This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-1699

State of Minnesota,

Respondent,

vs.

Steven Todd Parker,

Appellant.

Filed May 21, 1996

Affirmed as modified

Huspeni, Judge

Hennepin County District Court

File No. 94108996

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant challenges the trial court's (1) determination that he knowingly waived his right to counsel at sentencing and (2) imposition of a 10-year probationary term to be served after his executed sentence. Because we conclude that extensive questioning with respect to appellant's decision to proceed pro se at sentencing was unnecessary given that the trial court had already questioned appellant regarding his decision to proceed pro se at trial but conclude that the imposition of the probationary term was erroneous, we affirm as modified.

FACTS

Appellant Steven Todd Parker was convicted of receiving stolen goods in violation of Minn. Stat. § 609.53, subd. 1 (1994), and fleeing a police officer in violation of Minn. Stat. § 609.487, subd. 3 (1994). Half-way into his trial, appellant dismissed his attorney and proceeded pro se. The trial court's extensive questioning of appellant regarding appellant's decision to proceed pro se comprises over 15 pages of transcript. The trial court questioned whether appellant was aware that he has a right to testify but does not have to testify, that appellant does not have to prove his innocence, that appellant does not waive his right to appeal certain statements by failing to object to those statements, and that appellant cannot refer to anything not in evidence during closing argument. The trial court also asked appellant if he knew what he was charged with and the range of punishment for the crime given appellant's criminal history, and asked whether appellant's lawyer had reviewed the petition to waive counsel. The trial court then reminded appellant of a previous discussion regarding the dangers of representing oneself in court. After the jury verdict, the state noted that it intended to move to have appellant sentenced as a career offender and suggested that appellant might wish to have counsel assist him "regarding the legalities of this." Standby counsel responded that appellant "has asked for my assistance in the sentencing phase of this matter which I'm happy to give."

At sentencing, it was noted on the record that appellant was represented by counsel. Toward the end of the hearing, appellant became upset about negotiations concerning some unrelated charges, prompting his attorney to request a rule 20 evaluation before proceeding any further. The trial court ordered the rule 20 evaluation and the matter was continued.

Approximately three weeks later, appellant sent the trial court a letter requesting that the court remove his attorney and appoint new counsel. The trial court did not appoint new counsel.

At the beginning of the continued sentencing hearing, the trial court asked appellant to clarify his intentions with respect to standby counsel. Appellant responded that he had written the letter dismissing his counsel because "someone" had advised him that having standby counsel represent him at sentencing or at another trial "would affect any type of appeal that [he] would ask for or request for as opposed to ineffectiveness of counsel." Appellant stated that had he known that before, he would not have requested standby counsel's representation at sentencing. Appellant added:

I do need counsel. I don't know this. Obviously, from the results of the trial, I'm not a lawyer and I didn't know the law and I just did the best I could.

* * * [I] realize that I made a big mistake as far as trying to represent myself. * * *

So I don't know what's happening. I need help, for somebody to argue these issues.

The trial court responded:

You will be sentenced today and this will be your opportunity to show any cause why judgment should not be pronounced against you at this time.

The hearing proceeded with standby counsel present and appellant argued that the career offender statute did not apply to him. At the end of the hearing, appellant reiterated that it was his intent to represent himself at the hearing.

The trial court sentenced appellant as a career offender to 62 months, 41 months to be served in the state correctional institution and 21 months on supervised release. The trial court then ordered that appellant be placed on probation for 10 years "on the balance, assuming you have no other offenses in prison."

D E C I S I O N

1. Waiver of counsel

Appellant argues that because the trial court did not explain the consequences of proceeding pro se or direct an attorney to explain them, although it was clear from appellant's remarks that he was waiving counsel based on a mistaken understanding of the consequences of having representation, appellant cannot be deemed to have knowingly and intelligently waived his right to counsel. Appellant also asserts that his concession at the end of the sentencing hearing that he had intended to represent himself did not validate his earlier waiver because he was still operating under the erroneous belief that if he had retained his public defender, he would have prejudiced his appeal. We find no merit in appellant's arguments.

When a criminal defendant makes a timely and unequivocal request to represent himself, the court must determine whether the waiver of counsel is knowing and intelligent. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). A trial court's finding that a defendant knowingly and intelligently waived his right to trial counsel will be affirmed unless clearly erroneous. State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992).

A defendant is entitled to be represented by counsel at any stage of the criminal proceedings against him, including sentencing. Davis v. United States, 226 F.2d 834, 839 (8th Cir. 1955), cert. denied, 351 U.S. 912 (1956). The Davis court held that where a defendant waived his constitutional rights to be represented by counsel at the time he entered his guilty plea, there was an implied waiver as to any subsequent proceedings, unless

something transpired in the interim which justified such further inquiry, such as a request by [the defendant] for counsel and advice when he appeared for sentencing.

Id. at 840.

In State v. Krejci, 458 N.W.2d 407 (Minn. 1990), the supreme court held that the defendant's waiver of counsel was constitutionally valid even though the trial court did not make the preferred comprehensive examination of the defendant, stating "It is clear from the record that defendant understood the consequences of proceeding pro se." Krejci, 458 N.W.2d at 413. Other cases have also held that a waiver was valid absent the preferred method of examination. For example, in Savior this court held that the trial court finding of a valid waiver was not clearly erroneous because

[a]ppellant was made aware that he did not have a choice of public defender, was reminded of his right to an attorney, and was clearly informed of the nature of his crime and possible punishment.

Savior, 480 N.W.2d at 694; see also Richards, 456 N.W.2d at 265 (despite absence of an extensive inquiry by trial court, defendant made informed decision to waive counsel when he understood the gravity of the charges and was aware of the possible dangers).

In the present case, appellant suggested that he might want to represent himself or have another attorney appointed for him at the beginning of trial. The trial court stated that it would not appoint another public defender to represent appellant and warned appellant of the dangers of representing himself. During trial, appellant requested to proceed without counsel; the trial court reminded appellant of the earlier discussion regarding the dangers of representing himself, conducted a comprehensive examination of appellant, and allowed him to proceed pro se. At sentencing, appellant requested the assistance of counsel and then requested that the trial court remove his counsel.

While we recognize that appellant's initial waiver of counsel does not constitute an implied waiver as to any subsequent proceedings, see Davis, 226 F.2d at 840 (implied waiver unless, inter alia, defendant requests counsel at sentencing), we conclude that extensive questioning with respect to appellant's decision to proceed pro se at sentencing was unnecessary because the trial court had already questioned appellant regarding proceeding pro se and because appellant understood the consequences of proceeding pro se. We note that appellant does not contest the fact that the trial court properly permitted him to proceed pro se half-way through trial. Moreover, appellant reiterated his intent to represent himself at the continued sentencing hearing.

2. Sentence

Appellant argues that the trial court erred by imposing a 10-year probationary term to be served after his executed sentence. We agree.

"Under the Guidelines the trial court had to choose between imprisoning defendant and placing him on probation." State v. Wentz, 343 N.W.2d 667, 667 (Minn. 1984). Accordingly, we modify appellant's sentence and vacate the probationary term.

Affirmed as modified.