State v. Davis

969 N.W.2d 783

STATE of Iowa, Appellee,

v.George DAVIS, Appellant.

No. 20-1244

Supreme Court of Iowa.

Submitted December 14, 2021

Filed January 28, 2022

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

McDonald, J., delivered the opinion of the court, in which Christensen, C.J., and Appel, Waterman, Mansfield, and Oxley, JJ., joined. Appel, J., filed a concurring opinion. McDermott, J., filed a dissenting opinion.

McDONALD, Justice.

Iowa Code section 814.6A(1) (2019) provides that "[a] defendant who is currently represented by counsel shall not file any pro se document ... in any Iowa court" and further provides that a court "shall not consider, and opposing counsel shall not respond to, such pro se filings." While represented by counsel, defendant George Davis timely filed a pro se notice of appeal from his conviction for operating while intoxicated, third offense. Davis's appellate counsel subsequently filed an untimely notice of appeal. The primary question presented in this appeal is whether Davis's timely pro se notice of appeal accompanied by counsel's untimely notice of appeal was sufficient to invoke this court's appellate jurisdiction. For the reasons expressed below, we answer this question in the affirmative. On the merits, Davis contends the district court denied him the right of allocution at sentencing and requests that this matter be remanded for resentencing. We conclude the defendant was provided the right of allocution and affirm the defendant's sentence.

In December 2019, Davis was arrested after he drove off the road into the front yard of a residence, struck a tree, and was found in possession of prescription drugs not prescribed to him. He was charged with operating while intoxicated, third offense, as a habitual offender, and possession of a controlled substance, first offense. Davis pleaded guilty to operating while intoxicated, third offense, and agreed to an indeterminate term of incarceration not to exceed five years, and the State agreed to dismiss the habitual offender enhancement and the possession charge. On August 24, 2020, the district court sentenced Davis to the bargained-for sentence. On September 10, Davis timely filed a pro se notice of appeal. This timely notice of appeal was certified by the clerk of court on September 14. On September 14, Davis's plea counsel moved to withdraw from the case. The district court granted Davis's plea counsel's motion to withdraw and appointed the appellate defender's office to represent Davis on appeal.

In light of section 814.6A, we had concerns regarding this court's jurisdiction over Davis's appeal. "It is a fundamental principle of our jurisprudence that a court has the inherent power to decide if it has subject matter jurisdiction over a matter." Colwell v. Iowa Dep't of Hum. Servs. , 923 N.W.2d 225, 238 (Iowa 2019). Once a jurisdictional question has been raised, the court must examine the grounds for the assertion of its appellate jurisdiction before proceeding further. See id. To assist in our examination of the jurisdictional question, we requested that the parties provide supplemental briefing. After this court requested supplemental briefing, Davis's appellate counsel filed an amended notice of appeal on August 23, 2021. Counsel's notice of appeal states, "Davis appeals to the Supreme Court of Iowa from the final order entered in this case on the 24th day of August, 2020, and from all adverse rulings and orders inhering therein. A [p]ro se notice of appeal was filed on September 10, 2020."

There is no dispute Davis has a statutory ground to appeal as a matter of right. " Iowa Code section 814.6(1)(a )(3) provides a defendant may appeal as a matter of right from a conviction entered upon a guilty plea only when the conviction is for a class ‘A’ felony or the defendant establishes good cause." State v. Boldon , 954 N.W.2d 62, 68 (Iowa 2021). Davis did not plead guilty to a class "A" felony, and he thus must establish good cause to appeal as a matter of right. Good cause to appeal requires the defendant to establish a "legally sufficient reason" to appeal. State v. Damme , 944 N.W.2d 98, 104 (Iowa 2020). We have found a defendant generally has good cause to appeal as a matter of right when the defendant challenges his sentencing hearing or the sentence itself. See, e.g. , State v. Jordan , 959 N.W.2d 395, 399 (Iowa 2021) (finding good cause to determine whether a prosecutor breached a plea agreement to remain silent at sentencing when the defendant absconded after the plea hearing and failed to appear at the original sentencing hearing); Boldon , 954 N.W.2d at 69 (finding good cause to determine whether prosecutor breached a plea agreement and whether the district court improperly used the defendant's juvenile offense history during sentencing); Damme , 944 N.W.2d at 105 (finding good cause to determine whether the district court improperly referred to the defendant's family's criminal history during sentencing). Davis's challenge to the sentencing hearing and the subsequent sentence establishes good cause to appeal as a matter of right.

To exercise his appeal as a matter of right, Davis was required to timely initiate and perfect his appeal. An appeal from a final judgment of sentence is initiated by "filing a notice of appeal with the clerk of the district court where the order or judgment was entered." Iowa R. App. P. 6.102(2). The "notice of appeal must be filed within 30 days after the filing of the final order or judgment." Id. r. 6.101(1)(b ). This rule is "mandatory and jurisdictional." Concerned Citizens of Se. Polk Sch. Dist. v. City Dev. Bd. , 872 N.W.2d 399, 402 (Iowa 2015) (quoting Root v. Toney , 841 N.W.2d 83, 87 (Iowa 2013) ). If a party does not timely file a notice of appeal, the court has no jurisdiction over the appeal and the matter must be dismissed. See id.

In the past Davis's timely filing of his pro se notice of appeal would have been sufficient to invoke this court's appellate jurisdiction. In 2019, however, the legislature prohibited defendants represented by counsel from filing pro se documents in any Iowa court and prohibited the courts from considering any such documents. See 2019 Iowa Acts ch. 140, § 30 (codified at Iowa Code § 814.6A (2019)). The State contends that where, as here, a defendant is represented by counsel, section 814.6A renders a pro se notice of appeal a nullity without legal effect. The court of appeals recently has reached this conclusion. See State v. Stark , No. 20-1503, 2021 WL 4592246, at *3 (Iowa Ct. App. Oct. 6, 2021) (stating pro se notice of appeal was a nullity but granting delayed appeal); cf. Boring v. State , No. 20-0129, 2021 WL 2453045, at *3 (Iowa Ct. App. June 16, 2021) ("However, the notice of appeal was again filed pro se while Boring was still represented by counsel. Accordingly, it was a document that could not be considered. It was a nullity, as the State claims. For that reason, the appeal is dismissed.").

Although we have not yet had the opportunity to address the legality or effect of section 814.6A as applied to a pro se notice of appeal, we have addressed the statute's (and a similar statute's) legality and effect in other contexts. Last term, in State v. Thompson , we held section 814.6A prohibited an appellant represented by counsel from filing a pro se supplemental brief on appeal and directed the clerk of the supreme court to strike any such brief. 954 N.W.2d 402, 418–19 (Iowa 2021). In reaching that conclusion, we rejected a separation-of-powers challenge to the new law. See id. In Hrbek v. State , we confronted a similar statute, Iowa Code section 822.3A, barring certain pro se documents in postconviction-relief proceedings. 958 N.W.2d 779, 781 (Iowa 2021). We held section 822.3A did not violate the separation-of-powers doctrine, concluding the challenge was "materially indistinguishable" from the claim rejected in Thompson . Hrbek , 958 N.W.2d at 784. We also rejected the applicant's claims that the prohibition of pro se filings in postconviction-relief proceedings violated the applicant's "inalienable rights; the right to the assistance of counsel; the right to access the courts; the right to the equal protection of the laws; and ‘some principle of due process’ " and held "there is no constitutional right of any sort to file pro se supplemental documents in postconviction-relief proceedings and postconviction appeals." Id. at 785.

Davis advances several arguments that section 814.6A is inapplicable to pro se notices of appeal, and he advances several arguments that, if section 814.6A is applicable to pro se notices of appeal, then the law is unconstitutional as applied. First, Davis contends section 814.6A applies only to appellate court filings and not documents filed in the district court. In support of this argument, he notes the statutory provision at issue is contained within chapter 814, which addresses "Appeals from the District Court." Second, he contends section 814.6A applies only to substantive documents, including briefs and motions, but not nonsubstantive ministerial documents like notices of appeal. In support of this argument, Davis relies on language in Thompson where we explained that the legislature had a legitimate reason to restrict pro se documents on appeal so that "counsel and client speak with one voice." 954 N.W.2d at 418 (quoting United States v. Turner , 677 F.3d 570, 579 (3d Cir. 2012) ). Davis argues the concern about counsel and client speaking with one voice is inapplicable to nonsubstantive ministerial documents. Third, Davis argues section 814.6A is inapplicable here because, although he was represented by counsel in the district court at the time he filed his pro se notice of appeal, he was not yet represented by appellate counsel. If the court rejects these...