This opinion will be unpublished and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

A04-1022

 

 

State of Minnesota,

Respondent,

 

vs.

 

Randall Keith Jones,

Appellant.

 

 

Filed July 18, 2006

Affirmed in part and remanded in part

Peterson, Judge

 

 

Benton County District Court

File No. K9-03-264

 

 

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

 

Robert J. Raupp, Benton County Attorney, Rebecca A. Hoffman, Assistant County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329  (for respondent)

 

Thomas G. Dunnwald, Dunnwald & Peterson, P.A., Suite 1150E Grain Exchange, 412 South 4th Street, Minneapolis, MN 55415 (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

PETERSON, Judge

In this appeal from an order denying postconviction relief from a conviction of and sentence for second-degree assault, appellant Randall Keith Jones argues that his trial counsel was ineffective and that the district court (1) improperly commented to the jury about his decision to proceed pro se; and (2) improperly gave a no-adverse-inference instruction with regard to appellant’s decision to not testify.  Appellant also contends that the district court erred when it imposed a sentencing departure.  We affirm in part and remand in part.

FACTS

            Appellant was charged with second-degree assault following an incident that occurred on February 23, 2003.  Appellant was initially represented by a public defender, but after receiving continuances to obtain private counsel, he retained Todd Chantry.  On September 25, 2003, the complaint was amended to add a count of domestic assault.

            A jury trial was scheduled for January 5, 2004, but was continued to Monday, May 10, 2004, at the state’s request because a witness was not available.  Chantry testified at the postconviction hearing that appellant failed to maintain contact with him before trial and never provided complete information to enable Chantry to investigate.  Chantry never told appellant that he did not want to try the case, and he provided to appellant copies of all discovery received from the prosecution.  He also filed witness and exhibit lists, motions in limine, and proposed jury instructions.  Chantry’s employer testified that she conferred with Chantry about appellant’s case and observed him working on the case.  Between October 1, 2003, and April 27, 2004, Chantry sent appellant six letters attempting to contact him to prepare for trial.  Appellant finally contacted Chantry in late April or early May 2004. 

            Chantry also testified that appellant faced a presumptive prison commitment, the state had a strong case because of the lack of defenses and evidence of appellant’s prior domestic-abuse convictions, and he did not negotiate a plea until a few days before trial because appellant indicated to him that he wanted to go to trial.  About five days before trial, Chantry contacted the prosecutor and negotiated a plea agreement that called for appellant to plead guilty to second-degree assault, and the remaining charge would be dismissed.  Appellant would receive a 37-month sentence to run concurrently with jail time appellant received following a probation violation on a prior domestic-assault conviction, and the state would not move for an upward departure. 

Chantry communicated the offer to appellant on Friday, May 7, and told him that the offer would expire on Saturday at noon.  Chantry testified that appellant needed additional time to consider the offer and that he urged appellant to take the offer because of the weaknesses in his case.  Chantry spoke with appellant on the telephone on Saturday morning, and appellant accepted the offer with a one-word response of “yes” or “okay” or something equivalent.  Chantry was “100 percent certain” that appellant accepted the offer, and he notified the prosecutor and stopped preparing for trial.

Appellant and a friend met with Chantry on Monday morning, May 10, the scheduled trial date, and the friend told Chantry that appellant would not sign the plea petition.  Chantry asked to speak with appellant alone, but the friend refused to leave, and appellant was silent.  Chantry acknowledged that the friend asked Chantry about his trial preparation and that out of frustration, he made comments suggesting that he would withdraw as counsel, but Chantry did not move to withdraw.

Chantry informed the district court judge and the prosecutor in chambers that appellant refused to sign the plea petition.  The judge told the attorneys that the trial would begin at 1:00 p.m., and Chantry told appellant that he was returning to his office to prepare for trial.  Chantry’s employer, who had been appellant’s attorney on previous matters, contacted appellant.  She testified that she “asked [appellant] if he wished to have Mr. Chantry continue as his attorney.  He was vehement that he did not wish to have him continue as his attorney.”  She told Chantry that appellant wished to discharge him.

            Chantry requested a hearing with the district court later that morning.  At the hearing, he told the court, “I’m not filing a motion to withdraw.  My client’s indicated that he wishes to discharge our office as his counsel.”  Appellant told the court that he had not had adequate time to talk to Chantry, he did not believe that Chantry was prepared to try the case, and he had only received a plea offer right before trial and did not have sufficient time to make a decision.  Appellant stated that Chantry had withdrawn from the case.

            Chantry responded, “I may have said some things this morning[.] . . . I know what the rules are with respect to withdrawal and so forth, so I’m not–.”  The court noted that under local rules, Chantry was not allowed to withdraw on the day of trial.  The court also told appellant that “to tell me that you haven’t had time to prepare is patently ridiculous.”  The court then told appellant

You’re scheduled for trial today.  We’re going to start this trial.  Now, you can either do it with an attorney representing you, or you can do it representing yourself, but I’ve got a jury coming in here. . . .  I’m not going to grant you a continuance.  You’ve had enough continuances on this case.

 

            Appellant stated that he did not want to represent himself and that he had contacted another lawyer.  The court responded that the chance that petitioner would find another lawyer willing and able to try the case at 1:00 p.m. was “real, real slim” and the court would refuse to grant a continuance.  The court then told appellant that he could continue Chantry’s representation, find another attorney by 1:00 p.m., or represent himself.  Appellant stated that he wanted to get another attorney.  The court relieved Chantry of the representation, and Chantry left the courthouse.

            The court then warned appellant:

It’s really difficult for people to represent themselves in front of a jury.  This is a serious case.  You have a lot of . . . things at stake here.  If you do represent yourself, you’ll be held to the same rules that a lawyer would be.  I will probably cut you a little slack because you don’t know what’s going on, but you will still have to follow the rules that a lawyer would have to follow.

 

The court then explained the trial procedures, including voir dire, jury instructions, opening statements, calling witnesses, and appellant’s right to testify.

            Appellant represented himself throughout the trial, but repeatedly stated that he was not prepared to defend himself and that he had hired another attorney.  While discussing jury instructions, the court asked appellant whether he wanted an instruction on his right to not testify and told appellant that he must decide.  Appellant responded, “I—I don’t know.”   The court asked, “Do you have any preference?”  The record indicates that appellant shook his head.  The court then stated, “I believe under the circumstances of the case then, the court will give the instruction.” 

            The jury found appellant guilty as charged.  At sentencing, the state sought an upward departure from the presumptive 39-month sentence for the second-degree assault offense to 58 months, and the district court sentenced appellant to 58 months.  Appellant filed an appeal, which this court stayed to allow appellant to pursue postconviction relief, and appellant filed a petition for postconviction relief.  Following a hearing on the petition, the district court denied appellant any relief, except that the court reserved the issue of reconsidering the sentencing departure pending this court’s resolution of appellant’s appeal.  This appeal followed.

D E C I S I O N

A petition for postconviction relief is a collateral attack on a judgment, which carries a presumption of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. 

I.

A.         Ineffective assistance of counsel

To show ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  An attorney acts within the objective standard of reasonableness when the attorney exercises “the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.”  State v. Gassler, 505 N.W.2d 62, 70 (Minn.1993) (quotation omitted).

1.         Disclosure of client confidences

            Appellant argues that Chantry improperly divulged client confidences and provided ineffective assistance when he told the prosecutor and the district court that appellant was backing out of the plea agreement.  Generally, the Minnesota Rules of Professional Conduct prohibit a lawyer from knowingly revealing information related to the representation of a client.  Minn. R. Prof. Conduct 1.6(a).  But there are exceptions from this general rule.  “A lawyer may reveal information relating to the representation of a client if [] the lawyer reasonably believes the disclosure is impliedly authorized in order to carry out the representation.”  Minn. R. Prof. Conduct 1.6(b)(3).  When Chantry informed the prosecutor and the district court that appellant had rejected the plea agreement, it was reasonable for Chantry to believe that the disclosure was impliedly authorized in order to carry out his representation of appellant because the rejection meant that appellant’s trial would proceed as scheduled, and the trial could not proceed without the prosecutor and the district court knowing that it was to proceed.

            2.         Withdrawal from Representation/Discharge on Day of Trial

            Appellant argues that Chantry provided ineffective assistance when he withdrew from representation on the day of trial.  But the rules of professional conduct provide that a lawyer “shall withdraw from the representation of a client if [] the lawyer is discharged.”  Minn. R. Prof. Conduct 1.16(a)(3). 

            After appellant refused to speak privately with Chantry on the day of trial, Chantry told appellant that he would withdraw, but Chantry later told appellant that he was returning to his office to prepare for trial.  Appellant then told Chantry’s employer that he wanted to discharge Chantry.  Chantry initiated a hearing before the district court, and the court determined that Chantry was willing and able to represent appellant at trial.   The district court told appellant, “I am going to start the trial at 1:00.  So either you’re going to find a substitute by then, or represent yourself, or mend your fences with Mr. Chantry.  Those are your three options.  What do you want to do?”  Appellant replied, “I want to get a different lawyer.”[1]  At that point, Chantry was required under rule 1.16(a)(3) to withdraw from representation.

            The record shows that Chantry adequately represented appellant until the day of trial.  There is no evidence that Chantry was not adequately prepared for trial.  Appellant has not shown that the postconviction court abused its discretion in determining that Chantry’s performance did not fall below an objective standard of reasonableness.

II.

“The Sixth and Fourteenth Amendments of our [United States] Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.”  Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975).  A defendant may waive the right to the assistance of counsel if the waiver is competent and intelligent, and the validity of a waiver depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023 (1938), overruled on other grounds, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981).  An appellate “court will only overturn a trial court’s finding of a valid waiver of a defendant’s right to counsel if that finding is clearly erroneous.”  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).  A defendant seeking “to waive the right to counsel should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.”  Id. (quotations omitted).

Before accepting a waiver of the right to counsel, the court shall 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). 

The district court did not provide a detailed on-the-record advisory under rule 5.02, subd. 1(4).  But a detailed on-the-record advisory is not always required.  Worthy, 583 N.W.2d at 276.  When a defendant has consulted with an attorney prior to waiver, a trial court can “reasonably presume that the benefits of legal assistance and the risks of proceeding without it had been described to defendant in detail by counsel.”  State v. Jones, 266 N.W.2d 706, 712 (Minn. 1978). 

            In Worthy, two defendants were represented by appointed counsel during the month before trial on burglary charges.  583 N.W.2d at 274.  On the day of their consolidated jury trial, the defendants refused to participate in the trial.  Id.  The defendants told the court that they wanted to hire private attorneys because they were dissatisfied with their appointed counsel.  Id.  Neither defendant could provide the court with a certificate of representation from a new attorney.  Id.

            The district court refused to grant a continuance and explained to the defendants that if they discharged their court-appointed attorneys, they would proceed pro se with their former attorneys acting as advisory attorneys.  Id.  The defendants then discharged their attorneys and refused to participate in the trial.  Id.  The advisory attorneys were present during trial but did not conduct voir dire, make objections, call or cross-examine witnesses, or give opening or closing arguments.  Id.  The defendants were convicted.  Id. at 275.

            The supreme court determined that “although the trial court’s on-the-record inquiry regarding waiver did not include a recitation of the charges or potential punishments, it is clear that [the defendants] were in fact given counsel and then unequivocally fired their attorneys.  When they did so, they were fully aware of the consequences.”  Id. at 276.  The supreme court then stated that “[a] defendant’s refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver” and concluded that because the defendants did not have good cause to fire counsel on the morning of trial, the district court did not err in determining that the defendants had waived their right to counsel.  Id. at 277.

Like the defendants in Worthy, appellant had counsel for a significant period before the day of trial.  His counsel had prepared for trial and was ready to represent appellant at trial in spite of the events that occurred on the day of trial.  Also like the defendants in Worthy, appellant knew that the district court was not going to grant a continuance[2] and that if he fired his attorney, he would have to represent himself if he did not obtain counsel to appear by 1:00 p.m.  Finally, appellant did not have good cause to fire Chantry on the morning of trial.  Consequently, we conclude that under Worthy, because appellant was aware of the consequences of firing Chantry and appellant did not have good cause to fire Chantry, the postconviction court did not clearly err when it found that appellant waived his right to counsel when he refused to allow Chantry to continue to represent him.

III.

Appellant argues that the district court improperly commented to the jury several times about appellant’s decision to proceed without an attorney.  Appellant did not object to any of the comments that he now claims were improper.

Failure to object ordinarily forfeits a criminal defendant’s right to review, although a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.  That is, the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object—and thereby present the trial court with an opportunity to avoid prejudice—should not forfeit his right to a remedy.

 

Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996 (citations omitted).

[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

 

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted).

            Appellant does not address in his appellate brief any of the prongs that must be met to obtain appellate review of an unobjected-to error; he only argues that the district court’s comments denied him a fair trial because the comments incorrectly suggested to the jury that appellant was not represented by counsel.  But this argument is based on the premise that appellant did not waive his right to counsel, and we have concluded that the postconviction court did not clearly err when it found that appellant waived his right to counsel.  Therefore, we also conclude that appellant is not entitled to review of the district court’s comments because he has not shown that the comments were plain error that affected substantial rights.

IV.

            Appellant argues that the district court violated his rights to due process and a fair trial when it commented on his decision to not testify.  Both the United States Constitution and the Minnesota Constitution guarantee a criminal defendant the right to not testify.  U.S. Const. amend. V (stating that no person shall be compelled to be a witness against himself); Minn. Const. art. 1, § 7 (same).  Ordinarily, a district court should obtain permission from a criminal defendant himself, not the defendant’s attorney, before instructing jurors that they should not draw any inference from the fact that the defendant did not testify.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see also 10 Minnesota Practice,CRIMJIG 3.17 (1999) (stating that defendant has privilege, guaranteed by federal and state constitutions, to not testify, and that jury should not draw any inference from the fact that defendant has not testified).

            A no-adverse-inference instruction calls the defendant’s silence to the jury's attention, which ordinarily should not be done without the defendant's personal consent.  But “[i]n limited circumstances, a trial court may be justified in giving the instruction in the absence of the defendant’s request, and even over the defendant’s objection.”  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002).

            If the defendant fails to object to the no-adverse-inference instruction, this court reviews the error only if it affected the defendant’s substantial rights.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  Giving a no-adverse-inference instruction is prejudicial “when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.”  Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  The defendant bears a heavy burden of proof to show such a significant effect.  Griller, 583 N.W.2d at 741.

            When the district court told appellant that he must decide whether he wanted the court to instruct the jury about his right to not testify, appellant responded, “I—I don’t know.”  The district court asked, “Do you have any preference?”  The record indicates that appellant shook his head.  The district court then stated, “I believe under the circumstances of the case then, the court will give the instruction.”  The record does not indicate that appellant clearly consented to the instruction.  But appellant does not identify any prejudice that he suffered as a result of the instruction other than that it was one of several cumulative claimed errors.  Because we see no basis for concluding that appellant suffered any prejudice as a result of the instruction or that the instruction had a significant effect on the jury’s verdict, appellant has not shown that the postconviction court abused its discretion when it determined that appellant is not entitled to relief because he did not consent to the instruction.

V.

After the district court imposed an upward durational departure from the presumptive 39-month sentence based on aggravating factors that were found by the district court, rather than the jury, the United States Supreme Court released its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  In Blakely, the Supreme Court held that a sentencing judge may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  542 U.S. at 303, 124 S. Ct. at 2537 (emphasis omitted).  The Court held that an upward durational departure could not be imposed based on judicial findings alone.  Id. at 304, 124 S. Ct. at 2537–38.  Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005). 

The postconviction court reserved the issue of reconsidering in light of Blakely the durational departure imposed by the district court.  Therefore, we remand to permit the postconviction court to reconsider the upward durational departure.

Affirmed in part and remanded in part.