This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Brent Lauren Nelson,



Filed December 26, 2001


Robert H. Schumacher, Judge


Martin County District Court

File No. K799721


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


Elizabeth W. Bloomquist, Fairmont City Attorney, Post Office Box 751, 100 Downtown Plaza, Fairmont, MN 56031 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            Appellant Brent Lauren Nelson appeals his conviction of driving without a valid license, a gross misdemeanor under Minn. Stat § 171.24(5), contending that the district court (1) erred by not allowing him to testify regarding his state of mind; (2) erred by failing to make findings of fact and an adjudication of guilty pursuant to a so-called Lothenbach plea on the day of trial; and (3) denied him his right to counsel at the sentencing hearing.  We affirm.


On the morning of November 9, 1999, Matt Klages, a deputy with the Martin County Sheriff's Department, was informed that a man without a valid driver's license was driving a white Ford car bearing an Iowa license plate.  Klages saw a vehicle matching this description pull into the parking lot of Arnold Motor Supply in the City of Fairmont.  The driver got out of the vehicle and Klages approached him.  The driver identified himself as Nelson but was unable to produce a valid driver's license.  A review of Nelson's driving records revealed that his license was revoked.  Nelson was then arrested and taken into custody. 

            Nelson was represented by the public defender.  The district court found probable cause at the omnibus hearing and set the case for jury trial.  Nelson, however, failed to appear for trial, which was then rescheduled.

On the day of trial, Nelson agreed to submit his case to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Nelson was informed of and waived his right to a jury trial and other fundamental trial rights.  The district court then reviewed with Nelson the evidence against him and made the following statement:

Q.        And that if those facts were presented to a jury or to a judge as the finder of fact without a jury, and those facts were believed there would be sufficient evidence to find you guilty of the offense, do you understand that?  If the jury or the judge believed those things?


A.        Yeah.


            Thereafter, a sentencing hearing was held.  Before the hearing, Nelson requested appointment of new counsel.  The district court denied this request.  Nelson consequently proceeded pro se.  Nelson claimed that he had been unable to find a lawyer willing to go over the presentence report with him.  Darci J. Bentz, who was Nelson's court-appointed attorney prior to the hearing, was present at the hearing and offered to go over the report with Nelson.  Nelson apparently refused this offer and was ultimately sentenced to 365 days in jail and fined $513.75.


            1.         Nelson contends that the district court erred by ruling that he would not be able to testify at trial regarding his state of mind.  There is nothing in the record supporting this claim.  The record only shows that the following conversation took place between Nelson and his attorney during the hearing where Nelson submitted his case on stipulated facts:

Q:        Now we had a discussion where you asked to have to enter a finding of guilty but still be able to appeal your issues, correct?


A:        Correct.


Q:        So we discussed the Lothenbach Plea where the judge would look and that based on the facts make a finding of guilty?


A:        Yes.


Q:        And then we would have a presentence investigation done and have sentencing in about a month?


A:        That's correct.


Q:        And at that time you could present your statement to the judge about your issues regarding your license?


A:        Right.


Q:        And that's what you wish to do today rather than go through with the jury?


A.        Yes.    


As a general rule, the appellant bears the burden of providing an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  The record must be "sufficient to show the alleged errors and all matters necessary for consideration of the questions presented."  Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (citation omitted).  If the record is not sufficient to support review, the appeal may be dismissed.  Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968).  Here, Nelson has failed to provide an adequate record to support his contention that he was not allowed to present evidence regarding his state of mind.

2.         Nelson also contends that the district court erred by failing to make findings regarding his submittal of the case on stipulated facts and did not make an adjudication of guilt.  The district court did review the facts of the state's case against Nelson with him on the record, however, and verified that Nelson understood that these facts were sufficient to allow the court to find him guilty.  We conclude that this on-the-record discussion was sufficient to constitute proper findings and adjudication of guilt.   

3.         Nelson further contends that the district court denied him his right to counsel at the sentencing hearing.  A trial court's finding of a valid waiver of a defendant's right to counsel will only be overturned if that finding is clearly erroneous. State v. Camacho, 561 N.W.2d 160, 168-69 (Minn. 1997).  A defendant is entitled to be represented by counsel at any stage of a criminal proceeding, including sentencing.  Davis v. United States, 226 F.2d 834, 839 (8th Cir. 1955).  This right to an attorney may be waived if the waiver is competent and intelligent.  Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938).  Whether a waiver of a constitutional right is valid depends "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id. at 464, 58 S. Ct. at 1023.

A defendant who seeks to waive the right to counsel

should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."


Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)).  A defendant's refusal without good cause to allow appointed counsel to continue representation, however, may by itself be sufficient to find a valid waiver.  State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990); see also State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (finding that although trial court's on-the-record inquiry regarding waiver did not include a recitation of charges or potential punishments, it was clear that defendants were fully aware of consequences of firing their counsels); Camacho, 561 N.W.2d at 173 (concluding that defendant's request for another attorney before choosing self-representation will not preclude valid waiver, particularly when defendant "is aware that he has no right to a different attorney and must proceed pro se upon rejection of the appointed attorney's assistance"); State v. Vance, 254 N.W.2d. 353, 358 (Minn. 1977) (defendant's request for new counsel "will be granted only if exceptional circumstances exist and the demand is timely and reasonably made"); State v. Harris, 407 N.W.2d 456, 463 (Minn. App. 1987), review denied (Minn. July 31, 1987) (holding trial court has discretion to "deny last-minute requests for substitute counsel which inevitably delay trial").  When a defendant has consulted with an attorney prior to waiver, a trial court can "reasonably presume that the benefits of legal assistance and the risks of proceeding without it had been described to defendant in detail by counsel."  State v. Jones, 266 N.W.2d 706, 712 (Minn. 1978). 

            Here, Nelson was provided with competent legal counsel.  Nelson's case had been before the district court for approximately a year and a half and he had a court-appointed attorney during that time.  Nelson's criminal record indicates that he was familiar with the criminal justice system.  Shortly before sentencing, he requested new counsel.  The district court advised Nelson that he would not be provided with another court-appointed counsel.  While Nelson has a right to court-appointed counsel, he does not have a right to the court-appointed counsel of his choice.  State ex rel. May v. Swenson, 242 Minn. 570, 572, 65 N.W.2d 657, 659 (1954).  Given the facts, we conclude that Nelson knew the consequences of proceeding without his attorney.  His right to counsel was not violated. 

Finally, we have reviewed the additional arguments raised in Nelson's pro se briefs and find them to be without merit.