                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0310

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Baron Montero Jones,
                                     Appellant.

                              Filed January 11, 2016
                              Reversed and remanded
                                Rodenberg, Judge

                           Hennepin County District Court
                              File No. 27-CR-14-1911

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his convictions of two counts of second-degree assault and

possession of a firearm by a prohibited person, appellant Baron Montero Jones argues,
among other things, that the district court erred in not affording appellant a renewed right

to counsel after amendment of the complaint to add additional charges, which increased

his potential punishment. We reverse and remand, and do not reach appellant’s other

arguments.

                                         FACTS

       This appeal follows appellant’s conviction of multiple offenses arising from his

actions in shooting a firearm in a garage on January 18, 2014. Despite there having been

three possible assault victims present, the state initially charged appellant with only a

single count of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1

(2012), and with being a prohibited person in possession of a firearm in violation of

Minn. Stat. § 624.713, subd. 1(2) (2012).

       On March 27, 2014, the district court held a pretrial hearing and appointed counsel

at appellant’s request. On July 30, 2014, appellant fired his public defender, waived his

right to counsel, and opted to represent himself. Appellant’s decision was seemingly

based on his appointed counsel’s refusal to advance appellant’s preferred arguments

concerning his identification as a “sovereign citizen,” the Uniform Commercial Code,

debtor/creditor law, the assistant county attorney’s “title of nobility,” and the district

court’s jurisdiction over him.

       A jury trial was held on September 17-25, 2014. At the beginning of trial, the

district court granted the state’s motion to amend the complaint by adding two additional

counts of second-degree assault against the second and third possible victims in the

January 18 incident. Appellant was not asked whether he desired counsel after the


                                             2
amendment or if he preferred to continue to represent himself. The state dismissed one of

those added counts the following day.

       On the second day of trial, and before a jury was empaneled, the district court

dismissed the prospective jury panel because, on the first day, appellant made potentially

prejudicial comments and appeared in jail attire. That same day, appellant raised a

constitutional challenge to a search, and the district court paused the trial proceedings and

held a Rasmussen hearing, State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141

N.W.2d 3 (1965), after which, the district court denied appellant’s suppression motion.

       At the conclusion of the Rasmussen hearing, appellant made a request to

relinquish self-representation. He told the district court that he realized he could not

adequately prepare his case, and thought he would be afforded a fair trial if the court

were to reappoint the same assistant public defender who represented him earlier. The

district court took appellant’s request under advisement during a recess and reviewed

relevant caselaw. After the recess, the district court provisionally denied appellant’s

request, stating:   “So since it’s impermissible to accomplish delay by reappointing

counsel or even considering reappointment of counsel, I’m going to continue going

forward while I wait to hear from [the public defender’s office].” Just before voir dire

commenced that afternoon, the district court stated on the record that it had received the

following response from the public defender’s office: “Our position is we will not

represent a client mid-trial under almost any circumstances.” Based on this response, the

district court concluded that the public defender’s office would not resume representation




                                             3
of appellant, and it denied appellant’s renewed request for counsel. Appellant therefore

continued to represent himself.

          The jury found appellant guilty of all charges. The district court then held a trial

pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.Ed.2d 403

(2004), on the sentencing issue, and the jury found that appellant was a danger to public

safety.     Between the Blakely trial and the sentencing hearing, appellant filed a

“Peremptory Writ of Mandamus, Writ of Prohibition and Writ of Supersedes Pursuant to

Minnesota Statutes §§ 586.04, 480A.06, subd. 5 and by Minnesota Constitution Article

VI § 2” in this court, arguing, among other things, that the district court lacked

jurisdiction over appellant as a sovereign person. We dismissed appellant’s petition.

          The district court sentenced appellant to the 84-month statutory maximum prison

term on the first assault conviction. It also sentenced appellant to a 71-month prison term

on the second assault conviction and a 60-month prison term on the prohibited-person

conviction, all to be served concurrently. This appeal followed.

                                        DECISION

          Appellant argues that the district court erred by allowing the state to amend the

complaint without appellant having been advised of his renewed right to counsel, and

proceeding to trial on the basis of his earlier request to represent himself. Whether a

waiver of a constitutional right is knowing, intelligent, and voluntary depends on the facts

and circumstances of the case, including the background, experience, and conduct of the

accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); State v.

Worthy, 583 N.W.2d 270, 275-76 (Minn. 1998). We review a district court’s finding that


                                               4
a defendant has knowingly, intelligently, and voluntarily waived his right to counsel for

clear error. State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009). “When the facts are

undisputed, however, the question of whether a waiver-of-counsel was knowing and

intelligent is a constitutional one that is reviewed de novo.” State v. Rhoads, 813 N.W.2d

880, 885 (Minn. 2012) (citation omitted).

      In Rhoads, the Minnesota Supreme Court held: “When the State files an amended

charge that doubles the maximum possible punishment after a hearing at which the

defendant waived his right to counsel, a defendant must renew his waiver of his right to

counsel in a manner that demonstrates an understanding of the increased maximum

possible punishment.” 813 N.W.2d at 882. The supreme court’s reasoning relied on the

importance of a defendant waiving counsel “with eyes open,” including to “the possible

punishments.” Id. at 888 (quoting State v. Camacho, 561 N.W.2d 160, 173 (Minn.

1997)). In holding that a renewed waiver was necessary, the supreme court focused on

the increased potential punishment resulting from the amendment. Id. at 888 (“[W]e

conclude that an exception to the general rule [that a renewed waiver is not required] is

unwarranted when the amended charge does not increase the possible range of

punishment.”).

      Here, it is undisputed that the district court did not renew appellant’s waiver-of-

counsel when the state amended the complaint by adding two additional second-degree-

assault counts.    Therefore, the issue is whether appellant’s maximum possible

punishment increased under the amended complaint.




                                            5
       The original complaint charged appellant with one count of second-degree assault

in violation of Minn. Stat. § 609.222, subd. 1, and being a prohibited person in possession

of a firearm in violation of Minn. Stat. § 624.713, subd. 1(2).        Under the original

complaint, appellant’s maximum possible punishment was 15 years in prison. Minn.

Stat. § 624.713, subd. 2(b). Any sentence on the second-degree-assault conviction would

have presumptively run concurrently with the firearm conviction.          See Minn. Sent.

Guidelines 2.F (2013) (establishing presumptive concurrent sentencing with multiple

offenses); id. at 6 (listing offenses eligible for permissive consecutive sentencing, which

includes second-degree assault, but not prohibited person in possession of a firearm).

       The amended complaint added two counts of second-degree assault. Under the

Minnesota Sentencing Guidelines, second-degree assault is eligible for permissive

consecutive sentencing. Minn. Sent. Guidelines 6. Because the state was pursuing an

aggravated sentence using the dangerous-offender statute, appellant’s maximum possible

punishment for the second-degree-assault convictions was 7 years in prison for each

conviction, for a total of 21 years. Under these circumstances, Rhoads requires the

district court to have again informed appellant of his right to counsel, despite appellant’s

earlier request to represent himself.    The district court’s failure to have done so is

reversible error under Rhoads.

       In sum, appellant’s statutory maximum possible punishment was 15 years under

the original complaint. Under the amended complaint, appellant’s statutory maximum

possible punishment was 21 years. We interpret Rhoads to require the district court to

have renewed appellant’s waiver of counsel because the amended charge increased his


                                             6
possible punishment.     Despite appellant’s rambling approach to self-representation,

untethered to any accepted legal arguments, and despite his unfounded insistence that he

never consented to a trial, the increased possible punishment occasioned by the state’s

amendment of the complaint triggered his constitutional right to counsel and to be so

advised. Without a renewal of his waiver at the time of the amendment, appellant was

unable to make the decision to proceed pro se “with eyes open . . . [to] the possible

punishments.” Rhoads, 813 N.W.2d at 888 (quoting Camacho, 561 N.W.2d at 173). We

therefore reverse appellant’s convictions and remand for a new trial.1

       Reversed and remanded.




1
 Because we reverse and remand under Rhoads, we do not address the issues raised in
appellant’s pro se brief.

                                            7
