This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Paul James Paris, Jr.,
Filed February 24, 2004
Affirmed in part, reversed in part, and remanded for resentencing
Isanti County District Court
File Nos. K5-01-407; T9-00-2859; T8-01-76
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, St. Paul, MN 55101; and
Jeffrey R. Edblad, Isanti County Attorney, Isanti County Courthouse, 555 Eighteenth Avenue Southwest, Cambridge, MN 55008 (for respondent)
Peter J. Timmons, Attorney at Law, 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Schumacher, Judge.
On appeal from his convictions of and sentences for fleeing a police officer in a motor vehicle, fourth-degree assault, third-degree DWI, and test refusal, appellant argues that the district court erred by (1) failing to obtain a written waiver of his right to counsel before allowing him to proceed pro se; (2) failing to obtain a knowing, intelligent. and voluntary waiver of his right to counsel on the day of his trial; and (3) sentencing him for felony fourth-degree assault because the jury did not find that appellant inflicted demonstrable harm on the officer. We affirm in part, reverse in part, and remand for resentencing.
On March 28, 2001, just before midnight, Isanti County Deputy Sheriff Christopher Caulk observed appellant Paul James Paris, Jr.’s limousine drive off the road, onto the shoulder, and back onto the road. Caulk followed the limousine in his squad car and again observed the limousine drive off the road. Caulk turned on his lights, and when appellant refused to stop, Caulk activated his siren. Caulk testified that he observed appellant pull into a driveway, “turn around in the driveway and [start] pointing out back towards the driveway to leave.” Caulk radioed for assistance and stopped appellant’s vehicle.
Appellant exited his limousine. Caulk told appellant to get back into his vehicle; appellant did not and, instead, told Caulk that he “did not do anything wrong.” Appellant refused to get into his limousine and started to approach Caulk. Caulk got into his squad car and again told appellant to get back into his vehicle. Appellant again said he had done nothing wrong and walked northbound between a house and shed that was on the property. As Caulk began to follow appellant, Caulk looked back at the limousine and noticed that a passenger was inside the limousine. Caulk yelled at the passenger to stay inside the vehicle.
Caulk tracked appellant’s footprints and found appellant near the shed lying on his back in a pile of snow. Appellant asked Caulk “what the hell” he was doing, and Caulk told appellant that he was investigating a traffic stop. Caulk testified that at that point, appellant stood up and charged at him with his hands out in front of him. Caulk repeatedly told him to stop, but appellant refused. Caulk testified that he used pepper spray on appellant, who then walked out to the road.
Caulk pursued appellant on foot until other officers arrived at the scene. Caulk then hitched a ride on the hood of another squad car and caught up with appellant. As Caulk approached appellant, appellant grabbed Caulk and threw him to the side causing him to fall into the ditch. The other officers then assisted Caulk in trying to subdue appellant, but they were unsuccessful in getting appellant’s hands behind him. The officers struck appellant a couple of times in his thigh and were able to get him to the ground and handcuff him. Appellant stiffened his body so the officers could not get him into the squad car. Appellant eventually cooperated with the police officers.
The officers noticed a beer bottle in the limousine, and Caulk smelled an odor of alcohol on appellant’s breath, and observed that appellant’s speech was slurred. Based on these observations and appellant’s driving Caulk believed that appellant was under the influence of alcohol. Caulk transported appellant to the police station and read appellant the implied consent advisory. Caulk also made a telephone available to appellant so he could call an attorney. Appellant refused to take the alcohol concentration test. Appellant was charged with fleeing a police officer, fourth-degree assault, obstructing legal process, third-degree DWI, and test refusal.
On March 30, 2001, appellant appeared pro se at the initial hearing on the charges against him, and told the court that he did not want a court-appointed attorney and that he was going to hire private counsel. On April 26, 2001, appellant again appeared pro se. At this time, appellant and the district court had the following exchange:
COURT: . . . Do you intend to be represented by a lawyer at some point during this case?
[APPELLANT]: Just a counselor, or, you know, and myself.
COURT: Don’t confuse the two. There is a right to counsel guaranteed by the constitution. However, right to counsel in Minnesota has been interpreted as the right to be represented by a licensed attorney in Minnesota, and so whatever counsel you’re seeking outside of that can’t actually represent you in the courtroom, so if you’re getting advice from the psychic hotline or something, that’s up to you, but you do not have a lawyer representing you unless you either retain one or we appoint one for you. So you’re clear on that; right?
COURT: So apparently you’re going to represent yourself?
[APPELLANT]: Yes, sir.
COURT: That’s a choice you have. There are some dangers involved. I often like to tell those who represent themselves it’s like being your own doctor if you have to have surgery. It’s messy, it’s painful, and it seldom does any good if you do it yourself, but it’s your life.
No written waiver of counsel was requested at that time, and no further inquiry was made by the district court concerning any waiver of counsel.
On June 14, 2001, appellant appeared at his omnibus hearing with an individual named Scott Frederick Kretz. After the district court explained to appellant that Kretz could not represent him because (as it turned out) he was not a licensed attorney, appellant told the court that he would represent himself. The court appointed a public defender to discuss the dangers of self-representation before he would accept appellant’s waiver of counsel. The district court gave appellant a public defender card and told him to make an appointment to discuss self-representation. The court continued the hearing for 30 days to give appellant time to discuss his right to counsel.
On July 11, 2001, appellant failed to appear for his contested omnibus hearing. A warrant was issued, and appellant was arrested. On January 2, 2002, appellant posted bail, and the omnibus hearing was rescheduled for January 23, 2002. On January 23, 2002, appellant appeared pro se. The district court denied appellant’s motions to dismiss for lack of personal jurisdiction and probable cause. The trial was set for April 1, 2002, but appellant did not appear and a second bench warrant was issued. Appellant was arrested, and the trial was set for the week of August 5, 2002.
On August 9, 2002, appellant appeared without an attorney and told the court he appeared pro se in his earlier proceedings because he was unable to afford an attorney and had not worked in years. Appellant told the court that he now had the money to hire counsel and did not want to waive his right to counsel. The district court responded by stating that it had already denied appellant’s request for another continuance to obtain counsel. But then the court did give appellant the opportunity to talk with a public defender who was present in the courtroom and gave appellant the opportunity to contact a private attorney about legal representation. After a recess, appellant, ambiguously, told the court that he had either consulted with the public defender or called a private attorney. The district court now explained to appellant that the court would assign a public defender to serve in the limited capacity of advising appellant of his right to counsel and stated that it had not yet determined that appellant was even financially eligible for a public defender. The court asked appellant if he understood that he was representing himself. Appellant said that he did. The district court asked the public defender if appellant knew the importance of proceeding with legal representation, and the public defender stated that appellant did. The court noted that appellant had indicated that he had retained private counsel but wanted to proceed pro se for purposes of the plea negotiation. Ultimately, the district court rejected appellant’s plea and denied appellant’s request for yet another continuance to obtain private counsel. The record indicates that at no time did a privately retained criminal defense attorney contact the court with a clear statement that he was representing appellant. Appellant “talked about” obtaining private counsel several times, but the record does not indicate that appellant ever followed through and unequivocally obtained a private attorney.
The jury found appellant guilty of fleeing a police officer, obstructing legal process, third-degree DWI, and test refusal. The jury also found appellant guilty of fourth-degree assault, but, by a special verdict, did not find that appellant inflicted demonstrable bodily harm of the officer. Later, a third bench warrant had to be issued when appellant failed to appear for a court-ordered pre-sentence investigation.
At sentencing, the district court stayed a 90-day jail sentence for appellant’s conviction of fleeing a police officer until the outcome of this appeal. The court imposed a concurrent stayed sentence of up to two years probation for appellant’s fourth-degree assault conviction. The district court imposed an executed sentence of 20 days in jail for appellant’s third-degree DWI conviction, which was to run concurrently with the 90 days appellant received on his fleeing-a-police-officer conviction. The court finally dismissed appellant’s obstruction-of-legal-process charge. This appeal follows.
Appellant first argues that the district court erred by failing to obtain a written waiver of counsel. The state argues that appellant’s conduct constituted an effective waiver of counsel. We agree with the state.
Appellant argues that this court’s recent decision in State v. Hawanchak, supports his argument that the district court was required to obtain a written waiver of his right to counsel. 669 N.W.2d 912 (Minn. App. 2003). We disagree. In Hawanchak, the defendant applied for a public defender a week before his trial. Id. at 913. The district court subsequently granted the defendant’s request for a public defender, subject to a determination of whether he would be required to reimburse the state for part of the cost of the defense. Id. The defendant’s application and the district court order, however, were misplaced through no fault of defendant. Id. On the first day of his trial, the defendant submitted a second application that was substantially the same as the first but reported additional assets and liabilities. Id. Based on the defendant’s financial status, the district court denied defendant’s request for a public defender as well as his request for a continuance to prepare his case. Id. at 914. This court held that a defendant’s right to counsel was violated when a district court failed to obtain a written waiver of the right to counsel or make a record evidencing a refusal of counsel before requiring the defendant to represent himself at trial. Id. at 95.
We have none of these facts. Unlike Hawanchak, where the defendant requested the services of a public defender, appellant at no time before his trial requested the services of a public defender. Rather, appellant consistently refused the services of a public defender. Before trial, the district court told appellant on two separate occasions about his right to retain private counsel or discuss representation with a public defender. The court advised appellant at his April 26 hearing that the court would appoint a public defender or appellant could hire private counsel. At his June 14 hearing, the court appointed a public defender to instruct appellant on the dangers of self-representation and then continued his omnibus hearing so appellant would have the opportunity to consult with a private attorney. Appellant never indicated that he was unable to afford an attorney until the day of his trial. The day of the trial, appellant told the court that he had acquired the money to hire private counsel, then stated he had consulted “either” with the public defender or a private attorney, and then appellant ended up deciding to proceed through plea negotiations pro se.
The record indicates great patience on the part of the district court judge. At no time, nothing the judicial system did interfered with appellant’s right to a fair trial; his impediment was his own vacillation.
As the state points out, a defendant can waive his right to counsel by his conduct. Finne v. State, 648 N.W.2d 732, 736 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002); Worthy, 583 N.W.2d at 276; Krejci, 458 N.W.2d at 412-13 (Minn. 1990); State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996). In Hawanchak, this court distinguished the facts in Hawanchak from those in Worthy and Krejci where the court found an implied waiver or waiver by conduct when the defendants refused to accept the services of an attorney. Hawanchak, 669 N.W.2d at 915 (citing Worthy, 583 N.W.2d at 275; and Krejci, 458 N.W.2d at 412-13).
The record indicates that appellant’s conduct constituted an effective waiver of counsel. Appellant’s conduct reflected a series of tactical decisions to delay a trial on the merits by a pattern of rejecting the services of a public defender while “talking about,” but never actually hiring, a private attorney for representation. At his first appearance, appellant appeared pro se and then told the court that he would retain private counsel. At his April 26 hearing, the district court explained to appellant that an unlicensed attorney could not represent him. The court also told appellant that the court would appoint an attorney or he could hire private counsel. After appearing at his June 14 hearing with an unlicensed “counselor,” the district court appointed a public defender for the sole purpose of explaining the dangers of proceeding without licensed counsel and continued the case to give appellant the opportunity to discuss self-representation with an attorney. On the date of his trial, when asked by the court if he had had the opportunity to discuss his right to counsel with the public defender or private counsel, appellant answered that he had, but did not directly state which one. Like the defendants in Worthy and Krejci, the court gave appellant numerous opportunities to consult with public defenders or a private attorney. See also State v. Brodie, 532 N.W.2d 557 (Minn. 1995) (holding defendant waived his right to counsel where he “fired” his public defender knowing he had no right to different public defender and where “standby” public defender nonetheless assisted defendant at trial); Finne, 648 N.W.2d at 732 (holding defendant effectively waived trial counsel where she dismissed her public defender and failed to hire a private attorney).
Taking the record in totality, we cannot find any impairment of appellant’s right to counsel; the conduct of the district court judge, who, time after time, explained to appellant his different options and granted appellant enough time to exercise one was exemplary. Ultimately, it was appellant’s decision not to apply for a public defender and not to hire a private attorney; then to be ambiguous about appearing pro se and finally to state he would appear pro se. The law can do little with this conduct except be as reasonable as possible and then finally grant the state the right to proceed to trial on the merits. We ultimately conclude that appellant’s conduct and his words constituted an effective and knowing waiver of his right to counsel.
B. Knowing and Intelligent Waiver
Appellant also argues that, if he waived his right to counsel, it was not knowing, intelligent, and voluntary. Put another way, appellant repeats his first argument for a second time. As stated above, it is the district court’s responsibility to ensure a “knowing and intelligent” waiver of the right to counsel. Krejci, 458 N.W.2d at 412. The purpose of the district court inquiry is to ensure that the defendant is “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).
As stated before, appellant was aware of his right to counsel. We conclude that appellant’s waiver of counsel was knowing, intelligent, and voluntary. Appellant’s conduct included requiring the court to issue three separate bench warrants for appellant’s arrest after he failed to appear for two court appearances and then a court-ordered pre-sentence investigation. We note that it was 18 months between the time of the offense and appellant’s trial. That gave appellant a year and a half to obtain a private attorney if he was serious about doing so. The record indicates that not only did the district court inform appellant of his right to counsel and appoint a public defender to explain to appellant “his right to counsel,” but also the court continued appellant’s omnibus hearing to a later date, a date where appellant chose not to appear! See Worthy, 583 N.W.2d at 276 (when a defendant has consulted with an attorney before 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.” (quotation omitted)). Finally, at trial, the court again gave appellant the opportunity to consult with a public defender or call a private attorney. As per his custom, appellant vacillated and ended up doing neither. The record supports the district court’s conclusion that appellant knowingly and intelligently waived his right to counsel and voluntarily proceeded pro se. On these facts, we find neither prejudice nor error.
Appellant argues that because the jury found that appellant did not inflict demonstrable bodily harm on the officer, he is guilty of only gross-misdemeanor assault. The state agrees. We agree. The statute for fourth-degree assault provides:
Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm, the person is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.
Minn. Stat. § 609.2231, subd. 1 (2002). The judge instructed the jury to make a specific finding as to whether appellant inflicted demonstrable bodily harm on the officer. The court stated:
If you find the defendant guilty, you will have an additional issue to determine and it will be put to you in the form of a question on the verdict form, and the question is: Did the defendant inflict demonstrable bodily harm on the officer?
The jury answered this question in the negative on the verdict form. The state agrees with appellant and candidly stipulates that since the jury did not find appellant inflicted demonstrable bodily harm, appellant cannot be convicted of felony fourth-degree assault. Therefore, the sentence for felony fourth-degree assault is vacated, and we remand for sentencing on appellant’s conviction for gross-misdemeanor assault.
Affirmed in part, reversed in part, and remanded for resentencing.