This opinion is nonprecedential except as provided by
                       Minn. R. Civ. App. P. 136.01, subd. 1(c).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-1132

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                  Margaret Ann Frank,
                                      Appellant.

                                 Filed March 18, 2024
                                       Affirmed
                                     Gaïtas, Judge

                             Waseca County District Court
                File Nos. 81-CR-21-502, 81-CR-19-322, 81-CR-20-414

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Rachel V. Cornelius, Waseca County Attorney, Waseca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Larkin, Presiding Judge; Gaïtas, Judge; and Kirk,

Judge. ∗




∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           NONPRECEDENTIAL OPINION

GAÏTAS, Judge

       Appellant Margaret Ann Frank challenges the district court’s execution of her

sentences—at her request—during a first appearance on an alleged probation violation.

Frank argues that her waiver of counsel during that hearing was constitutionally invalid

and that the district court abused its discretion in revoking her probation without making

legally required findings. We conclude that Frank validly waived counsel and that the

district court was not required to make findings before executing Frank’s sentences at her

request, and we affirm.

                                          FACTS

       In April 2019, Frank damaged her ex-boyfriend’s car with a key, entered his home,

and assaulted his wife. Following these incidents, Frank pleaded guilty to first-degree

burglary and first-degree damage to property. For the burglary conviction, the district court

stayed execution of a 33-month prison sentence for seven years. The district court stayed

imposition of sentence for three years for the damage-to-property conviction.

       By March 2021, Frank had violated the conditions of her probation two times, and

she was facing a third alleged probation violation. However, in April 2021, in connection

with an unrelated criminal case, Frank was found incompetent to stand trial under

Minnesota Rule of Criminal Procedure 20.01. See Minn. R. Crim. P. 20.01, subd. 2 (“A

defendant is incompetent and must not plead, be tried, or be sentenced if the defendant due

to mental illness or cognitive impairment lacks ability to: (a) rationally consult with




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counsel; or (b) understand the proceedings or participate in the defense.”). Frank’s third

probation-revocation hearing was postponed due to her incompetence.

       Between April and June 2021, Frank allegedly violated a harassment restraining

order (HRO) that her ex-boyfriend’s wife obtained following the burglary. Frank was

charged with six counts of violating the HRO. In July 2021, Frank pleaded guilty to one

of these counts. 1

       In December 2022, Frank was found to be competent. She then appeared before the

district court to address the unresolved probation violation and to be sentenced for violating

the HRO. Frank admitted that she had violated her probation by failing to maintain contact

with her probation officer and failing to provide a release for her medical records. The

district court continued Frank’s probation and imposed a 24-month stay of execution for

the HRO violation.

       In April 2023, Frank’s probation officer filed a report, which is included in the

district court record, alleging a new probation violation. According to the probation

officer’s report, Frank, who had been living in Wisconsin, decided to move back to

Minnesota. Her probation agreement required her to meet with her probation officer within

24 hours of returning to Minnesota. Although the probation officer gave Frank additional

time to report for a meeting, Frank failed to appear for their scheduled meeting. The report

details text messages exchanged between Frank and the probation officer about the



1
  The record shows that Frank pleaded guilty to violating the HRO after she was found
incompetent and before she was deemed competent. We note that the validity of Frank’s
guilty plea is not before us.

                                              3
required meeting. During one exchange, Frank stated that she could not meet “because of

no gas money,” and she requested a remote meeting. The probation officer responded that

the meeting had to be in person to confirm that Frank was in Minnesota but gave Frank a

few more days to meet. Later in the day, Frank texted the probation officer, “Also, I’m

wondering if I can just execute and sit in jail.” She explained, “I don’t want to be on

probation anymore,” and she offered to turn herself in “anytime this week.” Several days

later, at the scheduled meeting time, Frank texted the probation officer again to discuss

executing her sentences. She stated that she did not “have gas to get to the office” and that

she was too “mentally ill to come in anyways.” According to the probation officer’s report,

the probation officer then “called and spoke with [Frank]” to discuss “what executing her

sentence would look like.”

       At her first appearance on the 2023 probation violation, Frank appeared before the

district court without counsel. The district court informed Frank that she “ha[d] the right

to be represented by an attorney.” It explained that, if she could not afford an attorney, she

could apply for a public defender or waive her right to an attorney and represent herself.

The district court asked, “Do you wish to be represented by an attorney?” Frank responded,

“I don’t.” The district court inquired whether Frank was “waiving [her] right to an

attorney” and “wish[ed] to represent [her]self,” and Frank stated, “yes.” Then, advising

Frank of her rights in a probation violation proceeding, the district court stated:

              In this matter you also have the right to contest the allegations
              contained in the violation reports. If you enter a denial today
              we will set the matter on for a contested hearing. At the
              contested hearing the state has the burden of proving by clear
              and convincing evidence that you knew of conditions of


                                              4
                probation and intentionally or willfully violated them. You
                would have the right to cross examine the state’s witnesses, the
                right to subpoena witnesses to testify in support of your
                defense, and the right to remain silent and nobody could force
                you to testify.

The district court asked Frank whether she understood her rights. Frank stated, “Yes,” and

told the district court that she wanted to admit that she had violated her probation. Then,

the district court inquired whether Frank understood that by admitting the violation,

“you’re waiving or giving up your rights to have a contested hearing in this matter,” and

Frank responded, “Yes.” Frank acknowledged that she had violated her probation in the

three separate matters before the court by failing to meet with her probation officer.

Following this exchange, the district court found that Frank “ha[d] knowingly and

voluntarily waived her rights to a contested hearing[] [and that] [a] sufficient factual basis

ha[d] been entered for the Court to accept her admissions to the violations as contained in

the reports.”

       As a disposition for the probation violation, the prosecutor recommended that the

district court revoke Frank’s probation and execute her prison sentences. Then, the district

court asked Frank, “[W]hat do you think is an appropriate sanction or sentence?” Frank

stated, “I agree with getting executed. I think that’s good.” The district court told Frank

that she had a right to request execution of her sentences and asked whether Frank “just

want[ed] to execute [her] sentence . . . and serve [her] time and be off probation.” Frank

responded, “Yes.” Noting that Frank was entitled to request execution of her sentences,

the district court executed the prison sentences in Frank’s three cases.

       Frank appeals.


                                               5
                                        DECISION

I.     Frank’s decision to waive counsel at her first appearance for a probation
       violation was knowing, intelligent, and voluntary, and the waiver was therefore
       constitutionally valid.

       Frank first argues that her waiver of her constitutional right to counsel at the

probation-violation hearing was constitutionally invalid. Both the United States and

Minnesota Constitutions afford criminal defendants a right to the assistance of counsel.

U.S. Const. amend. VI; Minn. Const. art. I, § 6. This right extends to probation-revocation

proceedings. See Gagnon v. Scarpelli, 

 (1973); State v. Kouba, 

 (Minn. App. 2006) (quoting State v. Ferris, 

 (Minn.

App. 1995)); see also 

, subd. 2 (2020) (a “defendant is entitled to be

heard and to be represented by counsel” at a probation-revocation hearing); Minn. R. Crim.

P. 27.04, subd. 2(1)(c) (providing that at a first appearance on a probation violation the

probationer must be advised of the right to “a lawyer, including an appointed lawyer if the

probationer cannot afford a lawyer”).

       A criminal defendant also has a constitutional right to self-representation. State v.

Camacho, 

 (Minn. 1997). To exercise this right, a defendant must

first waive the right to counsel. See State v. Jones, 

 (Minn. 2009)

(“Waiver is the voluntary relinquishment of a known right.”).            To comport with

constitutional requirements, a criminal defendant’s waiver of counsel must be knowing,

intelligent, and voluntary. State v. Rhoads, 

 (Minn. 2012).

Whether a defendant’s decision to waive counsel was valid depends on “the particular facts

and circumstances surrounding the case, including the background, experience, and


                                             6
conduct of the accused.” State v. Worthy, 

 (Minn. 1998) (quoting

Johnson v. Zerbst, 

 (1938)).

       An appellate court reviews de novo whether a defendant’s waiver of counsel was

knowing, intelligent, and voluntary. Rhoads, 

. Any factual findings

bearing on the validity of the waiver are reviewed for clear error. Jones, 

 (quoting Worthy, 

).

       Frank makes two arguments as to why her waiver of counsel was constitutionally

defective.

       First, she argues that, because the district court failed to adequately inquire about

her mental-health status, the district court’s acceptance of her waiver of counsel was

“cursory.” In support of this argument, Frank correctly observes that, if the “mental

competency of the defendant comes into question,” the law requires a district court to

ensure that the defendant is competent to “make a knowing and intelligent waiver of his

right to the assistance of counsel.” State v. Bauer, 

 (Minn. 1976); see

also Burt v. State, 

 (Minn. 1977) (reversing an order denying

postconviction relief because a presentence investigation report—that the district court had

access to—raised serious doubts about the defendant’s capacity to intelligently waive

counsel).

       However, the transcript of Frank’s first appearance for the probation violation in

April 2023 does not reveal any circumstances that would have given the district court a

reason to question Frank’s competence. Following a competency evaluation in December

2022, Frank was deemed competent. Although Frank told her probation officer that she


                                             7
could not meet in person because she had no gas money and due to her mental health, the

probation officer—who communicated with Frank by phone, in addition to text

messages—did not express concerns about Frank’s competence.               Cf. Camacho, 

 (reasoning that mental illness alone does not prevent a defendant from

waiving certain constitutional rights). Furthermore, the district court questioned Frank

about her mental health during the hearing when Frank agreed to admit the probation

violation:

              Q: Are you entering your admission today freely and
              voluntarily?
              A: Yes.

              Q: Are you under the influence of any controlled substance or
              have any mental impairments that would affect your ability to
              understand what you’re doing today?
              A: I’m not.

              Q: So you’re thinking clearly and understand this process?
              A: Yes.

Given these circumstances, Frank’s competence did not come into question during the first

appearance. Thus, the district court had no reason to further inquire about Frank’s mental

health before accepting her waiver of counsel.

       Second, Frank contends that the district court failed to fully advise her of her legal

rights before accepting her waiver of counsel. Frank emphasizes that the district court did

not tell Frank that she could be disadvantaged by representing herself.

       We disagree that the district court’s advisory regarding Frank’s rights was

inadequate. The Minnesota Rules of Criminal Procedure require district courts to provide

probationers with a rights advisory at the first appearance for an alleged probation


                                             8
violation. Minn. R. Crim. P. 27.04, subd. 2(1)(c). The applicable rule provides that, when

a “probationer initially appears on the warrant or summons” the district court must inform

the probationer of the rights to:

              a.     a lawyer, including an appointed lawyer if the
                     probationer cannot afford a lawyer;
              b.     a revocation hearing to determine whether clear and
                     convincing evidence of a probation violation exists and
                     whether probation should be revoked;
              c.     disclosure of all evidence used to support revocation
                     and of official records relevant to revocation;
              d.     present evidence, subpoena witnesses, and call and
                     cross-examine witnesses, except the court may prohibit
                     the probationer from confrontation if the court believes
                     a substantial likelihood of serious harm to others exists;
              e.     present mitigating evidence or other reasons why the
                     violation, if proved, should not result in revocation;
                     [and]
              f.     appeal any decision to revoke probation.

Id.; see also Morrissey v. Brewer, 

 (1972) (stating that these rights

are the minimum due process rights a defendant is entitled to during a contested probation

hearing (i.e., a Morrissey hearing)). Here, the district court addressed all the information

required by the criminal-procedure rule. At the outset of the hearing, the district court

informed Frank of her right to be represented by counsel, including appointed counsel if

she could not afford to hire an attorney. The district court also advised Frank that: (1) she

had a right to contest the allegation that she violated her probation; (2) if she denied the

allegation, the matter would be set for a contested hearing; (3) at the contested hearing, the

state would be required to prove by clear and convincing evidence that she intentionally or

willfully violated a condition of her probation; and (4) she had the right to “cross examine

the state’s witnesses, the right to subpoena witnesses to testify in support of [her] defense,


                                              9
and the right to remain silent and nobody could force [her] to testify.” Because the district

court included all of the information required under the criminal-procedure rule, the

advisory was sufficient.

       Frank contends that the district court had an additional obligation to discourage

Frank from representing herself. To support this argument, she cites Worthy, which

concerned the decision of two defendants to waive trial counsel. 

.

Worthy—which, again, discusses waiver of trial counsel—states that a defendant seeking

to waive counsel must be made aware of the perils of self-representation so that the trial

record establishes that the defendant understands the significance of the decision. 

       We are not persuaded that the district court here was obligated to warn Frank about

the danger of representing herself to ensure that Frank’s waiver of counsel was

constitutionally valid. Frank cites no other authority for her argument that a district court

has a universal obligation to provide such an advisory when a probationer waives counsel

at a first appearance for a probation violation. Moreover, in Worthy, the supreme court

determined that the two defendants challenging the validity of their waivers of trial counsel

fully understood the import of their decisions, in part, because they had prior experience

with the criminal justice system. 

 Frank also has some experience with the criminal

justice system. Because this was the fourth time that Frank appeared before the district

court to address an alleged probation violation in these two felony cases, we infer from the

record that Frank understood the significance of her decision to proceed without counsel.




                                             10
       The particular facts and circumstances in this case lead us to conclude that Frank

knowingly, intelligently, and voluntarily waived counsel. See 

. Thus, her

waiver of counsel was constitutionally valid.

II.    Because Frank requested execution of her sentences, the district court was not
       required to make findings regarding the Austin factors.

       Frank argues that “[t]he case must be remanded to revisit revocation of [her]

probation” because the district court failed to make the findings required under Minnesota

law before revoking her probation and executing her prison sentences. See State v. Austin,

 (Minn. 1980) (directing district courts to make findings regarding

three factors (the Austin factors) before revoking probation: (1) the specific condition of

probation violated, (2) whether the violation was intentional or inexcusable, and

(3) whether the policies favoring probation outweigh the need for confinement); see also

State v. Modtland, 

 (Minn. 2005) (remanding to the district court to

make findings regarding whether “sufficient evidence exists to support the district court’s

[probation] revocation”). Although the district court did not make findings regarding the

Austin factors, we disagree that these findings were required under the circumstances here.

       Under Minnesota law, a defendant has the right to demand execution of a stayed

prison sentence. State v. Randolph, 

 (Minn. 1982); see also 

, subd. 7 (2022) (limiting the right to demand execution to those who are

sentenced to more than “nine months at the state institution”). A district court should grant

such a demand if “the conditions of probation make probation more onerous than prison

and if it cannot be demonstrated that society’s interests suffer by vacating the probation



                                             11
sentence.” Randolph, 

; see also State v. Rasinski, 

(Minn. 1991) (clarifying that “the ‘society’s interest’ language in Randolph [cannot be used

as an] independent basis to deny a defendant’s request to refuse probation and execute

sentence”).

       While the hearing at issue here began as a first appearance for Frank’s fourth

probation violation, Frank demanded execution of her sentences during that proceeding—

a request she had previously discussed with her probation officer. As the district court

recognized, Frank was entitled to serve her prison sentences in lieu of continued probation.

Upon Frank’s request, the district court did not revoke Frank’s probation, but instead

granted the request and executed the stayed prison sentences. And a district court is not

required to make findings before granting a defendant’s request for execution of a stayed

sentence. See generally Randolph, 

; Rasinski, 

.

       Frank contends that her request for execution of her sentences was invalid because

it was made during a probation-revocation proceeding. She also points out that the request

was made only after she had admitted to violating her probation, and she suggests that this

fact confirms that the district court revoked her probation rather than executed her

sentences.

       As noted, however, the district court did not state that it was revoking Frank’s

probation. It acknowledged that Frank had a right to demand execution of her sentences

and then executed those sentences. Moreover, Frank does not cite any authority for the

proposition that a request for execution of a sentence cannot be made in the context of a




                                            12
probation-revocation proceeding. And we observe that such a proposition could impair a

defendant’s right to demand execution of a prison sentence.

       We conclude that, because the district court did not revoke Frank’s probation as a

sanction for the probation violation, the district court was not required to make Austin

findings. Thus, Frank is not entitled to a remand to the district court for such findings.

       Affirmed.




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