This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Lyle Allen Robinson,



Filed September 5, 2000


Harten, Judge


Ramsey County District Court

File No. K9-99-1317


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of illegal possession of a firearm, arguing that the district court violated his right to counsel by finding that he waived his right to substitute counsel.  Because we see no clear error in that finding, we affirm.


            Appellant Lyle Allen Robinson was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998), and Minn. Stat. § 609.11, subd. 5(b) (1998).  Immediately before trial, the district court was informed that appellant was dissatisfied with his public defender and asked appellant if he wanted to proceed with her as his counsel. 

Appellant asked, “Would I be eligible for another state[-appointed public defender], because I have no money?”  The district court responded,

You would have to hire one yourself.  The other option is that I would make you go forward pro se, that means without an attorney, representing yourself, but I would appoint [the public defender] to sit through the trial and to provide you with any advice that you ask for from her.


The morning of trial is kind of a bad time to decide you don’t want your attorney representing you.  But on the other hand, you’re facing a serious charge here, as you well know.  And you need to make up your own mind what it is you want to do.  But you do need to make up your mind.


Appellant answered, “I will stay with the state.”  The court then asked, “You will stay with [the public defender] as your attorney?”  Appellant answered, “Yup.”

            At trial, appellant stipulated that due to prior convictions he was an "ineligible person" for purposes of possessing a firearm.  The jury found him guilty. 

Appellant concedes that he waived his right to request substitute counsel by agreeing to proceed with the public defender.  He contends, however, that he was unconstitutionally deprived of his right to counsel because his agreement was induced by the district court’s statement that his only options were hiring an attorney or proceeding pro se.



The district court’s finding that appellant waived his right to refuse the public defender’s representation is implicit in the court’s decision to proceed with trial.  Findings on waiver of the right to counsel are reviewed under a clearly erroneous standard.  See, e.g., State v. Worthy,583 N.W.2d 270, 276 (Minn. 1998) (appellate court “will only overturn a trial court’s finding of a valid waiver of a defendant’s right to counsel if that finding is clearly erroneous”) (citation omitted).   

 A defendant may apply to the court for a substitution of counsel, but the court will grant a substitution only if the request is timely and the defendant can demonstrate exceptional circumstances that warrant a substitution.  State v. Vance,254 N.W.2d 353, 358 (Minn. 1977).  The district court told appellant that his request was not timely: “The morning of trial is kind of a bad time to decide you don’t want your attorney representing you.”  There was no error in this statement.  See Worthy, 583 N.W.2d at 278-79 (holding that a request for substitute counsel made on the morning of trial was not timely). 

Appellant contends that the district court erred by failing to inquire whether exceptional circumstances were present.  But appellant provided nothing except his subjective impressions that the public defender was “not really listening when I try to tell her stuff,” would not “try to her best ability” to win his case, and “seem[ed] to think I’m not going to win.”  General dissatisfaction or disagreement with appointed counsel’s assessment of the case does not constitute exceptional circumstances.  Id. at 279.   The district court had no reason to assume that appellant’s dissatisfaction with his counsel had a legitimate basis or justified a continuance so other counsel could be procured.  Although the right to counsel does include a fair opportunity to secure an attorney of choice, an indigent defendant does not have the unbridled right to be represented by an attorney of his choice.  Id. at 278.  See also Vance,254 N.W.2dat 358 (a district court's refusal to grant a continuance so substitute counsel may be procured will be reversed only if the district court abused its discretion).  Although appellant did not move for a continuance, the district court would have been within its discretion in denying such a motion.

            We conclude that the district court did not err in finding that appellant had waived his right to refuse the public defender’s representation.