This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Robert Gerald Tomfohrde,


Filed May 6, 1997

Affirmed in part and reversed in part

Huspeni, Judge

Washington County District Court

File No. K0954081

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

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

Richard M. Arney, Washington County Attorney, 14900 61st St. N., Stillwater, MN 55082; Richard D. Allen, Assistant Stillwater City Attorney, 333 Main Street, Suite 202, P.O. Box 438, Stillwater, MN 55082 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.



Appellant Robert Gerald Tomfohrde contests his convictions for aggravated DWI, gross misdemeanor DWI, gross misdemeanor test refusal, gross misdemeanor driving after cancellation, and allowing an open bottle in a motor vehicle. Because the trial court erred in adjudicating appellant on the two counts of gross misdemeanor DWI and driving after cancellation, we vacate those convictions. Because the trial court erred in sentencing appellant on the open bottle violation, we vacate that sentence. Because the trial court did not abuse its discretion in denying appellant's request for an alternative public defender or clearly err in finding that he waived his right to counsel, we affirm the remaining convictions and sentences.


Appellant was charged with aggravated DWI, two counts of gross misdemeanor DWI, gross misdemeanor test refusal, gross misdemeanor driving after license cancellation, and allowing an open bottle in a motor vehicle.[1] The court appointed a public defender to represent appellant and later denied appellant's request that the court discharge the public defender and appoint a different attorney.

The case proceeded to trial with the public defender as "standby" counsel. Appellant refused the attorney's assistance and offered no defense to the state's case. The jury convicted appellant of all charges. The trial court imposed concurrent sentences of 365 days in jail for aggravated DWI, gross misdemeanor test refusal, and driving after cancellation, and 90 days for the open bottle violation.


1. Alternative Public Defender

The Minnesota Constitution and the United States Constitution provide indigent defendants with the right to counsel in all criminal proceedings. State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). A defendant, however, does not have an absolute constitutional right to the counsel of his choice. State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990); Vance, 254 N.W.2d at 358. The trial court is obligated to provide an indigent defendant with a capable attorney, but he must accept the appointee. State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). A defendant may request substitute counsel, but that request will be granted "only if exceptional circumstances exist and the demand is timely and reasonably made." Vance, 254 N.W.2d at 358.

The trial court conducted a pretrial hearing on appellant's motion for the appointment of a different public defender. His public defender informed the court that appellant's complaint stemmed from the attorney's refusal to take inappropriate and unethical action. When the court asked appellant if he had anything to say on the matter, appellant read a prepared statement questioning the court's jurisdiction, stating he was unable to proceed because he was without counsel, and stating that he would remain mute. Because appellant offered nothing to show good cause for his request, the court properly denied the motion. See State v. Carey, 296 Minn. 214, 215, 207 N.W.2d 529, 530 (1973) (holding that trial court does not abuse discretion when denying request for substitute counsel where defendant declares intent to make no defense if appointed counsel remained).

Moreover, even if the trial court erred in its inquiry as to whether good cause existed for substitution of counsel, appellant has alleged no harm and therefore any error would be harmless. See McKee v. Harris, 649 F.2d 927, 933-34 (1981) (defendant not entitled to a new trial if the trial court's failure to ascertain whether good cause exists for substitution of appointed counsel causes no harm), cert. denied, 456 U.S. 917, 102 S. Ct. 1773 (1982). We see no grounds to grant a new trial based on the denial of his motion for alternative counsel.

2. Waiver of Right to Counsel

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) (citing State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990)). When a defendant elects to proceed pro se in a criminal trial, the court must determine whether the defendant knowingly and intelligently waives his right to counsel. Richards, 456 N.W.2d at 263; see Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525, 2541-42 (1975) (defendant does not need to possess the skills and knowledge of a lawyer to knowingly and intelligently waive right to counsel).

Appellant admits that the trial court advised him of the potential punishments he faced, but alleges the court failed to insure that he understood the significance of proceeding without counsel. In State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995), a case similar to the one before us, the supreme court upheld a trial court's determination that a defendant knowingly and intelligently waived his right to counsel. In Brodie, as here,the defendant's motion for appointment of a different public defender was denied and the defendant proceeded to trial pro se. Id. The Brodie court stated:

This is not a case in which the record is silent on whether defendant knowingly and voluntarily waived his right to counsel. Defendant was in fact given counsel and he then "fired" counsel. The record is clear that defendant knew that he did not have a right to a different public defender but would have to represent himself if he did not accept the services of the public defender.

Id.; see also State v. Krejci, 458 N.W.2d 407, 412-13 (Minn. 1990) (despite trial court's failure to make on-the-record inquiry, full facts of record indicate that defendant understood the consequences of proceeding pro se).

In the instant case, the record is clear that appellant knew he did not have a right to a different public defender and would have to represent himself if he did not accept those services. The court appointed counsel, appellant rejected him, and counsel continued to be present and available on a standby basis. The rationale of Brodie applies equally here, and we affirm the trial court's determination that appellant knew and understood his waiver.

3. Conviction and Sentencing

Appellant challenges the multiple sentences imposed by the trial court. Before multiple sentences can be imposed, multiple convictions must be permissible under Minn. Stat. § 609.04 (1994), which prohibits a conviction for an offense that is a lesser-included of another offense.

An included offense may be any one of the following:

(1) A lesser degree of the same crime; or

* * * *

(4) A crime necessarily proved if the crime charged were proved * * *

Minn. Stat. § 609.04. The parties submitted supplemental letter briefs on this issue.

The state contends that the trial court properly adjudicated appellant for driving after cancellation as inimical to public safety pursuant to Minn. Stat. § 171.24, subd. 5 (1994), and for aggravated DWI pursuant to Minn. Stat. § 169.129 (1994). We disagree. Proof of the aggravated DWI offense necessarily proved the driving after cancellation offense as charged and proved here. See State v. Pieschke, 295 N.W.2d 580, 585 (Minn. 1980) (reviewing older versions of DWI statutes, but reaching same result). Thus, we vacate the driving after cancellation conviction and sentence.

The state also argues that the trial court properly adjudicated and sentenced appellant on the open bottle violation. We agree that this adjudication was proper, but find error in the sentence. Generally, a defendant may only be punished for one offense, even though his conduct constitutes more than one offense under the law. Minn. Stat. § 609.035, subd. 1 (1994). Minn. Stat. § 609.035, subd. 2(a), (f) (1994) allows multiple sentencing for some crimes, including driving while intoxicated, test refusal, aggravated driving while intoxicated, and driving without a valid license. The statute does not, however, provide exception for violations of Minn. Stat. § 169.122, subd. 3 (1994) (open bottle law). We must therefore look to whether that offense is a part of the same conduct of any of the other offenses.

In State v. Tildahl, 540 N.W.2d 514, 514 (Minn. 1995), the supreme court affirmed a defendant's conviction for aggravated driving and driving with an open bottle, but vacated one of the sentences because the crimes came from the same behavioral incident. Id. at 514-15 (citing City of Moorhead v. Miller, 295 N.W.2d 548 (Minn. 1980) (which held that defendant could only be sentenced for either open bottle violation or driving under influence)). Because the trial court erred in sentencing appellant on the open bottle violation while sentencing him for the other offenses from the same incident, we vacate the sentence for the open bottle violation.

The state concedes and we agree that the two gross misdemeanor DWI offenses (second conviction in five years and a third in ten years) in violation of Minn. Stat. § 169.121, subds. 1(a), 3(c)(1) (1994) are lesser-included offenses of the other violation under Minn. Stat. § 169.121, subds. 1a, 3(c)(2). The trial court properly refrained from sentencing appellant on the two gross misdemeanor DWI offenses. The record suggests, however, that the trial court received and recorded these convictions. Because appellant could not be adjudicated on these charges, we vacate those two convictions.

Affirmed in part and reversed in part.

[ ]1Appellant was also charged with obstruction of legal process and possession of a small amount of marijuana; these charges were dismissed.