This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1378

State of Minnesota,

Respondent,

vs.

Thomas Niles Framsted,

Appellant.

Filed April 29, 1997

Reversed and remanded

Crippen, Judge

Dakota County District Court

File No. KX-95-2299

Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Annette Marie Margarit, Apple Valley City Attorney, Suite 600, 7300 West 147th Street, Apple Valley, MN 55124 (for Respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant Thomas Framsted, found guilty of refusing a chemical test and two other offenses, contends that he did not lawfully waive his right to have counsel or standby counsel for bench trial proceedings. Because the trial court did not give appellant a mandatory advisory on the right to appointed counsel and failed to warn him about his plan to proceed pro se, we reverse and remand for a new trial.

FACTS

Appellant was charged with two gross misdemeanors, refusal to submit to chemical testing and intent to escape payment of a motor vehicle tax, and two misdemeanors, obstructing arrest and driving while intoxicated. Before sentencing, appellant made four appearances before three different trial court judges. Although appellant stated that he did not want an attorney, there is no record that the court at any appearance informed appellant that he could obtain a public defender if he could not afford a private attorney.

Appellant was arraigned at his initial court appearance. The arraignment transcript provides:

THE COURT: Are you represented by an attorney?

[APPELLANT]: No, sir.

THE COURT: Do you intend to be?

[APPELLANT]: No, sir.

The trial court proceeded at the arraignment to advise appellant of the charges in the complaint and attempted to obtain appellant's decision on his plea.[1] Evidently, the court concluded that appellant pleaded not guilty to all charges. At a subsequent omnibus hearing, appellant attempted to have an unlicensed person represent him as his counsel, but the court denied appellant's request. The record provides:

[APPELLANT]: My motion is for my attorney in fact paper here.

THE COURT: No. To have the gentleman back here with you? No. I've denied that already.

[APPELLANT]: Then you're denying me due process for my constitutional right to be represented here or have counsel with me, be represented with counsel.

THE COURT: You can retain counsel authorized to practice law in the state of Minnesota before this court, or you can represent yourself, either one.

[APPELLANT]: Well, my constitutional rights came way before the--

THE COURT: I know. We've had the ruling. Okay.

Later, when appellant appeared for trial, the transcript provides in pertinent part:

THE COURT: Mr. Framsted, are you representing yourself?

[APPELLANT]: Yes, sir.

* * * *

THE COURT: Mr. Framsted, do I understand that you're ready to proceed at this time?

[APPELLANT]: That's correct, Your Honor, without a jury trial.

THE COURT: Okay. You waive your right to a jury trial?

[APPELLANT]: Correct.

THE COURT: You understand that you would have the right to a trial by a jury of six persons if you wanted to?

[APPELLANT]: Correct.

THE COURT: Okay. And do you understand what the maximum penalty for this offense is? It's a year in jail and a $3,000 fine. That's the maximum penalty, assuming you were convicted, that any judge could impose. It's not necessarily the one that would be imposed. And obviously if you're not convicted there would be no penalty involved. Do you understand that?

[APPELLANT]: Yes, sir, I do.

THE COURT: Okay. Very good.

After a bench trial, the court found appellant guilty of all charges except driving while under the influence.

D E C I S I O N

We will affirm the trial court's finding that a criminal defendant knowingly and intelligently waived the right to trial counsel unless the finding is clearly erroneous. State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992).

1.

Appellant first contends that he did not lawfully waive his right to counsel because the trial court failed to inform him of the availability of appointed counsel.

By procedural rule, the court must advise criminal defendants at their first appearance that they have a right to counsel and, if they appear without counsel and are financially unable to afford an attorney, that the court shall appoint counsel without cost. Minn. R. Crim. P. 5.01(b). Although the court may inform "a number of defendants at once" of this right, "each defendant shall be asked individually before arraignment whether the defendant heard and understood these rights as explained earlier." Minn. R. Crim. P. 5.01.

A review of the initial appearance record demonstrates that appellant was not advised of his rights as required by Minn. R. Crim. P. 5.01. The record includes no indication of whether appellant received any notice that the court could appoint counsel if he could not afford a private attorney.[2] When appellant made subsequent court appearances, the record again fails to show that he was asked whether he understood that the court could appoint an attorney if he could not afford one. An appellate court must refuse "to presume a waiver of constitutional rights from a silent record." State v. Fussy, 467 N.W.2d 601, 603 (Minn. 1991) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12 (1969)); see State v. Edwards, 361 N.W.2d 90, 91 (Minn. App. 1985) (holding that it is impossible to determine on review whether a defendant's waiver of counsel was knowing and intelligent where there is no record of such waiver).

Because the record indicates that the trial court failed to advise appellant of his right to appointed counsel if he could not afford an attorney, we must determine that the court clearly erred by accepting appellant's waiver of his right to counsel.

2.

Appellant next asserts that he did not validly waive his right to counsel because the trial court inadequately warned him regarding the dangers of proceeding pro se. Where a criminal defendant seeks to proceed pro se, the court must determine: "(1) whether the request is clear, unequivocal, and timely" and "(2) whether the defendant knowingly and intelligently waives his right to counsel." State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) (footnote omitted). To determine whether a waiver is knowing and intelligent, the court should make a "penetrating and comprehensive examination" of the defendant's understanding of the crimes charged, the range of allowable punishments, the possible defenses, any possible mitigating circumstances, and any other relevant factors. State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987); accord State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990). The supreme court also has suggested that the trial court could ensure a voluntary and knowledgeable waiver by appointing temporary counsel to advise the defendant about the consequences of the waiver. Krejci, 458 N.W.2d at 412; Rubin, 409 N.W.2d at 506.

In light of appellant's insistence that he proceed pro se, even after the trial court denied his request to have an unlicensed person act as his counsel, we determine that appellant made a clear, unequivocal, and timely waiver of his right to counsel. But the question remains whether his waiver was knowing and intelligent.

Considering the Krejci and Rubin factors, the trial court only examined appellant's comprehension of the crimes charged and the possible punishments. According to the record, the court at the arraignment explained the charges against appellant, and just before the trial commenced, the court informed appellant of the possible punishments. The court did not discuss the possible defenses and mitigating circumstances. And the court did not appoint temporary counsel to consult with defendant regarding the consequences of waiving his right to counsel and proceeding pro se. Krejci, 458 N.W.2d at 412; Rubin, 409 N.W.2d at 506. Because the trial court made an inadequate inquiry into appellant's decision to proceed pro se, the court did not satisfy the Krejci and Rubin standard.

This case is distinguishable from several cases recognizing knowing and intelligent waivers because those decisions specifically noted that the defendants were aware of their right to counsel prior to their waivers. Krejci, 458 N.W.2d at 412-13; State v. Nelson, 523 N.W.2d 667, 670-71 (Minn. App. 1994); Savior, 480 N.W.2d at 694. Here, nothing in the record indicates that appellant was adequately aware of his right to counsel.

We conclude that the trial court committed reversible error because the record lacks any facts indicating that the error is harmless due to appellant's ability to hire counsel. We reverse appellant's convictions and remand the case for a new trial.[3]

Reversed and remanded.

[ ]1Under Minn. R. Crim. P. 5.01, when the defendant is charged with a gross misdemeanor, the trial court is not to call on the defendant for a plea at the first appearance. The defendant may waive the right for a second appearance under Minn. R. Crim P. 5.03. The record in this case does not indicate if appellant volunteered to be arraigned at his first appearance.

[ ]2Our review occurs on the record furnished to the court by the trial court administrator. Respondent filed no brief challenging appellant's characterization of the record.

[ ]3The formal and pro se briefs raise a number of additional issues, including an assertion that the trial court should have appointed standby counsel. By procedural rule, a trial court must appoint standby counsel for an indigent defendant not represented by counsel in a felony or gross misdemeanor case. Minn. R. Crim. P. 5.02, subd. 1; Minn. R. Crim. P. 5.02 cmt. Because we remand the case for a new trial, we need not address these other issues.