                          This opinion will be unpublished and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
                                     A15-1480

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Albert Silas Garner, Jr.,
                                       Appellant.

                                  Filed May 31, 2016
                                Reversed and remanded
                                    Larkin, Judge

                             Fillmore County District Court
                                 File No. 23-CR-15-373


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

Brett A. Corson, Fillmore County Attorney, Preston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


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

Judge.

                         UNPUBLISHED OPINION

LARKIN, Judge
       Appellant challenges his conviction of disorderly conduct, asserting violations of

his constitutional rights to counsel and trial by jury. Because the record does not establish

a valid waiver of appellant’s right to counsel, we reverse and remand for a new trial.

                                           FACTS

       Respondent State of Minnesota charged appellant Albert Silas Garner Jr. with two

counts of misdemeanor assault and two counts of disorderly conduct based on an argument

that he had with a neighbor. Garner appeared for arraignment without an attorney and

signed a statement-of-rights form advising him of his right to counsel. The district court

asked Garner if he wanted to be represented by an attorney. Garner responded that he could

not afford an attorney, and the district court instructed him to apply for a public defender.

As to arraignment, Garner described the charges as “bogus” and indicated that he wanted

to plead not guilty. The district court told Garner that it would schedule the case for a trial

and asked him if he wanted a court trial or a jury trial. Garner informed the district court

that “the Court’s decision would be suitable for myself.” The district court informed

Garner that it would schedule the case for a court trial and that he could change his mind

about a jury once he had a chance to talk to an attorney.

       Garner appeared for the scheduled court trial without an attorney. The district court

did not ask him about his public-defender application. Instead the district court asked, “you

continue to be representing yourself in this matter, is that correct?” Garner replied, “Yes,

sir.” The district court explained the trial process, including the state’s burden of proof,

and Garner’s right to cross examine the state’s witnesses, to present evidence, and to

remain silent. But the district court did not question Garner to ensure that he had made a


                                              2
knowing and intelligent decision to waive counsel. The district court held a trial and found

Garner guilty of one count of disorderly conduct and not guilty of the remaining charges.

         Garner appeals.1

                                          DECISION

         Garner challenges his conviction, arguing that it must be reversed because the

district court did not obtain a valid waiver of his constitutional rights to counsel and trial

by jury.

         Under Minn. Const. art. 1, § 6, there is a right to counsel in misdemeanor

cases. State v. Nordstrom, 331 N.W.2d 901, 903 (Minn. 1983). The right to counsel may

be waived if the waiver is knowing and intelligent. State v. Hawanchak, 669 N.W.2d 912,

914 (Minn. App. 2003). The district court has a duty to ensure a knowing and intelligent

waiver of the right to counsel. Id. Minn. Stat. § 611.19 (2014) requires that “[w]here

counsel is waived by a defendant, the waiver shall in all instances 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.” The

Minnesota Rules of Criminal Procedure also require that waivers be in writing or on the

record and prohibit the district court from accepting a defendant’s waiver unless it is made

with full knowledge and understanding of his rights, providing:

                 Defendants charged with a misdemeanor or gross
                 misdemeanor punishable by incarceration who appear without
                 counsel, do not request counsel, and wish to represent
                 themselves, must waive counsel in writing or on the record.
                 The court must not accept the waiver unless the court is

1
    The state did not file a brief in this appeal.

                                                     3
              satisfied that it is voluntary and has been made by the
              defendant with full knowledge and understanding of the
              defendant’s rights. The court may appoint the district public
              defender for the limited purpose of advising and consulting
              with the defendant about the waiver.

Minn. R. Crim. P. 5.04, subd. 1(3).

       If a defendant chooses to represent himself, the district court must ensure that the

defendant’s waiver of counsel is knowing and intelligent. Hawanchak, 669 N.W.2d at 915.

“Where there is no record of a defendant’s waiver of counsel, it is impossible to determine

upon appellate review whether a waiver was knowing and intelligent.” Id. “In such

instances, the defendant is entitled to a new trial.” Id. “[A] denial of the right to counsel

does not require a showing of prejudice to obtain reversal.” Id.

       In this case, the record does not contain an express written or oral waiver of Garner’s

right to counsel. Although the district court informed Garner of his right to counsel and

asked him if he wanted counsel when he appeared pro se for arraignment, the district court

did not question him to ensure that he had knowingly and intelligently waived his right to

counsel when he appeared pro se for trial. 2 We note that this is not a situation in which

Garner has a long criminal record or has previously been represented by counsel such that

we can infer a knowing and intelligent waiver of the right to counsel. See State v. Worthy,

583 N.W.2d 270, 276 (Minn. 1998) (stating that where a defendant fired his attorney and

had familiarity with the criminal justice system, an on-the-record inquiry regarding waiver

was unnecessary); see also State v. Krejci, 458 N.W.2d 407, 412-13 (Minn. 1990) (holding


2
 We encourage district courts to use Form 11, Petition to Proceed As Pro Se Counsel,
when establishing a waiver of the right to counsel.

                                              4
that a defendant’s unwillingness to accept representation from public defenders and

extensive conversations on the matter with multiple judges rendered an on-the-record

inquiry unnecessary).

          Because the record does not establish a knowing and intelligent waiver of Garner’s

right to counsel, we reverse and remand for a new trial on the single count of conviction.

Because we reverse and remand on this ground, we do not address Garner’s arguments

regarding the validity of his waiver of the right to trial by jury, except to note that the

Minnesota Rules of Criminal Procedure and caselaw provide guidance regarding the

requirements for a valid waiver. See Minn. R. Crim. P. 26.01, subd. 1(2)(a) (“The

defendant, with the approval of the court, may waive a jury trial on the issue of guilt

provided the defendant does so personally, in writing or on the record in open court, after

being advised by the court of the right to trial by jury, and after having had an opportunity

to consult with counsel.”); State v. Ross, 472 N.W.2d 651, 653-54 (Minn. 1991) (explaining

that “[t]he focus of [an] inquiry [regarding a jury waiver] is on whether the defendant

understands the basic elements of a jury trial” and providing guidelines for the district

court).

          Reversed and remanded.




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