Opinion
A15-1025
02-08-2016
State of Minnesota, Respondent, v. Eugene Thomas Powells, Appellant
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry III, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Worke, Judge Hennepin County District Court
File Nos. 27-CR-13-34830, 27-CR-12-36352 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry III, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Larkin, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant argues that the district court erred by failing to: (1) advise him of his Morrissey rights; (2) advise him of his rights pursuant to Minn. R. Crim. P. 27.04; and (3) secure a valid waiver of his right to counsel. We affirm.
FACTS
In March 2013, appellant Eugene Thomas Powells pleaded guilty to third-degree criminal sexual conduct. A public defender represented Powells. The district court followed the parties' plea agreement and sentenced Powells to 117 months in prison, but stayed execution of the sentence for ten years. The district court ordered Powells to successfully complete sex-offender treatment, remain law abiding, and register as a predatory offender.
In April 2014, Powells pleaded guilty to simple robbery. A public defender represented Powells. Powells was informed that pleading guilty would result in a probation violation and waived his right to a Morrissey hearing on the probation violation. The district court revoked one year of Powells's probation. The terms of Powells's probation remained in effect. In August 2014, the state requested revocation of Powells's probation because he absconded from sex-offender treatment and could not be found.
A Morrissey hearing guarantees a probationer the opportunity to be heard in person and to present witnesses and documentary evidence prior to probation revocation. See Morrissey v. Brewer, 408 U.S. 471, 487-89, 92 S. Ct. 2593, 2603-04 (1972) (listing procedural due process rights that a parolee is entitled to before revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1757 (1973) (extending Morrissey procedural due process rights to probationers). --------
In January 2015, Powells appeared with a public defender for a Morrissey hearing. Powells requested a continuance to hire private counsel. The district court informed Powells (1) of the allegations against him, (2) of the nature of the hearing, (3) that the state asked for execution of his sentence if he was found in violation of probation, (4) that the state agreed to reduce his sentence if he admitted the violations, and (5) that it would not grant Powells another continuance. Despite this information, Powells requested and was granted a continuance.
In March 2015, Powells appeared with a public defender for his continued Morrissey hearing. At the beginning of the hearing, Powells stated, "I do not want [defense counsel] as my lawyer. I do not want him. I need different counsel. I don't feel he is benefiting me in no type of way." The district court stated that Powells could accept the state's offer, proceed with the hearing with his public defender, or proceed with the hearing representing himself. Powells stated, "I'll represent myself[,]" but requested time to look at the case. The district court denied Powells's request for a continuance and advised him to retain the services of his public defender. The district court asked Powells how he wished to proceed and testimony started after Powells failed to respond. Powells's public defender continued to represent him.
During testimony, Powells stated, "Can we get this over with, man? Just give me the time. . . . My rights are being violated anyway. I just said I don't want [the public defender] to represent me, and [the district court] violated my rights." The district court informed Powells that he could either demand execution of his sentence or continue with the hearing. Then the following occurred:
DEFENSE COUNSEL: Your Honor, I guess I feel obligated at least to make a record in that Mr. Powells is asking to represent himself. I'm prepared to represent him. . . . I believe the [c]ourt maybe has already ruled on that request. But as his attorney, he also has a right to represent himself, and he is indicating he wants to do that. Maybe the [c]ourt has made the record the [c]ourt wants to make on that issue.
THE COURT: Well, I'm actually unclear. The last time I asked Mr. Powells if he wanted to go forward with today's hearing representing himself or if he wanted you to represent him, he did not respond. So, I haven't heard affirmatively from Mr. Powells if he wishes to have you represent him or not. Mr. Powells?
THE DEFENDANT: I'm representing myself.
THE COURT: Okay.
THE DEFENDANT: I need time.
THE COURT: All right. Well, we're having the hearing this afternoon, and [defense counsel], you are discharged then. You no longer have to represent Mr. Powells based on his request.
DEFENSE COUNSEL: It would be my intention to remain in the courtroom, Your Honor.
THE DEFENDANT: I'll represent myself.
DEFENSE COUNSEL: Okay. For whatever reason, there's a change in circumstances, I intend to make myself available. But I will leave counsel table. I will just note for the record that I have the exhibits here. I believe Mr. Powells has all discovery I've been provided, although it is not with him here in the courtroom.
The hearing proceeded with Powells representing himself. After the state finished questioning Powells's probation officer, the district court asked Powells if he wished to inquire, and he declined. Powells requested time to prepare his case because he did not receive complete discovery. The district court continued the hearing. Powells appeared for the continued hearing, but did not present any witnesses, evidence, or testimony. The district court concluded that Powells violated probation by failing to complete sex-offender treatment and executed his sentence. This appeal follows.
DECISION
Rights advisory
Powells first argues that the district court erred by failing to advise him of his Morrissey rights. But Powells's argument lacks merit because in State v. Beaulieu, the supreme court stated that probationers "do[] not have a separate constitutional right 'to be advised' that [they] [have] the procedural due process rights articulated in Morrissey." 859 N.W.2d 275, 280 (Minn. 2015).
Powells next argues that the district court erred by failing to advise him of his rights pursuant to Minn. R. Crim. P. 27.04. When a probationer first appears at a probation-revocation proceeding on the warrant or summons, the district court must inform the probationer of his rights to:
a. a lawyer, including an appointed lawyer if the probationer cannot afford a lawyer;
b. a revocation hearing to determine whether clear and convincing evidence of a probation violation exists and whether probation should be revoked;
c. disclosure of all evidence used to support revocation and of official records relevant to revocation;
d. present evidence, subpoena witnesses, and call and cross-examine witnesses, except the court may prohibit the probationer from confrontation if the court believes a substantial likelihood of serious harm to others exists;
e. present mitigating evidence or other reasons why the violation, if proved, should not result in revocation;Minn. R. Crim. P. 27.04, subd. 2(1)(c). These rights "reflect the rights articulated in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, [2604] (1972), and its progeny." Beaulieu, 859 N.W.2d at 277.
f. appeal any decision to revoke probation.
We review for plain error because Powells did not object to the district court's failure to comply with rule 27.04. See id. at 281 (applying the plain-error doctrine because defense counsel did not object to the district court's failure to comply with rule 27.04). Powells must show that (1) an error occurred, (2) the error was plain, and (3) the error affected his substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Here, when Powells appeared for violating probation by absconding from treatment, the district court did not advise him of his rights pursuant to rule 27.04. The district court's failure to read the rule 27.04 advisory constitutes plain error. See Beaulieu, 859 N.W.2d at 281-82.
Next, Powells must meet his "heavy burden" of establishing that the error affected his substantial rights. Griller, 583 N.W.2d at 741. An error affects substantial rights "if the error was prejudicial and affected the outcome of the case." Id. Powells rests his argument on the conclusion that the district court erred by failing to advise him of his rights. Powells does not explain how the error affected his substantial rights. Thus, Powells's argument fails because he failed to meet his burden of establishing that the error affected his substantial rights. Id.
Even if Powells attempted to establish how the error affected his substantial rights, Powells's argument would fail. At his first probation-violation hearing, the district court advised Powells of the allegation and that he could request a separate hearing, requiring the state to prove his violation by clear and convincing evidence. Powells agreed to give up his right to a Morrissey hearing and pleaded guilty to simple robbery, stating, "[Y]es, I had time to talk to [my lawyer] about that."
At Powells's first appearance for violating probation by absconding from treatment, the district court informed Powells of the allegations and that the state must prove his violation by clear and convincing evidence. Powells was represented by a public defender, but the district court granted Powells a continuance to hire an attorney.
Additionally, despite Powells's requests to end his Morrissey hearing, the district court considered all of the state's evidence, granted Powells a continuance to allow him to prepare his case, and found that Powells violated probation after he refused to provide evidence on his behalf. Therefore, the district court's plain error did not affect Powells's substantial rights.
Right to counsel
Powells argues that the district court erred by failing to secure a valid waiver of his right to counsel. Criminal defendants are guaranteed the right to counsel. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. But this right may be relinquished by "(1) waiver, (2) waiver by conduct, [or] (3) forfeiture." State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009). A defendant's waiver of the right to counsel must be made knowingly, intelligently, and voluntarily. Id. When determining whether a defendant validly waived his right to counsel, this court considers "the facts and circumstances of the case, including the background, experience, and conduct of the accused." State v. Rhoads, 813 N.W.2d 880, 884 (Minn. 2012). This court reviews a waiver-of-counsel claim for clear error. Id. at 885. "A finding is clearly erroneous when there is no reasonable evidence to support the finding or when an appellate court is left with the definite and firm conviction that a mistake occurred." Id.
We conclude that the record reflects that Powells knowingly, intelligently, and voluntarily waived his right to counsel for the following reasons. First, Powells was represented by counsel at prior hearings, his attorney made arguments on his behalf, and the district court specifically advised him against discharging his attorney. In State v. Jones, the defendant's attorney represented him in proceedings, argued on his behalf, and the district court advised against self-representation. 266 N.W.2d 706, 711-12 (Minn. 1978). The supreme court noted that the district court should have made a more in-depth waiver inquiry but concluded that "the record as a whole supports the conclusion that [the] defendant's waiver of counsel was knowing, intelligent, and voluntary." Id. at 712.
Second, Powells knew of the consequences of proceeding pro se. The district court granted Powells a continuance to hire a private attorney but informed Powells that he would not receive another continuance. The district court specifically informed Powells of the nature of the proceedings, the allegations he faced, and the punishment sought by the state. Thus, Powells knew of the consequences of proceeding pro se. See State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (upholding waiver when the defendants were represented by counsel for over a month and warned that they would not receive another continuance if they chose to fire their attorney); State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990) (stating that the defendant's refusal to proceed with the public defender when he failed to retain private counsel did not make the waiver invalid).
Finally, Powells repeatedly requested to represent himself. In State v. Nelson, this court upheld a waiver when the defendant requested to represent himself at three different proceedings despite the district court's reiteration of his right to counsel and the consequences of proceeding pro se. 523 N.W.2d 667, 670-71 (Minn. App. 1994). Here, Powells requested to represent himself three times, but they all occurred during the same hearing. The district court, however, previously informed Powells that he would not receive another continuance and that his next hearing would involve either a contested hearing or an admission. Therefore, the district court did not fail to secure a knowing, intelligent, and voluntary waiver from Powells.
Affirmed.