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STATE OF MINNESOTA IN COURT OF APPEALS A07-1168 State of Minnesota, Respondent, vs. Don Jones, Appellant. Filed September 2, 2008 Affirmed Halbrooks, Judge

Scott County District Court File No. CR-06-5432 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Jodie L. Carlson, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge. SYLLABUS A criminal defendant who is ineligible for a public defender and fails to hire a private attorney, despite multiple warnings from the district court, has validly waived his right to counsel and may be required to proceed pro se.

OPINION HALBROOKS, Judge Appellant challenges his convictions of check forgery, offering a forged check, and theft by swindle, arguing that his right to counsel was denied because the district court (1) improperly denied his request for a public defender; (2) failed to obtain a valid waiver of his right to counsel; and (3) erred in refusing to appoint standby counsel. In addition, appellant asserts that he is entitled to a new trial because of prosecutorial misconduct. We affirm. FACTS Facts Presented at Trial Appellant Don Jones deposited a check in the amount of $3,600 at Guaranty Bank on January 9, 2006, and received a $2,700 cashiers check in return. The check that appellant deposited was written on the business account of Shanndyns Towing and Recovery, owned by appellant and his girlfriend, S.D. The branch manager of the bank testified that appellant said that it was a payroll check made payable to him, signed by S.D.s mother, V.D., and endorsed by appellant. According to V.D.s testimony, she was never an authorized signer on the account and did not sign this check. The branch manager gave appellant a $2,700 cashiers check and the banks records show that appellant took the check to Shakopee Dodge, which subsequently cashed it. Of the remaining $900 initially deposited by appellant, $300 was withdrawn in cash and the other $600 was put in his personal account. Two days later, the branch manager discovered that the business account was closed; she called appellant, who told 2

her that he would come to the bank to repay the money in the next few days. Despite attempts by the branch manager to contact appellant again, he never repaid the bank. At the time of this incident, Department of Corrections Officer Angel Uribe was appellants probation officer as a result of a prior conviction. According to Officer Uribes testimony, S.D. came to her office, and because S.D. felt that appellants probation officer should know it, informed the officer that appellant was writing checks on V.D.s account, forging V.D.s signature. Detective Laura Kvasnicka, the

investigating officer, testified that, after speaking with Officer Uribe, S.D. told her that appellant used checks from a closed account to purchase a vehicle. In the course of her investigation, Detective Kvasnicka discovered that appellant had also signed S.D.s name to a cashiers check used at a Super America. According to Detective Kvasnicka, V.D. and S.D. both told her that neither of these checks was properly signed, and S.D. stated that the business account was closed in 2005. Detective Kvasnicka recorded S.D.s statements and testified that her recollection of the conversation was consistent with that recorded conversation before it was played in its entirety for the jury. Both the state and appellant called S.D. to testify. The state asked her to

corroborate the statements made by V.D., Detective Kvasnicka, and Officer Uribe, but S.D. claimed that they were not being honest about what she told them. When asked if the check that appellant was accused of forging was written on a closed account, she asserted her Fifth Amendment rights, and the state ended its questioning. In response to appellants questions, S.D. stated that she had never told anyone that appellant forged the checks and testified that Detective Kvasnicka was the person "who told me [about 3

appellant forging the check] so I was just telling them what I knew from her." She stated that she told Officer Uribe what she heard from Detective Kvasnicka only to "get [her] daughter back" by getting appellant in trouble. Appellant did not testify. Procedural History After being charged, appellant appeared in district court at his bail hearing on February 27, 2006, without an attorney. Bail was set at $30,000, and appellant posted bail. Appellant appeared in district court again on March 3, 2006, still unrepresented. He advised the district court that he was "going to get a private attorney" and stated that a continuance until May would give him sufficient time to find private counsel. The district court objected to that delay and scheduled the next court appearance for April 10, 2006. Appellant missed the April 10 court date but turned himself in and appeared on April 13. The district court scheduled another hearing for May 5, 2006, and released appellant on his own recognizance. Appellant was again unrepresented by counsel in district court on May 5, 2006. The district court asked appellant if he wanted a continuance to seek a private attorney because his application for a public defender had been denied twice. Informing appellant that his "charges [were] pretty significant," the district court suggested that appellant hire a private attorney and provided him with a list of reduced-cost attorneys. Appellant responded that he could "hire one myself in probably about a month. I am probably going to have to sell my truck to pay for any--that was probably the reason why I was denied the first time, because of my truck." The district court granted appellants request and continued the hearing until June 9, 2006. 4

On June 9, appellant appeared a fifth time without counsel and told the district court that his applications for a public defender were denied and that he could not afford a private attorney. The district court provided appellant with a copy of the complaint and scheduled appellants omnibus hearing for September 8, 2006. At the omnibus hearing, appellant had still not retained private counsel and told the district court that, although he was unemployed during his prior appearances, he was getting "a little stable" and could contact the reduced-fee attorneys. The district court scheduled appellants trial for

January 16, 2007, in an effort to give appellant enough time to hire a private attorney. Despite the extension, appellant appeared without counsel on January 16 and voiced his objection to proceeding without an attorney. He stated that he felt like a "sitting duck" because he had no idea what to object to, what questions to ask, or how to proceed at trial. On the record, the district court acknowledged appellants right to an attorney, but noted that appellant had been repeatedly advised to hire an attorney and told the district court at each continuance that he would do so. Because appellant failed to "follow through on [his] commitment to go out and get an attorney," the district court indicated that it was not compelled to continue the case again. Appellant informed the district court that he had an ongoing criminal case in Dakota County where he was represented by a private attorney. In response to this information, the district court called this attorney to see if he would represent appellant in the instant matter. The private attorney responded that he was willing to represent appellant, provided that appellant pay the retainer on the Scott County case.

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When appellant returned to district court on February 14, 2007, he was still unrepresented, and he again objected to the denial of his application for a public defender. But the district court stated that appellants continued failure to provide his own attorney was justification for proceeding and informed appellant of the various procedures for trial, his right to refuse to testify, and the burden of proof necessary for a conviction. Appellant stated on the record that he was not "choosing" to represent himself, which prompted more questions by the district court about appellants eligibility for a public defender and another application by appellant. The district court collector examined appellants application and determined that appellant did not meet the income requirements for a public defender because his income was more than 125% of the federal poverty guidelines. The district court then denied appellants request for a public defender and commenced the jury trial. Following the closing arguments of the state and appellant at the end of trial, the jury returned a verdict of guilty on all charges, and judgment was entered. The district court sentenced appellant to 30 months commitment to the commissioner of corrections for offering a forged check. This appeal follows. ISSUES 1. Did the district court abuse its discretion by denying appellants request for a public defender? Did appellant validly waive his right to counsel by his conduct in failing to hire private counsel? Did the prosecutor commit misconduct warranting reversal of appellants conviction?

2.

3.

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ANALYSIS I. Appellant argues that the district court erred in denying his application for a public defender and asserts that this deprived him of his right to counsel. Appellate courts review a district courts decision to appoint a public defender for an abuse of discretion. In re Stuart, 646 N.W.2d 520, 523 (Minn. 2002). The United States and Minnesota Constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I,

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