This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-87

 

State of Minnesota,
Respondent,

vs.

Timothy J. Sylvester,
Appellant.

 

Filed January 16, 2007

Affirmed

Wright, Judge

 

Isanti County District Court

File No. K5-03-1514

 

 

Timothy J. Sylvester, P.O. Box 107, Stacy, MN  55079 (pro se appellant)

 

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

 

Jeffrey R. Edblad, Isanti County Attorney, Thad Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN  55008 (for respondent)

 

 

            Considered and decided by Willis, Presiding Judge; Peterson, 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 challenges his (1) conviction, arguing that his trial counsel’s representation was ineffective, and (2) sentence, arguing that he was denied the right to counsel at the critical stage of sentencing.  We affirm.

FACTS

            After a jury trial, appellant Timothy Sylvester was convicted of insurance fraud, a violation of Minn. Stat. § 609.611, subd. 1(a)(2) (2002).  Through his trial counsel, Sylvester submitted posttrial motions.  But Sylvester submitted pro se the memorandum of law in support of these motions in which he argued that his trial counsel’s representation was ineffective.  Sylvester also moved to continue the posttrial-motions hearing to permit him to retain new counsel.  The district court granted this motion.

While the posttrial motions were pending but after obtaining Sylvester’s consent and the district court’s permission to do so, Sylvester’s trial counsel withdrew as counsel of record.  In October 2005, six months after the jury trial, Sylvester moved to continue the sentencing hearing because he had not retained counsel.  The district court continued the hearing on the posttrial motions and the sentencing hearing until December 20, 2005.

At the December 20 hearing, Sylvester sought appointment of a public defender.  Without ruling on this motion, the district court imposed the sentence and ordered Sylvester to pay restitution.  This appeal followed.

 

D E C I S I O N

We begin by noting the limitations on our review of this matter.  Sylvester has not satisfied his burden of providing us with an adequate record because he has not submitted a transcript or a stipulated statement describing his trial or sentencing hearing.[1]  See Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. App. 1984) (holding that appellant has burden of providing an adequate record for appeal).  Moreover, respondent State of Minnesota has not filed a brief in this matter.  We, therefore, decide this appeal on the merits, pursuant to Minn. R. Civ. App. P. 142.03, based on the limited record before us.

I.

Sylvester seeks reversal of his conviction on the ground of ineffective assistance of counsel, arguing that his trial counsel had a conflict of interest and failed to interview and call certain witnesses.  A claim of ineffective assistance of counsel ordinarily should be raised in a postconviction petition rather than on direct appeal from a judgment of conviction.  See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (holding that ineffective-assistance-of-counsel claim should be raised in postconviction petition to permit appellate review of the evidence presented during postconviction hearing).  But when a claim of ineffective assistance of counsel can be decided on the basis of the trial record and therefore a postconviction hearing is not necessary, the claim must be brought on direct appeal.  Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004).  Sylvester’s claim that his trial counsel was ineffective because he had a conflict of interest and failed to interview and call certain witnesses is precisely the type of claim to be decided on direct appeal based on the trial record.  See, e.g., State v. Miller, 666 N.W.2d 703, 717-18 (Minn. 2003) (deciding on direct appeal appellant’s claim that counsel was ineffective because counsel had conflict of interest); State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (deciding on direct appeal appellant’s claim that counsel was ineffective for failing to call certain witnesses).

The appellant bears the burden of proof on a claim of ineffective assistance of counsel.  Miller, 666 N.W.2d at 716.  To satisfy this burden, the appellant 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 that is 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)) (citation omitted).

Sylvester has not satisfied his burden of proving that his trial counsel’s representation was ineffective.  First, Sylvester has presented no evidence or argument supporting his claim that his counsel had a conflict of interest.  As such, this claim is without merit.  See, e.g., Miller, 666 N.W.2d at 718 (holding that appellant’s ineffective-assistance-of-counsel claim was without merit because appellant presented no evidence to support his claim that conflict of interest existed).  Second, a trial counsel’s decisions regarding who to interview and who to call as a witness are tactical decisions properly left to the trial counsel’s discretion.  State v. Wright, 719 N.W.2d 910, 919 (Minn. 2006).  Such decisions are not subject to appellate review for ineffective assistance of counsel.  Voorhees, 596 N.W.2d at 255. 

Because Sylvester has not satisfied his burden of proving that his trial counsel’s representation was ineffective, we affirm Sylvester’s conviction.

II.

In challenging his sentence, Sylvester argues that he was denied the constitutional right to counsel during the posttrial-motions and sentencing hearing because the district court denied Sylvester a fair opportunity to secure private counsel and failed to appoint a public defender to represent Sylvester.

The United States and Minnesota constitutions guarantee the accused in a criminal prosecution the right to the assistance of counsel.  U.S. Const. amend. VI; Minn. Const. art. I, § 6; see also Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S. Ct. 792, 795-96 (1963) (holding that requirements of Sixth Amendment to United States Constitution extend to criminal defendant in state court proceeding through Fourteenth Amendment).  The right to counsel attaches at all critical stages of the criminal proceedings.  State v. Kouba, 709 N.W.2d 299, 304 (Minn. App. 2006).  A stage of the proceedings is “critical” if it may affect the criminal defendant’s substantial rights.  Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967); see also Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977) (holding that sentencing is critical stage because “[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence”).

A.

A criminal defendant’s right to counsel includes a fair opportunity to secure the counsel of his choice.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Sylvester caused his chosen counsel to withdraw when Sylvester alleged in his posttrial motion that his counsel’s representation was ineffective.  The district court granted Sylvester two continuances—one for the posttrial-motions hearing and one for the sentencing hearing—to allow Sylvester to retain substitute counsel.  These continuances caused the posttrial-motions and sentencing hearing to occur more than eight months after the jury trial ended.  Under these circumstances, Sylvester’s right to the counsel of his choice was vindicated by the ample time he received to secure private counsel.  See, e.g., State v. Mems, 708 N.W.2d 526, 533-34 (Minn. 2006) (holding that when criminal defendant discharged two privately-retained attorneys and caused third counsel to withdraw thereby necessitating multiple continuances and significant delay in trial, defendant’s right to counsel of his choice was vindicated by the ample time given to secure counsel of his choice).

B.

A criminal defendant who is financially unable to obtain private counsel has the constitutional right to have counsel appointed on his behalf.  Gideon, 372 U.S. at 342-44, 83 S. Ct. at 796-97.  A criminal defendant is financially unable to obtain private counsel if the defendant “would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of the same matter.”  Minn. Stat. § 611.17, subd. 1(a)(2) (2004); Minn. R. Crim. P. 5.02, subd. 3(2).

In State v. Balma, appellant argued that he was denied his constitutional right to counsel when the district court denied his request for a public defender without inquiring as to whether appellant could afford private counsel.  549 N.W.2d 102, 104 (Minn. App. 1996).  We held that Balma was not deprived of his right to counsel based on the following facts: at all times Balma asserted his intention to have private counsel represent him during his probation-revocation hearing; Balma requested and obtained two continuances to accommodate his private attorney’s schedule; Balma did not apply for a public defender until the day of his rescheduled probation-revocation hearing; and the record lacked evidence that Balma could not afford private counsel.  Id. at 105.

The record before us contains facts that are nearly identical to those in Balma.  Prior to the posttrial-motions and sentencing hearing, Sylvester at all times asserted his intention to be represented by private counsel, requested and obtained two continuances to accommodate his effort to secure private counsel, did not apply for a public defender, and never alleged that he was unable to afford private counsel.  Even if Sylvester had alleged that he could not afford private counsel, the record lacks evidentiary support for that allegation, particularly in light of Sylvester’s posttrial admission that he has a “net worth of approximately $1,000,000.”  As in Balma, the evidence establishes that Sylvester was not denied the constitutional right to counsel.[2]

We, therefore, affirm Sylvester’s sentence.

Affirmed.