State of Iowa v. Clifford Arnell Gooden, III

[[COURTLISTENER_SUBOPINION {"id":"11079350","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
IN THE COURT OF APPEALS OF IOWA

                                  No. 23-1092
                              Filed June 18, 2025


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLIFFORD ARNELL GOODEN III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Korie Talkington

(preliminary hearing), Henry W. Latham II (Frye hearing), Stuart P. Werling

(motions hearing), and Meghan Corbin (trial), Judges.



      The defendant appeals from his conviction for second-degree burglary.

AFFIRMED.



      Webb L. Wassmer (argued) of Wassmer Law Office, PLC, Marion, for

appellant.

      Brenna Bird, Attorney General, and Anagha Dixit (argued) and Olivia D.

Brooks, Assistant Attorneys General, for appellee.



      Heard at oral argument by Greer, P.J., and Badding and Chicchelly, JJ.
                                         2


GREER, Presiding Judge.

       A jury found Clifford Gooden III guilty of second-degree burglary; he was

later sentenced subject to the habitual offender enhancement. On appeal, Gooden

argues his constitutional right to counsel was violated because the district court

allowed him to represent himself at critical stages of the prosecution leading up to

trial without first obtaining a valid waiver of his right to counsel. Gooden also

argues the district court should have sua sponte instructed the jury to not consider

the fact he voluntarily absented himself from trial when deciding whether he was

guilty of the charged offense.

I. Background Facts and Proceedings.

       On May 20, 2022, the State filed a criminal complaint against Gooden,

alleging he committed second-degree burglary when he forced his way into a

friend’s residence without permission and then swung a chair that he carried in

from outside at the friend.

       Gooden demanded a preliminary hearing, which took place one week later.

He appeared without counsel and declined to apply for court-appointed counsel.

As he had at the initial appearance, Gooden reiterated that he wanted to represent

himself. After the hearing, the district court entered an order finding there was

probable cause the offense was committed and that Gooden was the person who

committed it. On May 27, the court appointed stand-by counsel as directed by

Gooden, who qualified for court appointed counsel.

       On July 5, the State filed a trial information charging Gooden with second-

degree burglary and asserting the habitual offender sentencing enhancement

applied.
                                         3


       Gooden continued to file motions with the court, and he represented himself

at a couple different hearings. Then, on the morning of September 21, Gooden

represented himself at what the court referred to as a Frye hearing,1 where the

State outlined the plea agreement it offered Gooden, and Gooden rejected the

offer on the record.

       A few hours later, the court reconvened for a hearing on several motions.

At this hearing, the court engaged in a lengthy colloquy with Gooden, who then

waived his right to counsel.

       A jury trial commenced on September 26. Gooden represented himself with

the assistance of standby counsel during jury selection, the State’s case-in-chief,

and his motion for judgment of acquittal.2 After his motion was denied, Gooden

left the courtroom and refused to return. The district court appointed standby

counsel to represent Gooden in his absence; appointed counsel rested Gooden’s

case, worked on jury instructions, and presented a closing argument. The jury

found Gooden guilty of second-degree burglary. He was later sentenced to a term




1 In Missouri v. Frye,
566 U.S. 134, 144
(2012), the Supreme Court recognized,

        The reality is that plea bargains have become so central to the
        administration of the criminal justice system that defense counsel
        have responsibilities in the plea bargain process, responsibilities that
        must be met to render the adequate assistance of counsel that the
        Sixth Amendment requires in the criminal process at critical stages.
The “Frye hearing” here involved making a record showing Gooden was aware of
the plea offer and his decision to reject it—not “[t]he defunct federal common-law
rule of evidence on the admissibility of scientific evidence” that “required that the
tests or procedures . . . [to] have gained general acceptance in their particular
field.” Frye test, Black’s Law Dictionary (12th ed. 2024); see also Frye v. United
States,
293 F. 1013
(D.C. Cir. 1923).
2 Gooden was appointed standby counsel for much of the time leading up to trial.
                                           4


of incarceration not to exceed fifteen years with a three-year mandatory minimum

sentence.

       Gooden appeals.

II. Waiver of Right to Counsel.

       “In a state criminal proceeding, the defendant has a Sixth and Fourteenth

Amendment right to counsel at all critical stages of the criminal proceeding and the

corollary right to self-representation.” State v. Hardin, No. 17-0595,
2017 WL

4050884
, at *1 (Iowa Ct. App. Sept. 13, 2017); see Iowa v. Tovar, 541 U.S. 80–81

(2004) (recognizing the Sixth Amendment ensures the right to counsel “at all

critical stages of the criminal process”); Faretta v. California,
422 U.S. 806, 819
(1975) (“The Sixth Amendment does not provide merely that a defense shall be

made for the accused; it grants to the accused personally the right to make his

defense.”). Between the two, the right to counsel is preeminent—a defendant

maintains the right to counsel until he or she invokes the right to represent themself

and validly waives their constitutional right to counsel. See Hannan v. State,
732

N.W.2d 45, 52
(Iowa 2007) (“A defendant’s constitutional right to counsel is

effective until waived. Unless [the defendant] properly waived his right to counsel,

[he] still had his constitutionally protected right to counsel at all critical stages of

the criminal process.” (cleaned up)); Fields v. Murray,
49 F.3d 1024, 1029
(4th Cir.

1995) (“[T]he right to be represented by counsel is preeminent . . . . So important

is the right to counsel that the Supreme Court has instructed courts to indulge in

every reasonable presumption against its waiver.” (cleaned up)). “A defendant

who has not knowingly, intelligently, and voluntarily waived the right to counsel has
                                         5


effectively been denied representation.” State v. Cooley,
608 N.W.2d 9, 18
(Iowa

2000). Our review of this issue is de novo.
Id. at 13
.

       Here, it is undisputed that Gooden was allowed to represent himself3

without waiving his right to counsel from his initial appearance on May 20, 2022,

until a motions hearing on September 21, at which Gooden waived his right to

counsel on the record. As we understand his argument on appeal, Gooden limits

his constitutional challenge to this window—he does not contest the efficacy of the

district court’s colloquy on September 21; deny that his waiver of the right to

counsel on that day was knowing, intelligent, and voluntary; or question that the

waiver was valid for the rest of the criminal proceedings. We limit our review

accordingly.

       First, we determine when the right to counsel attached, as a defendant need

not waive a right he or she does not have. Under both the Iowa and United States

Constitution, the right to counsel “attaches at or after the initiation of adversary

proceedings against the defendant, whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” State v. Senn,
882 N.W.2d 1, 8
(Iowa 2016) (citation omitted). Our supreme court has held that “the right to

counsel does not just begin with the filing of the trial information or other formal

charges.” State v. Green,
896 N.W.2d 770, 777
(Iowa 2017). “Instead, a criminal

prosecution for the purposes of the right to counsel can also begin once the


3 We recognize that Gooden was appointed standby counsel at times.           But the
appointment of standby counsel does not cure the lack of valid waiver of counsel.
State v. Rater,
568 N.W.2d 655, 661
(Iowa 1997) (“[T]he appointment of stand-by
counsel is insufficient to satisfy the Sixth Amendment right to counsel when the
court has failed to conduct an inquiry to ensure the defendant’s waiver of that right
was knowing and intelligent.”).
                                           6


preliminary complaint and arrest occurs.”
Id.
So here, Gooden’s right to counsel

attached on May 20, when the State filed a criminal complaint alleging he

committed second-degree burglary and Gooden was arrested and taken into police

custody.

        Next, we ask whether any of the points during which Gooden had not yet

waived his right to counsel were “critical stages” of the criminal proceedings. See

Frye,
566 U.S. at 140
(“It is well settled that the right to the effective assistance of

counsel applies to certain steps before trial. The Sixth Amendment guarantees a

defendant the right to have counsel present at all ‘critical’ stages of the criminal

proceedings.” (cleaned up)); Senn,
882 N.W.2d at 16
(“The Supreme Court

employs a two-part test to determine whether the accused has a right to counsel.

First, the right must have attached, which means that ‘formal judicial proceedings

have begun.’ Second, it must be a ‘critical stage’ of the prosecution.” (internal

citations omitted)).     “Critical stages include arraignments, postindictment

interrogations, postindictment lineups, and the entry of a guilty plea.” Frye,
566

U.S. at 140
. And “the right to counsel plainly extends to that critical stage of the

prosecution in which a defendant considers pleading guilty to the charges.” Diaz

v. State,
896 N.W.2d 723, 727
(Iowa 2017). Here, Gooden focuses his argument

on the preliminary hearing held on May 27 and September 21 Frye hearing where

an offered plea agreement was discussed (which took place before he waived his

right to counsel at a second hearing later the same day). We agree that both were

critical stages of the criminal proceedings, so Gooden had the right to counsel at

each.
                                          7


       We recognize the cases from our supreme court hold that “harmless error

analysis is not applicable to Sixth Amendment right to self-representation

questions.” Cooley,
608 N.W.2d at 17
. “The right is either respected or denied;

its deprivation cannot be harmless.”
Id.
at 18 (quoting McKasle v. Wiggins,
465

U.S. 168
, 177 n.8 (1984)). But in those cases, the defendant was never engaged

in an adequate colloquy to make a knowing, intelligent, and voluntary waiver. See

Cooley,
608 N.W.2d at 16
(“The failure of the trial court to inquire and advise the

defendant of the dangers of proceeding pro se leaves the record deficient to permit

the reviewing court to properly determine whether the defendant’s waiver of his

right to counsel was made knowingly and intelligently.”); Hannan,
732 N.W.2d

at 53
(“In this case the trial court did not conduct the all important colloquy to make

sure [the defendant] properly waived his right to counsel.”). That is different than

the facts before us here—it is undisputed Gooden knowingly, voluntarily, and

intelligently waived his right to counsel five days before his criminal trial

commenced. So, we do not think an automatic reversal of his criminal conviction

and sentence is the right remedy. Cf. Satterwhite v. Texas,
486 U.S. 249, 257
(1998) (holding the automatic-reversal rule applies only when “the deprivation of

the right to counsel affected—and contaminated—the entire criminal proceeding,”

not “where the evil caused by the Sixth Amendment violation is limited to the

erroneous admission of particular evidence at trial”).

       In this instance, we think the appropriate question is whether Gooden being

denied representation at the May 27 preliminary hearing and the September 21

Frye hearing affected the framework within which the later criminal trial proceeded.

See Cooley,
608 N.W.2d at 17
(recognizing some constitutional errors “defy
                                           8


analysis by harmless error standards” because they “affect[] the framework within

which the trial proceeds” by “depriv[ing] defendants of basic protections without

which a criminal trial cannot reliably serve its function as a vehicle for determination

of guilt or innocence, and no criminal punishment may then be regarded as

fundamentally fair”); see also State v. Borchers, No. 22-1454,
2024 WL 467375
,

at *7 (Iowa Ct. App. Feb. 7, 2024) (refusing to apply automatic reversal and instead

asking whether “the denial of [the defendant’s] right to counsel at the pretrial

hearing affect[ed] the entire criminal proceeding” when considering whether to

reverse for lack of waiver of counsel). For the reasons explained below, we

conclude the denial of representation at those two critical stages was not so

intrinsically harmful as to require automatic reversal. See Cooley,
608 N.W.2d at

17
.

       While Gooden was wrongly denied representation at the preliminary

hearing, any irregularity was cured by the subsequent filing of the trial information.

As our supreme court explained in State v. Petersen:

       The filing of the complaint is necessary for the court to issue an arrest
       warrant for a defendant. A preliminary hearing is required in order to
       determine the legality of detaining a person accused of a felony or
       an indictable misdemeanor before the State files a charge by a trial
       information or a grand jury indictment. If the preliminary hearing
       reveals there is no probable cause to believe that an offense has
       been committed or that the defendant committed it, the court
       dismisses the complaint and discharges the defendant from custody.
                The filing of the trial information is necessary to charge a
       defendant with an indictable offense. The State can file charges by
       trial information without first filing a complaint. Once the State files
       the trial information, a preliminary examination is unnecessary.
       When the court approves the trial information, it determines whether
       there is probable cause to detain the defendant to answer the
       charge. A violation in the complaint stage of the proceedings does
       not affect the merits of the charge, but only affects the legality of the
                                           9


       detention of the accused to answer the charge prior to the filing of
       the information.
               When the district court approved the trial information, it
       determined there was probable cause to detain [the defendant] and
       require him to answer to the charge . . . . Once filed, the trial
       information was the pleading formally charging [the defendant] with
       a crime. At that point in the proceedings, any defect in the affidavit
       attached to the complaint was moot and not grounds for dismissal of
       the trial information as a defect in the institution of the prosecution of
       the action.
678 N.W.2d 611, 614
(Iowa 2004) (emphasis added) (internal citations omitted).

Because any issue with the preliminary hearing became moot once the trial

information was filed, Gooden’s lack of representation at the stage did not affect

the framework of the trial.

       For similar reasons, we also conclude that Gooden’s lack of representation

at the Frye hearing on the morning of September 21—when the State made a

record of the plea agreement offered to Gooden and Gooden vigorously rejected

it—did not affect the framework of the trial. At the motions hearing that took place

later the same day, the court conducted a meaningful colloquy with Gooden, after

which he knowingly, voluntarily, and intelligently waived his right to representation.

As part of the colloquy, the court asked the prosecutor to explain the offered plea

agreement and then verified with Gooden that he was not interested in accepting

it. With the facts we have here, Gooden’s rejection of the plea agreement, made

contemporaneously with his undisputedly valid waiver of his right to counsel,

overcomes any irregularity of the Frye hearing. Gooden never vacillated between

pleading guilty and going to trial; he was adamant from the preliminary hearing

onward that he was innocent of the charged crime and would not plead guilty to a
                                          10


crime he did not commit—the stance Gooden took at the Frye hearing was the

same stance he took a few hours later while waiving his right to representation.

       While Gooden was denied representation at two critical stages of the

criminal proceedings, the denial did not impact the framework of the trial, which

took place after Gooden made a knowing, intelligent, and voluntary waiver of his

right to counsel. The constitutional violation of his right to counsel does not entitle

him to a new trial under these facts.

III. Jury Instruction.

       After the State rested, Gooden moved for judgment of acquittal, which the

district court denied. The court then took a short recess. When court reconvened,

the judge relayed that jail staff reported Gooden was “refusing to reenter the

courtroom and has declined to participate any further in his defense.” Gooden’s

standby counsel confirmed that he spoke with Gooden and Gooden told him, “I

refuse to participate any further.” The court then appointed Gooden’s stand-by

counsel to represent Gooden in his absence.            The defense rested without

presenting any evidence, and—outside the presence of the jury—the attorneys

and court discussed jury instructions.      Gooden’s counsel did not request an

instruction telling the jury not to draw any conclusions from Gooden’s voluntary

absence from trial when deciding whether he was guilty of second-degree burglary.

But during the closing argument for the defense, counsel told the jury:

              Mr. Gooden, he chose to represent himself. And I’m
       appointed as standby counsel, if and when he is unable to fulfill that
       obligation. As you can tell, he’s not present in the courtroom
       currently. From his absence—you’re not really to infer anything from
       his absence. His absence is not evidence today. As [the prosecutor]
       noted, evidence is testimony and exhibits received in court.
                                          11


       On appeal, Gooden argues the district court should have sua sponte

instructed the jury that it was not allowed to consider his voluntary absence from

trial when deciding his guilt.    By arguing the onus is on the district court—

regardless of whether counsel raised the issue or requested the instruction—

Gooden attempts to bypass the error-preservation issue that his argument was not

raised and decided below. Cf. Meier v. Senecaut,
641 N.W.2d 532, 537
(Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”). But the argument he presented has its own problem; Gooden concedes

that he cannot cite any Iowa authority supporting his position that the district court

has a duty to sua sponte give the instruction. And without any authority requiring

the district court to give the instruction, we will not conclude the court committed

reversible error by failing to do so. See State v. Mathis,
971 N.W.2d 514
, 519

(Iowa 2022) (“This court reviews challenges to jury instructions for the correction

of legal error.”).

IV. Conclusion.

       While Gooden was denied the right to representation at critical stages of the

proceedings before he validly waived his right five days before trial started, the

denial of his constitutional right did not affect the framework of the proceedings in

this case; Gooden is not entitled to a new trial. And we cannot find the district court

committed legal error by not sua sponte giving a jury instruction that is not required

by Iowa law. We affirm Gooden’s conviction.

       AFFIRMED.