inheritance tax statutes and rules.

An inheritance tax is not a tax upon the estate of a decedent or upon property thereof but is a tax upon the right of succession and is chargeable upon property each beneficiary receives. In re Millard’s Estate, 251 Iowa 1282, 1291, 105 N.W.2d 95, 101 (1960). The Iowa Code provides

[a]ny person becoming beneficially entitled to any property or interest in property by any method of transfer as specified in this chapter, and all personal representatives and referees of estates or transfers taxable under this chapter, are respectively liable for all taxes to be paid by them respectively.

Iowa Code § 450.5. The personal representative has the primary obligation to pay the inheritance tax of the estate. Id. § 450.53.

The Code also provides the person liable for the tax has the responsibility for filing the inheritance tax return. Id. § 450.94(1). The department of revenue issued rules explaining the procedures for filing an inheritance tax return. See Iowa Admin.Code r. 701-86.2. The rules charge the personal representative of the estate with the primary obligation to file the inheritance tax return if the estate is probated. Id. r. 701-86.2(1)(6). If, however, the personal representative fails to file the return, the department charges “those heirs, beneficiaries, transferees, surviving joint tenants, and trustees who receive shares in excess of the allowable exemptions” with the joint or several responsibility to file the return with the department. Id.

A refund for the overpayment of an inheritance tax is made by filing a claim with the department “within three years after the tax payment upon which a refund or credit is claimed became due, or one year after the tax payment was made, whichever time is later.” Iowa Code § 450.94(3). The estate makes a claim for a refund by filing an amended return. Iowa Admin. Code r. 701-86.3(3). If the department denies the refund, the estate can file an appeal. Id. r. 701-86.4.

The 1994 will, which the district court admitted to probate and was the subject of the will contest, provided the testamentary scheme for the distribution of the assets of the estate until such time it was set aside by the court in the will contest. Although a jury found the will to be a product of Ealien’s undue influence in December 1999, Eallen individually and as executor together with Janice appealed the judgment entered on the verdict and posted a supersedeas bond. The supersedeas bond stayed the judgment of the lower court during the pendency of the appeal. Iowa R.App. P. 6.7(1). Until this court issued procedendo on January 16, 2002, the 1994 will remained the testamentary scheme of the estate.

The 1994 will named Objectors Tod Haney, Colleen Clark, and Galen Clark as beneficiaries and bequeathed each of them a specific bequest of $5000. Colleen and Galen Clark’s bequests were not subject to inheritance tax because as Sylvia’s grandchildren, they were entitled to a $15,000 individual exemption for inheritance tax purposes as lineal descendants of Sylvia. See Iowa Code § 450.9(4). On the other hand, Tod Haney’s bequest was not subject to an exemption and was subject to inheritance tax because he was Sylvia’s deceased husband’s grandchild. See id. § 450.10(3).

Under the agreement entered into by the Objectors to contest the 1994 will, each objector, including Tod Haney, jointly agreed to pursue the action to set aside the will. The agreement stated the Ha-neys would be represented by different counsel than Michelle Trotter and the Clarks, with one half of the costs borne by the Haneys and the other one half of the costs borne by Trotter and the Clarks. The Objectors jointly filed a single petition to set aside the will. They jointly filed three applications to remove Eallen as executor. In the estate’s brief on appeal, it does not argue that we should treat one objector differently than any other objector regarding the Objectors’ rights and responsibilities during the will contest. Therefore, we treat the right of one objector to file an amended return as representing the rights and interests of all the Objectors.

On December 21, 1999, May 12, 2000, and November 20, 2001, the Objectors filed applications to remove Eallen as executor of the estate. In each application, the Objectors alleged Eallen refused to amend the inheritance tax return to request a refund after the verdict setting aside the 1994 will on the grounds of undue influence. The Objectors also noted in their applications that the Code required the amended return to be filed prior to the running of the statute of limitations on or before December 1, 2000.

When the Objectors requested Eallen to file an amended return, Eallen had the primary obligation to file the inheritance tax return under Iowa Code section 450.94(1). This included the obligation to file an amended return to seek a refund. When Eallen refused to file an amended return, a beneficiary who received a share of the estate in excess of the allowable exemption had the right to file the amended return. Iowa Admin. Code r. 701— 86.2(1)(6). Therefore, Tod Haney, as a beneficiary who received a share of the estate in excess of the allowable exemption, had a right to file an amended return once Eallen refused to file an amended return. If Tod Haney filed an amended return, he could have done so prior to the running of the statute of limitations and protected the assets of the Estate for the benefit of all the Objectors.

The person filing an amended return is required to use the form “prescribed by the director of revenue.” Iowa Code § 450.94(2). The approved form requires that the person who files the amended return to do so under penalty of perjury certifying the return and its -schedules are true, correct, and complete. The amended return, which the Objectors requested Eal-len to file, reflected a tax liability inconsistent with the testamentary scheme of the 1994 will. The Objectors requested Eallen file an amended return consistent with the Objectors’ position in the litigation that was on appeal. Each time the Objectors requested Eallen to file an amended return, the Objectors, through Tod Haney, could have filed an amended tax return reflecting a tax liability consistent with the position the Objectors were taking in the litigation. If Tod Haney filed an amended return, he could have certified in good faith under penalty of perjury the amended return was true, correct, and complete. As long as the Objectors had a right to file an amended return on the form prescribed by the director of revenue and could do so in good faith, Eallen did not have a duty to file, certify under penalty of perjury, and defend an amended return reflecting a tax liability inconsistent with the position he was taking in the litigation.

For these reasons, we agree with the district court’s conclusion that Eallen did not breach his duty under séction 633.160 for his failure to file an amended return when requested to do so by the Objectors.

Y. DISPOSITION.

Because we agree with the district court that Eallen did not breach his duty under section 663.160 for failing to file the amended tax return, we affirm the decision of the district court.

AFFIRMED.

      . Tod Haney is the grandchild of Sylvia's late husband, Maynard. Maynard and Sylvia had no children together but each had children by prior marriages.

      .Michelle Trotter, Colleen .Clark, and Galen Clark are Sylvia’s grandchildren.

      . Eallen incurred a substantial penalty for the late filing. The record indicates the estate did not pay the penalty.

      . The refund was for $61,804.54 in taxes and $25,463.47 in interest.

      . After Eallen resigned as executor, the objectors nominated the successor personal representatives of the estate,


author: CADY, Justice.

text:
    In the Matter of the ESTATE OF Patricia D. TOLSON, Deceased. Robert M. Tolson, Appellant, v. Clinton National Bank and US Bank, N.A., Appellees.
    No. 03-1808.
    Supreme Court of Iowa.
    Jan. 7, 2005.
    A. John Frey, Jr. of Frey, Haufe & Current, P.L.C., Clinton, for appellant.
    J. Drew Chambers of Hollerman, Shaw, Murphy & Stoutner, Clinton, for appellee Clinton National Bank.
    Robert McGee of Robert J. McGee, P.C., Clinton, for appellee US Bank.
   CADY, Justice.

Robert Tolson, executor of the Patricia Tolson Estate, appeals from a district court’s declaratory judgment that insurance proceeds from damage to the testatrix’s homestead were not exempt from creditor claims. We determine the proceeds were exempt and reverse the decision of the district court. We remand for further proceedings.

I. Background Facts and Proceedings

Patricia Tolson died on September 9, 2002. In her will, she devised her homestead, located in Clinton, to her three children. The will also named one of her children, Robert Tolson, as executor. Robert subsequently opened an estate checking account with US Bank in Clinton and transferred funds from a checking account Patricia had maintained at the bank into the estate account. The estate account had an initial balance of $9,926.53.

US Bank held a perfected mortgage on the homestead. Clinton National Bank held a judgment lien against Patricia in the sum of $35,998.37. It filed a timely claim in the estate on February 5, 2003 to enforce its lien and collect its judgment.

Sometime in March 2003, during the pendency of the estate proceedings, a water pipe broke in the homestead. The house sustained extensive water damage. Personal property located in the home also sustained damage. The house and contents were insured by Iowa Mutual Insurance Company. On April 10, 2003, Iowa Mutual issued a check for the damage to the homestead in the amount of $46,833.22. The check was made payable to Patricia Tolson and US Bank. Other checks were later issued for damage to personal property.

Robert deposited the check representing damages to the homestead into the estate account. He then promptly filed an action in district court for declaratory relief. Among other things, Robert asked the district court to declare the insurance proceeds to be exempt from the claim of Clinton National Bank. He also sought to permit US Bank to satisfy its mortgage by exercising its right of offset under the terms of the mortgage agreement against accounts with the bank.

US Bank subsequently reversed the deposit of the insurance proceeds after it discovered that Robert failed to obtain the endorsement of US Bank, as mortgagee, on the insurance check. Around the same time, Robert issued a check drawn from the estate account in the sum of $12,591.35 to a contractor he employed to perform repair work on the home.

After the insurance proceeds check was properly endorsed, US Bank exercised its right of offset under the terms of the mortgage agreement against the estate account. The amount of the note covered by the mortgage was $12,187.77. The amount in, the estate account at the time was $10,073.34. US Bank attached all the estate account funds and satisfied the remaining amount of the debt, $2,114.43, from the insurance proceeds. The remaining insurance proceeds in the amount of $44,718.75 were deposited in the estate account on June 18, 2003.

The district court eventually declared that US Bank properly exercised its offset right. It further held that the insurance proceeds from the water damage were not exempt assets. The district court found the proceeds were not exempt because Robert failed to prove that the proceeds would actually be used to repair the damage to the home. The court made this finding even though Robert had some repairs performed and testified at the hearing that the insurance proceeds were placed into the estate account for the house. The district court ruling meant that the insurance proceeds would be subject to claims, including the claim of Clinton National Bank.

Robert appeals. He claims the insurance proceeds were exempt from the claim of Clinton National Bank and that he was not required to make a showing they were to be used to repair the homestead. He further claims that even if he was required to make such a showing, there was substantial evidence that the proceeds were to be used for repairs. Robert did not appeal from that portion of the district court decree declaring that US Bank properly exercised its offset right.

II. Standard of Review

“A declaratory judgment action tried at law limits our review to correction of errors at law. We are bound by well-supported findings of fact, but are not bound by the legal conclusions of the district court.” Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575 (Iowa 2004) (citing United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 651 (Iowa 2002)).

III. Discussion

Iowa Code section 561.16 provides that every person’s homestead is exempt from judicial sale. Iowa Code § 561.16 (2003). Although there are exceptions to this rule, these exceptions do not apply to this case. Additionally,

Where the homestead descends to the issue of either spouse the homestead shall be held exempt from any antecedent debts of the issue’s parents or antecedent debts of the issue, except those of the owner of the homestead contracted prior to acquisition of the homestead or those created under section 249A.5 relating to the recovery of medical assistance payments.

Id. § 561.19. It was undisputed that Patricia’s house was an exempt homestead. Accordingly, the house passed to the children free from the relevant existing debt in this case. See id. The question is whether the insurance proceeds acquired the same status.

The purpose of homestead laws is

to promote the stability and welfare of the state by encouraging property ownership and independence on the part of the citizen, and by preserving a home where the family may be sheltered and live beyond the reach of economic misfortune.

40 Am.Jur.2d Homestead § 4, at 253 (1999). “[T]o secure the benevolent purposes of the homestead laws,” we construe these laws broadly and liberally “in favor of the beneficiaries of the legislation.” Millsap v. Faulkes, 236 Iowa 848, 852, 20 N.W.2d 40, 42 (1945).

In Blakeslee v. Paul, we held that an owner of a destroyed homestead had a “right, at least within a reasonable time, to invest [insurance] proceeds received from the former homestead, in the reasonable and necessary repair of the new homestead, and that same is not subject to garnishment.” 212 Iowa 1385, 1387, 238 N.W. 447, 448 (1931); accord 40 Am.Jur.2d Homestead § 46, at 292 (“The proceeds of a policy of insurance on homestead property are generally not subject to the claims of the owner’s creditors. The money is deemed to represent or stand in the place of the property that has been destroyed.”); cf. Kinzer v. Stephens, 121 Iowa 347, 349, 96 N.W. 858, 859 (1903) (“[Proceeds from an involuntary sale, damages to the property growing out of a tort, or the resultant of other involuntary substitution of nonexempt for exempt property, is exempt, at least for a reasonable length of time.” (Citations omitted.)). Yet, in Blakeslee, we also indicated that “[t]he intention of the [homestead owners] to use [the insurance proceeds to repair it] [wa]s unequivocally asserted in their affidavits.” 212 Iowa at 1385, 238 N.W. at 448. The district court seized upon this language to conclude that a person claiming a homestead exemption for insurance proceeds must prove an intent to actually use the proceeds to repair the homestead.

Although there was no doubt in Blakeslee that the proceeds were to be used to repair the homestead, our holding in the case does not necessarily require the person claiming the exemption to prove the intent to use the proceeds to repair the homestead. Blakeslee only held that insurance proceeds from the damage to or destruction of the homestead are exempt for at least a reasonable time. Id. at 1387, 238 N.W. at 448. The rationale for this holding is that “the insurance money represents, or stands in the place of, the property itself.” 5 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 66.53, at 66-75 (3d ed.2000). Thus, insurance proceeds, as a substitute for the homestead, acquire exempt status when paid by the insurance company, and the proceeds remain exempt, for a reasonable period of time. The reasonable period of time gives the owner the opportunity to use the proceeds to repair the homestead or invest in another homestead. After the passage of a reasonable period of time, the proceeds lose their exempt status. This change occurs once all the facts and circumstances of the case show the owner does not intend to use the funds to repair the homestead or invest in another homestead. Under these circumstances, the purpose of the homestead laws will not be served, so the exemption is lost.

Thus, if the water damage in this case had occurred when Patricia was alive, she would have held the insurance proceeds exempt from creditor claims for a reasonable period of time after she received the check from Iowa' Mutual. Of course, this is not what happened in this case. Instead, the issue emerges in the context of an estate proceeding. However, by recognizing the rights of the devisees to the proceeds, we think the principle applies in the same manner.

When Patricia died, legal title to her homestead passed to her children. See Iowa Code § 633.350 (“[W]hen a person dies, the title to the person’s property, real and personal, passes to the person to whom it was devised by the person’s last will.... ”); DeLong v. Scott, 217 N.W.2d 635, 637 (Iowa 1974) (“The rule has long been established in Iowa that title to a decedent’s real property passes instantly to devisees under his will and, in the absence of a will, to statutory heirs, subject to possession by the decedent’s personal representative during probate proceedings for purposes of administration, sale, or other disposition under provisions of law.” (Citations omitted.)); accord 23 Am.Jur.2d Descent and Distribution § 14 (2002). Because Patricia’s homestead was exempt during her lifetime, Iowa Code § 561.16, and passed by her will to her children automatically when she died exempt from her antecedent debts, id. § 561.19, Patricia’s creditors had no claim against the homestead when she died. ■ Moreover, these claims were not resurrected merely because Patricia’s exempt homestead sustained water damage after her death, which resulted in its partial conversion into insurance proceeds. Although the insurance proceeds were paid to the executor, the proceeds, as a substitute for the homestead, belonged to the devisees as the new owners of the homestead, and they were exempt from the estate creditors.

IV. Conclusion

The district court erred as a matter of law by requiring the executor to establish an intent to use the funds to repair the homestead as a predicate to acquiring the homestead exemption. When an exempt homestead is damaged or destroyed, the insurance proceeds from the damage or destruction are exempt from creditor claims for a reasonable period of time, which begins when the owner of the homestead receives the proceeds. Because it is undisputed that the homestead was exempt during Patricia’s lifetime, the insurance proceeds were likewise exempt from the claim of Clinton National Bank. Accordingly, the district court’s declaratory judgment is reversed, and we remand the case for further proceedings to close the estate.

REVERSED AND REMANDED.

      . The homestead exemption would not alter the rights of a mortgage holder, such as US Bank in this case, to exercise rights against the homestead pursuant to the mortgage agreement.

      . The insurance proceeds would lose their exempt status only after the devisees failed to use the proceeds to repair the homestead or invest in a new homestead within a reasonable time after the proceeds were distributed from the estate. Consequently, only creditors of the devisees, not creditors of the estate, would normally be in a position to assert claims against the insurance proceeds.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellant, v. Robert Arthur ALLEN, Appellee.
    No. 03-1947.
    Supreme Court of Iowa.
    Jan. 7, 2005.

      Thomas J. Miller, Attorney General, Darrell Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Heather Prendergast, Assistant County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellee.
   STREIT, Justice.

Sometimes the past does catch up with you. The important issue before us today is whether the Iowa Constitution forbids enhancement of a crime on account of a prior uncounseled misdemeanor conviction for which no term of incarceration was imposed. We hold the Iowa Constitution contains no such bar. We reverse and remand for further proceedings.

I. Facts and Prior Proceedings

While patrolling a city park, two Waterloo police officers found a man drinking a beer. As the officers arrested the man, Robert Allen interjected. Allen told the man in a profane manner that he did not have to take a breath test. Allen, a self-professed “constitutionalist,” was concerned the police would violate the man’s right against self-incrimination.

The police officers turned their attention to Allen. Allen was holding a forty-ounce beer bottle in a paper sack, was surrounded by empty beer bottles, and had symptoms of drunkenness- — -obstreperous behavior, slurred speech, bloodshot eyes, and an odor of alcohol. The police officers arrested Allen for public intoxication.

Discovering Allen had prior convictions for the same crime, the prosecutor charged Allen with third-offense public intoxication, an aggravated misdemeanor. See Iowa Code §§ 123.46(2), .91 (2003). Allen denied the charge, and the court appointed an attorney to defend him.

The district court divided Allen’s trial into two stages, separating the issues of public intoxication and enhancement. A jury found Allen was intoxicated in the park.

Before trial proceeded to enhancement, Allen filed a motion to adjudicate points of law. Allen sought to exclude evidence of a prior uncounseled misdemeanor conviction for which no term of incarceration was imposed as unconstitutional. Allen premised his claim solely upon the Iowa Constitution.

Although Allen did not refer to a specific provision in the Iowa Constitution, he relied upon our decision in State v. Cooper, 343 N.W.2d 485 (Iowa 1984), and argued generally that our “view of the importance of counsel, as well as [our] belief in the unreliability of uncounseled convictions should preclude enhancement of the ... charge.” The district court agreed. After Allen stipulated to a prior counseled conviction for public intoxication, the court found him guilty only of second-offense public intoxication, a serious misdemeanor. See Iowa Code §§ 123.46(2), .91. The court sentenced Allen to 120 days in jail and imposed a $250 fine. See id. § 903.1(1)(&). The State appealed.

II. Scope and Standards of Review

Although we generally review claims brought under the Iowa Constitution de novo, see In re S.A.J.B., 679 N.W.2d 645, 647 (Iowa 2004), in this case there is no factual dispute. The only issue is whether the Iowa Constitution forbids use of a prior uncounseled misdemeanor conviction for enhancement of a crime, even when the prior conviction did not itself result in a term of incarceration. The parties agree our review is for errors at law. State v. Tovar, 656 N.W.2d 112, 114 (Iowa 2003), rev’d on other grounds, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).

III. The Use of Prior Uncounseled Misdemeanor Convictions

A. Legal Background

A little legal history will help set the stage for our discussion of the merits. In Argersinger v. Hamlin, the United States Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to require “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972). In Scott v. Illinois, the Court reaffirmed this holding but expressly declined to extend Arger-singer to defendants in misdemeanor cases where imprisonment was only a possibility in the statute under which the defendant was convicted. 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383, 389 (1979).

In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Supreme Court examined the relevance of the Argersinger/Scott rule to the ubiquitous use in the states of prior uncounseled misdemeanor convictions to enhance later crimes in anti-recidivism statutes. A plurality of justices appeared to hold that a “prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.” Baldasar, at 226, 100 S.Ct. at 1587, 64 L.Ed.2d at 173-74. Several justices provided markedly different rationales for the result, however, and lower courts were left divided on how to apply the case. See Nichols v. United States, 511 U.S. 738, 743-46, 114 S.Ct. 1921, 1926-27, 128 L.Ed.2d 745, 752-54 (1994).

In State v. Cooper, 343 N.W.2d 485 (Iowa 1984), we entered Baldasar territory for the first time. The facts and circumstances of Cooper are similar to those in the case at bar. We ruled that, where a defendant was not advised of her right to counsel in two prior prosecutions for simple misdemeanor theft, the State could not later use those convictions to enhance a third theft charge to an aggravated misdemeanor. Cooper, 343 N.W.2d at 486. In doing so, we rejected the State’s contention that Baldasar only prevented the use of an uncounseled conviction to later impose imprisonment and did not pertain to enhancement of the charge. Id. We reasoned that “[t]he lack of reliability in an uncounseled conviction that prevents the imposition of incarceration also prevents the enhancement of the charge.” Id. We concluded that “the reasoning of Baldasar and our own view of the importance of counsel preclude an enhanced conviction as well as a sentence of imprisonment.” Id.

Ten years later the United States Supreme Court partially overruled Balda-sar. In Nichols, the Court held an un-counseled misdemeanor conviction could enhance a later offense so long as no incarceration was imposed in the first prosecution. 511 U.S. at 748-49, 114 S.Ct. at 1928, 128 L.Ed.2d at 755. But see id. at 748 n. 12, 114 S.Ct. at 1928 n. 12, 128 L.Ed.2d at 755 n. 12 (recognizing states are free to afford more protections to defendants); Iowa R.Crim. P. 2.28. We recognized this change in federal constitutional law last year but were not asked to reconsider Cooper in light of Nichols. See Tovar, 656 N.W.2d at 114.

Litigants caught in the ebb and flow of the United States Supreme Court’s rulings in Baldasar and Nichols learned the fate of Cooper in Iowa — at least as a matter of federal constitutional law — this past August. In State v. Wilkins, the defendant was charged with third-offense OWI. 687 N.W.2d 263, 264 (Iowa 2004). Before sentencing, the defendant challenged the propriety of the degree of the offense. Id. She pointed out that, like the defendant in Cooper, she did not have counsel during one of her two prior convictions. Id. The State rejoined that the defendant in Wilkins was not actually incarcerated for that prior offense, and therefore Nichols did not forbid using it for enhancement. Id.

After examining Nichols, we overruled Cooper as a matter of federal constitutional law and held the Sixth and Fourteenth Amendments did not prohibit use of the prior misdemeanor conviction for enhancement because Wilkins was not incarcerated for that earlier offense. See id. at 264-65. In ruling, we recognized Nichols had overruled the plurality decision in Baldasar. Id. at 264. We wrote that with respect to federal constitutional law, “an enhancement of a sentence based on prior uncoun-seled misdemeanor convictions does not violate the Sixth [and Fourteenth] Amendment[s] unless the prior uncounseled offenses actually resulted in imprisonment.” Id. (citing Nichols, 511 U.S. at 746-47, 114 S.Ct. at 1927, 128 L.Ed.2d at 754). Recognizing, then, that Cooper was premised upon a “view of the federal constitution [that was] unambiguously rejected in Nichols,” we overruled Cooper in part. Id. at 265. As a matter of federal jurisprudence, we were “not at liberty to continue to follow our holding in Cooper.” Id.

In Wilkins, we did not decide the issue as a matter of state constitutional law. Id. The defendant had not raised this issue in the district court. Id. Because Allen has preserved error on his state constitutional claim, we now address the merits of the argument for the first time.

B. The Iowa Constitution

In the district court, Allen argued use of a prior uncounseled misdemeanor conviction would violate the Iowa Constitution, notwithstanding the advent of Nichols. Allen did not, however, cite any specific provision of the Iowa Constitution in support of his claim. Allen simply pointed the district court to our Cooper decision, where we stated under nearly identical circumstances that “the reasoning of Bal-dosar and our own view of the importance of counsel” precluded enhancement. 343 N.W.2d at 486 (emphasis added). The district court agreed. The court reasoned the aforementioned italicized phrase in Cooper indicated that we premised our conclusion in that case upon the Iowa Constitution.

Wilkins, however, forecloses this argument. We stated:

Wilkins argues that, because the result in our Cooper case was premised in part on “our own view of the importance of counsel,” see 343 N.W.2d at 486, we should continue to follow that precedent. Cooper was commenting on an interpretation of the Sixth Amendment of the federal constitution in which only four justices joined. Consequently, we believe that the reference to our view of the matter was intended as an affirmation of the vieiu of the Sixth Amendment expressed by the justices in the Supreme Court’s plurality opinion.

Wilkins, 687 N.W.2d at 265 (emphasis added, footnote omitted); see Moe, 379 N.W.2d at 349 (viewing decision in Cooper as an application of the federal constitution). Because Cooper was only intended as an affirmation of a then-existing interpretation of the federal constitution, the district court incorrectly used it to ground Allen’s state constitutional claim. See Wilkins, 687 N.W.2d at 265.

On appeal, Allen maintains that even if Cooper did not rely upon the Iowa Constitution, we should nevertheless construe the Iowa Constitution to bar introduction of all prior uncounseled misdemeanor convictions. In doing so, he resurrects a general theme present in his argument to the district court: namely, that we are free to construe the Iowa Constitution more broadly than the federal constitution. Allen points to two recent decisions which, he claims, show we are “dedicated to ... expanding the personal liberties of Iowans.” See State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001); State v. Cline, 617 N.W.2d 277, 292-93 (Iowa 2000).

While it is true that in Daly and Cline we disagreed with the reasoning of the United States Supreme Court, standing alone this mere fact of past disagreement does not mean we are, as a general proposition, “dedicated to ... expanding the personal liberties of Iowans.” Rather, we are simply charged with a solemn duty as the highest court of this sovereign state to interpret the Iowa Constitution. See Racing Ass’n v. Fitzgerald, 675 N.W.2d 1, 4 (Iowa 2004) (hereinafter RACI II). When presented with sound reasons to do so, we will not hesitate to distinguish the protections afforded by the Iowa Constitution from those of the federal constitution. Cf. Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 795 (Iowa 2004) (“Because the parties have articulated no basis for distinguishing” them, state and federal constitutional guarantees “appl[y] equally.”); In re Detention of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000) (enunciating similar maxim; defendant had not “offered an alternative test or guidelines”). The United States Supreme Court’s decisions are not binding upon us when faced with a corresponding claim under the Iowa Constitution. See State v. Olsen, 293 N.W.2d 216, 219 (Iowa 1980) (citing Bierkamp v. Rogers, 293 N.W.2d 577, 579 (Iowa 1980)).

Once the irrelevance of Cooper to the state constitutional issue is demonstrated, it becomes difficult to discern a persuasive reason to depart from Nichols in Allen’s arguments to the district court or in the district court ruling itself. Perhaps because both Allen and the district court thought Cooper squarely controlled, neither cited a single provision in the Iowa Constitution. That said, Allen did argue generally in the district court that our “view of the importance of counsel, as well as [our] belief in the unreliability of un-counseled convictions should preclude enhancement of the ... charge.” In light of this statement, the nature of Allen’s appeal brief, and (as we shall later see) how other state supreme courts have framed the issues, we consider two provisions in our analysis: the state constitutional rights to counsel and due process. See Iowa Const. art. I, §§ 9, 10. In order to justify a different result under our state constitution, then, there must be some principled basis for distinguishing at least one of these two provisions from the federal law as enunciated in Nichols.

We find no persuasive reason to disagree with Nichols on the facts and arguments presented in this case, and therefore we decline to interpret the Iowa Constitution to afford more protection than the federal constitution with respect to the use of prior uncounseled misdemeanor convictions. We begin by pointing out that the state right-to-counsel and due-process provisions are textually similar to their federal counterparts. Compare U.S. Const. amends. VI, XIV, with Iowa Const. art. I, §§ 9, 10. But see RACI II, 675 N.W.2d at 5 n. 2 (recognizing “significant differences” in text of state and federal equal protection clauses). For this reason, past construction of the federal constitution, including Nichols, is persuasive in our interpretation of the corresponding provisions of the Iowa Constitution. Cf. Olsen, 293 N.W.2d at 219 (citing Bierkamp, 293 N.W.2d at 579). Nor do we detect a trend in our sister state courts to abandon the federal analysis. A strong majority of the states that have analyzed uncounseled misdemeanor convictions under their state constitutional rights to counsel and due process have declined to forge new and different ground. See, e.g., State v. Thrasher, 783 So.2d 103, 105-06 (Ala.2000) (due process); State v. Delacruz, 258 Kan. 129, 899 P.2d 1042, 1045-47 (1995) (state constitution generally); State v. Cook, 706 A.2d 603, 604-05 (Me.1998) (due process); People v. Reichenbach, 459 Mich. 109, 587 N.W.2d 1, 4-7 (1998) (right to counsel); State v. Weeks, 141 N.H. 248, 681 A.2d 86, 88-89 (1996) (right to counsel and due process); State v. Woodruff, 124 N.M. 388, 951 P.2d 605, 616 (1997) (due process); State v. Porter, 164 Vt. 515, 671 A.2d 1280, 1284 (1996) (right to counsel and due process); State ex rel. Webb v. McCarty, 208 W.Va. 549, 542 S.E.2d 63, 67 (2000) (right to counsel). Those states that have parted ways with the majority appear to have done so because the right-to-counsel guarantee in their state constitutions is worded more broadly than our article I, section 10. In such states, the literal language of the right-to-counsel provision demands that the right attaches in any case where the statute under which the defendant is charged authorizes the possibility of incarceration; as a consequence, the prior uncounseled conviction is itself invalid as a matter of state constitutional law. See, e.g., State v. Deville, 879 So.2d 689, 690 (La.2004) (citing La. Const. art. I, § 13 (affording state constitutional right to counsel in all cases where the accused is “charged with an offense punishable by imprisonment”)); see also State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228, 239-41 (Ct.App.1996). Iowa’s right-to-counsel guarantee contains narrower language, and we have not previously interpreted it to afford broader protection than the Ar-gersinger/Scott “actual imprisonment” standard. See, e.g., McNabb v. Osmundson, 315 N.W.2d 9, 13 (Iowa 1982) (declining to rule on issue).

Article I, Section 10: The Iowa Right to Counsel

Lastly, in separately examining Allen’s state constitutional rights to counsel and due process, we find no flaws in the federal analysis. With respect to Allen’s right to counsel under Iowa’s article. I, section 10, use of a prior conviction to enhance his present conviction plainly “do[es] not change the penalty imposed for the earlier conviction.” Nichols, 511 U.S. at 747, 114 S.Ct. at 1927, 128 L.Ed.2d at 754. That is, although enhancement may result in a longer period of incarceration for the subsequent offense, this mere fact does not retroactively — -and hence unconstitutionally — impose a period of incarceration for the prior offense.

The reason[s given] for holding that the accused is not again punished for the first offense [are] ... that the punishment is for the last offense committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself; ... that the statute imposes a higher punishment for the same offense upon one who proves, by a second or third conviction, that the ■ former punishment has been inefficacious in doing the work of reform, for which it was designed; ... that the punishment for the second is increased, because, by his persistence in the perpetration • of crime; he has evinced a depravity, which merits a greater punishment, and needs to be restrained by severer penalties than if it were his first offense; and ... that it is just that an old offender should be punished more severely for a second offense, that repetition of the offense aggravates guilt.

Moore v. Missouri, 159 U.S. 673, 677, 16 S.Ct. 179, 181, 40 L.Ed. 301, 303 (1895) (citations and internal quotations omitted). We have consistently held that repeat-offender laws penalize only the last offense committed by the defendant and for this reason do not offend the Iowa Constitution. See, e.g., State v. Norris, 203 Iowa 327, 328-29, 210 N.W. 922, 923 (1926) (recidivist statute did not offend Iowa constitution); State v. Dowden, 137 Iowa 573, 576, 115 N.W. 211, 212 (1908) (same); see also State v. Gaskey, 255 Iowa 967, 971-73, 124 N.W.2d 723, 725-26 (1963) (sustaining recidivist statute from constitutional challenge; statute did not punish defendant a second time for prior offense). Had Allen not reoffended, he would not face any imprisonment; the imprisonment he may yet suffer would “punish[ ] him solely for his [repeat] offense, and in no way adds to or alters the penalty he received for his initial ... conviction.” Cook, 706 A.2d at 606.

Article I, Section 9: The Iowa Right to Due Process

Nor do we find any flaws in the federal analysis as applied to Allen’s right to due process under the Iowa Constitution. Use of Allen’s prior uncounseled misdemeanor conviction is not so inherently unreliable that its use under a recidivist statute would abridge article I, section 9. Cf. Woodruff, 951 P.2d at 613-16 (viewing question as one of due process and finding no state constitutional infirmity). However more reliable it may have been had counsel appeared, the fact remains that in Iowa Allen’s prior conviction is reliable enough for the conviction and punishment imposed in that case. Indeed, to rule against the use of such a conviction would render it an illogical “hybrid conviction,” reliable for its own attendant punishment, but oddly not reliable for enhancement or sentencing in later prosecutions. Cf. Nichols, 511 U.S. at 744-45, 114 S.Ct. at 1926, 128 L.Ed.2d at 753.

Due process is a flexible standard under which a court must balance the costs and benefits of additional procedural safeguards. Namely, we must consider:

(1) the private interest that will be affected by the government action;
(2) the risk of the erroneous deprivation of the interest, and the probable value of additional procedures; and
(3) the government interest in the regulation, including the burdens imposed by additional procedures^]

Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 491 (Iowa 2003) (citations omitted). Balancing these factors, we conclude that any marginal gain in reliability is outweighed by the costs of ruling otherwise. Cf. Woodruff, 951 P.2d at 613-16 (arriving at same conclusion); Porter, 671 A.2d at 1285 (Morse, J., concurring) (“[I]t comes down to a matter of judgment from experience. In my judgment, the requirement that counsel be afforded to all indigent ... defendants in order to effectuate [a] recidivist statute is simply too big a price to pay for the relatively small marginal gain in ‘reliability.’ ”). A prior uncounseled misdemeanor conviction is, after all, a conviction; as such, a certain degree of reliability already attends it. While we do not think — as the State appears to suggest— that a ruling to the contrary would wreak havoc upon the court system, such a decision would impose significant additional burdens on the criminal justice system for a only marginal gain in reliability. A majority of other state supreme courts, in addition to the United States Supreme Court, have determined due process does not demand such a trade-off, and we agree with them. Of course, a sentencing “court may consider in fashioning the sentence that an uncounseled prior ... conviction may have been less reliable.” Porter, 671 A.2d at 1285 (Morse, J., concurring).

In sum, we hold the Iowa Constitution does not bar use of prior uncounseled misdemeanor convictions for later enhancement where the prior conviction did not itself result in a term of incarceration.

IY. Other Issues

Allen raises a panoply of other issues on appeal not directly relevant to the primary task before us. Among these arguments, Allen apparently claims his trial counsel— although successful in obtaining exclusion of the challenged conviction — was ineffective. We do not discuss these issues, finding they are either premature or lack merit.

Y. Conclusion

The Iowa Constitution does not forbid use of a prior uncounseled misdemeanor conviction for enhancement of a later conviction, so long as the defendant was not incarcerated for the prior conviction. We reverse and remand for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . The Iowa Code provides that repeat offenders of section 123.46 shall be subject to enhanced charges upon proof of prior convictions. First-offense public intoxication is a simple misdemeanor; second-offense public intoxication is a serious misdemeanor; and third-offense public intoxication is an aggravated misdemeanor. Iowa Code §§ 123.46(2), .91. Enhanced charges may bring, but do not necessarily require, enhanced penalties. The Code provides wide ranges for the sentencing court to consider; these ranges allow for increasingly severe punishments as the offense is repeated. Namely:

        a. For a simple misdemeanor, there shall be a fine of at least fifty dollars but not to exceed five hundred dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.

        b. For a serious misdemeanor, there shall be a fine of at least two hundred fifty dollars but not to exceed one thousand five hundred dollars. In addition, the court may also order imprisonment not to exceed one year.
      2. When a person is convicted of an aggravated misdemeanor, and a specific penalty is not provided for, the maximum penalty shall be imprisonment not to exceed two years. There shall be a fine of at least five hundred dollars but not to exceed five thousand dollars. When a judgment of conviction of an aggravated misdemeanor is entered against any person and the court imposes a sentence of confinement for a period of more than one year the term shall be an indeterminate term.

        Id. § 903.l(l)-(2).

      . In 2001, Allen was arrested for public intoxication. Allen initially pled not guilty, but as part of the terms of his release he consented to an entry of judgment of conviction and the imposition of a fine if he failed to appear for his trial. See Iowa R.Crim. P. 2.72. When Allen did not show up for trial, the district court found him guilty and fined him accordingly. No term of imprisonment, however, was imposed. The parties agree this conviction was uncounseled.

      . The defendant was not imprisoned for either prior conviction. Cooper, 343 N.W.2d at 486. Because the decision predated Nichols, this fact was not deemed relevant at the time.

      . In Tovar, the continuing validity of Cooper in light of Nichols was not at issue. Rather, the issue was whether the defendant had validly waived his federal rights in a prior case for which a term of incarceration was imposed and for which he did not have die benefit of a lawyer. 656 N.W.2d at 114. A defendant, of course, may waive the right to counsel in a prior conviction so as to permit later enhancement, even if the defendant was not represented by a lawyer. State v. Moe, 379 N.W.2d 347, 349 (Iowa 1985). The parties in Tovar agreed that if there was not a valid waiver, then Nichols forbade enhancement of the later charge based upon what would then be a prior uncounseled conviction for which imprisonment was imposed. 656 N.W.2d at 114. In the case at bar, however, no term of incarceration was imposed; the State also concedes that Allen's prior conviction was uncounseled insofar as he did not validly waive his right to counsel in that case. The extended discussion in Tovar concerning what constitutes a valid waiver is not relevant to our task today.

      . Indeed, the fact Cooper did not contain any such reference is consistent with our decision in Wilkins that Cooper did not express a view of the Iowa Constitution; if Cooper was decided on such a basis, one would expect to find reference to a provision of the Iowa Constitution in it.

      . As we pointed out in Cooper, the reliability concerns are the same whether the issue is one of enhancement or sentencing. 343 N.W.2d at 486. There is also, we think, "a relatively low risk of error in using an un-counseled misdemeanor conviction for purposes of enhancement in comparison with other factors courts typically use in sentencing.” Woodruff, 951 P.2d at 616.