               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41879

KEVIN MILTON MINGO,                            )   2015 Unpublished Opinion No. 458
                                               )
       Petitioner-Appellant,                   )   Filed: April 8, 2015
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
STATE OF IDAHO,                                )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Respondent.                             )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Judgment denying post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy
       Attorney General, Boise, for respondent.



LANSING, Judge
       Kevin Milton Mingo was convicted of possessing a controlled substance. He challenged
that conviction in a petition for post-conviction relief. Before an evidentiary hearing, Mingo
became dissatisfied with counsel and requested either permission to fire counsel and represent
himself or the appointment of substitute counsel. The court denied the request for substitute
counsel, but allowed Mingo to represent himself. After an evidentiary hearing, the court found
that Mingo was not entitled to post-conviction relief. Mingo appeals.




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                                                 I.
                                        BACKGROUND
       Mingo entered an Alford 1 plea to a charge of possessing a controlled substance in
violation of Idaho Code § 37-2732(c)(1).       The district court imposed a unified seven-year
sentence with two years fixed.
       Several months later, Mingo filed a petition for post-conviction relief asserting
approximately six grounds for relief: (1) the State changed its theory of the case; 2 (2) due to
injuries sustained in a motorcycle wreck, he was not competent to stand trial; (3) counsel failed
to explain the import of certain procedures--notably his signing the plea agreement; (4) counsel
failed to investigate and raise the issues Mingo believed were critical to his case; (5) counsel
failed to file a Rule 35 motion after being asked to do so; and (6) his counsel colluded with the
State to coerce his plea. 3 Mingo also requested the appointment of counsel.



1
       See North Carolina v. Alford, 400 U.S. 25 (1970).
2
        This claim appears to have several subparts. Generally, Mingo believed that he was
originally arrested and charged with possession of a bag of methamphetamine. He believed that
the State later changed its legal theory of the case, and intended to prove that he possessed scales
with methamphetamine residue. The first subpart of his claim is an argument that he was
entitled to be informed of this change in legal theory and re-arraigned. Second, he believed that
it was not proper to convict him for conduct relating to the scales. He noted that his girlfriend
was convicted of possessing scales with methamphetamine residue on them and argued that an
injustice occurred because two people cannot simultaneously possess a single object. Third, he
contended that he had a defense to a charge that he possessed the bag of methamphetamine, and
the change in theory prejudiced his ability to raise that defense.
        Although it is not necessary to the disposition of this appeal, we note that the charging
document did not specify whether Mingo was being charged with possession of the residue on
the scales or possession of the bag of methamphetamine found in the car. Accordingly, the
record does not show that the State changed its theory. Indeed, it seems very likely that the State
intended to prove that Mingo possessed both items, as it did when Mingo’s girlfriend went to
trial. See State v. Southwick, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2014), rev. pending.
Finally, to the extent there was any change in the State’s focus, the record indicates that the
change in focus occurred after the State obtained a video of Mingo saying that police would not
find any methamphetamine on the scales because he had “licked them clean.”
3
        Mingo claims he was threatened by both the State and defense counsel. The threats
amounted to the State charging Mingo as a persistent violator and counsel explaining the import
of a persistent violator enhancement to Mingo’s potential sentence. The trial court explained
during the plea colloquy that these actions did not amount to coercion.
                                                 2
       On July 31, 2013, the court appointed counsel, but Mingo continued to file various
documents, including requests to proceed pro se. First, he filed two documents attempting to
amend his petition and further explaining his post-conviction claims.        Next, he requested
transcripts and copies of any papers he had signed. He waited for a period of time to receive the
requested transcripts, but when he did not receive them, Mingo filed his first written request to
proceed pro se. By letter to the court received on September 24, 2013, he asserted that counsel
had failed to respond to his calls or letters and that he was not receiving the paperwork he had
requested or any response from the State.
       Several days later, Mingo filed a second request to proceed pro se or, in the alternative,
be appointed substitute counsel. Along with the motion, Mingo filed an affidavit explaining why
he preferred having counsel:      he was untrained in the law and lacked access to resources
available to those outside of prison.
       The court responded by letter, explaining that it did not intend to appoint new counsel at
that time. Instead, it asked if Mingo wished to proceed with the appointed attorney or to proceed
pro se. Mingo responded to the court’s letter and explained that he would rather proceed pro se
than continue to be represented by his current attorney, but he also wanted the court to appoint
substitute counsel. At that time, he requested to be permitted to appear in person in all future
proceedings.
       Two weeks later, on November 1, 2013, the court held a status conference without
transporting Mingo or allowing him to participate by telephone.         There, Mingo’s counsel
indicated that he had “addressed [Mingo’s] concerns in regard to counsel and asked to remain on
[the] case for [the] time being.” The court permitted the attorney to continue working on the
case and told him that it would not be accepting further filings from Mingo unless Mingo fired
the attorney.
       Mingo continued to file documents objecting to the fact that he was not receiving
paperwork personally. Following a December 16 pretrial conference at which Mingo again was
not present, he filed a motion seeking to proceed “propra personal.” 4 The court did not respond.
       The court arranged to have Mingo appear in person at the evidentiary hearing. At that
time, Mingo’s counsel informed the court that Mingo had refused to see him at the jail and asked
the court to determine whether Mingo wished to proceed pro se. In response to questioning,

4
       We infer that he meant he wished to proceed in propria persona, i.e., pro se.
                                                3
Mingo reiterated his wish to proceed pro se, referencing his repeated motions making that
request. He also requested a legal adviser to confer with and to perform research for him, but
made clear that he wanted to represent himself. The court then briefly inquired of Mingo:
       THE COURT:      So you want to fire [defense counsel]?
       MR. MINGO:      Yes, I do.
       THE COURT:      You want to represent yourself today?
       MR. MINGO:      Yes, I do.

The court thereupon excused counsel and informed Mingo that he would be permitted to
represent himself.   Mingo made an opening statement and presented the testimony of two
witnesses: himself and his trial counsel. After the hearing concluded, the court issued a written
decision holding that Mingo had failed to prove any of his claims.
       Mingo appeals and raises a single claim of error. He argues the district court erred by
excusing counsel and permitting him to proceed pro se. Mingo also argues he should have either
been provided substitute counsel or been affirmatively warned of the dangers of self-
representation.
                                                II.
                                           ANALYSIS
       If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition, in the trial court,
and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792,
102 P.3d 1108, 1111 (2004). However, a post-conviction court commits reversible error when it
denies counsel to a petitioner who asserts nonfrivolous claims. Murphy v. State, 156 Idaho 389,
393, 327 P.3d 365, 369 (2014) (“The standard for determining whether to appoint counsel for an
indigent petitioner in a post-conviction proceeding is whether the petition alleges facts showing
the possibility of a valid claim.”); Swader v. State, 143 Idaho 651, 654, 152 P.3d 12, 15 (2007)
(“[T]he court should appoint counsel if the facts alleged raise the possibility of a valid claim.”);
Charboneau, 140 Idaho at 793, 102 P.3d at 1112 (setting forth the conditions under which a
post-conviction court should appoint counsel). In its analysis, the district court should consider
that petitions filed by a pro se petitioner may be conclusory and incomplete. See Charboneau,
140 Idaho at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged
because they do not exist or because the pro se petitioner does not know the essential elements of

                                                 4
a claim. Id. Some claims are so patently frivolous that they could not be developed into viable
claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642,
644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid
claim, the district court should appoint counsel in order to give the petitioner an opportunity to
work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at
793, 102 P.3d at 1112.
        Apparently, the district court did not consider Mingo’s claims frivolous and accordingly,
Mingo was appointed counsel. On appeal, the State does not contend that the court erred by
initially appointing counsel.
A.      Mingo Failed to Provide an Adequate Record of the Post-Conviction Court’s Denial
        of His Request for Substitute Counsel
        Mingo contends that the post-conviction court erred by denying his request for substitute
counsel before permitting him to represent himself. Mingo’s complaints about counsel, made in
written, repeated motions were clear.      He said post-conviction counsel had not maintained
adequate contact, and Mingo was upset that counsel wanted to eliminate some of his claims. On
October 1, 2013, the court sent a letter to Mingo explaining that it was disinclined to appoint
substitute counsel at that time. 5
        At the November 1 status conference, the court took up the issue and allowed counsel the
opportunity to respond to Mingo’s complaints. Mingo was not present at that hearing, but his
absence is not, standing alone, grounds for reversal. In Rios-Lopez v. State, 144 Idaho 340, 160
P.3d 1275 (Ct. App. 2007), as here, the petitioner made various arguments in support of his
request for substitute counsel, including a complaint that counsel infrequently contacted him. Id.
at 342, 160 P.3d at 1277. Thereafter, the court held a hearing on that matter, without the
petitioner present, and denied the motion. We concluded that the petitioner had been given “a
full and fair opportunity to present the facts and reasons in support of a motion for substitution of
counsel,” and therefore had not been denied due process. Id. at 344, 160 P.3d at 1279. Here,
5
        In our view, the letter did not amount to a ruling on the motion. First, the district court
had not yet heard from counsel and would have lacked the factual basis required to decide the
motion. Second, it is not clear that a letter sent to a party would be a procedurally proper means
of rendering a ruling. Third, in context, the phrase “at this time” appears to mean that any ruling
was tentative, an indication of what the court was likely to rule, given the information available
at the time. The ultimate decision to permit appointed counsel to continue representing Mingo
was made after the relevant facts were gathered and on the record.


                                                 5
Mingo’s filings had thoroughly explained to the court his dissatisfaction with appointed counsel
prior to the status conference. Therefore, as in Rios-Lopez, we conclude that Mingo’s absence
from the status conference did not deprive him of an opportunity to support his request for
substitute counsel.
       At the status conference, the court permitted appointed counsel to remain on the case,
essentially denying the request for substitute counsel.         Unfortunately, our record of that
proceeding is very limited; we have no transcript but only court minutes summarizing the
proceedings.    Therefore, we cannot determine whether counsel’s responses to Mingo’s
complaints were pertinent or persuasive or whether the court’s determination was proper. We
know only that counsel “addressed petitioner’s concerns” and that the district court found the
explanation persuasive. It is the responsibility of an appellant to provide a sufficient record to
substantiate his or her claims on appeal. State v. Mowrey, 128 Idaho 804, 805, 919 P.2d 333,
334 (1996). In the absence of an adequate record on appeal to support the appellant’s claims, we
will not presume error. Id. Therefore, because Mingo failed to present an essential transcript,
we are constrained to hold that he has failed to show error when at the status conference the court
denied Mingo’s request for substitute counsel or to proceed pro se.
B.     The Court Was Not Required to Give Mingo Faretta Warnings
       Mingo argues that the district court erred by failing to warn him of the dangers of self-
representation before letting him represent himself at the evidentiary hearing. Mingo cites
authorities that stand for the proposition that criminal defendants should be given warnings
before they waive the right to counsel. See Faretta v. California, 422 U.S. 806, 819 (1975). In
Faretta, the Court held that the Sixth Amendment grants a criminal defendant the right to make
his defense personally, i.e., to proceed pro se. However, the Court recognized that in “most
criminal prosecutions defendants could better defend with counsel’s guidance than by their own
unskilled efforts.” Id. at 834. Because the choice to self-represent is usually so deleterious to a
defendant’s interests, Faretta requires that the trial court ensure that a defendant understands the
import of his decision before he waives the right to counsel:
       [H]e should be made aware of the dangers and disadvantages of self-
       representation, so that the record will establish that he knows what he is doing and
       his choice is made with eyes open.

Id. at 835 (internal quotation marks omitted).


                                                 6
          Mingo does not argue that the Faretta decision is directly applicable. He concedes that
the Faretta decision was based upon the Sixth Amendment right to counsel in criminal cases.
Likewise, he concedes that our Supreme Court has held that a post-conviction petitioner does not
enjoy a Sixth Amendment right to counsel. See Murphy, 156 Idaho at 394, 327 P.3d at 370.
Accordingly, rather than arguing that Faretta is directly applicable, Mingo asserts that the Due
Process Clause of the Fourteenth Amendment requires some warnings in the post-conviction
context.
          In support of his view, Mingo cites authority from a variety of other states. But, these
cases do not hold that Faretta warnings must be given to a post-conviction petitioner. For
example, a Florida court held that Faretta warnings are not required, but that a post-conviction
court should inquire to determine whether the petitioner’s decision is voluntary and intelligent.
Jones v. State, 69 So. 3d 329, 335 (Fla. Dist. Ct. App. 2011). Likewise, a Colorado court held
that the post-conviction court should develop a record to show that a petitioner’s decision was
voluntary, but need not give the warnings required by Faretta. People v. Duran, 757 P.2d 1096,
1097 (Colo. App. 1988).
          We conclude that no warnings were required in this case. Our Supreme Court has held
that even in criminal cases, the warnings suggested in Faretta are not necessarily required. The
Court described such warnings as one “prudent means to ensure the defendant’s grasp of the
disadvantages of self-representation.” State v. Dalrymple, 144 Idaho 628, 634, 167 P.3d 765,
771 (2007). Instead of deeming such warnings essential in every case, the Idaho Supreme Court
has held that it will search “the record as a whole to determine if [a criminal defendant]
knowingly, intelligently, and voluntarily waived his constitutional right” to counsel. Id. at 634,
167 P.3d at 771.       Thus, even assuming, arguendo, that Mingo was entitled to the same
protections as a criminal defendant, it is necessary only that the “record as a whole” show that
Mingo knowingly, intelligently, and voluntarily chose to discharge his attorney and proceed
pro se.
          The record here shows that Mingo’s decision was voluntary--he persistently requested
permission to represent himself. And, the record shows that Mingo understood “the dangers and
disadvantages of self-representation.” See Faretta, 422 U.S. at 835. As his own letters to the
district court show, Mingo understood that he was not trained in the law, that he had limited
access to legal materials, and that the State would be represented by trained attorneys. The

                                                 7
record is clear; Mingo voluntarily chose to represent himself with a basic understanding of the
risks that it entailed. Accordingly, although it might have been more prudent for the post-
conviction court to give warnings, the court did not commit reversible error by foregoing that
process.
                                               III.
                                        CONCLUSION
       Mingo has provided an insufficient record on appeal for the Court to review the denial of
his request for substitute counsel. Therefore, the district court’s order is affirmed. We conclude
that the post-conviction court did not err by omitting to give Faretta-style warnings where the
record shows that Mingo’s decision to proceed pro se was knowing, intelligent, and voluntary.
Therefore, the judgment dismissing Mingo’s petition for post-conviction relief is affirmed. No
costs to either party on appeal.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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