This opinion will be unpublished and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

A05-1045

 

 

State of Minnesota,

Respondent,

 

vs.

 

Douglas Wade Kaiser,

Appellant.

 

 

Filed June 27, 2006

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. K1-03-620

 

 

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

 

James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent) 

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414  (for appellant)

 

 

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant alleges that the district court violated his constitutional right to counsel by not appointing a public defender to represent him and by not obtaining a detailed, on-the-record inquiry regarding the waiver of his right to counsel.  Additionally, appellant claims that because the offenses were part of a single behavioral incident, the district court erred by imposing multiple sentences on him.  Because appellant was not eligible for a public defender and a detailed waiver of the right to counsel is not required and because appellant’s offenses were not part of a single behavioral incident, we affirm. 

FACTS

            In 1998, appellant Douglas Kaiser was convicted of possession of pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4 (1996).  As a result, appellant was required to register as a predatory offender under Minn. Stat. § 243.166, subd. 1(2) (2002).  In 2002, law enforcement realized that appellant’s whereabouts were unknown and began searching for him.  His last known registered address was in Dakota County at his sister’s house.  In January 2003, his sister stated that he had not lived at that address for two years.  Law enforcement eventually located appellant, and he was charged with two counts of failure to register under Minn. Stat. § 243.166, subds. 3(b), 4(e) (2002).

            Appellant waived his right to a speedy trial and consistently delayed commencement of trial because he did not have representation, yet always stated that he intended to obtain representation.  He told the district court on June 30, 2003; August 25, 2003; April 13, 2004; and May 17, 2004, that he intended to hire a private attorney.  In January 2004, appellant retained an attorney, who apparently advised him to accept a plea offer from the state.  Appellant insisted on pleading not guilty, and his attorney moved the court to withdraw as appellant’s counsel.  The district court granted that motion. 

            Appellant had four trial dates set throughout the course of this prosecution and a number of other pretrial-hearing dates.  Additionally, he submitted two applications for a public defender.  On the first application, appellant refused to list his financial information and changed the statement at the bottom, which originally read: “I want the Court to appoint a lawyer to represent me,” to: “I DON’T WANT the Court to appoint a lawyer to represent me.”  On the second application, appellant listed $222,200 in assets.  Thus, the district court denied the application, stated that appellant was not eligible for the services of a public defender and set another, final trial date. 

            When the trial date came and appellant was still unrepresented, the district court required him to proceed with the jury trial pro se.  The jury found appellant guilty of both counts of failure to register.  The district court sentenced appellant to one year and one day on each count, to run concurrently.  This appeal follows.

D E C I S I O N

I.

            A criminal defendant has the right to assistance of counsel in his or her defense.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  “Minnesota has a long tradition of assuring the right to counsel.”  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991).  A finding that a defendant has validly waived his right to counsel will be reversed only if it is clearly erroneous.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998). 

1.         Public-defender eligibility

            When a defendant is charged with a crime punishable by incarceration, the district court must inform him of his right to receive the services of a public defender if he is financially unable to afford counsel.  Minn. R. Crim. P. 5.02, subd. 1(1).  The district court must then appoint a public defender if the defendant demonstrates financial need, but “[t]he court shall not appoint a district public defender to a defendant who is financially able to retain private counsel, but refuses to do so.”  Id., subd. 1(2). 

            A defendant is financially unable to obtain counsel if:

(1) The defendant . . . receives means-tested governmental benefits; or

(2) The defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of the same matter.

 

Id., subd. 3.  The district court is to conduct a financial inquiry to determine the defendant’s ability to afford private counsel.  Id., subd. 4.  There is no explicit method or mechanism by which the district court must make that determination, but the inquiry must include:

(1) the liquidity of real estate assets, including homestead; (2) any assets that can be readily converted to cash or used to secure a debt; (3) the value of all property transfers occurring on or after the date of the alleged offense; and (4) the determination of whether transfer of an asset is voidable as a fraudulent conveyance.

 

Id.  The defendant bears the burden of showing that he is financially unable to afford private counsel, and, if the defendant refuses to provide sufficient information on which to base this determination, the district court is to deem him ineligible.  Id.

            Here, appellant asserts that the district court deprived him of his right to counsel when it determined that he was ineligible for the services of a public defender.  Yet, throughout the course of this prosecution, appellant consistently refused to have the court appoint an attorney for him and insisted that he wanted to retain private counsel. 

            Even when appellant submitted applications for a public defender, he did not appear to be seeking such services.  On appellant’s first application, he refused to disclose any financial information whatsoever.  In addition, on the bottom of the form there is a sentence that states, “I want the Court to appoint a lawyer to represent me.”  Appellant changed the sentence to “I DON’T WANT the Court to appoint a lawyer to represent me.”   

            On his second application, appellant listed valuable assets and income.  Specifically, he listed his gross monthly income as $5,000, but then crossed it out and replaced it with a question mark.  He listed his net monthly income as $1,200 and stated that he has $2,000 in a business account, $15,000 in other significant assets, and $204,000 in real estate, which is mortgaged, with $164,000 still owing.  The district court denied appellant’s application because it found that he does not qualify for a public defender.  At one of the many scheduled omnibus hearings, after his previously retained private counsel withdrew, appellant told the district court that he “make[s] enough money where [he] wouldn’t qualify” for a public defender.  Appellant also told the district court that he had spoken with many different attorneys in the Twin Cities and that none of them would take his case.  As a result, he was looking at firms in Milwaukee and Chicago. 

            Appellant did not meet his burden to show that he was financially unable to retain private counsel.  On this record, the district court did not violate appellant’s right to counsel. 

2.         Waiver of right to counsel

Appellant argues the district court erred by failing to procure a waiver of counsel in compliance with Minn. R. Crim. P. 5.02, subd. 1(4).  That rule provides that, before accepting a waiver of the right to counsel, the court should advise the defendant of

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.

 

Minn. R. Crim. P. 5.02, subd. 1(4).  But a detailed, on-the-record inquiry is not always required.  See Worthy, 583 N.W.2d at 276. 

Specifically, appellant argues that his waiver of counsel was not knowing, voluntary, and intelligent because the district court did not obtain a waiver.  Appellant contends that, because a proper waiver of counsel was never made, his conviction must be vacated. 

            Appellant cites to an opinion requiring a “penetrating and comprehensive examination” before accepting a waiver of counsel.  State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987).  But Rubin involved a defendant pleading guilty “who ha[d] not even consulted with counsel about waiving counsel and pleading guilty.”  Id. at 505.  And Rubin acknowledges that an alternative means of ensuring a valid waiver is to appoint temporary counsel to advise the defendant on the waiver.  Id. at 506.  Thus, Rubin is inapplicable to the instant case.   

            The supreme court has held that when a defendant has had the benefit of being represented by counsel before the waiver, the court may presume that the advantages and disadvantages of proceeding pro se have been explained to him.  Worthy, 583 N.W.2d at 276.  The supreme court has not, in practice, required that a waiver of the right to counsel be accompanied by the detailed, on-the-record inquiry provided in rule 5.02, subd. 1(4).  Id.  The surrounding circumstances may imply an intelligent waiver of the right to counsel, even without an on-the-record inquiry.  Id. In fact, in Worthy there was no recitation of the charges or the potential punishments.  Id.  The supreme court stated that the validity of the waiver “depends upon the particular facts and circumstances surrounding [the] case, including the background, experience and conduct of the accused.”  Id. at 275-76 (quotation omitted).

Although Worthy is an unusual case because the defendants were uncooperative and left the courtroom, the supreme court in State v. Brodie, 532 N.W.2d 557 (Minn. 1995), also affirmed a conviction despite a minimal inquiry into the waiver.  This court noted in Brodie that the district court did not examine the defendant about his understanding of the charges, the potential punishment, any defenses or mitigating circumstances, or what the consequences of assuming his own defense might be.  529 N.W.2d 395, 400 (Minn. App. 1995), rev’d,532 N.W.2d 557 (Minn. 1995).  On review, the supreme court did not note any of those defects, but simply indicated that because the defendant had fired his attorney and the attorney remained to act as stand-by counsel, the waiver was adequate.  532 N.W.2d at 557.

            Although Brodie is not entirely on point, as the district court here did not appoint stand-by counsel, the rule does not require stand-by counsel.  See Minn. R. Crim. P. 5.02, subd. 2 (stating “[t]he court may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel” (emphasis added)).  Appellant’s behavior in this matter is sufficient to show that he voluntarily waived his right to counsel.  Because he was represented by counsel for nearly three months, this court can presume that counsel informed appellant of the dangers of proceeding pro se.  The district court continued both pretrial hearings and the trial.  When appellant applied for a public defender the second time and the district court determined that he was ineligible for their services, the district court set the fourth, and final, trial date.  The district court allowed appellant approximately 45 days to obtain counsel before the trial date, but made it clear to appellant that the trial would not be continued again.  Yet appellant still did not retain counsel.  Therefore, we conclude that appellant, through his actions, waived his right to counsel.  The district court did not err by failing to obtain a detailed, on-the-record waiver because the supreme court has recognized an implicit waiver as valid.

II.

            “[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”  Minn. Stat. § 609.035, subd. 1 (2004).  This is “[t]o protect people convicted of multiple offenses from having the criminality of their conduct exaggerated.”  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).

Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, Minn. Stat. § 609.035 provides that the defendant may be sentenced for only one of those offenses.  Multiple punishment “refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.” 

 

State v. Bookwalter, 541 N.W.2d 290, 293-94 (Minn. 1995) (citations omitted).

            Determining whether conduct arose from a single behavioral incident depends largely on the facts of the particular case.  Id. at 294.  The factors the district court considers are “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Carr, 692 N.W.2d 98, 101 (Minn. App. 2005) (quoting State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997)). 

1.         Time

            When determining whether offenses occurred at the same time, the supreme court has noted that when a defendant committed a sexual assault, then drove to another location, struggled with the victim, and attempted to kill her, the offenses of sexual assault and attempted murder occurred at different times.  Bookwalter, 541 N.W.2d at 295.  Conversely, when a defendant was convicted of both manufacturing and possessing methamphetamine, this court determined that the two offenses occurred at the same time.  Carr, 692 N.W.2d at 102.

Appellant contends that the offenses that he was charged with occurred at the same time because the complaint alleges that the offenses occurred on or about January 2001 to the present.  Appellant was charged with two counts of failure to register as a predatory offender.  One count was based on the allegation that appellant moved from his last registered address and failed to notify law enforcement five days prior to that move, as required by Minn. Stat. § 243.166, subd. 3(b) (2002).  Thus, that offense was complete five days before he moved.  Law enforcement could not pinpoint the specific date, but appellant’s sister stated, in January 2003, that appellant had not lived there for two years.  So the approximate time of this offense was on or about January 2001. 

            The second offense is based on the allegation that appellant failed, three times, to complete and return the annual address-verification forms to the BCA, as required by Minn. Stat. § 243.166, subd. 4(e)(1)-(2) (2002).  The statute requires a registered predatory offender to fill out and return the verification form each year within ten days of its receipt.  Minn. Stat. § 243.166, subd. 4(e)(1)-(2).  When appellant failed to do that, the offense was committed once the ten days elapsed. 

            Because law enforcement does not have the precise dates of these offenses, the complaint alleges the time frame in which all of the offenses occurred.  But that does not mean that each offense was an ongoing offense or that all of the offenses occurred at the same time.  It is evident, in fact, that the offenses were committed at separate and distinct times.

            2.         Place

            Regarding whether offenses occurred at the same place, the supreme court in Bookwalter determined that the offenses were divisible as to the place they were committed when a defendant sexually assaulted a victim in one location, then drove her to another location and attempted to kill her.  Bookwalter, 541 N.W.2d at 295.  But when a defendant possessed two controlled substances for personal use at the same place, it constituted a single behavioral incident and multiple sentences could not be imposed.  State v. Papadakis, 643 N.W.2d 349, 357 (Minn. App. 2002).

Appellant contends that each of the offenses was committed in the same place: Dakota County.  While that may or may not be true, the fact that two offenses are committed in one county does not preclude multiple sentences.  A county is a large area and the fact that two offenses are committed in the same county should be distinguished, for example, from a scenario in which two offenses are committed in the same house.  Thus, the fact that appellant committed these offenses in the same county is not a bar to a finding that these were separate and distinct offenses.  As the state points out, such analysis would place a limit of one prosecution per defendant per county.

            3.         Criminal objective

            Appellant asserts that these offenses were committed in order to further a single criminal objective: “to avoid complying with registration requirements.”  Even if the court determines that appellant was attempting to further a single criminal objective, this factor alone cannot serve to render these offenses a single behavioral incident.  Therefore, we conclude that the district court did not err by imposing multiple sentences for these convictions.

            Affirmed.