This opinion will be unpublished and

may not be cited except as provided by

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






David D. Cox, petitioner,





State of Minnesota,



Filed ­­­October 24, 2006

Reversed and remanded

Dietzen, Judge


Nicollet County District Court

File No. K7-03-639


David D. Cox, OID #213935, 970 Pickett Street North, Bayport, MN 55003-1490 (appellant pro se)


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


Kenneth R. White, Assistant Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 55082 (for respondent)


            Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            In this postconviction proceeding, appellant challenges his convictions and sentencing for kidnapping, two counts of first-degree burglary, and second-degree assault, arguing that (1) he was not competent to stand trial, (2) his waivers of the right to a jury trial and to counsel were not knowingly, intelligently, and voluntarily made, (3) his sentence was illegal because the convictions arose out of the same behavioral incident, and (4) he was deprived of his due process rights to a hearing.  We reverse and remand.


            Appellant David D. Cox and Jennifer Thompson had a romantic relationship and lived together for about ten years.  In the fall of 1993, Thompson directed appellant to leave the residence and had all the locks changed.  When appellant later returned to the residence, Thompson stated that the relationship was over and that he should leave.  Appellant then locked the door, grabbed Thompson by the ankle and dragged her down the stairs into the bedroom where he threatened to kill her with pruning shears and then kill himself.  Thompson attempted to dial 911, but appellant grabbed the phone and prevented her from making the emergency call.  Appellant then dragged her to the kitchen where he threatened her with a 13-inch knife.  Thompson escaped and again attempted to dial 911, but appellant again prevented her.  Thompson later escaped and appellant followed her to the neighboring home of Merrelin Chester.  When Chester dialed 911, appellant left and was later arrested in his vehicle with the knife.  Thompson suffered physical injuries, including a wrist injury.

            Appellant was charged with nine offenses[1] arising out of the incident, including one count of kidnapping, two counts of first-degree burglary, and two counts of second-degree assault.  Appellant was provided court-appointed counsel.

            At a pretrial hearing, appellant demanded that he be represented by an individual unlicensed as an attorney.  When the district court denied his request, appellant stated that he did not want a public defender and that he would represent himself.  The court appointed counsel to represent appellant for the purpose of explaining his right to counsel and the benefits of counsel.  Appellant met with the attorney and indicated to the attorney that he did not wish assistance.  Following its questioning of appellant, the court determined that appellant was waiving his right to counsel and appointed stand-by counsel.

            Before trial, appellant started a hunger strike but later developed a medical problem.  As a result, his advisory counsel requested a continuance, which was granted.  At the next hearing, appellant refused to allow his stand-by counsel to sit with him at counsel table and challenged the court’s subject-matter jurisdiction and pleaded “false muster.”  At a subsequent hearing, the district court addressed each of the elements of appellant’s right to a jury trial.  Appellant refused to say anything and remained silent.  The trial court stated that appellant could demand a jury trial until the time that double jeopardy attached.

            At trial, the court addressed a “Lodgment Nunc Pro Tunc” filed by appellant and found that appellant had waived his right to a jury trial.  Throughout the balance of the trial, appellant refused to participate or provide any oral response.  At the conclusion of the state’s case, the district court dismissed counts 10 and 11 of the amended complaint.  Appellant continued his silence and refused to call any witnesses, present any evidence, or otherwise respond to the charges.

            The district court convicted appellant of nine counts of the amended complaint.  Appellant objected, stating, “Sir, I am a sovereign natural man and I’m not here voluntarily and I’m being held against my will and I stand on my paperwork.”  At the sentencing hearing, appellant again refused to explain his view that he was a “sovereign” and refused to participate in the proceedings.  The district court sentenced him to a term of 52 months in prison for first-degree burglary of Thompson’s residence; 52 months for kidnapping, consecutive to the burglary conviction; 21 months for first-degree burglary of the Chester residence, consecutive to the Thompson burglary and kidnapping convictions; and 21 months for second-degree assault, concurrent with the other sentences.  The district court determined that the other counts were part of the same behavioral incident or lesser-included charges.  Appellant did not pursue a direct appeal.  Subsequently, appellant filed a petition for postconviction relief, which was denied.  This appeal followed.



Appellant raises three issues on appeal.  First, appellant argues that he was not competent to stand trial or to waive his rights to counsel and a jury trial.  Essentially appellant contends that his refusal to participate in trial was part of his “patriot mythology” that was “gibberish”; that he was in a “Mental Disneyland” and, therefore, lacked the competency to stand trial or to knowingly and intelligently waive his rights.

A.        Competency to stand trial

Under the Due Process Clauses of the Fifth and Fourteenth Amendment, a criminal defendant must be legally competent in order to be tried and convicted.  State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).  A defendant is not competent to stand trial if the defendant:

(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel;  or


(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.


Minn. R. Crim. P. 20.01, subd. 1.  If the court determines there is “reason to doubt” the defendant’s competency, the court shall suspend criminal proceedings against the defendant and follow the provisions of the rule to conduct a competency hearing.  Minn. R. Crim. P. 20.01, subd. 2. Here, no motion was made for a competency hearing.  Appellant argues that the court, on its own motion, should have called for a hearing.  The state argues that appellant was espousing a political view that may be “unpopular” or “eccentric,” but that appellant’s behavior has not raised a “reason to doubt” appellant’s ability to stand trial; hence, he has not established a mental-health disease or defect rendering him incompetent to stand trial or unable to participate in his defense.

The postconviction court concluded that “Mr. Cox’s Petition for Post-Conviction Relief is without merit” and that “Mr. Cox does not have the right to a post-conviction relief hearing pursuant to Minnesota Statute § 590.04, Subd. 1.”  But the court failed to make any findings of fact or conclusions of law that directly address appellant’s contention that he was not competent to stand trial.[2]  Consequently, we are unable to conduct appellate review.  See, e.g., Erickson v. State, 702 N.W.2d 892, 897 (Minn. App. 2005) (remanding an order revoking probation where court’s failure to make findings “does not facilitate effective appellate review”).  Therefore, we reverse and remand to the district court to make the necessary findings on the issue of competency.

B.        Competency to waive trial rights

            Appellant also argues that he was not competent to waive his right to a jury trial or his right to counsel.  He asserts that the waivers were not knowingly and intelligently made.  The district court’s conclusion that a waiver was knowing, voluntary, and intelligent will not be reversed unless that finding is clearly erroneous.  State v. Camacho, 561 N.W.2d 160, 168 (Minn. 1997).

            Here, the district court found that “[w]hen the Court asked Mr. Cox if he would be requesting a jury trial, Mr. Cox plainly refused a jury trial, thereby waiving his right to a jury trial.”  With respect to counsel, the district court found that “[t]he Court also provided Mr. Cox with advisory counsel.”  But the court made no finding addressing appellant’s claim that he was not competent to waive his rights, or that the waivers were not knowingly, voluntarily, and intelligently made; therefore, we remand for findings on whether appellant’s waivers were knowingly, voluntarily, and intelligently made.


            Appellant next argues that his consecutive sentences are improper because they arise from a single behavioral incident.  “Whether multiple offenses arose out of a single behavior incident depends on the facts and circumstances of the particular case.”  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  “[T]he singleness of purpose of the defendant and the unity of time and of place of the behavior” are among the factors to consider in determining whether the incident arose from a single incident.  Id.

Here, it appears that there are two discrete incidents: (1) burglary, kidnapping, and assault at Thompson’s residence and (2) burglary of Chester’s residence.  See, e.g., State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996) (affirming consecutive sentences when multiple victims were involved); Bookwalter, 541 N.W.2d at 294 (finding two separate behavioral incidents when two locations were involved).  But because the district court did not rule on the issue of consecutive sentencing, we remand on this issue as well.


Appellant also argues that his convictions were not supported by sufficient evidence.  The district court found it was “unable to consider Petitioner’s challenge to the factual basis for his convictions without a complete transcript of the trial record to the Court and the State.”  Appellant asserts that the district court should have ordered and read transcripts to consider his challenges.  Because we reverse and remand for further proceedings, it is not necessary for us to reach this issue.  But we do note that Mr. Tesch, appellant’s non-attorney representative, had the trial transcript approximately 15 months before the postconviction petition was filed.  It is unclear why the transcript was not filed with the court.


Finally, we observe that the Minnesota Constitution guarantees the right to counsel for a first postconviction petition if the defendant did not pursue a direct appeal.  Deegan v. State, 711 N.W.2d 89, 98 (Minn. 2006).  On receipt of a pro se petition for postconviction relief, the court administrator is required to forward a copy of the petition to the state public defender.  Minn. Stat. § 590.02, subd. 1(4) (2002), states, “[i]n the event the petitioner is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender and shall advise the petitioner of such referral.”  Here, it does not appear that this has been done, and we direct that the court administrator forward the petition to the state public defender on remand.

            Reversed and remanded.  

[1] The complaint was amended to add two additional counts.

[2] The district court’s findings of fact, in their entirety, are:

1. The record plainly shows that Mr. Cox refused to acknowledge the authority of the State of Minnesota to place him on trial.


2.  When the Court asked Mr. Cox if he would be requesting a jury trial, Mr. Cox plainly refused a jury trial, thereby waiving his right to a jury trial. 


3.  The Court also provided Mr. Cox with advisory counsel.


4.  The Court is unable to consider Petitioner’s challenge to the factual basis for his convictions without a complete transcript of the trial record to the Court and the State.