STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1109

State of Minnesota,
Respondent,

vs.

Joseph Schiele,
Appellant.

Filed August 16, 2005

Reversed and remanded

Wright, Judge

Clay County District Court

File No. K9-03-1860

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Lisa N. Borgen, Clay County Attorney, Pamela Harris, Assistant Clay County Attorney, Clay County Courthouse, 807 11th Street North, P.O. Box 280, Moorhead, MN 56560 (for respondent)

Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

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

WRIGHT, Judge

Appellant asserts a violation of due process because, after the presentation of the evidence, the district court did not verbally instruct the jury on the presumption of innocence and proof beyond a reasonable doubt. Appellant also challenges the district court’s imposition of a $200 co-payment to the public defender without an assessment of appellant’s ability to pay. We reverse and remand.

FACTS

In October 2003, appellant Joseph Schiele was charged with one count of felony escape from custody, Minn. Stat. § 609.485, subds. 2(1), 4(a)(1) (2002); one count of felony violation of an order for protection, Minn. Stat. § 518B.01, subd. 14(a), (d)(1) (2002); and one count of driving after cancellation, Minn. Stat. § 171.24, subd. 3 (2002). At an initial appearance on November 11, 2003, in accordance with Minn. Stat. § 611.17, subd. 1(c)(1) (Supp. 2003), the district court ordered Schiele to make a co-payment of $200 for public defender services, without first determining whether Schiele had an ability to pay this amount.

A jury trial was held on February 3 and 4, 2004. Prior to the presentation of the evidence, the district court verbally instructed the jury on the presumption of innocence and on the state’s burden of establishing proof beyond a reasonable doubt. But in its final charge before deliberations, the district court did not verbally instruct the jury on these constitutional principles. The jurors received written jury instructions that included statements on both the presumption of innocence and proof beyond a reasonable doubt. Schiele was acquitted of the escape charge and convicted of the remaining charges. This appeal followed.

D E C I S I O N

Schiele argues that, when the district court failed to instruct the jury verbally on the presumption of innocence and on proof beyond a reasonable doubt in the final jury charge, it committed reversible error. In State v. Peterson, the Minnesota Supreme Court considered the consequences of a district court’s omission of verbal instructions on these constitutional principles after the evidence is presented to the jury. 673 N.W.2d 482, 485-87 (Minn. 2004). Even if the jury receives verbal instructions at the commencement of the trial and written instructions immediately prior to deliberations, the Peterson court held that the failure to instruct the jury verbally on the presumption of innocence and on proof beyond a reasonable doubt at the close of the evidence is a violation of due process. Id. at 485-86. Without undertaking a plain error analysis, the supreme court concluded that this omission is reversible error and requires a remand for a new trial. Id. at 487. Because the circumstances here are indistinguishable from those presented in Peterson, we reverse and remand for a new trial.

Schiele also argues that, because the district court imposed a $200 co-payment for public defender representation in violation of his right to counsel, he is entitled to the return of these funds. Whether a co-payment violates the right to counsel is a question of law, which we review de novo. State v. Tennin, 674 N.W.2d 403, 406 (Minn. 2004). “[A] court ‘may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of the appointed public defender.’” State v. Cunningham, 663 N.W.2d 7, 11 (Minn. App. 2003) (quoting Minn. R. Crim. P. 5.02, subd. 5). A co-payment does not violate the right to counsel when it is imposed after the district court has determined that the cost will not cause a “manifest hardship” to the defendant. Id. (quotation omitted). Here, a public defender co-payment was assessed against Schiele in accordance with Minn. Stat. § 611.17, subd. 1(c)(1) (Supp. 2003). Because this provision imposes a fee without permitting a determination of a defendant’s ability to pay, the Minnesota Supreme Court recently held that a co-payment imposed under this provision violates the right to counsel under the Minnesota and United States constitutions. Tennin, 674 N.W.2d at 410-11. We, therefore, reverse the district court’s order assessing Schiele a $200 co-payment and remand for a determination of Schiele’s ability to make such a payment.

Reversed and remanded.