This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Timothy J. Sylvester,
Isanti County District Court
File No. K5-03-1514
Timothy J. Sylvester,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jeffrey R. Edblad, Isanti County Attorney, Thad Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.
Appellant challenges his (1) conviction, arguing that his trial counsel’s representation was ineffective, and (2) sentence, arguing that he was denied the right to counsel at the critical stage of sentencing. We affirm.
After a jury trial, appellant Timothy Sylvester was convicted of insurance fraud, a violation of Minn. Stat. § 609.611, subd. 1(a)(2) (2002). Through his trial counsel, Sylvester submitted posttrial motions. But Sylvester submitted pro se the memorandum of law in support of these motions in which he argued that his trial counsel’s representation was ineffective. Sylvester also moved to continue the posttrial-motions hearing to permit him to retain new counsel. The district court granted this motion.
While the posttrial motions were pending but after obtaining Sylvester’s consent and the district court’s permission to do so, Sylvester’s trial counsel withdrew as counsel of record. In October 2005, six months after the jury trial, Sylvester moved to continue the sentencing hearing because he had not retained counsel. The district court continued the hearing on the posttrial motions and the sentencing hearing until December 20, 2005.
At the December 20 hearing, Sylvester sought appointment of a public defender. Without ruling on this motion, the district court imposed the sentence and ordered Sylvester to pay restitution. This appeal followed.
D E C I S I O N
We begin by noting the limitations on our review of this matter. Sylvester has not satisfied his burden of providing us with an adequate record because he has not submitted a transcript or a stipulated statement describing his trial or sentencing hearing. See Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. App. 1984) (holding that appellant has burden of providing an adequate record for appeal). Moreover, respondent State of Minnesota has not filed a brief in this matter. We, therefore, decide this appeal on the merits, pursuant to Minn. R. Civ. App. P. 142.03, based on the limited record before us.
Sylvester seeks reversal
of his conviction on the ground of ineffective assistance of counsel, arguing
that his trial counsel had a conflict of interest and failed to interview and
call certain witnesses. A claim of ineffective
assistance of counsel ordinarily should be raised in a postconviction petition
rather than on direct appeal from a judgment of conviction. See State
v. Gustafson, 610 N.W.2d 314, 321 (
affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome.”
Gates v. State,
398 N.W.2d 558, 561 (
Sylvester has not
satisfied his burden of proving that his trial counsel’s representation was
ineffective. First, Sylvester has
presented no evidence or argument supporting his claim that his counsel had a
conflict of interest. As such, this claim
is without merit. See, e.g., Miller, 666
N.W.2d at 718 (holding that appellant’s ineffective-assistance-of-counsel claim
was without merit because appellant presented no evidence to support his claim
that conflict of interest existed). Second, a trial counsel’s decisions regarding who
to interview and who to call as a witness are tactical decisions properly left
to the trial counsel’s discretion. State v. Wright, 719 N.W.2d 910, 919 (
Because Sylvester has not satisfied his burden of proving that his trial counsel’s representation was ineffective, we affirm Sylvester’s conviction.
In challenging his sentence, Sylvester argues that he was denied the constitutional right to counsel during the posttrial-motions and sentencing hearing because the district court denied Sylvester a fair opportunity to secure private counsel and failed to appoint a public defender to represent Sylvester.
The United States and
Minnesota constitutions guarantee the accused in a criminal prosecution the
right to the assistance of counsel. U.S.
Const. amend. VI;
A criminal defendant’s right
to counsel includes a fair opportunity to secure the counsel of his
choice. State v. Vance, 254 N.W.2d 353, 358 (
A criminal defendant who is
financially unable to obtain private counsel has the constitutional right to
have counsel appointed on his behalf. Gideon, 372
In State v. Balma, appellant argued that he was denied his
constitutional right to counsel when the district court denied his request for
a public defender without inquiring as to whether appellant could afford private
counsel. 549 N.W.2d 102, 104 (
The record before us contains facts that are nearly identical to those in Balma. Prior to the posttrial-motions and sentencing hearing, Sylvester at all times asserted his intention to be represented by private counsel, requested and obtained two continuances to accommodate his effort to secure private counsel, did not apply for a public defender, and never alleged that he was unable to afford private counsel. Even if Sylvester had alleged that he could not afford private counsel, the record lacks evidentiary support for that allegation, particularly in light of Sylvester’s posttrial admission that he has a “net worth of approximately $1,000,000.” As in Balma, the evidence establishes that Sylvester was not denied the constitutional right to counsel.
We, therefore, affirm Sylvester’s sentence.
 Sylvester failed to provide transcripts of the proceedings despite his statement that transcripts were necessary for appellate review and our order directing him to do so.
Sylvester correctly argues that Minn.
Stat. § 611.17, subd. 1(c) (2004) (mandating co‑payment for public
defender services), is unconstitutional.
State v. Tennin, 674 N.W.2d
403, 410-11 (