This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Mathew Matara-Ogechi,


Filed August 1, 2006


Wright, Judge


Hennepin County District Court

File No. 04044715



Melissa V. Sheridan, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)



            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Ross, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant challenges his conviction of third-degree criminal sexual conduct, arguing that, by denying his requests for a continuance to obtain substitute counsel, the district court (1) deprived him of the right to the assistance of counsel, and (2) compelled him to represent himself without obtaining a valid waiver of the right to counsel.  We affirm.


On July 12, 2004, Richfield police responded to 911 calls reporting that a partially clothed woman was in the street screaming that she had been raped.  When they arrived at the scene, officers spoke with the woman, who stated that, after meeting two men at a bar earlier, she went with them to an apartment where she was raped.  The officers located appellant Mathew Matara-Ogechi in the apartment, and the victim identified him as her attacker.  Matara-Ogechi was charged by complaint with third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subd. 1(c) (2002).

On July 15, at Matara-Ogechi’s first appearance in district court, the public defender was appointed to represent him.  Matara-Ogechi’s counsel filed demands for disclosure and a motion to compel discovery.  Matara-Ogechi appeared in district court on August 12 for a probable-cause hearing, pleaded not guilty, and waived the right to a speedy trial.  At a hearing on November 12, the district court denied the defense motion to preclude the state from using photographs and other evidence that had not been timely disclosed.  The district court then ordered the state to disclose the photographs immediately. 

On November 15, the day trial was scheduled to begin, Matara-Ogechi’s attorney requested a continuance based on newly discovered evidence that the victim had reported being a victim of sexual assault in 1993, which needed to be investigated.  Matara-Ogechi indicated that he wanted to proceed pro se, but later in the proceeding he requested a continuance to hire a private attorney.  The district court continued the matter three weeks to permit Matara-Ogechi to hire a private attorney but ordered appointed counsel to serve as standby counsel.  On December 7, the district court granted Matara-Ogechi’s request to reinstate the public defender because he could not afford to secure a private attorney.  The trial was rescheduled for February 2005. 

On February 8, the state filed a motion to preclude any reference to the victim’s mental health or the 1993 incident.  On that date, counsel for Matara-Ogechi again moved to compel discovery of the reports of the 1993 incident and for admission of the reports into evidence.  Three days later, the district court held a hearing on the motion to compel discovery of the reports and took the matter under advisement.  The district court ruled on February 16 that the 1993 reports were discoverable but reserved for the trial judge the decision regarding their admissibility. 

On February 18, the district court heard argument on the defense motions regarding the admissibility of the 1993 incident and of expert testimony regarding the effect of the victim’s medications and alcohol consumption on her mental state.  At the pretrial hearing five days later, after discussing the state’s plea-agreement offer, Matara-Ogechi’s counsel advised the district court that Matara-Ogechi again requested a continuance to hire a private attorney.  The district court denied the continuance.  After a brief recess, Matara-Ogechi rejected the plea offer and waived his right to a jury trial, both orally and in writing.  The district court subsequently denied the motion to admit evidence of the 1993 incident and granted the motion to admit the expert testimony.

On February 24, a bench trial commenced.  Again, Matara-Ogechi requested a continuance to hire a private attorney because he was “not comfortable with the way the case is being processed.”  In response, the district court stated:

I believe, Mr. Matara-Ogechi, you’ve asked for a private lawyer a number of times in this particular matter.  I think at one time the Court did give you an opportunity to do that.  Now that it’s on the—your trial is getting ready to start obviously, it’s really too late in the process at this time.  So I can’t in good conscience now give you a continuance in the matter for that purpose.


The district court denied the request and directed the state to proceed with opening arguments.

After the first two witnesses testified and his counsel cross-examined them, Matara-Ogechi advised the district court that he wanted a different attorney because his attorney “is not bringing up things into the transcript.”  Matara-Ogechi insisted that his attorney was not defending him and that he had to hire another lawyer.  The district court explained to Matara-Ogechi that the trial was proceeding in the ordinary course, he would have the opportunity to put on his defense after the state concluded its case, and the district court had seen nothing that indicated his counsel was not representing his interests.  The district court denied the request for a different attorney and ordered the trial to proceed.  Matara-Ogechi then stated his intention to continue without an attorney.

After a brief recess, Matara-Ogechi was questioned regarding his understanding and agreement with each line of the Petition to Proceed as Pro Se Counsel.  After this review, Matara-Ogechi stated, “I understand, but I’m not going to sign.”  When asked if it was his desire to represent himself, he stated, “I want to represent myself, but to be given time to read more about all those things.”  The district court then recessed for the remainder of the day to give Matara-Ogechi time to review the petition and his appointed counsel’s file.

The next morning, the district court accepted the waiver of the right to counsel as valid, granted the petition to proceed pro se, and ordered the appointed counsel to serve as standby counsel.  Matara-Ogechi again requested a continuance, which the district court denied.  The state then proceeded with its case.  Matara-Ogechi persisted in requesting continuances rather than cross-examining witnesses.

Eventually Matara-Ogechi stopped asking for continuances and cross-examined the state’s witnesses.  When the state rested, Matara-Ogechi called witnesses and put on his defense.  His appointed counsel remained available as standby counsel throughout the trial.  Matara-Ogechi consulted with her, including before deciding whether to testify. 

The district court found Matara-Ogechi guilty of the charged offense and imposed the presumptive guidelines sentence of 48 months’ imprisonment.  This appeal followed. 


Matara-Ogechi argues that, by denying his motions for a continuance, the district court deprived him of his constitutional right to the assistance of counsel and forced him to represent himself without obtaining a valid waiver of the right to counsel.

            The United States and Minnesota constitutions guarantee a criminal defendant the right to the assistance of counsel.  U.S. Const. amend. VI; Minn. Const. art. 1, § 6.  “This right includes a fair opportunity to secure counsel of [one’s] own choice.”  State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970).  But although an indigent defendant has the right to appointed counsel at every stage of the criminal process, the defendant does not have “the unbridled right to be represented by counsel of his own choosing.”  Id. at 299, 176 N.W.2d at 264.  A defendant’s request for a substitution of counsel will be granted only when exceptional circumstances exist, id., the demand is reasonable, id., and the request is timely, State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

Exceptional circumstances are those that affect a public defender’s “ability or competence to represent the client.”  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001) (rejecting more stringent standard adopted in United States v. Webster, 84 F.3d 1056, 1062 (8th Cir. 1996)).  In Gillam, the Minnesota Supreme Court held that the district court’s denial of a defendant’s request for a substitute attorney did not violate the right to counsel because the request was based on the defendant’s disagreement with his public defender about trial strategy and general dissatisfaction with the representation, which did not implicate the public defender’s ability or competence.  Id. at 449-50; see State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998) (holding that general dissatisfaction or disagreement with public defender’s assessment of the case did not constitute exceptional circumstances warranting substitute counsel).  Even if the defendant is advised by the district court that a different public defender will not be appointed under any circumstances, such error is harmless absent a showing of incompetent representation or good cause for a new attorney.  State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).

Because the right to counsel must be balanced against the public interest of maintaining an efficient judicial system, a defendant’s motion for a continuance to obtain counsel is properly denied when the defendant has not been diligent in obtaining counsel.  State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005).  A request for substitute counsel is untimely when it is made on the first day of trial.  See Worthy, 583 N.W.2d at 278-79 (determining that request for substitute counsel was untimely when made the morning of trial). 

The decision whether to grant a continuance to allow a defendant to obtain private counsel rests within the district court’s discretion “based on the facts and circumstances surrounding the request.”  Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264.  Thus, we review the district court’s denial of a motion for a continuance to obtain private counsel for an abuse of discretion.  Courtney, 696 N.W.2d at 81.  When determining whether the district court was within its sound discretion in denying the motion, we consider whether the defendant was “so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.”  Vance, 254 N.W.2d at 358-59. 

If a defendant chooses self-representation, the district court is obligated to ensure that a voluntary and intelligent waiver of the right to counsel is entered in the record.  Minn. R. Crim. P. 5.02, subd. 1(4); State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990).  A written waiver form is preferred.  Minn. R. Crim. P. 5.02, subd. 1(4).  But if the defendant refuses to sign the form, the waiver may be made orally on the record.  Id.  The district court may then appoint standby counsel to assist a defendant who has voluntarily and intelligently waived the right to counsel.  Id., subd. 2.

Typically, whether a waiver of the right to counsel is valid depends on the particular facts and circumstances presented, including the defendant’s background, experience, and conduct.  Worthy, 583 N.W.2d at 275-76.  But if the defendant has refused “‘without good cause to proceed with able appointed counsel,’” and it is clear from the record “that the defendant was fully aware of the consequences of proceeding pro se,” the waiver is valid.  Krejci, 458 N.W.2d at 412-13 (quoting Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir. 1984)).  A district court’s finding of a valid waiver of the right to counsel will be reversed only if it is clearly erroneous.  Worthy, 583 N.W.2d at 276.

Here, Matara-Ogechi was given a three-week continuance after his first request to obtain private counsel.  At his next appearance, because he could not afford to hire a private attorney, the public defender’s appointment was reinstated.  On the day before trial, when Matara-Ogechi again indicated that he wanted a continuance to hire another attorney, the district court denied the request.  This request was denied again the next day immediately before the commencement of the trial.  When given the choice between retaining his appointed counsel and representing himself, Matara-Ogechi chose to proceed pro se. 

Matara-Ogechi had more than three months to hire private counsel.  When his request was denied on the eve of trial, Matara-Ogechi had failed to exercise any diligence in obtaining private counsel and presumably was in no better position financially to do so.  The record establishes that Matara-Ogechi’s appointed counsel diligently pursued discovery and successfully obtained the admission of expert testimony regarding the effect of medication and alcohol on the victim’s mental state.  The quality of representation provided by his appointed counsel was well beyond adequate.  Like the defendant in Vance, Matara-Ogechi “was provided with a competent and able public defender who had thoroughly investigated the facts and was prepared for trial.”  254 N.W.2d at 359.  Matara-Ogechi had no cause to be dissatisfied with his appointed counsel, and he had more than ample time to obtain private counsel.  Id.

Matara-Ogechi also fails to demonstrate how the denial of a continuance materially affected the outcome of the trial.  His appointed counsel continued to represent him until he discharged her, at which point Matara-Ogechi was provided with the entire defense file and given time to read the documents before the trial continued the next morning.  The district court and the state ensured that witnesses for the defense were available, and Matara-Ogechi examined them during the proceedings.  Furthermore, after being discharged, Matara-Ogechi’s appointed counsel continued to assist as standby counsel and was fully prepared to try the case, if necessary.  Any adverse effect on the outcome of the trial is unattributable to the denial of a continuance.  Under the circumstances, the district court did not abuse its discretion in denying the motions for a continuance.

Matara-Ogechi incorrectly argues that, under Webster, he was entitled to substitute counsel.  Gillam rejected the standard articulated in Webster, holding that a defendant is not entitled to substitute counsel unless he shows that exceptional circumstances exist that affect the public defender’s ability or competence.  Gillam, 629 N.W.2d at 449.  Because Matara-Ogechi cannot show such exceptional circumstances in this case, his requests for substitute counsel were properly denied. 

Matara-Ogechi also claims that the waiver of the right to counsel is invalid because it was not knowingly and intelligently made.  In support of his argument, Matara-Ogechi notes that he expressed some confusion when the prosecutor was reviewing the petition to proceed pro se.  The record establishes, however, that he affirmatively told the district court that he understood the terms of the waiver, but he did not want to rush into signing it.  In response, the district court adjourned for the remainder of the day and gave Matara-Ogechi additional time to review the document.  The next morning, without any indication that Matara-Ogechi no longer understood the petition, the district court accepted the waiver and allowed him to proceed pro se.

Any confusion expressed by Matara-Ogechi during the review of the petition appeared to arise from the petition’s reference to pretrial and trial rights that no longer applied to the case.  The transcript reflects that Matara-Ogechi questioned the right to a jury trial, which he had already waived, and the right to a probable-cause hearing, which had already occurred.  But he later acknowledged understanding the contents of the entire petition.  Because the record reflects that Matara-Ogechi was fully advised of the consequences of proceeding pro se, understood the rights that he waived, and failed to show exceptional circumstances warranting the appointment of substitute counsel, the district court correctly determined that Matara-Ogechi’s waiver of the right to counsel was valid. 

Finally, Matara-Ogechi raises a number of issues in his pro se supplemental brief.  But because he fails to brief the issues adequately or provide any legal authority in support of his arguments, they are waived.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding that claims unsupported by argument or citation to legal authority are deemed waived).  Furthermore, our review of the arguments establishes that none asserts a basis for relief. 

Matara-Ogechi’s pro se arguments regarding his right to counsel and the district court’s failure to grant his requests for a continuance have been addressed fully.  While Matara-Ogechi also argues that he was entitled to more time for preparation after he decided to proceed pro se, he fails to cite any legal authority in support of this proposition.  Indeed, Matara-Ogechi was advised of the obligations of self-representation before he waived the right to counsel.  And the able assistance of standby counsel was available to him throughout the proceedings.