This opinion will be unpublished and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
C9-95-2706

State of Minnesota,
Respondent,

vs.

Harlan Glenn Rohner,
Appellant.

Filed August 6, 1996
Reversed and Remanded
Parker, Judge

Kandiyohi County District Court
File No. K8-95-961

Hubert H. Humphrey III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Boyd Beccue, Kandiyohi County Attorney, Jennifer Fischer, Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, Paynesville, MN 56362 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge.*

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

PARKER, Judge

Appellant Harlan Rohner was convicted, after a bench trial, of reckless driving, Minn. Stat. ' 169.13, subd. 1 (1994), and first-degree tampering with a witness, Minn. Stat. ' 609.498, subd. 1(f) (1994). Rohner appeals, arguing that his convictions should be reversed because he did not knowingly waive his (1) right to counsel, (2) right to a jury trial, (3) right to separate trials for separate offenses, and (4) right to testify in his own defense. In the alternative, Rohner argues that the evidence on the record was insufficient to prove beyond a reasonable doubt that he was guilty of the offenses charged and that the trial court erred by failing to make written findings of fact. We reverse and remand.

D E C I S I O N

On appeal from a judgment, the court may review any pretrial or trial order or ruling, whether or not a motion for new trial has been made * * *. The court may review any other matter as the interests of justice may require.

Minn. R. Crim. P. 28.02, subd. 11.

1. Right to Counsel

Rohner argues that he did not make a knowing and intelligent waiver of his right to counsel. He contends that the trial judge's inquiry into his understanding of the right to counsel was inadequate. Rohner claims that because he informed the judge that he could not afford the services of an attorney, the trial judge should have appointed counsel on his behalf. Rohner also argues that because the bench trial was held only three days after the pretrial hearing, he was denied the opportunity to seek the assistance of a public defender or explore options toward obtaining private counsel. Because the trial judge failed to appoint counsel to represent him and failed to explain the ramifications of proceeding without counsel, Rohner contends, his conviction should be reversed.

A criminal defendant's waiver of the right to counsel must be knowingly and intelligently made. Burt v. State, 256 N.W.2d 633, 635 (Minn. 1977); (citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975)). The trial court has the duty of ensuring that a defendant makes a knowing and intelligent waiver. Id. To ensure the defendant's waiver is knowing and intelligent, the trial court

should make a penetrating and comprehensive examination of the defendant as to his comprehension of the (1) Nature of the charges; (2) Statutory offenses included within them; (3) The range of allowable punishments; (4) The possible defenses; (5) The possible mitigating circumstances; and (6) All other facts essential to a broad understanding of the consequences of the waiver.

State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987). To ensure the waiver is knowing and intelligent, the court may "appoint temporary counsel to advise and consult with the defendant as to the waiver." Id. A violation of this right is established when the record "viewed as a whole, inadequately demonstrates that [a defendant's] waiver was knowing and intelligent." Burt, 256 N.W.2d at 636.

At the pretrial hearing and at the bench trial, the judge's inquiry into Rohner's right to counsel was brief:

Court: Good afternoon. This is State of Minnesota versus Harlan Rohner. Mr. Rohner, are you going to be representing yourself in this case? I have a withdrawal of counsel by Ann Gustafson. She's no longer your attorney?

Rohner: That's right.

Court: Are you going to be representing yourself?

Rohner: Yes, I am.

* * *

Court: I have this on the Court's calendar for an evidentiary hearing. What did you have in mind, Mr. Rohner, as far as today's hearing is concerned? Did you have some issues or some motions you wanted to bring to my attention?

Rohner: I guess I've never done this in my life before, and I'm no good at it, so I guess I have no idea what to even say.

Court: You know you really should be represented by an attorney. You're--you're charged with a felony. I can't tell you to do that. It would be my advice. If you weren't happy with Ms. Gustafson, you should probably think about getting somebody else. It's a rather serious matter.

Rohner: To be honest with you, I can't afford it.

Court: Yeah, well--

The trial judge's inquiries into Rohner's right to counsel fell far short of what is required. See Rubin, 409 N.W.2d at 506. It is the trial court's duty to ensure that a defendant's waiver of the right to counsel is knowing and intelligent. See Burt, 256 N.W.2d at 635-36. We cannot say that the trial judge fulfilled his duty to ensure that Rohner understood the ramifications of his actions. The record does not indicate why his pretrial counsel was discharged or why Rohner felt that he could not afford an attorney, because the trial judge failed to pursue these questions. The trial judge had a duty to inform Rohner that he would be entitled to the services of a public defender if he could not afford to retain private counsel. Minn. R. Crim. P. 5.01(b). Rohner's inability to afford an attorney did not preclude his right to receive proper representation. See Dziubak v. Mott, 503 N.W.2d 771, 772-73 (Minn. 1993) (citing Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S. Ct. 792, 796 (1962)). After making the proper inquiry, if Rohner qualified, the trial judge should have appointed a public defender to represent him at trial.

2. Right to Jury Trial

Rohner argues that his waiver of the right to a jury trial was not knowing or intelligent. The trial judge asked Rohner if he wished to waive his right to a jury trial. He contends that his response, "Yeah, [a bench trial will] make it shorter," provides a specific example of his lack of understanding of the importance of a trial by jury. Rohner claims that had he been represented by counsel, the court's inquiry into his understanding of this right would have been sufficient. Because he was unrepresented, however, Rohner argues, the pretrial judge and, certainly, the trial judge should have given him an opportunity to consult with counsel before accepting the waiver of his right to a jury trial.

The defendant, with the approval of the court, may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

Minn. R. Crim. P. 26.01, subd. 1(2)(a). The waiver of a jury trial must be knowing, intelligent, and voluntary. See State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979). The trial court "should be satisfied that defendant was informed of his rights and that the waiver was voluntary." Id. The focus of the judge's inquiry into the waiver is to determine whether the defendant understands the basic elements of a jury trial. See Commonwealth v. DeGeorge, 485 A.2d 1089, 1091 (1984).

On review of the record, we are not directed to any evidence to show that Rohner had an opportunity to consult with counsel before waiving his right to a jury trial. Absent evidence to show that he was advised of this right by the attorney whom he had discharged, the trial judge could not presume that Rohner's waiver was knowing, intelligent, and voluntary. Minn. R. Crim. P. 26.01, subd. 1(2)(a), makes clear the court's duty to ensure that the defendant has been advised of his right to a jury trial and has had the opportunity to consult with counsel. On the record before us, we conclude that the trial judge's acceptance of Rohner's waiver of his right to a jury trial was error and constituted a denial of his right to a trial by jury.

3. Right to Separate Trials for Separate Offenses

Rohner also argues that the pretrial judge and trial judge erred in consolidating separate charges into one trial. He contends that it was improper for the prosecutor to make this suggestion and for the judge to allow the consolidated cases to proceed. Rohner further argues that he did not consent to the consolidation knowingly and intelligently.

On motion of the defendant, the court may order two or more indictments, complaints, tab charges, or any combination thereof to be tried together even if the offenses and the defendants, if there be more than one, could not have been joined in a single indictment, complaint or tab charge.

Minn. R. Crim. P. 17.03, subd. 4 (emphasis added). Factors to consider "in determining whether multiple violations constitute a single behavioral incident are unity of time, place, and criminal objective." Bangert v. State, 282 N.W.2d 540, 546 (Minn. 1979). Unless one or both offenses requires specific intent, multiple offenses are part of the same behavioral incident if they "'arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.'" State v. Krech, 312 Minn. 461, 466, 252 N.W.2d 269, 273 (1977) (quoting State v. Johnson, 273 Minn. 394, 405, 141 N.W.2d 517, 525 (1966)). "Whether the violations result from a single behavioral incident depends upon the facts and circumstances of each case." State v. Reiland, 274 Minn. 121, 123, 142 N.W.2d 635, 637 (1966).

The trial judge found that these offenses arose from the same behavioral incident. We note, however, no unity of time, place, or criminal objective. Although we recognize that both offenses could have been joined in one complaint subject to defendant's motion to sever, they were separately charged; only by motion of the defendant, under these circumstances, could the offenses be joined for trial. No such motion was made by Rohner. Furthermore, a careful review of the transcript indicates that Rohner did not realize until the day of the trial that the offenses were to be tried together. Because the consolidation was at the prosecutor's request, we conclude that the trial court erred in combining the charges for trial.

4. Right to Testify

Rohner argues that the trial court confused him regarding his right to testify. He contends that the court's statement that "you need not testify" led him to believe that the court was going to rule in his favor whether or not he testified. Therefore, Rohner argues, he was improperly denied the right to testify.

Criminal defendants have a right to testify on their own behalf. Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708 (1987). The right to testify is such a basic and personal right that its infraction should not be treated as harmless error. State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979). Any waiver of this right must be made knowingly and voluntarily. United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987).

Rohner's explanation for his decision not to testify seems, at first, to be incredible. But, given his lack of legal representation, his questionable waiver of a jury trial, and the wrongful consolidation of charges into one trial beginning only three days after the pretrial conference, his ignorance of legal proceedings was manifest. It seems clear that Rohner did not perceive that, without his testimony, there would be no evidence explaining his side of the story before the trial court. Because Rohner did not testify, the trial court had little option but to rely on the uncontroverted testimony of the complaining witnesses, thus leaving only one likely finding. Rohner's failure to testify appears illustrative of his entire lack of understanding of the perilous legal position in which he had placed himself. We therefore conclude that Rohner was not adequately advised of his constitutional right to counsel, right to a jury trial, or his right to testify.

5. Sufficiency of the Evidence and Trial Court's Failure to Make Findings

We acknowledge Rohner's sufficiency of the evidence claim. We do not, however, decide this issue because of the errors of law and the constitutional deficiencies discussed above. We also note that the trial court has not made any findings to provide an adequate record for appellate review. See State v. Balma, ___ N.W.2d ___ (Minn. App. June 4, 1996). We conclude that not only is the trial court's failure to make findings error, but it requires reversal in light of this less-than-compelling record. We therefore reverse the trial court's order convicting Rohner of reckless driving in violation of Minn. Stat. ' 169.13, subd. 1 (1994), and tampering with a witness in violation of Minn. Stat. ' 609.498, subd. 1(f) (1994), and remand for a new trial.

Reversed and remanded.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.