§ 611.19

State v. Jones · 2009 2 citations

*504 II. Jones next argues that he did not waive his right to counsel because he was not offered a written waiver, because any waiver colloquy given by the district court was insufficient, and because waiver by conduct is inapplicable to his situation. The record does not reflect any attempt by the district court to obtain a written waiver of counsel from Jones, but the district court did conduct a waiver of counsel colloquy on the record. The court of appeals affirmed, stating that Jones waived his right to counsel by conduct, quoting United States v. Bauer, 956 F.2d 693, 695 (7th Cir.1992), for the proposition that "`the combination of ability to pay for counsel plus refusal to do so does waive the right to counsel at trial. It is waiver by conduct.'" State v. Jones, 755 N.W.2d 341, 350 (Minn.App.2008). We will only overturn a "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). Though the right to counsel is a constitutional requirement, it may be relinquished in three ways: (1) waiver, (2) waiver by conduct, and (3) forfeiture. See, e.g., State v. Pedockie, 137 P.3d 716, 721 (Utah 2006). These three concepts are discussed at length by the Third Circuit in United States v. Goldberg, 67 F.3d 1092, 1099-1102 (3d Cir.1995). Waiver is the voluntary relinquishment of a known right. Id. at 1099. We have required the waiver of the constitutional right to counsel to be knowing, intelligent, and voluntary. State v. Osborne, 715 N.W.2d 436, 443-44 (Minn.2006); Worthy, 583 N.W.2d at 276; State v. Jones, 266 N.W.2d 706, 712 (Minn.1978). A written waiver of the right to counsel is necessary in felony cases unless the defendant refuses to sign such a waiver. See Minn. Stat. § 611.19 (2008); Minn. R.Crim. P. 5.02, subd. 1(4). And we require district courts, before accepting a waiver of the right to counsel, to fully advise the defendant by intense inquiry regarding the nature of the charges, the possible punishment, mitigating circumstances, and all "`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.'" Osborne, 715 N.W.2d at 443-44 (quoting Minn. R.Crim. P. 5.02, subd. 1(4)); see also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Camacho, 561 N.W.2d 160, 173 (Minn.1997). The district court's finding that Jones expressly waived his right to counsel is unsupported by the record. There was no written waiver. The prosecutor asked the district court "to get an informed waiver of counsel on the record," but the ensuing colloquy was insufficient. The district court asked Jones if he understood that he had a right to an attorney, and the district court summarized the prior proceedings. After stating that Jones had not been able to retain counsel, the district court asked Jones if he was going to proceed on his own and represent himself. Jones agreed that he would represent himself. At no time during the colloquy did the district court address the nature of the charges or the advantages and disadvantages of a decision to waive counsel. More importantly, *505 Jones objected twice to proceeding without counsel. We conclude that, on this record, Jones did not give a knowing, intelligent, and voluntary waiver of his right to counsel. Waiver by conduct is a separate concept. Under Goldberg, waiver by conduct occurs if a defendant engages in dilatory tactics after he has been warned that he will lose his right to counsel. 67 F.3d at 1100. Waiver by conduct applies to those defendants who "voluntarily engag[e] in misconduct knowing what they stand to lose [but] are not affirmatively requesting to proceed pro se." Id. at 1101. The same colloquy required for affirmative waivers must also be given before a defendant can be said to have waived his right to counsel by conduct. Id. at 1100 (requiring Faretta warnings); see also Bauer, 956 F.2d at 695; Pedockie, 137 P.3d at 723-24; State v. Hampton, 208 Ariz. 241, 92 P.3d 871, 874 (2004); State v. Carruthers, 35 S.W.3d 516, 548 (Tenn.2000). In Bauer, the defendant was warned of the dangers of self-representation before the court found that he waived his right to counsel by his conduct. 956 F.2d at 695. Again, in this case, the district court failed to conduct a colloquy sufficient to satisfy the requirements of Minn. R.Crim. P. 5.02, subd. 1(4). The final method of relinquishing the right to counsel is forfeiture.[5] Under Goldberg, a defendant who engages in "extremely dilatory conduct" may be said to have forfeited his right to counsel. 67 F.3d at 1101; see generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.3(c) (3d ed. 2007). Forfeiture does not require the court to conduct a waiver colloquy with the defendant. Goldberg, 67 F.3d at 1101; see also Hampton, 92 P.3d at 874; Carruthers, 35 S.W.3d at 548. Forfeiture is usually reserved for severe misconduct, when other efforts to remedy the situation have failed. See, e.g., Hampton, 92 P.3d at 874-75 (listing cases discussing the forfeiture doctrine). Other courts have applied forfeiture in situations similar to the circumstances presented here. E.g., Wilkerson v. Klem, 412 F.3d 449, 451-56 (3d Cir.2005). In Wilkerson, the Third Circuit found that a state court did not act unreasonably by applying the forfeiture doctrine to a defendant who was "duly notified of the date of his trial, who has been advised to obtain counsel in sufficient time to be ready for trial, and who appears on the scheduled date without counsel and with no reasonable excuse for his failure to have counsel present." Id. at 454-56; see also Siniard v. State, 491 So.2d 1062, 1064 (Ala.Crim.App.1986) (finding forfeiture when a defendant failed to retain counsel after eight months and two continuances). The rationale behind applying the forfeiture doctrine is that courts must be able to preserve their ability to conduct trials. Wilkerson, 412 F.3d at 455 (quoting Fischetti v. Johnson, 384 F.3d 140, 146 (3d Cir.2004)). Applying the forfeiture doctrine to the right to counsel is a matter of first impression for our court. Cf. State v. Lehman, 749 N.W.2d 76, 81-82 (Minn.App.2008) (noting that the issue of whether the right to counsel can be forfeited was an issue of first impression in Minnesota, and finding forfeiture when a defendant attacked his public defender in open court). But we have noted that a balance must exist between a defendant's "right to counsel of his choice against the public interest of maintaining *506 an efficient and effective judicial system." State v. Courtney, 696 N.W.2d 73, 82 (Minn.2005). Here, Jones engaged in conduct that was extremely dilatory. Almost a full year passed between Jones's first bail appearance and his trial. Jones appeared for court without counsel on eight separate occasions. On seven of those occasions, Jones was told to retain counsel. Jones applied for and was denied a public defender at least three times. He repeatedly told the district court that he was planning on retaining private counsel, and he was granted three continuances solely for the purpose of giving him time to do so. The district court also set Jones's trial date four months after his omnibus hearing so that he could hire counsel. And the district court made it clear to Jones that he would get no more continuances as a pro se party after February 14, 2007. Moreover, Jones was aware of the disadvantages of representing himself. In his objections to proceeding without counsel, Jones was concerned that he would not get a fair trial because he would not understand what was being said. He stated that, without counsel, he felt like "a sitting duck, basically a target." Even with this knowledge, Jones still failed to retain counsel. The district court found that Jones was "not finalizing" what he had to do to retain counsel and that he was "somebody who [was] not taking the initiative to do what they need to do to get counsel." The district court concluded that Jones had "given up [his] right to have an attorney." On this record, we hold that the district court's decision was not clearly erroneous. Jones forfeited his right to counsel.

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State v. Jones · 2008 1 citation

Appellant argues that he did not effectively waive his right to counsel and that, without an effective waiver of that right, he is entitled to a new trial. A defendant may waive his right to counsel, but such a waiver must “be voluntary [and] must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background,' experience, and conduct of the accused.’ ” Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). By statute, Minnesota law requires that when a defendant waives the right to counsel, “the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation *350 if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.” Minn. Stat. § 611.19 (2006).

State v. Garibaldi · 2007 1 citation

Since 1965, in order to assure that a defendant’s waiver of counsel comports with constitutional requirements, Minnesota law has stated a requirement that “[w]here counsel is waived by a defendant, the waiver shall in all cases be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.” Minn. Stat. § 611.19 (2006); see 1965 Minn, laws ch. 869, § 6, at 1633. Effective in 1999, rule 5.02 of the Minnesota Rules of Criminal Procedure was also amended to add the requirement that the district court obtain a written waiver, or make an oral record of waiver after the defendant refuses to sign a written waiver. 3

State v. Hawanchak · 2003 1 citation

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State v. Nelson · 1994 1 citation

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