This opinion will be unpublished and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 James Delo,


Filed July 22, 1997


Holtan, Judge


Dakota County District Court

File No. K4950855

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

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, LEC 304, 875 Summit Avenue, St. Paul, MN 55105 (for Appellant)

Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.



Appellant challenges the revocation of his probation on the ground that the trial court violated his right to representation by refusing to appoint counsel. We affirm.


In December 1995, appellant Robert James Delo pleaded guilty to a charge of fourth-degree criminal sexual conduct. The court stayed imposition of his sentence and placed him on probation for 10 years. In August 1996, the probation department recommended revocation to the court because appellant had failed to enter sex offender treatment and to obtain a chemical dependency assessment.

Appellant appeared for the revocation hearing in September without counsel and asked for a court-appointed attorney. Appellant reported on his financial inquiry form dated that same day that he had been employed for 11 years with the USDA, earning a $34,000 yearly salary, and that his wife had a net income of $250 per week. Appellant had two dependent children at the time and a 1990 vehicle subject to a $10,000 mortgage. A "statement of earnings and leave" from his employer indicated no other remarkable debts. Appellant told the district court judge that he could not afford an attorney, without further explanation.

The judge denied appellant's request, stating that his income was above guidelines figures used for determining eligibility for court-appointed counsel. After appellant noted that his income had not changed since he entered a plea (at which time he was represented by a court-appointed attorney), the judge agreed to reconsider his application after he consulted "with at least two * * * attorneys." The judge suggested that appellant consult with the state bar association for a referral and encouraged him to try to work out a payment plan. After a brief discussion of the alleged probation violations and appellant's rights at the hearing, the court stated:

You have the right to be represented by an attorney at that hearing. We've already been discussing that. I think you're fully aware of your right to be represented. And as I said, I will reconsider your application here.

The court then set a new hearing date in October.

On that date, appellant again appeared without counsel. He submitted quotes provided by two attorneys, one indicating that he would charge a $3,000 flat fee for the probation matter, and the other indicating that he would charge an initial retainer of $1,000 and another $1,000 if the case went to an evidentiary hearing. Appellant told the judge that he did not have the finances to hire either of these attorneys and requested appointment of counsel. Again, the judge denied the request, stating:

I guess it still is my belief, in view of your income and the income of your wife, that you are not within the criteria for a public defender, that you do have sufficient sources of income that you would be able to make arrangements to hire an attorney. So I am not willing to appoint an attorney to provide you with services at public expense.

Appellant indicated that he had not prepared to represent himself because he thought that counsel would be appointed, but the judge proceeded with the hearing and ultimately revoked his probation and sentenced him to prison. Appellant challenges only the failure to appoint counsel.


I. Refusal to Appoint Counsel

Minn. R. Crim. P. 5.02, subd. 3, sets forth the standard for indigency:

A defendant is financially unable to obtain counsel if financially unable to obtain adequate representation without substantial hardship for the defendant or the defendant's family.

If a defendant is so unable, "the judge or judicial officer shall appoint counsel for the defendant." Minn. R. Crim. P. 5.02, subd. 1.

The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of counsel for the defendant. The court may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of appointed counsel.

Minn. R. Crim. P. 5.02, subd. 5.

Appellant's income was well above the standards set out in Minn. R. Crim. P. 5 cmt., but the comment makes it clear that even where those standards are not met, there is no presumption of financial ability to afford counsel. Rather, the comment requires that the court determine financial ability, taking into account such factors as

length of employment * * *, prior income, the value and nature of the defendant's assets, number of children and other family responsibilities, number and nature of debts arising from any source, the amount customarily charged by members of the practicing bar for representation of the type in question, and any other relevant factor.

Minn. R. Crim. P. 5 cmt.; see also State v. Ferris, 540 N.W.2d 891, 893-95 (Minn. App. 1995) (discussing the indigency rules and comments).[1]

Appellant's primary argument on appeal is that the court erred by failing to examine his financial situation adequately and by making the determination that he could afford to pay an attorney in full.[2] We disagree. Although the district court did not make extensive findings on appellant's income and/or assets, it plainly considered his financial inquiry form, which supplied information related to the factors listed in Minn. R. Crim. P. 5 cmt. Appellant made a bare assertion that he could not afford an attorney; he did not discuss any unusual circumstances that made him unable, on a $34,000 yearly salary, to pay for his own representation. Appellant's argument that the district court simply presumed him ineligible for a court-appointed attorney after determining that he did not meet the standards in Minn. R. Crim. P. 5 cmt. is without merit because the judge gave appellant an opportunity to consult with some attorneys and demonstrate why he was not able to afford them. Appellant simply brought in their proposed fees and said that he could not pay them.[3] That is insufficient to demonstrate inability to pay, in part or in full.

We recognize that in Ferris, this court stated:

[I]t appears from the record that once the district court determined [defendant] did not qualify under the income guidelines [in Minn. R. Crim. P. 5 cmt.], it decided flatly that [defendant] was not entitled to court-appointed counsel.

540 N.W.2d at 895. We then reversed and remanded for a determination of "substantial hardship." Id. Here, though, the judge demonstrated further consideration of the hardship issue by postponing the hearing for appellant to try to make arrangements with attorneys and by reviewing those attempts before making a decision. The judge also noted appellant's wife's income and concluded by finding that appellant did "have sufficient sources of income" to pay for his own attorney. The record demonstrates sufficient consideration by the district court of appellant's particular financial situation; there is simply no evidence detracting from the fact that he had a $34,000 yearly salary and should have been able to make some arrangements for private representation on this relatively inexpensive matter.

II. Waiver of Right to Counsel

Appellant also contends that he never made a valid waiver of counsel. To waive the right to counsel, a probationer must make unequivocal, knowing, and intelligent waiver and must be advised of the dangers and disadvantages of self-representation before waiving the right. State v. Richards, 456 N.W.2d 260, 263-65 (Minn. 1990). Here, though, there is no formal waiver because throughout the proceeding appellant wanted counsel. Appellant plainly understood his right to counsel but simply refused to work out an arrangement to pay for one. The waiver requirement is inapplicable under these circumstances.


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

[ ]1 The language preceding the quote above from Minn. R. Crim. P. 5 cmt. states that "in a misdemeanor case the Advisory Committee strongly recommends that the following standards be employed as guidelines." However, the Ferris court discussed the quoted standards when considering a gross misdemeanor defendant's indigency. 540 N.W.2d at 893-94. As Minn. R. Crim. P. 5.02, subd. 1, suggests that felonies and gross misdemeanors are to be treated similarly with respect to the indigency evaluation, we see no reason why the quoted standards could not properly be a part of the district court's evaluation here. The comment does not provide any further, separate discussion of the indigency evaluation for felonies or gross misdemeanors.

[ ]2 Appellant does not cite to any statute, rule, or case that requires the court to produce any evidence or to otherwise go outside the record submitted by appellant or the inferences therefrom.

[ ]3 Appellant's brief suggests that "[i]t was apparent from the financial statement provided * * * that he did not have sufficient cash or other liquid assets to pay such a large sum of money." We disagree; appellant's financial statement indicated a yearly $34,000 salary with entirely unremarkable deductions for insurance and similar expenses. Appellant certainly made no demonstration that he unsuccessfully attempted to negotiate any type of payment plan with an attorney.