Hubert H. Humphrey III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

James C. Nordstrom, Wabasha County Attorney, PO Box 125, Wabasha, MN 55981 (for Respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Randall, Judge.

Appellant contends the trial court violated his statutory and constitutional rights to representation by counsel by denying his request for a public defender. The record supports the trial court's decision that appellant waived his right to an appointed public defender. We affirm.

Once stopped, Roussopoulis recognized appellant Robert Gerald Tomfohrde as the driver of the car and noticed that he had a passenger in the car. When appellant rolled down his window, Roussopoulis detected the strong odor of alcohol. Roussopoulis asked appellant to exit the vehicle. Appellant refused to cooperate and not until another officer arrived did appellant exit the car.

A tape recording at the scene of the incident reveals that Roussopoulis read appellant the implied consent advisory twice. Appellant refused to answer whether he would submit to a breath, blood, or urine test, whether he understood the advisory, or whether he wanted an attorney. At the station, Roussopoulis read the implied consent advisory to appellant again. Roussopoulis offered to call appellant an attorney, but appellant said he would represent himself.

Based on appellant's conduct and further investigation of his driving record, appellant was charged with: count I, driving under the influence of alcohol, Minn. Stat. § 169.121, subds. 1(a), 3(c)(1) (1994); count II, refusal to submit to testing, Minn. Stat. § 169.121, subds. 1a, 3(c)(2); count III, fleeing a police officer in a motor vehicle, Minn. Stat. § 609.487, subd. 3 (1994); count IV, obstructing legal process, Minn. Stat. § 609.50, subd. 1(2) (1994); and count V, violation of vehicle registration law, Minn. Stat. § 169.79 (1994).

Appellant's request for a public defender was addressed in seven pretrial proceedings. Each time appellant requested a public defender, the trial court told him he needed to fill out the public defender application and submit financial information. Although appellant filled out a portion of the application form, he refused to answer any questions regarding his income and assets, writing the word "object" on the application. Appellant wrote that "the word 'object' used as an answer to the following questions is based on the 5th Amndmt rights of self-incrimination." Appellant also claimed that he did not understand the financial portion of the application. A court-ordered competency evaluation found appellant competent to proceed. The court advised appellant that the financial information he provided on the application form was incomplete and that refusal to produce his financial records constituted a waiver to the right of a public defender.

At the commencement of trial, appellant provided the court with a copy of his financial information. The court held that the information was not timely and that appellant had waived counsel. Throughout the trial, appellant stated that he did not understand the proceedings and had been denied counsel. The jury found appellant guilty of counts I, II, IV, and V. Appellant was sentenced to a concurrent 365-day jail sentence for counts I and II, and a concurrent 90-day jail sentence for counts IV and V; the jail terms to run consecutively.

The Sixth Amendment to the United States Constitution, applicable to the states via the Fourteenth Amendment, provides, "In all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel for his defense." U.S. Const. amend. VI. The Supreme Court has construed this right to mean that "counsel must be provided for defendants unable to employ counsel unless the right is completely and intelligently waived." Gideon v. Wainwright, 372 U.S. 335, 340, 83 S. Ct. 792, 794 (1963) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938)). Denial of the right to counsel is per se prejudicial. Flanagan v. United States, 465 U.S. 259, 268, 104 S. Ct. 1051, 1056 (1984). Therefore, if this right is violated, reversal is warranted. Chapman v. California, 386 U.S. 18, 23 n.8, 87 S. Ct. 824, 827-28 n.8 (1967) (confirming that constitutional right to counsel is "so basic to a fair trial" that its violation could never be harmless error).

In Minnesota, persons charged with a gross misdemeanor are entitled to be represented by a public defender if they are financially unable to obtain counsel. Minn. Stat. § 611.14 (1) (1994). The request for a public defender may be made at any time in which the matter is pending and, unless the court waives the requirement, shall be accompanied by "a financial statement under oath or affirmation setting forth the applicant's assets and liabilities, * * * source or sources of income, and any other information required by the court." Minn. Stat. §§ 611.16, 611.17(b) (1994).

First, appellant argues that it was error for the trial court to refuse to consider his request for appointment of counsel on the day of the trial because a person has a statutory right to request appointment of a public defender "at any time." Minn. Stat. § 611.16. Appellant cites several cases for the proposition that defendants choosing to appear pro se have the absolute right to change their minds during the process and request a court-appointed attorney. State v. Richards, 463 N.W.2d 499, 499 (Minn. 1990); State v. Graff, 510 N.W.2d 212, 216 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994); State v. Parson, 457 N.W.2d 261, 263 (Minn. App. 1990), review denied (Minn. July 31, 1990). The cases that appellant cites for the right to change his mind during the middle of the process and request a court-appointed attorney involve defendants who have chosen to proceed pro se during the process of their criminal charge. In contrast to those defendants, appellant was forced to proceed to trial pro se due to his failure to complete the financial information.

Moreover, appellant appears to have been delaying the submission of his financial information in an effort to manipulate the judicial system. See, e.g., State v. Krejci, 458 N.W.2d 407, 412-13 (Minn. 1990) (defendant may not delay his trial by failing to retain counsel). Appellant contends that his delay in submitting the financial information was because he did not understand the requirements of the financial portion of the public defender application. We are not persuaded. Appellant appears to be a man of average intelligence as demonstrated by the twelve filings and motions he submitted pro se. Appellant demonstrated the necessary business acumen for understanding the financial information in the application at his initial appearance, when he discussed the depreciation of his business equipment. Moreover, initially appellant assured the court that he would submit the requisite financial information, but then later refused to turn the information over saying he no longer understood the court's request. Finally, the trial court stated that appellant could submit his financial information via alternative sources, e.g., copies of his business records and 1993 tax return. See United States v. Moore, 671 F.2d 139, 141 (5th Cir. 1982) (holding that trial court abused discretion by limiting defendant's submission of financial information to public defender form).

Second, appellant contends that he did not waive his right to a public defender under section 611.17(b), because the trial court was forcing him to choose between the privilege against self-incrimination and the right to a public defender. When defendants refuse to reveal financial information necessary to obtain a public defender because they wish to exercise their privilege against self-incrimination, the court must resolve the conflict between the defendant's constitutional rights and the state's interest in limiting access to public defenders. See United States v. Gravatt, 868 F.2d 585, 590 (3rd Cir. 1989) (holding that when Fifth and Sixth Amendment rights are in conflict, state must reconcile concerns either by sealing financial information submitted or by granting defendant immunity). In Minnesota, the legislature resolved this conflict by providing that any financial information a defendant submits when seeking a public defender is "confidential and for the exclusive use of the court and the public defender appointed by the court to represent the applicant except for any prosecution [for perjury] under section 609.48." Minn. Stat. § 611.17(b).

Appellant argues that the trial court was required to tell him that any financial information he submitted would be confidential. Minn. Stat. § 611.17(b) states that financial information submitted on an application for a public defender will be sealed, but neither section 611.17(b) nor any Minnesota case require the trial court to advise the applicant of this confidentiality. Although several federal cases require the trial court to advise public defender applicants, those cases involved financial information that was relevant to the underlying charges. See Gravatt, 868 F.2d at 588 (trial court erred by not affording defendant either an in camera review of his financial records or immunity after defendant requested immunity upon his submission of financial information for court-appointed attorney in his tax evasion litigation); United States v. Anderson, 567 F.2d 839, 840 (8th Cir. 1977) (trial court erred by not allowing defendant an in camera review of his financial records when IRS was actively seeking defendant's bank records). In this case, the underlying charge, driving while intoxicated, has no connection to appellant's financial condition.

Moreover, any self-incrimination claim appellant may possess is speculative and prospective, because appellant has not shown that the financial information required by the application would inculpate him on any pending charges. See United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980) (affirming trial court's refusal to grant Peister immunity for financial information because his alleged Fifth Amendment interest was only speculative and prospective), cert. denied, 449 U.S. 1126 (1981). Appellant has no basis for immunity.

Next, appellant alleges that even if he did waive his right to a public defender, the waiver was constitutionally defective because it was not knowing and intelligent. See Johnson, 304 U.S. at 464-65, 58 S. Ct. at 1023 (waiver of counsel must be knowing and intelligent); State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987) (trial court has duty to assure that defendant understands significance of waiving right to counsel by making comprehensive evaluation of defendant).

Contrary to appellant's allegations, the trial court did try to ensure that appellant was proceeding in a knowing and intelligent manner. The trial court ordered a psychological evaluation to assure that appellant was competent and repeatedly gave appellant chances to secure a public defender. Indeed, appellant's continual requests for counsel indicate that he was aware of the advantages of legal counsel. Most importantly, however, appellant did not waive his right to counsel. Appellant repeatedly requested the appointment of counsel, but refused to comply with the prerequisites for such an appointment. This conduct is not evidence of a waiver. The trial court's failure to conduct further evaluation of appellant's decision to proceed without an attorney was not error under these circumstances.

Finally, appellant alleges that the trial court erred by failing to appoint standby counsel to assist him during trial.

If the defendant is not represented by counsel and is financially unable to afford counsel, the judge or judicial officer shall appoint counsel for the defendant.

Minn. R. Crim. P. 5.02, subd. 1. Appellant's argument fails to address the requirement that a defendant be "financially unable to afford counsel." Id.; see Minn. R. Crim. P. 5 cmt. ("counsel must be appointed for a defendant financially unable to afford counsel in a felony or gross misdemeanor case"). Appellant did not submit information demonstrating that he was financially unable to afford counsel. The trial court did not err by not appointing standby counsel.

Affirmed.