This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 2, 2005
Reversed and remanded
Hennepin County District Court
File No. 99119692
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.
Because the record fails to establish that appellant knowingly and intelligently waived his right to counsel before proceeding pro se and pleading guilty, we reverse and remand for an evidentiary hearing.
On December 2, 1999, a complaint was filed charging appellant with violating two gross misdemeanor statutes prohibiting harassment by use of the mail for incidents in which he wrote and mailed a letter and two postcards containing derogatory comments about a police sergeant and a district court judge to the police sergeant. At the time, appellant was already in custody on several other charges.
On December 7, 1999, appellant appeared pro se and pleaded guilty to one count of gross misdemeanor mail harassment, one count of misdemeanor criminal damage to property, and two counts of misdemeanor disorderly conduct, in exchange for dismissal of two other counts of trespass and disorderly conduct. Appellant was sentenced to 365 days on the gross misdemeanor conviction, with 345 days stayed for two years, and to 70 days on each of the misdemeanors. Appellant was given jail credit for 20 days and released on condition that he have “no arrests, no charges, no convictions of any assault, disorderly conduct, damage to property, or harassment of any degree,” for the next two years.
On October 19, 2001, appellant was convicted in
In August 2004, appellant filed this postconviction
petition seeking relief from his 1999
By order issued September 22, 2004, the postconviction court summarily denied appellant’s petition. The court determined that the record of the 1999 guilty plea hearing, which included a transcript of the proceedings and a written “Petition to Enter Plea of Guilty” signed by appellant, was sufficient to establish that appellant validly waived his right to counsel prior to entry of his guilty plea.
from a summary denial of postconviction relief, a reviewing court examines
whether sufficient evidence exists to support the postconviction court’s
findings and will reverse only upon proof that the postconviction court abused
argues that his 1999 convictions must be vacated because the record fails to
establish a valid waiver of counsel on his part before he pleaded guilty to one
gross misdemeanor and three misdemeanors.
An accused has a right to counsel in gross misdemeanor and misdemeanor
prosecutions when a conviction may lead to incarceration.
The postconviction court here determined that appellant’s waiver of the right to counsel was voluntary and intelligent based on the record of the transcript of the plea hearing and appellant’s completed “Petition to Enter Plea of Guilty.” These documents, however, focus on appellant’s decision to plead guilty, not on his initial decision to waive counsel.
The transcript of the plea hearing shows that at the beginning of that hearing, the prosecutor explained to the district court that appellant was appearing pro se:
After the prosecutor set out the plea agreement, the following exchange took place between the district court and appellant:
THE DEFENDANT: Yes.
THE COURT: Do you want to proceed without a lawyer?
THE DEFENDANT: Yes, I do.
The prosecutor and district court then continued with appellant’s plea.
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. Prior to accepting any waiver, the trial court shall advise the defendant of the following: the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel. The court may appoint the district public defender for the limited purpose of advising and consulting with the defendant as to the waiver.
The comment to rule 5 states that a court must make a “penetrating and comprehensive examination of the defendant’s understanding of the factors involved” in the decision to waive counsel and that rule 5 merely “sets forth a minimum list of the factors to be considered.” The comment further acknowledges the requirement that a waiver be in writing may be fulfilled by completion of form 11, which is entitled “Petition to Proceed as Pro Se Counsel.” The comment also refers to appendix C to rule 15, which is entitled “Petition to Enter Plea of Guilty by Pro Se Defendant.”
of the record here suggests that appellant’s waiver may not meet the
Given the lack of more thorough questioning by the district court regarding appellant’s waiver of counsel and the court’s acceptance of a preprinted petition that erroneously stated appellant was represented by counsel, rather than the form and petition specifically designed for use by pro se defendants, we conclude that the record fails to “conclusively” show that appellant is entitled to no relief on his petition for postconviction relief. Minn. Stat. § 590.04, subd. 1. We therefore reverse the summary denial of relief and remand for an evidentiary hearing under Minn. Stat. § 590.04.
we note that appellant has raised two other issues that were not specifically addressed
by the postconviction court. The first
issue involves appellant’s competency to waive his right to counsel. Appellant argues that, due to his past mental
illness, the district court should have engaged in a more thorough inquiry
before accepting his waiver of counsel and guilty plea. Because examination of a defendant’s waiver
of counsel necessarily includes a consideration of his competency at the time
of waiver, this issue can be addressed by the postconviction court on remand.
The second issue involves a challenge to the constitutionality of the mail harassment statute. This issue was raised by appellant in a handwritten petition dated October 18, 2004, after the postconviction court issued its order but before notice of appeal was filed in this case. In the interests of judicial economy, we remand this matter to the district court to address this issue on the merits.
Reversed and remanded.