This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Daniel Gene Fleckner,
Filed November 14, 2006
Washington County District Court
File No. K3-04-3659
Mike Hatch, Attorney General,
John M. Stuart, State Public
Defender, Susan J. Andrews, Assistant Public Defender,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Daniel Gene Fleckner challenges his convictions of drug possession, driving after revocation, and giving a false statement to police, on the grounds that his waiver of counsel was not valid. In addition, appellant challenges his sentence on the basis that his out-of-state misdemeanor conviction should not have been counted as a felony in the computation of his criminal-history score. Appellant also raises additional issues in his supplemental pro se brief. Because we conclude that the district court properly found that appellant waived his right to counsel, properly treated appellant’s out-of-state conviction as a felony for computation of appellant’s criminal history score, and appellant waived his additional issues, we affirm.
A jury convicted appellant of drug possession, driving after revocation, and making a false statement to police in violation of Minn. Stat. §§ 152.022, subds. 2(1), 3; 171.24, subd. 5; and 609.506, subd. 2 (2004). At trial appellant represented himself, although he had been represented by the public defender for approximately six months. Appellant discharged his public defender because he believed the public defender was working for the prosecution.
Prior to the omnibus hearing, appellant submitted
a handwritten waiver of his right to counsel to the district court. The waiver attested that appellant: (1) is competent, (2) had received a copy of
the complaint and understood the charges against him and possible penalties; (3)
understood the type of evidence that the prosecution might have against him; (4)
was aware of his right to an evidentiary hearing and a jury trial; (5)
understood that he had an absolute right to assistance of counsel; and (6)
understood that he was bound by the same rules as an attorney. The language of the waiver was extracted from
a form that
At the omnibus hearing the district court found
that appellant had validly waived his right to counsel. Shortly thereafter appellant moved for the appointment
of advisory counsel, but the district court denied the motion because appellant
appeared sufficiently prepared to represent himself. Just before trial was to begin, appellant
renewed his motion for appointment of advisory counsel. Appellant believed that he was entitled to
appointment of advisory counsel based on paragraph 17 of the
After the jury found appellant guilty, he agreed
to representation by the public defender at his sentencing hearing. At the hearing, the public defender argued
that appellant’s misdemeanor conviction in
D E C I S I O N
Waiver of counsel
argues that the district court erred by finding that he validly waived his
right to counsel, because when he executed the waiver he erroneously believed that
he had a right to the appointment of advisory counsel. A district court’s finding that a defendant
validly waived his or her right to counsel will be overturned only if the
finding is clearly erroneous. State v. Camacho, 561 N.W.2d 160, 168 (
Appellant’s argument is unpersuasive because nothing in the record indicates that appellant’s belief that he was entitled to advisory counsel played a critical role in his decision to waive his right to counsel. To the contrary, by appellant’s own admission, his belief that he would be appointed advisory counsel was only “one of the reasons appellant decided to waive counsel.” More importantly, appellant executed a handwritten waiver that established that appellant was aware of the charges against him, the possible punishments, his right to assistance of counsel, and the advantages and disadvantages of self-representation. In addition, the public defender represented appellant for approximately six months, and appellant’s claim that the public defender had divided loyalties is unsubstantiated by the record.
Furthermore, the record shows that appellant was told that advisory counsel would not be appointed shortly after his waiver was accepted, yet he made no effort to rescind his waiver. Instead, appellant proceeded to cross-examine witnesses, make numerous motions, and advocate his case. Appellant’s failure to rescind his waiver significantly undercuts any contention that his waiver was not intelligent and voluntary because he was mistaken as to his legal rights.
Based on appellant’s handwritten waiver, his discharge of the public defender, his failure to rescind the waiver, and his attempt to mount a forceful defense, we conclude that the district court’s finding that appellant validly waived his right to counsel was not clearly erroneous.
Criminal history score
also argues that his conviction in
from other jurisdictions must be considered in the computation of an offender’s
Appellant’s pro se claims
In his pro se supplemental brief, appellant
claims that the district court erred in denying his motion to suppress evidence
and that the district court allowed the state to violate certain discovery provisions
in the Minnesota Rules of Criminal Procedure.
Neither claim is supported by any legal authority or argument. Generally, an assignment of error in a
brief based on mere assertion and not supported by argument or authority is
waived unless prejudicial error is obvious on mere assertion. State
v. Dahl, 676 N.W.2d 305, 310–11 (Minn. App. 2004) (citing State v. Modern Recycling, Inc., 558
N.W.2d 770, 772 (Minn. App. 1997)), review
 In its brief, respondent states that the preprinted form incorporated verbatim language approved by the Minnesota Supreme Court in Form U of the Minnesota Rules of Criminal Procedure. The form was approved for use by the Minnesota Supreme Court in 1989, and was amended in 1998.