This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).


Robert Arne Maki, Jr.,


State of Minnesota,

Filed January 25, 2000
Klaphake, Judge

Dakota County District Court
File No. K6-96-2567

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Shawn M. Moynihan, Fluegel, Moynihan & Clinton, P.A., City of Hastings Attorney, 1303 South Frontage Road, #5, Hastings, MN 55033 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


In this postconviction appeal, Robert Maki, Jr. claims he was denied his right to counsel and did not knowingly and intelligently waive that right when he pleaded guilty to gross misdemeanor DWI in violation of Minn. Stat. ß 169.121, subds. 1(a), 3(c)(1) (1996). Maki argues that he should be allowed to withdraw his guilty plea because the district court erred in denying his request for a public defender without first determining whether obtaining private counsel would constitute a substantial hardship to him. Because the record supports finding that Maki was not qualified to receive public defense and that he validly waived his right to counsel, we affirm.


Based on financial and personal information Maki provided to the district court, he was denied appointment of a public defender to represent him; he then elected to enter a guilty plea to one DWI count. He was sentenced to one year in jail, stayed, but the sentence was later executed after he violated the terms of his probation. Maki now claims that the postconviction court abused its discretion in declining to allow him to withdraw his guilty plea.

Withdrawal of Plea

A criminal defendant may withdraw a guilty plea after sentencing "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1; see Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The defendant has the burden at a postconviction proceeding to prove by a preponderance of the evidence that withdrawal of a guilty plea is warranted. See Minn. Stat. ß 590.04, subd. 3 (1998); State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986), review denied (Minn. Feb. 14, 1986). The scope of review on appeal "is limited to the question of whether sufficient evidence exists to support the postconviction courtís findings," and the postconviction courtís decision is subject to an abuse of discretion standard of review. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997) (citations omitted). If a plea is unconstitutional, however, "it automatically meets the rule 15.05 manifest injustice standard." Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997) (citation omitted), affíd, 583 N.W.2d 562 (Minn. 1998).

Maki claims that his plea was unconstitutional because he was not represented by counsel and because the plea was entered after the court erroneously denied his request for a public defender without first determining whether obtaining private counsel would cause a substantial hardship for him. Eligibility for public defense is controlled by Minn. R. Crim. P. 5.02, subds. 3-5. Under the 1996 version of the rule, the standard for determining indigency is whether the defendant is "financially unable to obtain adequate representation without substantial hardship for the defendant or the defendantís family." Id. at subd. 3. The rule also suggests that the court may make "[a]n inquiry to determine financial eligibility * * * prior to the court appearance." Id. at subd. 4. In construing this rule, this court has determined that a district court must consider whether obtaining private counsel would cause the defendant a substantial financial hardship, and not merely deny the defendantís request for a public defender because the defendant does not qualify under the income guidelines. State v. Ferris, 540 N.W.2d 891, 895 (Minn. App. 1995).

Maki contends that Ferris is controlling here. In Ferris, the defendant requested a public defender prior to his probation revocation hearing. Id. at 892. The court determined that Ferris was not indigent and did not qualify for appointment of counsel. Id. The court ordered him to obtain private counsel for the hearing. Id. Ferris repeatedly informed the court that he could not afford an attorney and even submitted affidavits from private attorneys to support his indigence claim. Id. Ferris only agreed to act as his own attorney "under protest." Id. This court remanded for a determination of whether obtaining private counsel would have caused Ferris a substantial hardship. Id. at 895.

We agree with the stateís contention that the facts of this case mandate a different result than Ferris. Maki did not challenge the courtís decision that he was not qualified to receive public defense, even though he had the opportunity to do so. At his plea hearing, Maki quickly acquiesced to the district courtís statement that he was not entitled to an attorney because he was netting income of $500-$700 per week. Maki answered "yes" to the courtís question of whether he wished to proceed without counsel. Additionally, Makiís statements of his financial condition do not show that he was indigent. In addition to his weekly salary, Maki owned two vehicles. Further, he had no other debts or obligations.

Moreover, Ferris was an appeal from a revocation of probation, in which there was no waiver issue. This case involves a postconviction appeal where this court must determine only whether sufficient evidence exists to support the postconviction courtís findings and whether the postconviction court abused its discretion in deciding that withdrawal of the guilty plea was not warranted. Under these circumstances, we conclude that the record supports the postconviction courtís findings and that the postconviction court did not abuse its discretion in denying Makiís request to withdraw his guilty plea on this basis. See State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996) (district court did not abuse its discretion in declining to inquire further into defendantís financial condition where defendant failed to inform the court he was unable to afford an attorney and did not request public defense until day of trial).

While our decision on this issue affirms the district court, we are compelled to remind the court of the need for proper inquiry into the financial status of a defendant. This inquiry impacts on the right to an attorney, a fundamental constitutional right that our courts must safeguard with due diligence. While the evidence in this case leaves no room for doubt that Maki was unqualified to receive public defense, we will not hesitate to allow withdrawal of a guilty plea in future cases where the record is less certain and the district court has failed to properly inquire into a defendantís financial status.

Waiver of Counsel

Maki further argues that his waiver of counsel was not knowing and intelligent, as required by law. See Burt v. State, 256 N.W.2d 633, 635 (Minn. 1977). To satisfy this requirement, the district court must

make a "comprehensive examination of the defendant [regarding] his comprehension" of the charges against him, the possible punishments, the defenses, mitigating circumstances, and any other facts relevant to an understanding of the consequences of the waiver. [The supreme court has] also recommended that a lawyer be appointed to discuss with the defendant the consequences of the waiver.

State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990) (citations omitted). Even where the district court does not make the "full, on-the-record inquiry which is normally required to ensure a valid waiver," the record may demonstrate that "the defendant was fully aware of the consequences of proceeding pro se." Id. at 412-13. The district courtís determination that a defendant validly waived the right to counsel will not be reversed unless it is clearly erroneous. State v. Nelson, 523 N.W.2d 667, 670 (Minn. App. 1994).

Here, the district court did not make a full inquiry into the nature of Makiís waiver and merely accepted his statement that he would proceed pro se. Nevertheless, the remainder of the plea hearing establishes that Maki was fully cognizant of the charges against him, possible punishments, and any other facts that would have affected his decision to proceed pro se. In conjunction with accepting Makiís plea, the court elicited information about Makiís education and mental capacity. When the court read the wrong charge, Maki corrected the court. The court also described the possible punishments Maki could receive. Finally, Maki acknowledged his experience in this area of law as he had been convicted of DWI offenses on five prior occasions. This inquiry, while it did not meet the traditional requirements, is sufficient under Krejci to demonstrate that Makiís waiver of his right to an attorney was valid. See also State v. Brodie, 532 N.W.2d 557 (Minn. 1995) (ruling that record supported valid waiver of right to attorney where defendant consulted with and partially relied on public defender, even though district court failed to conduct comprehensive examination of defendant prior to accepting waiver).