This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-635

State of Minnesota,

Respondent,

vs.

Randall Eugene Ferguson,

Appellant.

Filed January 14, 1997

Affirmed

Amundson, Judge

Dakota County District Court

File No. K0951369

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, James Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant Dakota County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant Randall Eugene Ferguson challenges his convictions of second and third degree assault, kidnapping, and making terroristic threats, arguing that he was denied his constitutional right to counsel because his waiver of counsel was not knowing and intelligent. Further, he argues that his 68-month sentence, the presumptive sentence for kidnapping as a severity level VII offense, should be reduced because the severity level was inappropriate given the jury's findings. We affirm.

FACTS

Appellant Randall Eugene Ferguson's convictions arise from an incident involving co-defendant Kathleen Horn and victim Joseph Bonk. Bonk, who takes medications for schizo-affective disorder, and Horn, who was a neighbor, had been sexually intimate, and Bonk had hoped for a more serious relationship. Bonk also cared about Horn's son and had offered to help Horn find a way to pay for the son's braces.

On July 5, 1995, Bonk went to Horn's house to discuss a health plan that seemed to offer orthodontial coverage. With Horn was Ferguson, who had met Horn a week before in a Missouri bus station and joined her in Minnesota. The three of them discussed the brochure, but the conversation turned hostile, as Horn accused Bonk of reneging on his original promise to pay for the braces. Ferguson and Horn assaulted Bonk, threatened him with a knife, and tied him up with a cable. They talked about stabbing Bonk and putting him in the trunk of their car, then they left the living room. Bonk managed to get partially loose from the cable, unlock the door, and call for help as he ran to his parents' house, where he lives. Both Ferguson and Horn were arrested.

On July 7, 1995, at Ferguson's first court appearance, public defender Tim Wermager was appointed to represent Ferguson. On July 28, 1995, Ferguson discharged Wermager and Ferguson informed the court he would seek private counsel. On July 31, Ferguson appeared pro se and asked to be appointed a different public defender. Judge Sutherland denied the motion. Wermager was re-appointed as counsel and represented Ferguson during several hearings, as well as in preparation for the first trial, which was declared a mistrial due to juror misconduct.

On September 25, Ferguson again asked that Wermager be discharged. The policy of the Dakota County Public Defender, Wermager explained, is that if one public defender is discharged, the entire office is discharged. Judge Kalina then again presented Ferguson with the option of being represented by Wermager or having him as standby counsel. The next day, Wermager was discharged and was appointed standby counsel.

Ferguson proceeded with his case pro se, representing himself at trial. He was convicted of all charges: second and third degree assault, kidnapping, and terroristic threats. He was sentenced to 68 months. This appeal followed.

D E C I S I O N

I. Waiver of Counsel

Ferguson asserts that his waiver of his right to counsel was not knowing and intelligent and therefore his right to counsel under the Sixth and Fourteenth Amendments was violated. A district court's finding that a defendant knowingly and intelligently waived his or her right to trial counsel will not be reversed on appeal unless clearly erroneous. See State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990).

The United States Supreme Court has held that a criminal defendant in a state court has an independent constitutional right of self-representation. Faretta v. California, 422 U.S. 806, 833-34, 95 S. Ct. 2525, 2540-41 (1975). A defendant may choose to defend himself or herself without counsel if that choice is made knowingly and intelligently. Id. at 835, 95 S. Ct. at 2541.

Ferguson argues that his waiver of counsel was not knowing and intelligent. He asserts that he intended his discharge of the public defender not as a waiver of counsel, but rather as implementing his desire to be represented by different counsel.

The record shows that there were several discussions between the court and Ferguson concerning the wisdom of dismissing his public defender. Further, Ferguson was warned about the gravity of his decision. At the July 28 hearing, Judge Hoey cautioned:

I want to make it clear to you that once we dismiss the public defender you are on your own.

* * *

You are not getting the public defender back.

* * *

I want you to understand that up front. That's what you want to do is dismiss the public defender. Okay, public defender is dismissed.

At the August 8 hearing, appellant appeared pro se to argue his motion for appointment of counsel. First, Judge Murphy told him that he knew that Judge Hoey had made it very clear that there would not be another public defender appointed. The hearing continued:

THE COURT: You can do this, if you wish, Mr. Ferguson; but, if you do it, we're not going to run around and find lawyers for you because you don't like this one or that one; and that's what you got; and I'm not about to appoint private counsel for you.

THE DEFENDANT: The law, Your Honor, entitled all defendants to a fair and unbiased trial. Okay. Impartial trial. I'm not going to get that with an attorney who is not going to adequately represent me. An attorney who is not going to plead my case is not going to give me a defense good enough to win my case. Therefore, I am not going to get an unbiased trial.

THE COURT: Well, you got a situation, as was explained to you --

THE DEFENDANT: No, it was not explained to me. It was asked of me several times, do you want to discharge the public defender's office. I said yes.

THE COURT: That's all we got for you. We got a public defender's office. We got good lawyers in the public defender's office. * * * But it was your election not to have them.

Now, I can reconsider the appointment of the public defender, someone from the office, if you wish, but we're not going to chase around hoping that we satisfy you. Now, see, your perception of what's fair is not necessarily the law's perception what's fair. If I were charged with a criminal act, there's nothing would ever be fair for me. But that's what your faced with, Mr. Ferguson.

You want me to consider seeing if I can get the public defender's office to take this again? If you don't, then you're on your own. You hire your own or you go pro se and defend your own self.

The record shows that the topic of Ferguson's desire to dismiss his attorney was amply discussed with several different judges. The United States Supreme Court has determined,

[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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 and his choice is made with eyes open."

Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)). Minnesota has supported a high standard for the court in ascertaining that a defendant's waiver of the right to counsel is made knowingly and intelligently. One Minnesota case cites a Supreme Court standard:

"A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered."

Burt v. State, 256 N.W.2d 633, 635 (Minn. 1977) (quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S. Ct. 316, 323 (1948)). Not only had Ferguson had some experience in court, but also the various judges questioned his choice, trying to convey the seriousness of his decision. Wermager was appointed as standby counsel who could advise Ferguson on his case and on the consequences of pro se legal action. The risks of self-representation were clearly delineated.

In a very similar case, the Minnesota Supreme Court found that a defendant who had fired the public defender appointed to him had knowingly and intelligently waived his right to counsel. See State v. Brodie, 532 N.W.2d 557 (Minn. 1995).

The district court's finding that Ferguson knowingly and intelligently waived his right to counsel was not clearly erroneous.

II. Sentencing

Appellant argues that his 68-month sentence, the presumptive sentence for severity level VII offenses with a criminal history score of two, should be reduced to 30 months, which is the presumptive sentence for equivalent severity level VI offenses. This is a legal question, and therefore this court is not bound by the district court's decision.

Minnesota Sentencing Guidelines categorize kidnapping into three different severity levels, depending on the elements of the offense: severity level VIII, if the kidnapping included great bodily harm; severity level VII, if the victim was not released in a safe place or if the victim was under 16 years of age; and severity level VI, if the victim was released in a safe place with no great bodily harm.

In this case, the victim escaped. Ferguson argues that because there was no jury finding on safe release, sentencing at severity level VII was improper. The prosecution asked the court for a jury finding on the issue of safe release, but the court said that because there was an escape, issues of release would not apply. It seems that because Bonk escaped, the trial judge (also the sentencing judge) had logically put the kidnapping into the category where the victim is "not released in a safe place." See Minn. Stat. § 609.25, subd. 2(2) (1994).

Appellant's argument that his sentence is not supported by the jury's findings is not valid. The jury found him guilty of the charges. At sentencing, the court found that the victim had not been released in a safe place, and therefore sentenced Ferguson at the presumptive severity level VII sentence. The jury need not make findings that apply only to sentencing because

it is the jury's function to decide whether the defendant is guilty or not guilty of the crime charged and * * * it is the trial court's function to make any findings of fact bearing on the sentence to be imposed for the offence of which the defendant is found guilty.

State v. Olson, 379 N.W.2d 524, 526 (Minn. 1986).

The court did not err in its application of the law in sentencing. The facts of the case indicate that the kidnapping was a severity level VII offense.

Affirmed.