State of Iowa v. Alexander Vonriedel Burgdorf

IN THE COURT OF APPEALS OF IOWA

No. 20-0059
Filed February 17, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ALEXANDER VONRIEDEL BURGDORF,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, Steven W. Guiter,

District Associate Judge.

Defendant appeals from three convictions for driving while license revoked.

AFFIRMED.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

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

Attorney General, for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
2

SCHUMACHER, Judge.

Alexander Burgdorf appeals from three separate convictions following jury

trials where he was found guilty of driving while his license was revoked. He

argues the evidence is insufficient to prove he operated a motor vehicle in one of

his cases. Additionally, he asserts his right to self-representation was violated in

all three of his cases when he was represented by counsel despite his requests to

proceed pro se. We find the record contains substantial evidence to support the

jury’s verdict and Burgdorf’s right to self-representation was not violated.

Accordingly, we affirm.

I. Introduction

This appeal includes three cases: SRCR030003, SRCR030437, and

SRCR030283. The three cases arise from the same underlying offense of driving

while license is revoked in violation of Iowa Code section 321J.21.1 The cases

were tried separately to a jury and a guilty verdict was returned in each case. On

appeal, Burgdorf claims the evidence is insufficient in case number SRCR030283

and his right to self-representation was violated in all three cases.

II. Sufficiency of the Evidence in case SRCR030283

A. Facts

On May 6, 2019, Knoxville police officer Joel Kimpston-Burkgen was on

routine patrol when he observed Burgdorf’s vehicle with what appeared to be

illegally tinted windows traveling on the roadway. The officer activated his lights

1 The cases arise from three separate offense dates. Burgdorf was charged by
trial information in case SRCR0300003 on November 15, 2018; in case
SRCR030283 on May 21, 2019; and in case SRCR030437 on August 13, 2019.
3

and pulled the vehicle over. He parked his patrol car behind Burgdorf’s vehicle,

exited his vehicle, and approached Burgdorf’s driver’s side window. Seated behind

the wheel was Burgdorf. In the passenger seat was Burgdorf’s girlfriend. The

officer requested Burgdorf’s driver’s license and registration. Burgdorf provided

registration but indicated he was not a valid driver and did not have his driver’s

license. The officer called dispatch to request Burgdorf’s driving license record

and found that his license was revoked. Burgdorf was arrested for driving while

revoked.

B. Standard of Review

Sufficiency of evidence claims are reviewed for correction of errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is binding upon this

court and will be upheld unless it is not supported by substantial evidence. State

v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). Substantial evidence is evidence

that would convince a rational trier of fact that the defendant is guilty beyond a

reasonable doubt. Id. If evidence raises only suspicion, speculation, or conjecture,

it is not substantial. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). We view

all relevant evidence in the light most favorable to the State. Id.

C. Analysis

At trial, the State was required to prove beyond a reasonable doubt that

Burgdorf: (1) operated a motor vehicle, and (2) at the time his license was revoked.

See Iowa Code § 321J.21 (2019). Burgdorf does not contest the fact his license

was revoked. Rather he claims the evidence is insufficient to prove that he

operated a vehicle. Despite being in the driving seat when the officer approached
4

the vehicle, Burgdorf argues there is nothing to show that he and his passenger

did not switch seats in the moments it took the officer to approach his window.

The jury rejected this argument. Ample evidence was presented to prove

Burgdorf was operating a vehicle. Officer Kimpston-Burkgen testified that he was

familiar with Burgdorf’s vehicle and observed it traveling on the roadway. When

he approached the vehicle, Burgdorf was in the driver’s seat. He did not report

seeing the passengers of the vehicle switch seats. Video of the stop was admitted

into evidence at trial. We find the record contains substantial evidence for the jury

to find Burgdorf operated a vehicle while license under revocation.

III. Right to Self-Representation

A. Introduction

A pretrial conference for Burgdorf’s three cases was held on August 27,

2019.2 Burgdorf indicated that he would like to proceed pro se in the proceedings,

and the district court granted his request allowing his then-appointed counsel to

withdraw. On September 26, the State filed a memorandum of final plea offer

encompassing the pending cases and requested a hearing. The court set a

hearing for October 1 to consider all pending motions and further address

Burgdorf’s request to proceed pro se. At the October 1 hearing, Burgdorf initially

maintained his desire to represent himself; however, after discussing what would

be required of him during a jury trial, Burgdorf indicated he would like to be

2 The August 27 pretrial conference was scheduled in all three of Burgdorf’s cases.
Additionally, pretrial hearings were held in case SRCR0300003 on October 1 and
in case SRCR030437 on October 15; however, matters relevant to all three cases
were discussed in each.
5

represented by counsel. The court found Burgdorf qualified for court-appointed

counsel and appointed such to represent him in his three cases.

Burgdorf subsequently voiced a desire to represent himself multiple times

in each of his cases. His requests were denied by the district court, and he was

represented by counsel in all three of his jury trials. Burgdorf claims his Sixth

Amendment right to self-representation was violated when counsel was appointed

in his three cases, and his subsequent requests to proceed pro se were denied.3

B. Standard and Scope of Review

Burgdorf’s constitutional claims are reviewed de novo. See State v. Rater,

568 N.W.2d 655, 657 (Iowa 1997). “[W]e look to the record as a whole to

determine whether the defendant desired to be represented by counsel.” Spencer,

3 We note, Burgdorf asks this court to “adopt the three-part test found in the
dissenting opinion in State v. Spencer,” 519 N.W.2d 357, 362 (Iowa 1994), and
find he was denied the right to self-representation. However, “[w]e are not at liberty
to overrule controlling supreme court precedent” and therefore, must decline.
State v. Jeffrey, No. 19-1918, 2020 WL 4814141, at *1 (Iowa Ct. App. Aug. 19,
2020) (quoting State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014)). As noted
in the decision granting Spencer’s writ of habeas corpus, “A trial court evaluating
a defendant’s request to represent himself must ‘traverse . . . a thin line’ between
improperly allowing the defendant to proceed pro se, thereby violating his right to
counsel, and improperly having the defendant proceed with counsel, thereby
violating his right to self-representation.” Spencer v. Ault, 941 F. Supp. 832, 834
(N.D. Iowa 1996) (quoting Field v. Murray, 49 F.3d 1024, 1029 (4th Cir 1994)). In
determining whether the trial court traversed this “thin line,” or instead strayed from
it, the habeas corpus court found the trial court must decide three issues. Id. The
threshold issue is whether the petitioner clearly and unequivocally asserted his
right to self-representation under the Sixth Amendment in his state court criminal
proceedings. Id. If the court finds that the petitioner did indeed make such a
demand to represent himself, then the court must consider two further questions.
Id. They are, first, whether the state trial court properly appointed only “standby
counsel” to assist the petitioner with his defense, and, second, whether the
petitioner then waived his right to self-representation by acquiescing in the actions
of his standby counsel. Id. We note the facts between the instant case and
Spencer are distinct. Burgdorf did not clearly and unequivocally assert his right to
self-representation under the Sixth Amendment and the current law in Iowa.
6

519 N.W.2d at 360; see also Reese v. State, 391 N.W.2d 719, 723 (Iowa Ct. App.

1986). “In evaluating the record, we indulge in every reasonable presumption

against waiver.” Rater, 568 N.W.2d at 661.

C. Analysis

The Sixth and Fourteenth Amendments of the federal Constitution ensure

that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

assistance of counsel for his defen[s]e.” U.S. Const. amend. VI; see U.S. Const.

amend. XIV; Faretta v. California, 422 U.S. 806, 807 (1975). Implicit in the

guarantees of the Sixth Amendment is a “‘correlative right to dispense with a

lawyer’s help.’” Id. at 814 (quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 279 (1942)). While the Sixth Amendment right to counsel attaches until

waived, “the right to self-representation is not effective until asserted.” State v.

Martin, 608 N.W.2d 445, 450 (Iowa 2000); see Rater, 568 N.W.2d at 658.

“When an accused manages his own defense, he relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to counsel.

For this reason, in order to represent himself, the accused must ‘knowingly and

intelligently’ forgo those relinquished benefits.” Faretta, 422 U.S. at 814 (quoting

Johnson v. Zerbst, 304 U.S. 458, 464−65 (1938) (plurality opinion of Black, J.)).

The request must be “clear and unequivocal” and courts must “indulge every

reasonable presumption against waiver.” Martin, 608 N.W.2d at 450 (quoting

Zerbst, 304 U.S. at 464); accord Brewer v. Williams, 430 U.S. 387, 404 (1977)

(applying equally the “strict standard” against waiver of a constitutional right to

waiver of the right to counsel); see Patterson v. Illinois, 487 U.S. 285, 307 (noting

the “strong presumption against” waiver of right to counsel).
7

“[I]n light of the strong presumption against waiver of the constitutional right

to counsel,” before accepting the request, a district court must engage the

defendant in what has been coined a “Faretta colloquy.” State v. Cooley, 608

N.W.2d 9, 15 (Iowa 2000) (quoting Von Moltke v. Gillies, 332 U.S. 708, 724

(1948)). Through the colloquy, the court must make the defendant “aware of the

dangers and disadvantages of self-representation, so that the record will establish

that he knows what he is doing and his choice is made with eyes open.” Faretta,

422 U.S. at 835 (quotations omitted).

“The surrounding circumstances will determine the sufficiency of a

colloquy.” Hannan v. State, 732 N.W.2d 45, 53 (Iowa 2007); see Cooley, 608 at

15 (“[A] judge must investigate as long and as thoroughly as the circumstances of

the case before him demand.” (quoting Von Moltke, 332 U.S. at 724)). The

colloquy, at minimum, must touch on “the nature of the charges, the statutory

offenses included within them, the range of allowable punishments thereunder,

possible defenses to the charges and circumstances in mitigation thereof, and all

other facts essential to a broad understanding of the whole matter.” Hannan, 732

N.W.2d at 53 (quoting Von Moltke, 332 U.S. at 724).

Burgdorf criticizes the adequacy of the district court’s colloquies in each of

his cases separately. Specifically, Burgdorf argues, “For each of the three

separate cases, the trial court’s inquiry into Burgdorf’s request to proceed pro se

mandated by Faretta [sic] was inadequate (SRCR030003), non-existent

(SRCR030283), or deficient (SRCR030437).” We choose to address Burgdorf’s

claims in kind.
8

It remains, however, that the surrounding circumstances dictate the

sufficiency of the colloquy, and we review the entire record in assessing a question

of waiver. See Hannan, 732 N.W.2d at 53; Spencer, 519 N.W.2d at 360. Our

analysis is informed throughout by the fact Burgdorf requested the appointment of

counsel, the same judge presided over Burgdorf’s three cases, the underlying

offense in each case was the same, and he was represented by the same attorney

throughout the proceedings.

1. Case No. SRCR030003

As previously discussed, the district court scheduled a pretrial hearing on

October 1 to address the pending matters in Burgdorf’s cases. The hearing began

by Burgdorf questioning the authority of the court and requesting “as beneficiary

of my legal person,” “proof of delegated authority of jurisdiction.”4 The court

responded, “If you expect me to allow you to proceed without counsel, you need

to answer my questions, and I need to make a decision that you’re able to

represent your own interest. Do you understand that?” Burgdorf stated that he

did.

The court began a colloquy with Burgdorf and established that he knew he

had the right to counsel, what the State would be required to prove at trial, the

potential penalties he faced if found guilty, his level of education, and his prior

experience with criminal trials. As the court described what would be required of

4 Burgdorf’s requests to represent himself throughout the proceedings are
embedded in his broader contention that the charges against him are
unconstitutional. It appears from the record that Burgdorf believes the State
cannot “license” his right to travel and therefore views the proceedings against him
as illegitimate.
9

Burgdorf during jury selection, Burgdorf stated, “I got to take an—take an attorney.

Maybe I’ll take some representation.” The district court responded, “Do you wish

to have an attorney appointed to represent you in this case?” Burgdorf stated,

“Yes, Your Honor.” Burgdorf submitted a financial affidavit and an application for

appointment of counsel. The court found Burgdorf qualified for court-appointed

counsel and appointed counsel to represent him.

Concerning the appointment of counsel in his other cases, the court and

Burgdorf engaged in the following discussion:

The Court: Do you want me to appoint the same attorney to
represent you on your other cases at this time? Burgdorf: Not at this
time.
Q: Well, are you asking to represent yourself on the case that
is set for two weeks from now? [referencing case No. SRCR030437]
A: Yeah, it’s a possibility.
Q: If you are, I’m going to deny your request because I don’t
think you meet the standards to be able to represent yourself in a
jury trial. A: I said—all right. Then I guess appoint the same.
Q: I will appoint counsel on Mr. Burgdorf’s other cases at this
time as well.

On appeal Burgdorf claims the district court’s colloquy in case No.

SRCR030003 was “inadequate” and “abbreviated” because “the inquiry stopped

after the court asked some questions about jury selection and Burgdorf indicated

he would take some representation.” Additionally, Burgdorf claims that “[o]nce

there was an indication by Burgdorf that he wanted to represent himself in the other

driving while license under revocation case, the court should have resumed the

self-representation inquiry in Case No. SRCR030003.” We disagree.

“[A] waiver [of the right to self-representation] may be found if it reasonably

appears to the court that defendant has abandoned his initial request to represent

himself.” Spencer, 519 N.W.2d at 359 (quoting Brown v. Wainwright, 665 F.2d
10

607, 610 (5th Cir. 1982)). After indicating his desire to proceed pro se, the district

court properly engaged Burgdorf in a colloquy as mandated by Faretta. However,

after hearing what would be required of him in jury selection, Burgdorf stated that

he wished to be represented, and counsel was appointed. We find Burgdorf

abandoned his initial request to proceed pro se through his subsequent statements

and actions requesting counsel be appointed. See id. at 359−60 (citing cases

where defendant’s subsequent actions indicated an abandonment of initial request

to proceed pro se); Reese, 391 N.W.2d at 723 ( “[E]ven if a defendant requests to

represent himself, the right may be waived through his subsequent conduct

indicating he is vacillating on the issue or has abandoned his request altogether.”

(quoting Brown, 665 F.2d at 610)).

We disagree with Burgdorf’s assertion that the district court was required to

re-engage Burgdorf in a colloquy after he indicated, “it’s a possibility” he wished to

represent himself in another of his cases. “In the absence of a clear and knowing

election, a court should not quickly infer that a defendant unskilled in the law has

waived counsel and has opted to conduct his own defense.” Id. at 723 (quoting

Brown, 665 F.2d at 610). The right to counsel is preeminent, and district courts

must “indulge every reasonable presumption against waiver.” Brewer, 430 U.S. at

404; see Patterson, 487 U.S. at 307. Burgdorf had requested he be represented,

and counsel was appointed. His subsequent statements did not equate to a clear

and unequivocal assertion of his right to self-representation. Cf. Spencer, 519

N.W.2d at 359 (explaining waiver of the right to self-representation may be found

despite a defendant’s statement that he wishes to represent himself if those

statements are made “merely out of brief frustration with the trial court’s decision
11

regarding counsel and not as a clear and unequivocal assertion of his

constitutional rights.”). We find no error.

2. No. SRCR030437

On October 15, a pretrial conference was held in case SRCR030437.

Burgdorf’s counsel informed the court that he believed Burgdorf wished to proceed

pro se because he was dissatisfied that his counsel could not identify a means of

avoiding trial without pleading guilty. The court began a colloquy with Burgdorf

and inquired into his background, including his age, medical history, substance

abuse, and level of education. The court asked Burgdorf, “What is your reason for

not wanting an attorney to help you—help you with your case?” Burgdorf

responded,

Because I do not want to give consent to contract with you. I’m not
obligated—or obliged—to contract because I’m standing on my
rights. The State cannot require you to give up a right for privileges,
and you have no delegated authority to convert my rights into
privileged rights so I do not wish to contract with you nor do I
understand—nor can I consent to proceed until—you answer and
provide with evidence of delegated authority before we could
proceed with this matter as director and beneficiary of my legal
person.

The court continued to examine Burgdorf and inquired into his

understanding of the charges against him, the penalties he faced, and his prior

experience with criminal trials. The court explained what would be necessary of

him at trial and asked, “You believe you can do all of that without the assistance of

an attorney?” Burgdorf responded, “I do not understand nor can I consent to

proceed until you answer and provide with evidence—delegated authority before

we proceed with this matter as director and beneficiary of my legal person and

corporation.” The court responded, “Is it—still your request to proceed without an
12

attorney?” Burgdorf gave a similar response stating, “I do not wish to contract with

you nor do I understand nor can I consent to proceed . . .” and went on to demand

that the court “discharge this entire matter with prejudice and award the penalties

for the crimes to be paid to me for false arrest $6680.00.”

The court denied Burgdorf’s request, stating, “The court is going to deny Mr.

Burgdorf’s request to represent himself. We’ve went through a number of

questions. The court does not believe that Mr. Burgdorf has clearly and

unequivocally shown his assertion of the right to proceed pro se and waived

counsel so counsel remains as appointed.”

Burgdorf claims the district court’s colloquy in case No. SRCR030437 was

“deficient” because “the court gave up on trying to get an answer from Burgdorf as

the court deemed Burgdorf’s answers as non-responsive.” We disagree.

In order for the district court to allow Burgdorf to proceed pro se, it was

required to find Burgdorf “knowingly and intelligently” waived his right to counsel.

To ensure a valid waiver, the court began a colloquy with Burgdorf; however, as

Burgdorf admits, he “never really answers the court’s questions about whether he

would be capable of undertaking his own defense.” The right to counsel and self-

representation are inextricably in tension, and as our supreme court has noted,

this “place[s] trial judges between a rock and a hard place.” Spencer, 519 N.W.2d

at 361(quoting United States v. Berkowitz, 927 F.2d 1376, 1383 (7th Cir.1991)).

However, it is the right to self-representation that must be asserted clearly and

unequivocally. See e.g., Martin, 608 N.W.2d at 450.

“Equivocation, which sometimes refers only to speech, is broader in the

context of the Sixth Amendment, and takes into account conduct as well as other
13

expressions of intent.” Bilauski v. Steele, 754 F.3d 519, 523 (8th Cir. 2014)

(quoting in parenthetical United States v. Barnes, 693 F.3d 261, 271 (2d Cir.

2012)). Burgdorf did not offer meaningful responses to the court’s inquiry, and his

statements were predominated by demands that the charges against him be

dismissed. We have upheld a district court’s denial of a defendant’s request to

proceed pro se where the defendant advanced arguments similar to Burgdorf’s

contesting the authority of the court and made “disjointed and rambling statements,

demonstrating he did not understand the underlying legal proceedings or what he

was required to do so as to be able to represent himself.” See State v. Ross, No.

14-1717, 2016 WL 1677181, at *4 (Iowa Ct. App. April 27, 2016). Given the context

of Burgdorf’s request, we agree with the district court that Burgdorf did not clearly

and unequivocally assert his right to self-representation and knowingly and

intelligibly waive his right to counsel. Cf. Raulerson v. Wainwright, 732 F.2d 803,

808–09 (11th Cir. 1984) (finding no unequivocal waiver of the right to counsel

where defendant abruptly walked out of courtroom during Faretta colloquy).

3. No. SRCR030282

Case SRCR030283 was the last of Burgdorf’s cases to go to trial and

commenced on December 12. At the beginning of trial, Burgdorf reasserted his

desire to fire his counsel and proceed pro se. The district court denied this request

and stated that “[a] hearing was previously held on this matter some time ago[.]”

Burgdorf responded,

Well, I do not consent with these proceedings—to go on with these
proceedings, and I do not wish to contract with you. I do not want
him representing me. He is fired. He needs to withdraw from my
case and the UCC, right, and located—look at denying me proper
14

representation, you know, counsel of my choice, and that’s a
violation of my rights.

Burgdorf then demanded that the district court “dismiss these charges and clear

them from my record and—pay me reimbursement of $3,075,000 for my false

arrest.” The court denied the request, stating,

We previously had a hearing about representation, and it was
determined that we would—you would continue with court-appointed
counsel. This is the date and time set for trial. The jury—the parties
are here to serve as jurors so we’re going to proceed with the jury
trial today with [counsel] representing you.

Burgdorf proceeded to trial represented by counsel.

Burgdorf claims the district court’s colloquy in case No. SRCR030282 was

“non-existent” and argues “[a]t a minimum, some type of Faretta inquiry should

have been made as to Burgdorf’s request for self-representation.” We believe the

circumstances surrounding Burgdorf’s request make the district court’s actions

sufficient to find no error.

“[T]he right to self-representation is not absolute.” United States v. Harlan,

960 F.3d 1089, 1093 (8th Cir. 2020) (quoting United States v. Prucha, 856 F.3d

1184, 1187 (8th Cir. 2017)). “The surrounding circumstances will determine the

sufficiency of a colloquy.” Hannan, 732 N.W.2d at 53. Burgdorf made his request

moments before the last of his three trials. The same judge presided over each of

Burgdorf’s trials, the underlying offense was the same, and he was represented by

the same counsel. The district court “must investigate [the request to proceed pro

se] as long and as thoroughly as the circumstances of the case before him

demand. . . . [T]he extent of a trial court’s inquiry may vary depending on the

nature of the offense and the background of the accused.” Cooley, 608 N.W.2d at
15

15 (quotations omitted). Burgdorf had previously requested representation, and

counsel was appointed. The court had twice prior engaged Burgdorf in lengthy

colloquies concerning his desire to represent himself and properly determined he

had not knowingly and intelligibly waived his right to counsel. Burgdorf’s assertions

concerning his representation were again a part of his broader contention that the

proceedings were illegitimate.

“A request to proceed pro se is constitutionally protected only if it is timely,

not for purposes of delay, unequivocal, voluntary, intelligent and the defendant is

competent.” Harlan, 960 F.3d at 1093 (quoting Jones v. Norman, 633 F.3d 661,

667 (8th Cir. 2011)). Given the court’s extensive prior discussion on the matter

and the substantially similar argument advanced by Burgdorf, we do not believe

the court was required to embark on a third in-depth colloquy with Burgdorf

moments before trial was to begin. “Once trial commences, th[e] right [to self-

representation] is subject to the trial court’s discretion which requires a balancing

of the defendant’s legitimate interests in representing himself and the potential

disruption and possible delay of proceedings already in progress.” Id. (quoting

United States v. Wesley, 798 F.2d 1155, 1155–56 (8th Cir. 1986)). “The right to

self-representation does not exist to be used as a tactic for delay, for disruption,

for distortion of the system, or for manipulation of the trial process.” United States

v. Edelmann, 458 F.3d 791, 808–09 (8th Cir. 2006). “[T]he government’s interest

in ensuring the integrity and efficiency of the trial at times out-weighs the

defendant’s interest in acting as his own lawyer.” Martinez v. Court of Appeal of

California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000). Given the
16

surrounding circumstances and the record as a whole, we find the district court’s

denial of Burgdorf’s request constitutionally sufficient.

IV. Conclusion

The record contains substantial evidence to support the jury’s verdict. We

find no error in the district court’s denial of Burgdorf’s requests to represent himself.

According, we affirm.

AFFIRMED.