State v. Jones

*500OPINION

On February 16, 2007, a Scott County jury found appellant Don Antoine Jones guilty of three felonies: check forgery (greater than $2,500), Minn.Stat. § 609.631, subds. 2, 4(2) (2008); offering a forged check (greater than $2,500), Minn. Stat. § 609.631, subds. 3, 4(2) (2008); and theft by swindle (greater than $2,500), Minn.Stat. § 609.52, subds. 2(4), 3(2) (2008). The district court convicted Jones on all three charges and sentenced him on the check forgery charge to 30 months with the Commissioner of Corrections. The court of appeals affirmed his conviction, and Jones raises the following four issues on appeal: (1) whether the district court erred by denying Jones’s application for a public defender; (2) whether Jones’s waiver of counsel was valid; (3) whether the State committed misconduct; and (4) whether the district court erred by not appointing advisory counsel for Jones. We affirm.

Jones and his girlfriend, Shannon Duff-ney, co-owned Shanndyn’s Towing & Recovery, and jointly opened two business accounts at TCF Bank. The accounts were opened in late 2004 and were both closed by August 2005. On January 9, 2006, Jones deposited to an account at Guaranty Bank an alleged payroll check drawn on one of the closed TCF accounts in the amount of $3,600. The check bore the signature of Vicky Duffney, Shannon’s mother, and it was endorsed by Jones. Two days later, TCF returned the check to Guaranty Bank because the TCF account had been closed. Guaranty Bank demanded repayment from Jones, but Jones never repaid the money.

Guaranty Bank contacted the police on January 21, 2006, and in the course of the investigation, Detective Laura Kvasnieka learned that Vicky Duffney denied signing the check and had nothing to do with Shanndyn’s Towing & Recovery. Detective Kvasnieka also taped an interview with Shannon, in which Shannon confirmed that the towing business was closed and that the signature on the check was not her mother’s.

Jones was arrested and appeared without counsel for his bail hearing on February 27, 2006. The district court informed Jones that he had a right to counsel and could apply for 'services from the public defender. Jones posted bail, and on March 3, 2006, he told the district court, “I’m going to- get a private attorney.” Jones stated that he could find one by May, and the State asked for a continuance of the hearing.

On May 5, 2006, Jones appeared without counsel for his first appearance. Jones applied for a public defender, but the district court denied his application. No rationale on the record was given for the denial. The application, dated May 5, 2006, indicated that Jones had no job but had no expenses for rent or food because he lived with his sister. The application showed that Jones also lived with his 1-year-old daughter, and his girlfriend, Shannon, who was earning $2,080 a month. Jones owned a car and had monthly expenses of less than $1,500 for the car and child support. The value of the car was equal to the debt owed on the car. At the top of the application, the words “deny— over guidelines” were circled. On the record, the district court stated that this was the second time Jones had been denied a public defender, and recommended that he seek a continuance to retain counsel from the court’s list of reduced-fee attorneys. Jones replied, “I can hire one myself in probably about a month. I am probably going to have to sell my truck to pay for any — that was probably the reason why I *501was denied the first time, because of my truck.”

Jones told the district court on June 9, 2006, that he was denied twice for a public defender and that none of the reduced-fee attorneys worked out for him. The district court gave Jones a copy of the complaint and reiterated that he could apply for a public defender or that a list of reduced-fee attorneys could be provided. Jones then waived his right to an attorney for the first appearance. On September 8, 2006, Jones appeared for his omnibus hearing. After speaking with Jones, the prosecutor informed the district court that Jones wanted to set the case for trial. Jones told the district court that he was “kind of getting a little stable” and could contact one of the reduced-fee attorneys. The district court set the jury trial for a date in January so that Jones could appear in court with a lawyer.

Jones appeared for trial, again without counsel, on January 16, 2007. Before voir dire began, Jones objected to proceeding without counsel, claiming that he had wrongly been denied a public defender three times. The district court (but not the same district court judge who had presided over earlier proceedings) noted that his previous application was denied based on his income, expenses, and his live-in girlfriend’s income, and the district court stated that it would not review that decision. By this time, Jones was employed, and the district court noted that Jones’s current earnings would disqualify him from a public defender. The district court also stated that Jones’s failure to retain counsel during the previous continuances meant that no further continuances would be granted. Jones mentioned that he had a lawyer for an open case in Dakota County, but that he could not afford counsel for another case. He stated that the court kept offering him a public defender application or a reduced-fee attorney list, but neither option worked for him. After a brief recess, the district court stated that Jones’s Dakota County lawyer was willing to represent Jones but was waiting for his retainer to be paid by Jones before undertaking to represent Jones on another matter. The district court acknowledged that “Jones has been doing the things he has to do but just not finalizing them.” The jury trial was continued to February 14, 2007, and the court warned Jones that his attorney should file a certificate of representation by January 30.

But on February 14, Jones appeared again without counsel. The district court told him, “[M]y plan is to have a Jury Trial today and assume that you have given up your right to have an attorney represent you since you have chosen not to retain anybody and have them here today.” Jones argued that he had wrongly been denied a public defender because his girlfriend had a job. When Jones objected to the district court’s statement that he was choosing to represent himself, the court had an extended conversation with Jones about his financial situation. As a result, the court ordered Jones to fill out another application for a public defender to make the record clear.

The application dated February 14, 2007, indicated that Jones was employed, making $12 an hour plus overtime and was getting a raise to $15 an hour. Shannon was also working, and the two were making at least $4,500 a month together. Jones listed expenses for rent, food, daycare, and child support totaling less than $3,000 a month. The court collector explained on the record that Jones was ineligible because his income alone, including overtime, was greater than 125% of the poverty guidelines. The district court, without saying more, denied Jones’s application.

*502Jones appeared for jury trial that afternoon. The prosecutor asked the district court “to get an informed waiver of counsel on the record.” The court conducted a brief waiver of counsel colloquy, in which Jones acknowledged that he had the right to an attorney, that he had been refused a public defender four or five times, and that he had been unable to retain counsel on his own. Jones agreed that he would represent himself. The jury found Jones guilty on all three charges, and the court of appeals affirmed his conviction.,

I.

Jones contends that his May 5, 2006, and February 14, 2007 applications for a public defender were improperly denied.1 Although the right to counsel is constitutional, U.S. Const. amend. VI; Minn. Const. art. I, § 6, the right to representation by a public defender is statutory, Minn.Stat. § 611.14 (2008). A defendant entitled to representation by a public defender under section 611.14 is eligible for public defender services only if he or she is financially unable to afford or obtain counsel. Minn.Stat. § 611.15 (2008); Minn. R.Crim. P. 5.02, subd. 1(2). The district court shall not appoint counsel for a defendant who is financially able to retain private counsel but refuses to do so. Minn. Stat. § 611.17(b) (2008); Minn. R.Crim. P. 5.02, subd. 1(2). The district court must screen any request for a public defender using the following standard:

A defendant is financially unable to obtain counsel if:

(1) the defendant, or any dependent of the defendant who resides in the same household as the defendant, receives means-tested governmental benefits; or

(2) the defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of the same matter.

Minn.Stat. § 611.17(a) (2008); Minn. R.Crim. P. 5.02, subd. 3. The district court must make “appropriate inquiry into the financial circumstances of the [defendant],” including the defendant’s assets and liabilities, the liquidity of real property and other assets, and any transfer of assets since the date of the alleged offense.2 Minn.Stat. § 611.17(b); Minn. R.Crim. P. 5.02, subd. 4. In such an inquiry, the burden is on the defendant to show that “he or she is financially unable to afford counsel.” Minn. R.Crim. P. 5.02, subd. 4. The defendant must also provide the information necessary to determine eligibility and has a continuing duty to disclose any relevant changes to his or her financial circumstances. Minn.Stat. § 611.17(b). If the court determines that a defendant meets the stated requirements, then it must appoint a public defender to represent the defendant. Minn.Stat. § 611.18 (2008). Both parties agree that we should apply the abuse of discretion standard of review from In re Stuart, 646 N.W.2d 520, 523 (Minn.2002), to the district court’s determination of eligibility.

Jones first contends that his May 5, 2006 application was wrongly denied because the district court should have considered only his income and not that of his girlfriend when deciding his eligibility. *503The district court is required to make its decision based on “the financial circumstances of the applicant,” but neither the statutes nor the rules of criminal procedure state that the inquiry must be limited to only the defendant’s liquid assets and current income. The district court’s duty, however, is to make a broad inquiry into the defendant’s financial circumstances that “might be relevant to the applicant’s eligibility for a public defender.” Minn. Stat. § 611.17(b). The income of a live-in girlfriend is information that might be relevant to a defendant’s eligibility, especially when the defendant does not dispute including the income. See State v. Vincent, 883 P.2d 278, 283 n. 6 (Utah 1994) (considering the income of both persons in “a domestic unit, without regard to whether they are legally married”).

The burden to show financial eligibility for a public defender is on the defendant, and Jones did not argue that Shannon was unwilling to help him retain counsel or that her income was otherwise inaccessible to him. Based on the information in the May 5, 2006 application, the district court decided that Jones did not qualify for a public defender. Jones did not provide any additional information to show that he was financially unable to afford counsel. On this record, the district court did not abuse its discretion.3

Jones also contends that his February 14, 2007 application was wrongly denied because the district court limited its inquiry to the fact that Jones’s income was higher than 125% of the federal poverty guidelines. Jones argues that the poverty guidelines only measure indigency and should not be used as a proxy for the comprehensive inquiry required under Minn.Stat. § 611.17.

Again, the district court must consider all available information about the defendant’s financial circumstances that “might be relevant to the applicant’s eligibility for a public defender.” We have held that a “district court must exercise its discretion to determine whether [a defendant] has met his burden of establishing that through any combination of liquid assets and current income he would be unable to pay the reasonable costs charged by private counsel for defense of a case.” In re Stuart, 646 N.W.2d at 527.

In this case, the record reflects that the district court considered more than just the federal poverty guidelines. The district court’s discussion with Jones about his financial circumstances on February 14, 2007, spanned 13 pages of the transcript. His family situation, his and his girlfriend’s income, his current cost of child support, and his ability to post bond and retain counsel in Dakota County were all discussed. The application for public defender services also included significant detail about his income sources, assets, and expenses. Jones’s argument depends on a very narrow reading of the record that because the court collector only referred to the federal poverty guidelines as a reason for denying Jones’s eligibility, nothing else was considered. Given the context of the entire record, including but not limited to the inquiry by the district court, we agree with the court of appeals that the court conducted a thorough investigation into Jones’s particular financial situation. We conclude that the district court did not fail to exercise its discretion or rely solely on the federal poverty guide*504lines.4

II.

Jones next argues that he did not waive his right to counsel because he was not offered a written waiver, because any waiver colloquy given by the district court was insufficient, and because waiver by conduct is inapplicable to his situation. The record does not reflect any attempt by the district court to obtain a written waiver of counsel from Jones, but the district court did conduct a waiver of counsel colloquy on the record. The court of appeals affirmed, stating that Jones waived his right to counsel by conduct, quoting United States v. Bauer, 956 F.2d 693, 695 (7th Cir.1992), for the proposition that “ ‘the combination of ability to pay for counsel plus refusal to do so does waive the right to counsel at trial. It is waiver by conduct.’ ” State v. Jones, 755 N.W.2d 341, 350 (Minn.App.2008). We will only overturn a “finding of a valid waiver of a defendant’s right to counsel if that finding is clearly erroneous.” State v. Worthy, 583 N.W.2d 270, 276 (Minn.1998).

Though the right to counsel is a constitutional requirement, it may be relinquished in three ways: (1) waiver, (2) waiver by conduct, and (3) forfeiture. See, e.g., State v. Pedockie, 137 P.3d 716, 721 (Utah 2006). These three concepts are discussed at length by the Third Circuit in United States v. Goldberg, 67 F.3d 1092, 1099-1102 (3d Cir.1995).

Waiver is the voluntary relinquishment of a known right. Id. at 1099. We have required the waiver of the constitutional right to counsel to be knowing, intelligent, and voluntary. State v. Osborne, 715 N.W.2d 436, 443-44 (Minn.2006); Worthy, 583 N.W.2d at 276; State v. Jones, 266 N.W.2d 706, 712 (Minn.1978). A written waiver of the right to counsel is necessary in felony cases unless the defendant refuses to sign such a waiver. See Minn. Stat. § 611.19 (2008); Minn. R.Crim. P. 5.02, subd. 1(4). And we require district courts, before accepting a waiver of the right to counsel, to fully advise the defendant by intense inquiry regarding the nature of the charges, the possible punishment, mitigating circumstances, and all “ ‘facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.’ ” Osborne, 715 N.W.2d at 443-44 (quoting Minn. R.Crim. P. 5.02, subd. 1(4)); see also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Camacho, 561 N.W.2d 160, 173 (Minn.1997).

The district court’s finding that Jones expressly waived his right to counsel is unsupported by the record. There was no written waiver. The prosecutor asked the district court “to get an informed waiver of counsel on the record,” but the ensuing colloquy was insufficient. The district court asked Jones if he understood that he had a right to an attorney, and the district court summarized the prior proceedings. After stating that Jones had not been able to retain counsel, the district court asked Jones if he was going to proceed on his own and represent himself. Jones agreed that he would represent himself. At no time during the colloquy did the district court address the nature of the charges or the advantages and disadvantages of a decision to waive counsel. More importantly, *505Jones objected twice to proceeding without counsel. We conclude that, on this record, Jones did not give a knowing, intelligent, and voluntary waiver of his right to counsel.

Waiver by conduct is a separate concept. Under Goldberg, waiver by conduct occurs if a defendant engages in dilatory tactics after he has been warned that he will lose his right to counsel. 67 F.3d at 1100. Waiver by conduct applies to those defendants who “voluntarily en-gag[e] in misconduct knowing what they stand to lose [but] are not affirmatively requesting to proceed pro se.” Id. at 1101. The same colloquy required for affirmative waivers must also be given before a defendant can be said to have waived his right to counsel by conduct. Id. at 1100 (requiring Faretta warnings); see also Bauer, 956 F.2d at 695; Pedockie, 137 P.3d at 723-24; State v. Hampton, 208 Ariz. 241, 92 P.3d 871, 874 (2004); State v. Carruthers, 35 S.W.3d 516, 548 (Tenn.2000). In Bauer, the defendant was warned of the dangers of self-representation before the court found that he waived his right to counsel by his conduct. 956 F.2d at 695. Again, in this case, the district court failed to conduct a colloquy sufficient to satisfy the requirements of Minn. R.Crim. P. 5.02, subd. 1(4).

The final method of relinquishing the right to counsel is forfeiture.5 Under Goldberg, a defendant who engages in “extremely dilatory conduct” may be said to have forfeited his right to counsel. 67 F.3d at 1101; see generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.3(c) (3d ed. 2007). Forfeiture does not require the court to conduct a waiver colloquy with the defendant. Goldberg, 67 F.3d at 1101; see also Hampton, 92 P.3d at 874; Carruthers, 35 S.W.3d at 548. Forfeiture is usually reserved for severe misconduct, when other efforts to remedy the situation have failed. See, e.g., Hampton, 92 P.3d at 874-75 (listing cases discussing the forfeiture doctrine).

Other courts have applied forfeiture in situations similar to the circumstances presented here. E.g., Wilkerson v. Klem, 412 F.3d 449, 451-56 (3d Cir.2005). In Wilkerson, the Third Circuit found that a state court did not act unreasonably by applying the forfeiture doctrine to a defendant who was “duly notified of the date of his trial, who has been advised to obtain counsel in sufficient time to be ready for trial, and who appears on the scheduled date without counsel and with no reasonable excuse for his failure to have counsel present.” Id. at 454-56; see also Siniard v. State, 491 So.2d 1062, 1064 (Ala.Crim.App.1986) (finding forfeiture when a defendant failed to retain counsel after eight months and two continuances). The rationale behind applying the forfeiture doctrine is that courts must be able to preserve their ability to conduct trials. Wilkerson, 412 F.3d at 455 (quoting Fischetti v. Johnson, 384 F.3d 140, 146 (3d Cir.2004)). Applying the forfeiture doctrine to the right to counsel is a matter of first impression for our court. Cf. State v. Lehman, 749 N.W.2d 76, 81-82 (Minn.App.2008) (noting that the issue of whether the right to counsel can be forfeited was an issue of first impression in Minnesota, and finding forfeiture when a defendant attacked his public defender in open court). But we have noted that a balance must exist between a defendant’s “right to counsel of his choice against the public interest of maintaining *506an efficient and effective judicial system.” State v. Courtney, 696 N.W.2d 73, 82 (Minn.2005).

Here, Jones engaged in conduct that was extremely dilatory. Almost a full year passed between Jones’s first bail appearance and his trial. Jones appeared for court without counsel on eight separate occasions. On seven of those occasions, Jones was told to retain counsel. Jones applied for and was denied a public defender at least three times. He repeatedly told the district court that he was planning on retaining private counsel, and he was granted three continuances solely for the purpose of giving him time to do so. The district court also set Jones’s trial date four months after his omnibus hearing so that he could hire counsel. And the district court made it clear to Jones that he would get no more continuances as a pro se party after February 14, 2007.

Moreover, Jones was aware of the disadvantages of representing himself. In his objections to proceeding without counsel, Jones was concerned that he would not get a fair trial because he would not understand what was being said. He stated that, without counsel, he felt like “a sitting duck, basically a target.” Even with this knowledge, Jones still failed to retain counsel. The district court found that Jones was “not finalizing” what he had to do to retain counsel and that he was “somebody who [was] not taking the initiative to do what they need to do to get counsel.” The district court concluded that Jones had “given up [his] right to have an attorney.” On this record, we hold that the district court’s decision was not clearly erroneous. Jones forfeited his right to counsel.

III.

Jones also argues that the State committed misconduct by improperly eliciting hearsay evidence, by asking Shannon if she was claiming that other witnesses lied to the jury, by asking questions that elicited testimony about Jones’s prior convictions and his violation of an order for protection, and by making emotional appeals to the jury and improperly denigrating Jones’s handling of his own defense. Jones did not object to any of these alleged errors during trial. We review unobjected-to prosecutorial misconduct under a modified plain-error standard of review. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). Under this approach, Jones must demonstrate (1) error (2) that is plain. Id. If Jones demonstrates plain error, then the burden shifts to the State to show that Jones’s substantial rights were not affected, meaning that the State must show there is no reasonable likelihood that the absence of the prosecutorial misconduct would have significantly affected the verdict of the jury. Id. If there is plain error that affects Jones’s substantial rights, we must then assess “whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.” Id.

On this record, the State has demonstrated that none of the claimed instances of prosecutorial misconduct had a significant effect on the jury verdict. The State’s closing argument did not emphasize any of the complained-of incidents, and the evidence was overwhelming that Jones presented the check, knew that Vicky was not authorized to sign a check from the towing company, and never tried to pay the money back. Thus, Jones is not entitled to relief on his prosecutorial misconduct claims.

IV.

Finally, Jones claims that the district court erred by not appointing advisory counsel for him. Under Minn. *507R.Crim. P. 5.02, subd. 2, a district court “may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel.” (Emphasis added.) Appointing advisory or standby counsel is a “procedural matter for judicial determination,” and Jones does not have “a constitutional right to advisory counsel.” State v. Clark, 722 N.W.2d 460, 466-67 (Minn.2006). In addition, “the role of standby counsel is fundamentally different from the role of counsel generally.” State v. Richards, 552 N.W.2d 197, 207 (Minn.1996). In the comment to Rule 5.02, subdivision 2, the purpose of advisory counsel “appointed over the objection of the defendant is to help the accused understand and negotiate through the basic procedures of the trial.” The appointment is discretionary for a district court, especially if the court is concerned about the fairness of a trial involving a pro se defendant or about the potential disruptiveness of the defendant. Minn. R.Crim. P. 5.02, subd. 2 cmt. Jones did not request advisory counsel or make any showing that the structural integrity of his trial was affected. See Clark, 722 N.W.2d at 467. Thus, we conclude that the district court did not abuse its discretion in not appointing advisory counsel here.

Affirmed.