This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In the Matter of the Welfare of:

S. S., Juvenile.


Filed April 10, 2001

Reversed and remanded

Huspeni, Judge*


Mower County District Court

File No. J00050136



Brandon V. Lawhead, 301 South Main Street, Austin, MN 55912 (for appellant S.S.)


Jonathan Olson, 201 First Street NE, Austin, MN (for respondent state)


            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant juvenile challenges the denial of her motion for attorney fees for her earlier appeal, in which private trial counsel continued to represent her because the state public defender declined to do so.  Because we conclude that appellant is entitled to attorney fees incurred in connection with her earlier appeal, we reverse and remand.


            Appellant S.S., a juvenile, was charged with criminal vehicular homicide and criminal vehicular operation after an automobile accident in which she and one of her passengers were injured and another passenger was killed.  Although the juvenile court granted S.S. representation by a public defender, her mother retained private counsel to defend her.

When the juvenile court granted the prosecutor’s motion to certify S.S. to stand trial as an adult, she appealed.  The state public defender declined her request for representation in that appeal, citing its unfamiliarity with the case and the short timelines in juvenile matters.[1]  S.S. then moved the juvenile court to authorize payment of attorney fees for her private counsel to represent her on appeal.  While that motion was pending, S.S.’s private counsel prepared and filed the appellate brief in the certification matter, ultimately prevailing on the merits.  In re the Welfare of S.S., No. C4-00-1155, 2001 WL 32784, at *4 (Minn. App. Jan. 16, 2001).

            After a hearing, the juvenile court denied the motion for attorney fees, reasoning that private counsel apparently had become concerned about the arrangement he had reached with S.S.’s mother, that he was aware of the limited timeline in the juvenile system, and that he had agreed to represent S.S. on appeal.

            S.S. seeks reversal of the juvenile court’s decision.  No brief was filed by respondent and this matter proceeds pursuant to Minn. R. Civ. App. P. 142.03.


            An analysis of statutory language is a question of law reviewed de novo.  Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

            A child who is charged with a felony in juvenile court has the right to court-appointed counsel.  Minn. Stat. § 260B.163, subd. 4(b)(1) (2000); Minn. R. Juv. P. 3.01.  “[T]he court shall appoint counsel at public expense,” provided that the child cannot afford counsel and has not retained private counsel.  Minn. R. Juv. P. 3.02, subd. 1.  Generally, the district public defender will represent a juvenile entitled to court-appointed counsel.  Minn. Stat. § 611.26, subd. 6 (2000).  The state public defender will represent such a juvenile on appeal.  Minn. R. Juv. P. 21.02, subd. 1.

            An indigent criminal defendant “has the right to refuse the services of the public defender,” while accepting other services to which the defendant is entitled.  State v. Pederson, 600 N.W.2d 451, 454 (Minn. 1999).  Further, if a defendant has retained private counsel, but becomes financially unable to pay counsel “at any stage of the proceedings, including an appeal,” the court may appoint a public defender.  Minn. Stat. § 611.18 (2000).

            Here, although S.S. initially was found to be eligible for the services of a public defender in juvenile court, her mother obtained representation for her there by private counsel.[2]  For her appeal, however, S.S. sought representation by the state public defender.  The state public defender refused to represent her.  See Minn. R. Juv. P. 21.02, subd. 1.  There is no indication that S.S. did not continue to meet financial eligibility requirements at the time she sought public defender representation for appeal.  She should not be penalized for her failure to obtain those services.

            The decision of S.S. to retain private counsel in juvenile court, even though she qualified for a public defender, does not bar her eligibility for court-appointed counsel on appeal.  See Pederson, 600 N.W.2d at 453-54 (holding that criminal defendant had separate rights to a transcript and counsel at public expense and could accept either or both).  The statute specifically contemplates the often-encountered situation in which a defendant retains private counsel but then becomes financially unable to continue with such counsel.  See Minn. Stat. § 611.18 (providing in such circumstances that a public defender may be appointed).  Further, this case is distinguishable from In re A.R.M., 611 N.W.2d 43, 50 (Minn. App. 2000).  In A.R.M., the mother of the juvenile sought attorney fees for appeal and a remand for the district court to award attorney fees incurred in earlier proceedings.  This court denied both requests, noting that the issue of attorney fees incurred in district court was not properly before this court, and that in regard to authorization for attorney fees on appeal, the juvenile had “no right to circumvent available public defender services in favor of private counsel.”  Id. at 51.  In this case, S.S., her eligibility unchallenged, unsuccessfully sought public defender representation on appeal.[3]

            Because S.S. was entitled to court-appointed counsel to represent her in her earlier appeal, and was unsuccessful in her attempt to secure that representation,  we reverse and remand for determination of reasonable attorney fees to be awarded to S.S.’s counsel for the earlier appeal.

            Reversed and remanded.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1]  An appeal of an order by a juvenile must be taken within 30 days after the filing of the order.  Minn. R. Juv. P. 21.03, subd. 2(A).

[2]  Although S.S. states that her mother is financially unable to pay private counsel for his representation before the juvenile court, that issue is not before us in this appeal.

[3]  We note that S.S. could have challenged the decision of the state public defender to deny representation.  Minn. R. Juv. P. 21.02, subd. 1.  Because there is no showing that this issue was raised below and because it is not raised on appeal, we need not address it.