This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2095

 

 

Jeffrey C. Morris, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed August 2, 2005

Reversed and remanded
Parker, Judge*

 

Hennepin County District Court

File No. 99119692

 

Jeffrey C. Morris, MCF-Rush City, #104568, 7600 - 525th Street, Rush City, MN  55069 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Ryan J. Wood, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN  55435 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Pro se appellant Jeffrey Charles Morris challenges the postconviction court’s denial of his petition for relief from December 1999 convictions that he received in Hennepin County.  Appellant claims that he was denied his Sixth Amendment right to counsel because he was unrepresented when he pleaded guilty.  The postconviction court summarily denied appellant’s petition.

            Because the record fails to establish that appellant knowingly and intelligently waived his right to counsel before proceeding pro se and pleading guilty, we reverse and remand for an evidentiary hearing.

FACTS

            On December 2, 1999, a complaint was filed charging appellant with violating two gross misdemeanor statutes prohibiting harassment by use of the mail for incidents in which he wrote and mailed a letter and two postcards containing derogatory comments about a police sergeant and a district court judge to the police sergeant.  At the time, appellant was already in custody on several other charges.

            On December 7, 1999, appellant appeared pro se and pleaded guilty to one count of gross misdemeanor mail harassment, one count of misdemeanor criminal damage to property, and two counts of misdemeanor disorderly conduct, in exchange for dismissal of two other counts of trespass and disorderly conduct.  Appellant was sentenced to 365 days on the gross misdemeanor conviction, with 345 days stayed for two years, and to 70 days on each of the misdemeanors.  Appellant was given jail credit for 20 days and released on condition that he have “no arrests, no charges, no convictions of any assault, disorderly conduct, damage to property, or harassment of any degree,” for the next two years.

            On October 19, 2001, appellant was convicted in Dakota County of four counts of harassment and one count of impersonating a police officer.  At sentencing, the district court found that appellant was a dangerous repeat offender and sentenced him to 102 months.  See State v. Morris, 2003 WL 230696 (Minn. App. Feb. 4, 2003) (direct appeal challenging sufficiency of evidence and sentence); State v. Morris, 2004 WL 2094675 (Minn. Sept. 21, 2004) (postconviction appeal alleging ineffective assistance of counsel), review denied (Minn. Nov. 16, 2004).[1]

            In August 2004, appellant filed this postconviction petition seeking relief from his 1999 Hennepin County convictions.  His petition states that at the time he pleaded guilty, he was “in custody and unrepresented by counsel, even though he did not waive his right to counsel.”  He argues that his Sixth Amendment right to counsel was violated and seeks vacation of his convictions of “multiple counts of repeated mail harassment.”

            By order issued September 22, 2004, the postconviction court summarily denied appellant’s petition.  The court determined that the record of the 1999 guilty plea hearing, which included a transcript of the proceedings and a written “Petition to Enter Plea of Guilty” signed by appellant, was sufficient to establish that appellant validly waived his right to counsel prior to entry of his guilty plea.

D E C I S I O N

            On appeal from a summary denial of postconviction relief, a reviewing court examines whether sufficient evidence exists to support the postconviction court’s findings and will reverse only upon proof that the postconviction court abused its discretion.  Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003).  If the petition, files, and record conclusively show that the petitioner is entitled to no relief, an evidentiary hearing is not required; any doubts about whether an evidentiary hearing is required, however, should be resolved in favor of the petitioner.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003); see Minn. Stat. § 590.04, subd. 1 (2004).

            Appellant argues that his 1999 convictions must be vacated because the record fails to establish a valid waiver of counsel on his part before he pleaded guilty to one gross misdemeanor and three misdemeanors.  An accused has a right to counsel in gross misdemeanor and misdemeanor prosecutions when a conviction may lead to incarceration.  Minn. R. Crim. P. 5.02, subd. 1.  A defendant who waives that right must do so knowingly and voluntarily.  See State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).

            The postconviction court here determined that appellant’s waiver of the right to counsel was voluntary and intelligent based on the record of the transcript of the plea hearing and appellant’s completed “Petition to Enter Plea of Guilty.”  These documents, however, focus on appellant’s decision to plead guilty, not on his initial decision to waive counsel.

            The transcript of the plea hearing shows that at the beginning of that hearing, the prosecutor explained to the district court that appellant was appearing pro se:

Mr. Morris is before the Court representing himself at this point, Your Honor.  We have an extended plea agreement to present to the Court regarding these cases. . . .  For brief summary, Mr. Morris at some point prior to today was represented by Mr. Serstock [a Hennepin County public defender].  He was discharged by Mr. Morris.  At this point Mr. Morris does not have legal counsel.  He could consider trying to reapply for that. I have spoken with him about that, he has told me that based upon the negotiation going forward as we have anticipated it happening he does not wish to proceed with counsel, wishes to continue with waiver of counsel and handle his own affairs.

 

After the prosecutor set out the plea agreement, the following exchange took place between the district court and appellant:

            THE COURT:  Mr. Morris, you understand you can have a lawyer representing you?

            THE DEFENDANT:  Yes.

            THE COURT:  Do you want to proceed without a lawyer?

            THE DEFENDANT:  Yes, I do.

 

The prosecutor and district court then continued with appellant’s plea.

            Minn. R. Crim. P. 5.02, subd. 1(4), governs waiver of counsel in gross misdemeanor cases and provides:

If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record.  If the defendant refuses to sign the written waiver form, the waiver shall be made orally on the record.  Prior to accepting any waiver, the trial court shall advise the defendant of the following:  the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.  The court may appoint the district public defender for the limited purpose of advising and consulting with the defendant as to the waiver.

 

The comment to rule 5 states that a court must make a “penetrating and comprehensive examination of the defendant’s understanding of the factors involved” in the decision to waive counsel and that rule 5 merely “sets forth a minimum list of the factors to be considered.”  The comment further acknowledges the requirement that a waiver be in writing may be fulfilled by completion of form 11, which is entitled “Petition to Proceed as Pro Se Counsel.”  The comment also refers to appendix C to rule 15, which is entitled “Petition to Enter Plea of Guilty by Pro Se Defendant.”

            Examination of the record here suggests that appellant’s waiver may not meet the requirements of Minnesota law.  Although the written petition signed by appellant is similar to the form specifically provided to pro se defendants (appendix C), it erroneously assumes that he is represented by an attorney and repeatedly states:  “I have been told by my attorney and understand.”  In addition, once the district court here became aware that appellant was bipolar and had been hospitalized in the past, it should have conducted a more “detailed inquiry into [his] capacity to intelligently waive counsel.”  Burt v. State, 256 N.W.2d 633, 636 (Minn. 1977) (reversing denial of postconviction petition even though record established that defendant was advised on numerous occasions of right to counsel and at all times insisted that he did not need counsel, where presentence investigation revealed that defendant “was of considerably lower than average intelligence”).  Finally, although the record establishes that appellant did have an attorney at one point, the record is silent as to when appellant discharged his attorney and as to whether he was able to consult with his attorney regarding his decision to waive counsel and plead guilty.  See, e.g., State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987) (stating that under rule 5.02, district court “may not accept a guilty plea to a felony or gross misdemeanor charge made by an unrepresented defendant if the defendant has not consulted with counsel about waiving counsel and pleading guilty”).

            Given the lack of more thorough questioning by the district court regarding appellant’s waiver of counsel and the court’s acceptance of a preprinted petition that erroneously stated appellant was represented by counsel, rather than the form and petition specifically designed for use by pro se defendants, we conclude that the record fails to “conclusively” show that appellant is entitled to no relief on his petition for postconviction relief.  Minn. Stat. § 590.04, subd. 1.  We therefore reverse the summary denial of relief and remand for an evidentiary hearing under Minn. Stat. § 590.04.

            Finally, we note that appellant has raised two other issues that were not specifically addressed by the postconviction court.  The first issue involves appellant’s competency to waive his right to counsel.  Appellant argues that, due to his past mental illness, the district court should have engaged in a more thorough inquiry before accepting his waiver of counsel and guilty plea.  Because examination of a defendant’s waiver of counsel necessarily includes a consideration of his competency at the time of waiver, this issue can be addressed by the postconviction court on remand.  See State v. Camacho, 561 N.W.2d 160, 172 (Minn. 1997) (recognizing that standards for competency to stand trial or to waive counsel are the same).

            The second issue involves a challenge to the constitutionality of the mail harassment statute.  This issue was raised by appellant in a handwritten petition dated October 18, 2004, after the postconviction court issued its order but before notice of appeal was filed in this case.  In the interests of judicial economy, we remand this matter to the district court to address this issue on the merits.

            Reversed and remanded.