This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Daniel Gene Fleckner,



Filed November 14, 2006


Hudson, Judge


Washington County District Court

File No. K3-04-3659


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Doug Johnson, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, 14949 – 62nd Street North, P.O. Box 6, Stillwater, Minnesota 55082 (for respondent)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)


            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 Washington County made available to defendants wishing to represent themselves.[1] 

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 Washington County form, which reads as follows: “I understand if I am eligible for the services of the public defender, the court will appoint the [public defender].  However, I am under no obligation to seek advice from advisory counsel.  I understand that the role of advisory counsel is as follows . . . .”  Following arguments from the parties, the district court denied appellant’s motion.  The district court concluded that pursuant to a recent amendment to Minn. Stat. § 611.26, subd. 6, it had no authority to appoint the public defender as advisory counsel. 

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 Wisconsin for cocaine possession should not be treated as a felony in the computation of appellant’s criminal-history score.  The district court found the argument unpersuasive and sentenced appellant to a presumptive sentence of 72 months.  This appeal follows.


Waiver of counsel

Appellant 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 (Minn. 1997).  A criminal defendant has a constitutional right to assistance of counsel in his or her defense.  U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6; State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998).  However, this right may be waived if the waiver is intelligent and competent.  Worthy, 583 N.W.2d at 275 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019 (1938)); see Minn. R. Crim. P. 5.02, subd. 1(4) (stating that when a defendant wishes to act as pro se counsel the court shall ensure that a voluntary and intelligent written waiver is entered in the record).  Whether there has been an “intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019.  In addition, a defendant who seeks to waive the 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.  Worthy, 583 N.W.2d at 276.  However, “[a] defendant’s refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver.” 277.

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

Appellant also argues that his conviction in Wisconsin for possession of cocaine should not have been treated as a felony for purposes of computing his criminal-history score.  This court reviews a district court’s decision as to what weight to assign an out-of-state conviction for abuse of discretion.  State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001).

Convictions from other jurisdictions must be considered in the computation of an offender’s criminal-history score.  Minn. Sent. Guidelines cmt. II.B.502.  In considering out-of-state convictions, the district court must look at the sentence received as well as the nature and definition of the out-of-state offense.  Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).  It is within the district court’s discretion to make the final determination of what weight to assign an out-of-state conviction.  Minn. Sent. Guidelines cmt. II.B.504.  The district court’s designation of out-of-state convictions as felonies shall be governed by the offense definitions and sentences provided by current Minnesota law.  Minn. Sent. Guidelines cmt. II.B.502.

Under Minnesota law in effect at the time of appellant’s sentencing for his Wisconsin conviction, possession of any amount of cocaine was a felony.  See Minn. Stat. § 152.025, subd. 2(1) (2004).  Because appellant did not challenge the validity of the Wisconsin conviction or the facts that surrounded it, the district court did not abuse its discretion in designating appellant’s out-of-state conviction as a felony.

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 denied (Minn. Jun. 15, 2004).  Since prejudicial error is not obvious based upon appellant’s assertions, these issues are waived.


[1] 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.