This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Jason Kellogg,


Filed March 9, 2004

Affirmed as modified

Stoneburner, Judge


Ramsey County District Court

File No. K902325


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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Lansing, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant argues that the district court’s finding that he validly waived his right to counsel was clearly erroneous and that the district court violated his sixth amendment right to counsel and fifth amendment right to due process by refusing to allow him to relinquish his right to self-representation just prior to the beginning of trial.  Appellant also challenges his sentence as disproportionately harsh when compared to others similarly situated.  We conclude that the district court did not clearly err in granting appellant’s motion to represent himself and did not abuse its discretion in denying his motion to relinquish his right to self-represent.  But, because we conclude that appellant’s sentence was excessive, we affirm as modified.



I.          Self-representation

            Appellant argues that his decision to proceed pro se was not informed, intelligent, voluntary, and unequivocal, and that, even if it were, the district court violated his constitutional rights to counsel and due process by not allowing him to relinquish the right to self-representation immediately before the jury was called into the courtroom.  We disagree.

            a.            Decision to proceed pro se

            The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney.  Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S. Ct. 792, 796 (1963).  The Supreme Court has held that:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. . . . The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.


Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct. 2525, 2533 (1975).  A defendant’s request for self-representation should be granted where it is “clear, unequivocal, and timely” and the defendant “knowingly and intelligently waives his right to counsel.”  State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) (hereinafter Richards I).  Appellate courts will overturn a district court’s finding of a valid waiver of a defendant’s right to counsel only if that finding is clearly erroneous.  State v. Camacho, 561 N.W.2d 160, 168-69 (Minn. 1997). 

            A defendant who seeks to waive his 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, 442 U.S. at 835, 95 S. Ct. at 2541 (quoting Adams v. United States ex rel McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)).  The Minnesota Supreme Court has cautioned that to determine whether a waiver of the right to counsel is knowing, intelligent, and voluntary, district courts “should comprehensively examine the defendant regarding 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.”  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (quoting Camacho, 561 N.W.2d at 173). 

            The district court judge questioned appellant extensively when he requested to proceed pro se on the first day of trial, a trial which had already been continued twice.  Appellant unequivocally stated on the record that he wished to proceed pro se after initial questioning by the district court and a brief private conversation with his former attorney.  The district court correctly stated the standard for determining whether to grant a defendant’s motion to proceed pro se: (1) whether the request is clear, unequivocal, and timely and (2) whether the defendant knowingly and voluntarily waives the right to counsel. 

            The district court’s examination of appellant regarding his desire to represent himself covers nine pages of transcript and the following topics: (1) the medications appellant was taking and the effects of those medications; (2) his educational background; (3) his right to have an attorney represent him; (4) the charges against him; (5) the possible punishment if he was found guilty of any or all of the charges; (6) that he would be held to the same standards as an attorney; (7) that he would be required to conduct voir dire, respond to the state’s legal arguments, and subpoena witnesses to testify on his behalf; (8) that it would be his decision whether to testify; (9) that he would be required to make evidentiary objections; (10) that he would be required to propose jury instructions and challenge the state’s proposed jury instructions; (11) that he would be his own lawyer in this case; (12) that the judge presiding over the case is not his attorney; (13) that his learning disability and the effects of the disability may make it more difficult for him to represent himself; (14) the reason for appellant’s request to represent himself; and (15) whether the decision to proceed pro se was his own and that he was not coerced or threatened.  The court also made note of the fact that appellant had previously been found to be competent to stand trial after a Rule 20 examination, and, based on the statements appellant made before the court, the district court found him competent to represent himself.  Standby counsel was then appointed and the trial was once again continued to allow appellant time to prepare.  

            The record establishes that appellant’s request to represent himself was clear, unequivocal, timely, knowing, and voluntary.  In fact, it is hard to imagine a record that more clearly establishes the validity of a defendant’s decision to waive his right to counsel.  The district court did not clearly err in granting appellant’s motion to represent himself.

            b.            Relinquishing right to self-representation

            On the first day of the fourth trial date set in this matter, appellant, after having fully participated in pretrial proceedings that included a request for a further continuance, suddenly, just before the jury was ready to enter the courtroom, asked to have counsel appointed.  His request was denied, and appellant alleges the denial violated his Sixth Amendment right to counsel and his Fifth Amendment right to due process.         

            A defendant does not have an absolute right to relinquish his self-representation and thereby allow standby counsel to take over the case.  State v. Richards, 552 N.W.2d 197, 206 (Minn. 1996) (hereinafter Richards IV).  The proper standard for determining when a defendant should be allowed to relinquish his right of self-representation is whether, in the district court’s discretion, the request is timely, reasonable, and reflects extraordinary circumstances.  Id. (quoting State v. Richards, 463 N.W.2d 499, 499 (Minn. 1990) (hereinafter Richards II)).  A district court may properly balance the defendant’s motion “against the progress of the trial to date, the readiness of standby counsel to proceed, and the possible disruption of the proceedings.”  Id. at 206-07. 

            We conclude that the district court did not abuse its discretion in denying appellant’s last-minute request to relinquish his right to self-represent.  As the district court pointed out to appellant on the record, Richards IV does not allow a defendant to use self-representation to delay a trial.  Id. at 205.  Additionally, “[a] defendant cannot    

. . . alternate his position on whether or not he wishes to self-represent for purposes of delay.”  Id. at 206 (citations omitted).  As the court reminded appellant, he was repeatedly warned before the trial date about the disadvantages of self-representation, but chose to proceed pro se.  Standby counsel would have required three additional weeks to be able to take over appellant’s defense, and appellant had been warned prior to the granting of the three previous continuances that no further continuances would be granted.  The attempt to withdraw from self-representation did not occur until after appellant had fully participated in pretrial proceedings and the district court had denied all of his pretrial motions for another continuance.  The district court had ample opportunity to observe appellant during the pretrial proceedings and an adequate basis for rejecting appellant’s claim that his ADHD was interfering with his ability to self-represent.  Appellant failed to demonstrate that his request reflected any “extraordinary circumstances.” 

            Appellant relies heavily on State v. Graff for the proposition that a defendant has an absolute right to relinquish his right to self-representation.  510 N.W.2d 212, 216 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994).  But Richards IV, a subsequent supreme court case, has modified or overruled Graff to the extent that Graff held that a defendant has an absolute right to relinquish his right to self-representation.  Richards IV holds that a criminal defendant does not have an absolute right to relinquish his self-representation.  552 N.W.2d at 206.  Appellant argues that Richards IV does not apply to his situation because he was not attempting to delay the trial.  But the district court found otherwise, and the record supports that finding.  The district court did not abuse its discretion and did not violate appellant’s constitutional rights by denying his last-ditch attempt at delay by attempting to withdraw from self-representation.

II.            Sentence

            Appellant was found guilty of all charges in a 27-count complaint.  The district court found that counts 1–6, three counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct, were all separate behavioral incidents; that the 20 counts of use of a minor in a sexual performance constituted 10 separate behavioral incidents and that possession of child pornography was also a separate behavioral incident.  The district court imposed consecutive sentences for these 17 separate behavioral incidents, for an aggregate sentence of 717 months (59.75 years).[1]  A district court has great discretion in sentencing, and an appellate court may not substitute its own judgment for that of the district court.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).     

            Under Minn. Stat. § 609.035, subd. 1 (2000), a person who commits multiple offenses against the same victim during a “single behavioral incident” may be punished for only one offense.  Appellant argues that he engaged in a single criminal enterprise, by committing the same criminal acts repeatedly against the same victim at her home over a two-month period.  We disagree.

            Whether multiple offenses form part of a single behavioral act is a question of fact.  See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (reviewing district court’s finding of two separate behavioral acts under clearly erroneous standard).  In determining whether a series of offenses constitutes a single behavioral incident, the relevant factors are: (1) unity of time and place and (2) whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  The purpose of the statute is both to protect against exaggerating the criminality of the defendant’s conduct and to ensure that punishment is commensurate with the crime committed.  State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980).  In this case, the district court determined there were separate behavioral incidents committed on different days based on a careful review of the indicators in the photographic evidence, including the clothes the victim wore in the pictures, the color of her nail polish, and the background of the photos.  Because the photographic evidence supports the district court’s determination, it is not clearly erroneous.

            Whether consecutive sentences should be imposed is generally within the discretion of the district court.  State v. Brom, 463 N.W.2d 758, 765 (Minn. 1990), cert. denied, 499 U.S. 940, 111 S. Ct. 1398 (1991); State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).  “A trial court’s decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct.”  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (citing State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988)).  “A trial judge sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender’s conduct and weigh sentencing options.”  Id.  Minnesota law authorizes an appellate court to

review the sentence imposed . . . to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.


Minn. Stat. § 244.11, subd. 2(b) (2000).  Appellate courts have discretion to modify a sentence in the interests of fairness and uniformity.  Norris, 428 N.W.2d at 70; State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983). 

            In this case, the district court was cognizant of the unusual severity of the sentence that it handed down to appellant.  The district court stated that:

It doesn’t give anybody any great pleasure to send a young person . . . to prison as long as you’re going. 

. . . . 


I want to make it clear on the record that I am going to sentence consecutively.  I’ve never – I’ve rarely seen a case that cried out for consecutive as much as this one.


The court went on to highlight the egregious nature of appellant’s crimes, including: (1) the vulnerability of the victim due to her age and appellant’s position as a trusted neighbor and friend; (2) the particular cruelty with which the victim was treated; (3) the high level of planning involved in the offenses; (4) the multiple incidents; and (5) regarding the possession of child pornography conviction, the multiple victims.   

            Appellant relies heavily on the fact that the victim’s father, who fully participated in the crimes, received a much lighter sentence of 48 months for one count of use of a minor in a sexual performance plus a stayed 144-month guideline sentence for one count of criminal sexual conduct in the first degree.  But appellant’s reliance is misplaced.  The victim’s father pleaded guilty early in the proceedings before many of the facts of the case were discovered and before the complaint was amended to add additional counts.  Appellant was offered a very similar plea agreement at the same time. The district court noted at sentencing that the inequity is that the father’s sentence was so light, not that appellant’s sentence was excessive.

            When considering whether a sentence is proper, we must base our decision on “our collective collegial experience in reviewing a large number of criminal appeals from all the judicial districts.”  State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).  While we give deference to the vast experience and sound judgment of the district court in this case, our experience in reviewing criminal sentences suggests that a 59.75-year sentence is excessive and unfairly exaggerates the criminality of appellant’s conduct.  See Norris, 428 N.W.2d at 70-71.  Accordingly, the sentence is modified to three consecutive terms of 144 months for the three separate incidents of first-degree criminal sexual conduct and five consecutive terms of 21 months for five of the separate incidents of use of a minor in a sexual performance, with the remaining sentences being concurrent, for an aggregate sentence of 537 months (44 years).

            Affirmed as modified.


[1] Appellant was sentenced to three consecutive 144-month sentences for the three counts of first-degree criminal sexual conduct, three consecutive 21-month sentences for the three counts of second-degree criminal sexual conduct, ten consecutive 21-month sentences for the ten counts of use of a minor in a sexual performance, and a-year-and-a-day for possession of child pornography.