The State contends that because this was a pretrial proceeding, this court should apply the "less searching or formal colloquy" standard set forth in Iowa v. Tovar, 541 U.S. 77 (2004). The State essentially argues that Tovar mandates "a less searching or formal colloquy" concerning the Sixth Amendment right to counsel in all pretrial proceedings. We disagree.
The issue in Tovar is distinguishable from this appeal. Tovar was arrested and charged with third-offense operating while intoxicated (OWI), a class D felony. To sustain this charge, the State of Iowa would need to prove prior OWI convictions as a sentencing enhancement. Tovar moved to preclude the use of his first OWI conviction, because it was the result of an uncounseled guilty plea. If successful in this preclusion, Tovar could be found guilty of only an aggravated misdemeanor. Thus, Tovar involved a collateral attack on an uncounseled conviction by guilty plea and, as a collateral attack, it was Tovar’s burden to prove that he did not competently and intelligently waive his right to assistance of counsel. In fact, the Supreme Court in Tovar noted that it was addressing a very narrow question: "Does the Sixth Amendment require a court to give a rigid and detailed admonishment to a pro se defendant pleading guilty of the usefulness of an attorney, that an attorney may provide an independent opinion whether it is wise to plead guilty and that without an attorney the defendant risks overlooking a defense?" Tovar, 541 U.S. at 91. The Supreme Court answered that very narrow question no. We do not have the same narrow issue in this appeal, and Shabazz, unlike Tovar, did not have the burden to prove anything concerning his Sixth Amendment right to counsel. Rather, the State had the burden to prove that his waiver was knowingly and intelligently made.
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