Opinion
A21-0812
01-05-2022
State of Minnesota, Respondent, v. Jeremiah Adam Torke, Appellant.
Kandiyohi County District Court File No. 34-CR-19-1094
Considered and decided by, Gaïtas Presiding Judge; Smith, Tracy M., Judge; and Slieter, Judge.
ORDER OPINION
Theocjora Gaïtas Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Jeremiah Adam Torke appeals from the district court's restitution order requiring him to pay $39,361.20. He argues that the district court violated his constitutional right to counsel by not ensuring that he validly waived counsel before representing himself at a contested restitution hearing.
2. In November 2019, respondent State of Minnesota charged Torke with attempted second-degree intentional murder, Minn. Stat. §§ 609.17, subd. 1, .19, subd. 1(1) (2018), first-degree assault, Minn. Stat. § 609.221, subd. 1 (2018), second-degree assault, Minn. Stat. § 609.222, subd. 1 (2018), and threats of violence, Minn. Stat. § 609.713, subd. 1 (2018).
3. Represented by counsel, Torke entered into a plea agreement with the state in August 2020. In exchange for his guilty plea to first-degree assault, the state dismissed the other charged offenses and agreed that Torke would receive a 103-month prison sentence. The agreement did not include restitution.
4. On November 18, 2020, Torke appeared for sentencing, again represented by counsel. The district court followed the plea agreement and sentenced Torke to 103 months in prison. Following the imposition of sentence, the district court asked the prosecutor whether there were any "restitution matters" and the prosecutor responded that there were not.
5. On January 4, 2021, the state filed a motion requesting restitution in the amount of $39,361.21. Torke submitted a handwritten objection to the state's motion.
6. The district court held a remote contested restitution hearing on March 29, 2021. Torke appeared without counsel. The district court did not ask Torke whether he wanted the assistance of counsel during the hearing. And the district court did not obtain a waiver of counsel.
7. After the hearing, the district court issued an order requiring Torke to pay $39,361.20 in restitution.
8. Defendants in criminal prosecutions have a constitutional right to counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. This right extends to each critical stage of the proceedings. State v. Maddox, 825 N.W.2d 140, 144 (Minn.App. 2013). A restitution hearing is a critical stage in a criminal prosecution "to which an accused's right to counsel applies." Id. at 146.
9. A defendant may waive the right to counsel if the waiver is knowing, voluntary, and intelligent. Id. at 147. The waiver must be in writing in felony cases unless the defendant refuses to sign a waiver. Id. A district court should "comprehensively examine" a defendant to ensure that a waiver of counsel is knowing, voluntary, and intelligent. Id. (citing State v. Rhoads, 813 N.W.2d 880, 885-86 (Minn. 2012)).
10. In determining whether a defendant's right to counsel was violated when the underlying facts are undisputed, we apply a de novo standard of review. State v. Slette, 585 N.W.2d 407, 409 (Minn.App. 1998).
11. Torke argues that the district court violated his constitutional right to counsel by failing to obtain his waiver of counsel before proceeding with the contested restitution hearing. We agree.
12. The district court did not ask Torke whether he wanted to be represented by counsel. Moreover, the district court did not obtain a written or oral waiver of counsel from Torke.
13. "The denial of the right to counsel is a structural error that does not require a showing of prejudice to obtain reversal." Maddox, 825 N.W.2d at 147 (quotations and citations omitted).
14. The state concedes that the district court violated Torke's right to counsel by not obtaining a waiver of that right before proceeding with the restitution hearing. Likewise, the state agrees with Torke that we should reverse the restitution order and remand for a new restitution hearing.
15. Because Torke was denied his constitutional right to counsel and he did not validly waive that right, there was structural error requiring reversal of the district court's restitution order and a new restitution hearing.
IT IS HEREBY ORDERED:
1. The district court's order is reversed and remanded.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.