This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Anthony Joseph Shea,




Filed February 26, 2002


Randall, Judge


Mille Lacs County

File No. K200778



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


Janelle P. Kendall, Mille Lacs County Attorney, Lotte R. Hansen, Assistant County Attorney, 525 Second Street Southeast, Milaca, MN  56353 (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 Harten, Judge, presiding, Randall, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

Appellant challenges his convictions of gross misdemeanor driving after cancellation, gross misdemeanor refusal to submit to testing, and gross misdemeanor driving while intoxicated (DWI).  Appellant argues (1) that his waiver of counsel was invalid, and (2) his protection from double jeopardy was violated when the district court granted a mistrial and new trial because of defective jury instructions after a jury convicted appellant on all three counts.  Appellant also makes several pro se arguments.  We affirm. 


            Appellant was stopped and arrested on July 6, 2000, for driving after cancellation, refusal to submit to testing, and DWI.  At hearings in August and October 2000, appellant considered dismissing his court-appointed attorney.  On December 13, 2000, appellant fired his court-appointed attorney: 

APPELLANT:      I would like to remove [my attorney] at this time.


COURT:               Are you going to represent yourself?


APPELLANT:      Yep.


COURT:               You have a right to represent yourself in a case and I can't deny you the right to discharge the attorney that's been appointed for you.  I am not going to appoint you another attorney.  Your options then are to get your own private attorney or to represent yourself. 

APPELLANT:      I am ready to go.


* * * *


COURT:               Mr. Shea, have you talked to [your attorney] about your constitutional rights and your right to trial, your right to call witnesses and all of those rights?


APPELLANT:      I will tell you, I have done everything I could trying to talk to this guy on my case and this doesn't seem to be going no where.  I have already been in front of the Court before for this and I don't know.  Nobody seems to want to do anything with this. 


            At the December 20, 2000, plea hearing, the court asked if appellant wanted an attorney, and appellant replied no.  After appellant requested a continuance to give him more time to look at his file, which the court granted, the court cautioned appellant to reconsider having an attorney represent him.  Appellant stated he did not want to have his former attorney represent him.  Again, on January 17, 2001, appellant appeared pro se at a plea hearing and stated he was proceeding without an attorney.   Appellant did not enter a plea.

On January 22, 2001, appellant represented himself at trial.  Appellant stipulated that he had a previous license revocation and DWI conviction.  The jury instructions listed the stipulated elements and stated that the jury need not consider them.  After the court read the jury's verdict, convicting appellant on all three counts, the state stepped forward and informed the court that the jury instruction's reference to appellant's prior convictions and the gross-misdemeanor status of the charges was reversible error.  The state agreed that appellant would be entitled to a new trial if he appealed, and the state agreed to forego its right to litigate the issue on appeal and told the court it had no objection if a mistrial was declared and appellant given a new trial.  On March 7, 2001, at appellant's sentencing hearing, the district court discussed the state's motion for a new trial with appellant:

COURT:               [I]t is unusual that the State would file a motion such as this so I think they are doing it more on your own behalf than anything else in the interests of making sure that you have a fair trial and fair adjudication on this matter so it is to your credit they filed this motion.


APPELLANT:      Well, I'm getting just as sick of this as they are.


COURT:               Well, are you opposing a Motion for New Trial here?


APPELLANT:      No.  I believe it would be in my better interests but I mean just the whole - - the last one was rushed pretty bad and I didn't really have time to really do anything, and I do have some papers that I would like to file with you if I could.


The court granted the motion for a new trial.  On the same day, the district court encouraged appellant to reconsider his decision to discharge his public defender, and the court appointed appellant an advisory counsel. 

On April 23, 2001, at appellant's second trial, appellant proceeded pro se but with advisory counsel.  Before trial, the court discussed appellant's objection:  

COURT:               [Y]ou raised the issue as to whether you had consented to this retrial or not, and your assertion here that your silence does not necessarily mean you were in agreement with the retrial.  I'm not sure how much time you have had to discuss this with [your advisory counsel] but essentially the two options here today are: To stand with the convictions that the jury brought back, the verdicts of guilty, or to retry the case.

                                    If we don’t retry the case, I impose sentence and you're convicted and then you have your rights to appeal, but it seems to me to make the most sense, it's in your best interests and the interests of justice here, that we retry this case.  That's why I granted the State's request for a retrial.  So I want you to understand that specifically.


                              * * *


APPELLANT:      Because of the State's fault of the mistrial, I believe double jeopardy would come into play.


COURT:               You may have an issue to argue on appeal with regard to that, Mr. Shea, but when I granted the motion for new trial, and it's not the State's misconduct that resulted in the mistrial, it's the Court's faulty jury instruction that resulted in the new trial, and jeopardy doesn't necessarily apply to that situation.

                                    I'm granting you a new trial, which means that you have got a whole new chance to require the State to prove its burden beyond a reasonable doubt here. 

                                    Like I say, it's either that or the convictions that get entered and I'm not going to stand here and let you stand convicted when I know that those jury instructions should have read otherwise. 


Appellant did not consent or object.  The second trial proceeded, the jury convicted appellant of all three counts, and the court sentenced appellant accordingly.  This appeal follows.


I.  Waiver of counsel

Appellant argues that his waiver of counsel was not knowing, voluntary, and intelligent because the district court did not advise appellant of the required information and did not obtain the waiver in writing as required by Minn. R. Crim. P. 5.02, subd. 1(4).

A.        Required information

A criminal defendant has a constitutional right to "assistance of counsel for his own defense."  State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970) (citing U.S. Const. amends. VI and XIV; Minn. Const. art. I, § 6).  But a criminal defendant may voluntarily and intelligently elect to waive his right to counsel.  Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975). 

A district 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).  To determine whether a waiver of the right to counsel is knowing, intelligent, and voluntary, district courts should comprehensively examine the defendant about the "defendant's comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant's understanding of the consequences of the waiver."  Id. at 173 (citation omitted).  But an intelligent waiver can be implied based on the surrounding circumstances, even in the absence of a full, on-the-record court inquiry.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).  When a defendant has consulted with an attorney prior to waiver, the district 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) (citations omitted). 

A review of the record shows appellant made a knowing and intelligent waiver of counsel.  Appellant had court-appointed legal counsel who represented him at several hearings.  Appellant then fired his attorney.  See State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990) (stating defendant's refusal to allow appointed counsel to continue representation, without good cause, may be sufficient to find valid waiver).  The district court asked appellant on several occasions if he wanted an attorney.  Each time appellant refused because he did not want the same court-appointed attorney to represent him, even though the court informed appellant several times that he did not have a right to specifically choose "a" public defender.  See Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264 (stating defendant has right to court-appointed counsel but not right to choose individual attorney).  Additionally, after admitting he did not know what he was doing in the first trial, appellant refused to have an attorney represent him at the second trial. 

On these facts, the district court's failure to recite all the dangers of self-representation does not preclude finding a valid waiver.  See Worthy, 583 N.W.2d at 276 (finding valid waiver although district court's on-the-record inquiry did not include recitation of charges or potential punishments where defendants were given counsel and knew they would have to conduct their own defense if they fired counsel); State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995) (finding valid waiver without detailed on-the-record discussion between defendant and district court when defendant fired his appointed attorney knowing he could not have another court-appointed attorney).  The district court properly found that appellant waived his right to an attorney.  The record indicates no stage of the process wherein the state and the district court failed to try and give appellant a fair trial.

            B.        Written Waiver

Appellant argues he did not sign a written waiver as required under Minn. R. Crim. P. 5.02, subd. 1(4), and, therefore, his waiver was invalid. 

Minn. R. Crim. P. 5.02, subd. 1(4) states that a defendant's waiver of counsel must be in writing:  

If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record.  If the defendant refuses to sign the written waiver form, the waiver shall be made orally on the record.


The written-waiver requirement in rule 5.02 became effective January 1, 1999, after the rule was substantially revised to specify the procedures to be followed before a waiver of counsel can be accepted as voluntary and intelligent. A written waiver was not mandated in earlier versions of Rule 5.02.  See, e.g., Minn. R. Crim. P. 5.02, subd. 2 (1998) (providing that defendant facing incarceration shall be appointed counsel "[u]nless the defendant * * * voluntarily waives counsel in writing or on the record").  Moreover, the comment following the rule discusses the written-waiver requirement and sets forth a suggested procedure district courts could employ to fulfill the rule's mandate.  Minn. R. Crim. P. 5.02 cmt.

Finally, when discussing the written-waiver requirement, the comment following the rule cites Minn. Stat. § 611.19 (2000), which states:  

Where 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.


(Emphasis added). For a long time, courts did not always heed the unambiguous written waiver requirement in Minn. Stat. § 611.19.  See State v. Nelson, 523 N.W.2d 667, 670 (Minn. App. 1994) (declining to apply Minn. Stat § 611.19 because absence of written waiver was not an issue in several cases involving oral waivers of counsel).  Although cases considering the validity of waivers of counsel do not always mention the existence, or lack thereof, of a written waiver, rule 5.02 and Minn. Stat § 611.19, unambiguously set forth the requirement of a written waiver.

Here, the district court did not obtain a written waiver.  Appellant did not refuse to sign a written waiver, which would have then permitted a discussion of whether there was an oral on-the-record waiver.  On this point, the district court erred. 

But any "error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."  Minn. R. Crim. P. 31.01.  A written waiver is not constitutionally required for a valid waiver.  The district court did obtain a valid oral on-the-record waiver and cautioned appellant about waiving counsel at several appearances.  We conclude the error did not affect any substantial rights of appellant.  Thus, we find no prejudice. 

II.   Double Jeopardy

            Appellant argues that the district court violated his federal and state constitutional protection against double jeopardy by granting a new trial after his conviction without his consent.  We disagree.

            The Double Jeopardy Clauses of the United States and Minnesota Constitutions (U.S. Const. amend. V.; Minn. Const. art. I, § 7) protect criminal defendants from abuses including "a second prosecution for the same offense after conviction."  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998) (citations omitted).  In cases where a mistrial has been declared, "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial."  Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 1072, (1973). 

This is not a classic mistrial case, meaning a mistrial ordered by the court due to an inadvertent or intentional substantial error occurring during the trial and in full view of the jury, necessitating the district court to rule on defendant's midtrial motion for a mistrial (and, thus, a new one starting from scratch down the road).  That is the posture in which most of the precedent surrounding double-jeopardy issues arises. 

If a mistrial is granted over a defendant's objection, double jeopardy bars a second trial absent a showing by the state of "manifest necessity" for the mistrial.  State v. Stillday, 417 N.W.2d 728, 732 (Minn. App. 1988) (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 830 (1978)), review denied (Minn. Mar. 18, 1988).  See also Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 1083, 2087 (stating manifest necessity standard protects defendant's interest in having his case decided by jury first selected).  The necessity of a mistrial is committed to the discretion of the district court.  State v. McDonald, 298 Minn. 449, 215 N.W.2d 607, 610 (1974).

This case is different.  Here, the state had a valid conviction.  The conviction was valid because, at that point in time, appellant had not made a posttrial motion for a mistrial and, thus, obviously the district court had not granted one.  Secondly, appellant had not appealed and, thus, obviously no appeal had been heard and returned in his favor.  Instead, the state simply stepped forward and, with candor, brought to the court's attention that a substantial error had occurred.  The state also told the court that if the defendant appealed, he would probably be successful and, therefore, the state had no intention of opposing such an appeal and would agree that the appeal process could be bypassed and that appellant was entitled to a new trial.  This is not the fact situation that the founding fathers envisioned when they stayed up for nights at their contentious constitutional convention; contentious because a hardcore group of the delegates insisted on an enumerated bill of rights, which became known as the first ten amendments. 

As noted above, the Double Jeopardy Clauses of the United States and Minnesota Constitutions are in place to protect criminal defendants from abuses by the government.  No criminal defendant's rights are abused when the government gratuitously states, "You have got a valid appeal point and rather than fight you on it through the appellate processes, we will concede that a substantial error happened and you are entitled to a new trial on the spot."  In fact, this case is notable because such professionalism by the government is not seen that often (thus, leading to the dearth of precedent on these precise facts).  The defendant in this situation, although having a right to object to a gift from the state, is hard-pressed to argue that there is any prejudice to him by the offer from the state.  The state could shrug and say, "Fine, have it your way, we withdraw our concession that you are entitled to a new trial.  We will stand on your conviction which we just obtained, and if you want to be sentenced, go right ahead, or if you want to fight us through the appellate process, go right ahead." 

Appellant argues that he did not consent to the mistrial and the order for a new trial.  First, we note that a defendant's consent is not determinative when deciding if a defendant's protection against double jeopardy was violated.  Second, and more importantly, the cases discussing whether the defendant consented arise in the classic mistrial due to an error by the state.  In those situations, the defendant claims the error was so egregious that the interests of justice mandate that the defendant not be put through a second trial and the state, recognizing the power of that argument, argues (1) the error was not that egregious, and (2) if it was, the defendant consented to the mistrial and his consent waives his right to argue egregious error.  As stated above, the facts in this case are not the facts one sees in the normal mistrial case. 

            Here, the district court declared a mistrial because the state brought to its attention that jury instructions contained references to appellant's prior DWI conviction and license revocation.  See State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984) (concluding when defendant judicially admits existence of element of prior conviction for DWI, case may be submitted to jury as ordinary DWI case).  In State v. Clark, this court recognized that a court must accept the defendant's stipulation for a prior DWI offense and revoked license.  State v. Clark, 375 N.W.2d 59, 62 (Minn. App. 1985).  In Clark, the district court erroneously allowed evidence of a defendant's prior DWI conviction and license revocation.  Id. at 61-62.  This court determined that the district court's error was not harmless, particularly because the defendant had not taken a breath test, and the only evidence of his intoxication was the officer's observations.   Id. at 62-63. 

            As in Clark, appellant did not take a breath test, his intoxication was established only through the officer's observations, and the jury was informed that appellant had a prior DWI conviction and license revocation even though appellant stipulated to these facts.  If appellant had appealed his conviction from the first trial, the erroneous jury instruction would have constituted reversible error (the state does not dispute that), and appellant would have received a new trial.  Appellant would not have received, on appeal, an outright reversal.  See State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (stating where defendant appeals conviction, retrial is appropriate unless conviction is overturned on basis of insufficient evidence).

            We conclude that the district court helped appellant by correctly granting him a new trial–because appellant was entitled to one.  There was no prejudice to appellant because at that point he had done nothing to help himself and stood convicted.  All burdens at that point were on appellant to prove to the court that a new trial should be granted.  If unsuccessful in that motion, appellant would have had the burden on appeal.

            The state brought the error to the court's attention, for all practical purposes the same as if appellant had done so and had himself earned a new trial either by motion to the district court or on appeal.  After a reversal, on motion or on appeal, all appellant would have been entitled to in either case would have been a new trial, not an outright dismissal.  See Id.

            The district court properly concluded that justice required a new trial for appellant.  Double jeopardy is not implicated on these facts.  Nothing bars the state's option to retry appellant if they so choose.

            Arguments in appellant's pro se brief were considered but do not change our decision.