IN COURT OF APPEALS
Mark Thomas Hawanchak,
Dakota County District Court
File No. T90266001
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and
William L. Bernard, Michael J. Mayer, Grannis & Hauge, 1260 Yankee Doodle Road, Suite 200, Eagan, MN† 55121-2201 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)
††††††††††† Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Minge, Judge.
A defendantís right to counsel is violated when a district court fails to obtain a written waiver of the right to counsel or make a record evidencing a refusal of counsel before requiring the defendant to represent himself at trial.
O P I N I O N
In this appeal from disorderly conduct and fifth-degree-assault convictions, appellant Mark Thomas Hawanchak argues that the district court violated his right to counsel when, without obtaining a waiver of his right to counsel, the court required him to represent himself at trial.† Appellant also argues that the district court violated his right to counsel when it denied his request for appointed counsel.† We reverse and remand for a new trial.
††††††††††† Appellant was charged with three counts of fifth-degree assault and one count of disorderly conduct, all misdemeanor charges, stemming from an incident that occurred on May 11, 2002.† When appellant was arraigned, he was informed of his constitutional rights, including his right to be represented by counsel.
††††††††††† The week before trial, appellant applied for court-appointed counsel.† Appellant reported that he was recently unemployed; had $8,000 in assets; and monthly expenses of $2,500.† Appellant stated on the application form that he had ďtried to hire two attorneys and could not afford either.Ē†
On December 6, 2002, the district court granted appellantís request for the services of a public defender, subject to a determination of whether appellant would be required to reimburse the state for part of the cost of his defense.† Appellantís application and the district court order were apparently misplaced, and on December 9, 2002, the first day of trial, appellant submitted a second application that was substantially the same as the first, but reported additional assets and liabilities.† Appellant reported that he owned real estate valued at $109,000; had a mortgage in the amount of $150,000; and owned two vehicles valued at $20,000 each.†
††††††††††† Before the trial began, the district court instructed appellant about trial procedure, and appellant asked about his court-appointed counsel:
††††††††††† [APPELLANT]:† Can IóI would like an opportunity to find out what happened to my public defender[.] . . .
††††††††††† THE COURT:† What are you asking for?
††††††††††† [APPELLANT]:† I filed for a public defender.
††††††††††† THE COURT:† Iíve got the application right here.
††††††††††† [APPELLANT]:† No, no, no.
††††††††††† THE COURT:† Well, thereís one that came in today.
††††††††††† [APPELLANT]:† Right.† Thatís because they lost the one that I put in last week and stuff . . . .
††††††††††† THE COURT:† Okay.† It doesnít make any difference that they took your application last week.† Letís talk about this application.
††††††††††† [APPELLANT]:† Okay.† Would you grant me a public defender?
††††††††††† THE COURT:† Well, when was your last date of employment?
††††††††††† [APPELLANT]:† The 24th of last month.
††††††††††† THE COURT:† Are you receiving unemployment compensation?
††††††††††† [APPELLANT]:† I havenít received anything yet.
††††††††††† THE COURT:† Have you applied?
††††††††††† [APPELLANT]:† I have applied, and I havenít gotten anything.† Thereís been no income coming in.
††††††††††† THE COURT:† What was your occupation?
††††††††††† [APPELLANT]:† Telephone installer.
††††††††††† THE COURT:† Oh, thatís right.† You told me that.† How much did you earn?† How much did you earn in the first 11 months of this year?
††††††††††† [APPELLANT]:† 69,000.
††††††††††† THE COURT:† You do not qualify for the appointment of a public defender.† You have to meet the federalóessentially the federal poverty guidelines, and that means considerably less income than what youíve earned.† You donít qualify and you have assets.
††††††††††† [APPELLANT]:† I have liabilities, too.
††††††††††† THE COURT:† Right.† But Ióall Iím telling you is you donít qualify.
Appellant moved for a continuance to prepare his case, and the district court denied the motion.† The record contains no written or other waiver of counsel by appellant.
† ††††††††† Following trial, the jury convicted appellant of disorderly conduct and one count of fifth-degree assault.† The district court stayed imposition of sentence, placed appellant on probation for one year, declined to impose jail time as a condition of probation, and waived the mandatory minimum fine.
††††††††††† Did the district court violate appellantís right to counsel when, without obtaining a written waiver of appellantís right to counsel or making a record evidencing a refusal of counsel, the court required appellant to represent himself at trial?
††††††††††† The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney.† Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792, 795-97 (1963).† In Minnesota, an accused has a right to assistance of counsel in a misdemeanor prosecution whenever a conviction may lead to incarceration. State v. Nordstrom, 331 N.W.2d 901, 905 (Minn. 1983).†
††††††††††† The right to an attorney may be waived if the waiver is competent and intelligent.† State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998).† ďIt is the duty of the trial court to ensure a knowing and intelligent waiver of the right to counsel.Ē† State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990). †Minn. Stat. ß 611.19 (2002) requires that ď[w]here counsel is waived by a defendant, the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.Ē†† See also Minn. R. Crim. P. 5.02 cmt.† (ďMinnesota law requires that a waiver of counsel be in writing unless the defendant refuses to sign the written waiver form.† In that case a record of the waiver is permitted.Ē); Worthy, 583 N.W.2d at 274, 276 (holding trial court did not err in determining that defendants validly waived right to counsel when, on first day of trial, defendants fired attorneys who had been representing them for more than a month, and where defendants had prior experience in criminal justice system, and defendants were told that if they rejected their attorneys, they would have to proceed pro se); Krejci, 458 N.W.2d at 412-13 (holding defendant validly waived right to counsel where defendantís interaction with 12 judges, conversations with two public defenders, and refusal to accept representation from public defenderís office, indicated that defendant was aware of consequences of proceeding pro se, and trial court and counsel explained to defendant nature of charges and possible punishments).
Appellant argues that the district court violated his right to counsel when it required him to represent himself at trial without obtaining a knowing and intelligent waiver of his right to counsel.† We agree.† The record does not contain a written waiver of counsel signed by appellant, and the district court did not make a record that demonstrates that appellant refused counsel.† This is not a case like Worthy or Krejci, in which the defendants refused to accept the services of appointed counsel.† Worthy, 583 N.W.2d at 276; Krejci, 458 N.W.2d at 412-13.† Instead, the record indicates that on two occasions, appellant requested the services of the public defender.
The state argues that because appellant (1) was aware of his right to counsel, (2) could afford private counsel, and (3) moved for a continuance to prepare his case rather than to hire private counsel, the record demonstrates that appellant chose to defend himself after the district court denied him court-appointed counsel.† But this argument fails to recognize that any waiver of the right to counsel must be a knowing and intelligent waiver.† Even if appellant chose to defend himself, it was the duty of the district court to ensure that appellantís waiver of counsel was knowing and intelligent.† Burt v. State, 256 N.W.2d 633, 635 (Minn. 1977).† The record does not indicate that the district court made this determination. Where there is no record of a defendantís waiver of counsel, it is impossible to determine upon appellate review whether a waiver was knowing and intelligent.† State v. Edwards, 361 N.W.2d 90, 91 (Minn. App. 1985).† In such instances, the defendant is entitled to a new trial.† Id.
The state also argues that because the district court took careful steps to ensure that appellant received a fair trial, his conviction should be affirmed.† But, a denial of the right to counsel does not require a showing of prejudice to obtain reversal.† State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).
Because we have concluded that appellant is entitled to a new trial because the district court violated his right to counsel, we will not address appellantís argument that the district court erred when it denied his request for appointed counsel.
††††††††††† Appellant is entitled to a new trial because his right to counsel was violated when, without obtaining a written waiver of counsel or making a record evidencing a refusal of counsel, the district court required appellant to represent himself at trial.
††††††††††† Reversed and remanded.
 The state asserts that appellantís home is valued at $150,000 with a mortgage of $109,000, but this is not what is reflected on the application.