                            This opinion will be unpublished and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
                                       A15-0987

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                     Scott Richard Seelye,
                                           Appellant.

                                   Filed May 23, 2016
                     Affirmed in part, reversed in part, and remanded
                                       Reilly, Judge

                                  Cass County District Court
                                   File No. 11-CR-12-1838

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Stauber,

Judge.

                           UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges his convictions of terroristic threats and second-degree assault,

arguing that (1) the district court deprived him of his constitutional right to self-

representation; (2) the chief judge of district court abused its discretion by declining to
remove the district court judge presiding over the case; (3) the district court abused its

discretion by allowing the state to amend the complaint after the close of evidence; (4) the

case should be remanded for resentencing; and (5) the district court violated his right to a

speedy trial and deprived him of his Sixth Amendment right to counsel. We reverse and

remand for resentencing but affirm in all other respects.

                                           FACTS

       In August 2012, M.B., C.M., and C.A. were walking along a highway in Cass

County when appellant Scott Richard Seelye drove up behind them in his car. Appellant

attempted to speak with the group several times and invited the women, M.B. and C.A.,

into his car. The women refused appellant’s offer and continued walking with C.M.

Appellant stepped out of his car and began yelling homophobic slurs at C.M. Appellant

returned to his car, steered his car toward the group, and drove up behind C.M. C.M. ran

off the road in an attempt to avoid appellant, but appellant struck C.M. with his car, causing

C.M. to fall to the ground with appellant’s car on top of him. C.M. suffered injuries to his

legs as a result of the incident. The state subsequently charged appellant by amended

complaint with attempted first-degree premeditated murder, attempted first-degree

intentional felony murder, three counts of second-degree assault with a dangerous weapon

against each of the three victims, and terroristic threats.

       This case has a lengthy procedural history involving multiple judicial officers,

numerous attempts to remove each judge, several continuances, nine separate appeals all

of which have been denied at the appellate court level, and appellant’s hunger strike,

resulting in long delays between the charging date and the jury trial. The case ultimately


                                               2
proceeded to trial in January 2015. The jury found appellant guilty of second-degree

assault with a dangerous weapon (fear) against C.M. and terroristic threats, but acquitted

appellant of the remaining charges. The district court sentenced appellant to a 36-month

prison term for terroristic threats, concurrent to a 68-month prison term for second-degree

assault with a dangerous weapon. This appeal followed.

                                      DECISION

       Appellant raises several issues on appeal. First, appellant argues that the district

court erred in ruling that he relinquished his constitutional right to self-representation.

Second, appellant claims that the district court judge should have been disqualified. Third,

we consider whether the district court abused its discretion by permitting the state to amend

the complaint after the close of evidence. Fourth, we review the record for errors in

sentencing. Lastly, appellant raises additional arguments in his pro se brief that the district

court violated his right to a speedy trial and denied him effective assistance of counsel. We

address each argument in turn.

                                              I.

       Appellant argues he is entitled to a new trial because the district court erred in

determining that he forfeited his right to self-representation.          A defendant has a

constitutional right to represent himself in a state criminal proceeding. State v. Thornblad,

513 N.W.2d 260, 262 (Minn. App. 1994) (citing Faretta v. California, 422 U.S. 806, 836,

95 S. Ct. 2525, 2541 (1975)). A criminal defendant may represent himself if the district

court determines that the defendant’s request is “clear, unequivocal, and timely,” and if the

defendant “knowingly and intelligently waive[d] his right to counsel.” State v. Richards,


                                              3
456 N.W.2d 260, 263 (Minn. 1990) (citation omitted). However, the right to self-

representation is not absolute. Faretta, 422 U.S. at 835 n.46, 95 S. Ct. 2525.

       Constitutional rights may be relinquished in one of three ways: (1) waiver,

(2) waiver-by-conduct, and (3) forfeiture. State v. Jones, 772 N.W.2d 496, 504 (Minn.

2009). Waiver is defined as the voluntary relinquishment of a known right, and must be

knowing, intelligent, and voluntary. Id. at 504. The district court must “fully advise” the

defendant of the nature of the charges, the possible punishment, mitigating circumstances,

and the “facts essential to a broad understanding of the consequences of the waiver” of a

constitutional right. Id. (citations omitted). Waiver-by-conduct occurs when a defendant

“voluntarily engag[es] in misconduct.” Id. at 505. Waiver-by-conduct also requires the

district court to warn the defendant about the consequences of his conduct. Id. Finally,

forfeiture occurs when a defendant who engages in extremely serious conduct may be said

to have forfeited his rights. Id.; State v. Beaulieu, 859 N.W.2d 275, 279 (Minn. 2015), cert.

denied, 136 S. Ct. 92 (2015) (defining forfeiture). Unlike the first two categories, forfeiture

does not require the district court to conduct a waiver colloquy with the defendant. Jones,

772 N.W.2d at 505. See also United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995)

(stating that unlike waiver, “forfeiture results in the loss of a right regardless of the

defendant’s knowledge thereof and irrespective of whether the defendant intended to

relinquish the right”). Instead, a district court may terminate a self-represented litigant if

he “deliberately engage[s] in serious and obstructionist misconduct,” “abuse[s] the dignity

of the courtroom,” Faretta, 422 U.S. at 834 n.46, or where self-representation unduly

delays or disrupts trial, State v. Paige, 765 N.W.2d 134, 139-40 (Minn. App. 2009). We


                                              4
review a district court’s forfeiture determination for clear error. State v. Worthy, 583

N.W.2d 270, 276 (Minn. 1998).

      The district court detailed appellant’s numerous tactics designed to delay trial and

determined that appellant’s conduct constituted a forfeiture of his right to self-

representation. The district court noted that appellant’s “multiple motions to remove for

cause and subsequent appeals have delayed the case substantially and prevented the Court

from addressing the issues surrounding the charges against [appellant]” and found that

“instead of attempting to defend himself and address the issues in this case, it is

[appellant’s] clear intent to continue to accuse and disparage the Court of impropriety and

felony level offenses all in an attempt to delay the proceedings.” The district court also

addressed appellant’s courtroom demeanor and the “multiple occasions” appellant

“exhibited a lack of decorum by slandering the Court, assistant county prosecutor, advisory

council, and [the] court reporter,” often resulting in appellant’s removal from the

courtroom, causing further delay.

      Appellant concedes that he was disruptive and argumentative in the courtroom but

claims his conduct did not “abuse the dignity of the courtroom” to the extent that it

constitutes a forfeiture of his right to self-representation. We disagree. Whether the

forfeiture of a constitutional right is valid depends upon the particular facts and

circumstances of the case. Worthy, 583 N.W.2d at 275. Our thorough review of the record

reveals that appellant’s disruptive conduct resulted in a 22-month delay between the

charging document and trial. During that time, appellant attempted to remove each judicial

officer assigned to his case, filed nine unsuccessful appeals, disrupted the courtroom


                                            5
proceedings to such a degree that he was removed from the courtroom, and went on a

hunger strike.1 A defendant may not use the right to self-representation “as a tactic for

delay, for disruption, for distortion of the system, or for manipulation of the trial process.”

United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010) (citations omitted). We find no

error in the district court’s conclusion that appellant’s relinquishment was valid.

       Appellant argues that the district court failed to warn him that his obstructionist

conduct could lead to a forfeiture of his right to self-representation. Appellant does not

cite to any legal authority to support his argument that the district court had an affirmative

duty to warn defendant that his delay tactics could be construed as waiver of his right to

represent himself, and we deem this argument waived. See State v. Butcher, 563 N.W.2d

776, 780 (Minn. App. 1997) (stating that issues not adequately briefed on appeal are

waived), review denied (Minn. Aug. 5, 1997). And Jones instructs that forfeiture does not

impose a duty-to-warn requirement upon the district court. 772 N.W.2d at 505. Forfeiture

is reserved for “severe misconduct, when other efforts to remedy the situation have failed.”

Id. Given the facts of this case, it was evident that appellant’s behavior was intended to

cause delay and disruption of the proceedings and forfeiture was appropriate. Appellant is

therefore not entitled to a new trial on this basis.




1
  We note that it is difficult, if not impossible, to represent one’s self, if one has been
removed from the courtroom.


                                               6
                                             II.

      Appellant challenges the chief judge’s order denying appellant’s motion to remove

the assigned district court judge for cause. Because this court previously determined that

appellant’s removal motion had no merit, State v. Seelye, No. A14-0298 (Minn. App.

Mar. 6, 2014) (order op.), appellant is foreclosed from seeking the same relief now under

the law-of-the-case doctrine. See Townsend v. State, 867 N.W.2d 497, 501 (Minn. 2015)

(stating that the law-of-the-case doctrine bars issues that have previously been decided in

the same case). “Law-of-the-case doctrine commonly applies to issues decided in earlier

stages of the same case.” State v. Miller, 849 N.W.2d 94, 98 (Minn. App. 2014) (citation

omitted). The law-of-the-case doctrine provides that “when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages in the

same case.” Id. (quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391

(1983) (emphasis in original)). Here, appellant asserts the same arguments that a special

term panel of this court previously found unconvincing. This court already “thoroughly

reviewed” the record and was “not persuaded” that the lower court’s removal decision was

erroneous. There is no basis to reconsider appellant’s argument now.

                                             III.

       Appellant argues he is entitled to a new trial because the district court permitted the

state to amend the complaint after the close of evidence. “[T]he liberality to be shown in

the allowance of amendments to pleadings depends in part upon the stage of the action and

in a great measure upon the facts and circumstance of the particular case.” Bebo v.

Delander, 632 N.W.2d 732, 741 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).


                                              7
Minnesota law permits the district court to amend a criminal complaint any time before a

verdict “if no additional or different offense is charged and if the defendant’s substantial

rights are not prejudiced.” Minn. R. Crim. P. 17.05. “A ‘different offense’ is charged if

an amendment affects an ‘essential element’ of the charged offense.” State v. Guerra, 562

N.W.2d 10, 13 (Minn. App. 1997) (citation omitted). The purpose of rule 17.05 is to

prevent jury confusion and to ensure that the defendant is provided timely notice and an

opportunity to prepare a defense. Id. at 13-14. We review a district court’s decision to

allow an amendment to a complaint for an abuse of discretion. State v. Ostrem, 535

N.W.2d 916, 922 (Minn. 1995).

        The state charged appellant with three counts of second-degree assault with a

dangerous weapon against M.B., C.M., and C.A. Count III alleged that: “[appellant] . . .

did assault another with a dangerous weapon, namely: [C.M.]” in violation of Minnesota

Statutes section 609.222, subdivision 1. Following the close of evidence, the state moved

to amend the complaint by replacing count III with three separate counts charging assault

(fear), assault (harm), and attempted assault. See Minn. Stat. § 609.02, subd. 10 (2014)

(defining assault). The district court granted the motion over appellant’s objection and

instructed the jury on the definitions of assault (fear), assault (harm), and attempted assault.

       Appellant argues that the amendment hindered his ability to prepare an adequate

defense.   We disagree because no different offense was charged by allowing the

amendment. Section 609.222 provides that “[w]hoever assaults another with a dangerous

weapon may be sentenced to imprisonment for not more than seven years or to payment of

a fine . . . or both.” Minn. Stat. § 609.222, subd. 1 (2014). “Assault” is defined as “(1) an


                                               8
act done with intent to cause fear in another of immediate bodily harm or death; or (2) the

intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.

§ 609.02, subd. 10. The statute provides three alternative ways a defendant can commit

assault. See State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012) (characterizing subdivision

1 as “assault-fear” and subdivision 2 as “assault-harm” and attempted assault). Therefore,

instructing the jury on assault (fear), assault (harm), and attempted assault did not “affect

an ‘essential element’ of the charged offense.” Guerra, 562 N.W.2d at 13.

       Further, we conclude that appellant was not prejudiced by the amendment. The

amendment did not “confus[e] the jury, violat[e] due process notions of timely notice, [or]

adversely affect[] the [defendant’s] trial tactics.” Guerra, 562 N.W.2d at 13 (quotation

omitted). Rule 17.05 is designed to “provide the defendant with notice and an opportunity

to prepare his or her defense.” State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997). The

charging document provided appellant with adequate notice of the charges against him,

specifically, that he assaulted C.M. The amendment did not adversely affect appellant’s

trial tactics or confuse the jury and we therefore conclude that the district court did not

abuse its discretion by granting an amendment under rule 17.05.

                                            IV.

       Appellant seeks a remand for resentencing on the ground that the district court

erroneously sentenced him on both terroristic threats and assault, and the state agrees.

Generally, “if a person’s conduct constitutes more than one offense under the laws of this

state, the person may be punished for only one of the offenses and a conviction or acquittal

of any one of them is a bar to prosecution for any other of them.” Minn. Stat. § 609.035


                                             9
(2012). This rule does not “immunize” a defendant from “the consequences of separate

crimes intentionally committed in a single episode against more than one individual,” State

v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012), or where multiple sentences do not

unfairly exaggerate the criminality of the defendant’s conduct, State v. Schmidt, 612

N.W.2d 871, 878 (Minn. 2000). Whether an offense is subject to multiple sentences is a

question of law subject to de novo review. Ferguson, 808 N.W.2d at 590.

       Here, remand is appropriate because appellant’s behavior arose from a single

behavioral incident. “Whether two acts are part of a single course of conduct depends on

the facts of the particular case.” State v. Bakken, 871 N.W.2d 418, 425 (Minn. App. 2015)

(citing State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994)). The reviewing court considers

“the factors of [a unity of] time and place and whether a defendant is motivated by a single

criminal objective.” Id. (citing State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995)).

The parties agree that appellant’s conduct occurred at the same time, in the same vicinity,

and encompassed a single criminal objective, namely, to harass and threaten C.M. We

agree and reverse and remand to the district court for resentencing on the second-degree

assault conviction, which carries the higher severity level. See Minn. Sent. Guidelines cmt.

2.B.101 (“In cases of multiple offenses occurring in a single behavioral incident in which

state law prohibits the offender being sentenced on more than one offense, only the offense

at the highest severity level should be considered.”).

                                             V.

       Appellant raises two additional arguments in his supplemental pro se brief. First,

appellant argues that his right to a speedy trial was violated. Second, appellant argues that


                                             10
the district court violated his Sixth Amendment right to counsel. Appellant fails to cite to

relevant facts or legal authority to support these arguments and we consider them waived.

See State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (waiving arguments raised in

supplemental pro se brief that were “unsupported by any facts in the record” and contained

“no citation to any relevant legal authority”).

       Affirmed in part, reversed in part, and remanded.




                                             11
