State v. N. Winzenburg

                                                                                               12/13/2022


                                          DA 20-0502
                                                                                           Case Number: DA 20-0502

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          

STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

NICHOLAS LEE WINZENBURG,

               Defendant and Appellant.

APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC-17-324(A)
                       Honorable Amy Eddy, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate
                       Defender, Missoula, Montana

                For Appellee:

                       Austin Knudsen, Montana Attorney General, Mardell Ployhar, Helena,
                       Montana

                       Travis R. Ahner, Flathead County Attorney, Andrew C. Clegg, Deputy
                       County Attorney, Kalispell, Montana



                                                   Submitted on Briefs: October 26, 2022

                                                              Decided: December 13, 2022

Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.


¶1     Nicholas Lee Winzenburg (Winzenburg) appeals his conviction and sentence for

robbery entered in the Montana Eleventh District Court, Flathead County. We affirm.

¶2     We restate the following issues for review:1

       1. Did Winzenburg knowingly and voluntarily waive his right to counsel?

       2. Should this Court exercise plain error review to address Winzenburg’s
          unpreserved claim that the District Court should have given a specific unanimity
          instruction?

                   FACTUAL AND PROCUDERAL BACKGROUND

¶3     The following facts were elicited through testimony at trial. On June 3, 2017, victim

Solomon Franchi (Franchi) was driving to pick up his friend, Allison Boka (Boka), around

midnight. On his way, he stopped to allow Winzenburg—a stranger—to cross the street.

Winzenburg made a gesture that implied to Franchi that he needed a lighter. Because

Franchi’s car window was broken, he unlocked his door to help Winzenburg. Winzenburg

opened the unlocked door and got into Franchi’s car. Franchi agreed to give Winzenburg

a ride, although he testified that he thought Winzenburg was “kind of scary” and “big.”

Winzenburg asked Franchi to take him to an apartment complex. Once they arrived at the




1
  Winzenburg also contends the jury was not given written instructions defining robbery and its
elements, Instruction Nos. 19 and 20 respectively. However, the District Court and the clerk’s
office have confirmed the written jury instruction packet given to the jury contained Instruction
Nos. 19 and 20, and that any error occurred in transmission of the record on appeal. We conclude
the jury was instructed, both verbally and in writing, on the definition of robbery and its elements.
                                                  2
apartment complex, Winzenburg went to a door but returned to the car after no one

answered. He told Franchi, “I guess I’m mobbing with you.” Franchi perceived this

comment as Winzenburg telling him that he was going to hang out with Franchi for the rest

of the night. Franchi did not want to hang out with Winzenburg but did not tell Winzenburg

to leave because he did not want to be “impolite.” Franchi proceeded to pick up Boka with

Winzenburg in the car.

¶4    Boka was outside with a friend when Franchi and Winzenburg arrived at her house.

Winzenburg exited the car and stood “very creepily behind” Franchi and Boka. Boka got

into the car with Franchi and Winzenburg. She sat in the back seat. While they were

driving, Winzenburg pulled out a can, which Franchi and Boka presumed to be an alcoholic

beverage. Winzenburg told the two friends that he was recently released from prison.

Franchi and Boka were intimidated and scared by this statement, so Franchi drove to the

nearest grocery store parking lot to try to get Winzenburg out of the car and make him

leave them alone.

¶5    After parking at the grocery store, Franchi told Winzenburg that he and Boka

wanted to be left alone. Winzenburg responded, “You know what’s happening, I’m

robbing you.” Franchi replied by handing Winzenburg money and asking again for him to

leave them alone. Next, Winzenburg tried to take the keys from the car’s ignition.

However, Franchi was able to get the keys by grabbing a lanyard that was attached to them.

Winzenburg ordered Franchi to leave his keys and phone and get out of the car.


                                            3
Winzenburg then threatened that he would drag Franchi out of the car if Franchi refused to

comply, but Franchi took his keys and he and Boka ran from the car and called 911.

¶6        Officer Brian Struble (Struble) arrived at the grocery store after Franchi and Boka

frantically flagged him down. Struble saw Winzenburg get out of the driver’s seat of

Franchi’s car. Winzenburg walked over to Struble, and Struble arrested him. Winzenburg

lied to Struble that he had known Franchi for ten years, and that Franchi and Boka walked

away from the car after they had an argument. Winzenburg also gave Struble a false name.

Struble talked with Franchi and Boka after Winzenburg’s arrest and noticed that Franchi

was visibly trembling. Franchi looked through his car and told Struble items were missing.

Struble found the missing items on Winzenburg. Later, Franchi and Boka went to the

police station and gave statements. A surveillance video obtained from law enforcement

showed Franchi and Boka running from the car and was consistent with their statements to

police.

¶7        At the end of June, Winzenburg appeared for a charge of robbery. The Justice of

the Peace set bail at $50,000, appointed a public defender, and set his arraignment.

Winzenburg’s first counsel represented him until Winzenburg wrote a letter to the District

Court ten days after charges were filed advising he no longer needed an attorney and that

he would “be handling [his] case pro se.” The District Court did not respond to his letter,

but Winzenburg was assigned new counsel. While he was represented, Winzenburg also

filed a pro se motion to dismiss his case. The Clerk of Court rejected the motion because

he was represented by counsel at the time.
                                               4
¶8     Winzenburg’s next counsel was substituted at his arraignment on July 20, 2017.

Winzenburg did not meet his new counsel before his arraignment. At the arraignment, the

District Court was ready to hear argument for a bond reduction. However, Winzenburg’s

new counsel was not prepared to discuss bond reduction and so requested a continuance.

During the arraignment, Winzenburg stated that he was “aware” of the maximum penalties

and sentences for robbery based on his counsel’s explanation to him. Winzenburg’s

counsel then told the District Court that Winzenburg “indicated he wishes to seek your

approval to continue representing himself pro se.”

¶9     The District Court asked Winzenburg why he desired to represent himself.

Winzenburg replied, “Just dealing with the State as long as I have I just feel it’s appropriate

that I represent myself.” The District Court asked Winzenburg whether he “understood the

consequence of a robbery conviction,” and told him that “the consequence for a robbery

conviction is a term in the State prison of not less than two years or more than 40.”

Winzenburg responded, “Yes, ma’am.” Again, the District Court asked Winzenburg,

“And . . . you could potentially be facing a significant sentence if you were convicted.

You understand?” Winzenburg replied, “I do.” After the District Court warned him about

the “inherent disadvantages of representing [him]self,” the State informed Winzenburg and

the District Court that it was going to file a notice designating Winzenburg a persistent

felony offender (PFO).

¶10    After this exchange, Winzenburg’s counsel told the District Court that Winzenburg

had reconsidered his decision to proceed pro se and would like to be represented. The
                                              5
District Court agreed that this decision was “the appropriate decision for [Winzenburg] to

make at this point in time.” The District Court also informed Winzenburg that the State

will file a PFO notice that “will certainly change any sentencing options” if he was

convicted. Winzenburg pleaded not guilty.

¶11    One week after the arraignment, Winzenburg appeared with counsel for a bond

reduction hearing. The District Court left bond at $50,000. Subsequently, while still

represented by counsel, the State filed a notice of intent to designate Winzenburg a PFO.

The notice stated the penalty for a PFO—imprisonment for not less than 5 years or more

than 100 years, or a fine of not less than $50,000 or both. The notice further provided that

the first 5 years of the sentence could not be suspended or deferred.

¶12    On September 7, 2017, Winzenburg’s counsel filed a motion to withdraw,

explaining that Winzenburg wished to represent himself. The District Court held a Faretta

hearing2 on the motion. Once again, the District Court explained to Winzenburg, “you

understand you’re charged with robbery in this case, that has a sentence of not less than

two years or more than 40, so you are facing a significant sentence if you were to be

convicted, do you understand that?” Winzenburg affirmed, “I do.” The District Court

advised him about the “numerous disadvantages” of self-representation. The District Court

asked Winzenburg why he wished to represent himself. Winzenburg explained that his

public defender failed to meet with him after several requests because “apparently her


2
 Faretta v. California, 

, 

 (1975); State v. Marquart, 

, 

, 

.
                                                 6
caseload [was] too full.” He further expressed that “it’s important that I represent myself”

because she also failed to file a motion after he asked her to do so. She told him she did

not file the motion because “she was on another case.” After hearing his explanation, the

District Court told Winzenburg that he may be able to substitute counsel if he believes that

he had a breakdown in communication with his current counsel. The District Court also

informed Winzenburg that if he were to proceed pro se that he would be at a significant

disadvantage because he would face an experienced prosecutor at trial and must still

comply with the criminal code and trial procedures. For a second time, the District Court

advised Winzenburg that his maximum penalty was 40 years and the mandatory minimum

remained two years. Winzenburg acknowledged the potential penalties and still confirmed

he wanted to proceed without counsel.

¶13    The District Court found that Winzenburg unequivocally, knowingly, intelligently,

and voluntarily waived his right to counsel, and allowed Winzenburg to represent himself

with standby counsel. The District Court also told Winzenburg that it would consider his

motion to dismiss that he had previously tried to file pro se. The District Court held a status

hearing before trial that confirmed Winzenburg still wanted to represent himself. The court

again advised him that it was in his “best interest to proceed with counsel.”

¶14    At trial, Winzenburg represented himself with standby counsel.             Winzenburg

declined to conduct voir dire, even though the District Court offered that standby counsel

could conduct voir dire. The District Court read eight preliminary jury instructions and

assured the jury that it would receive written copies of all applicable laws when it
                                              7
deliberated. The State presented evidence that Winzenburg scared Franchi and Boka while

he tried to steal Franchi’s car and the items in it. Winzenburg gave a brief opening

statement and asked limited questions throughout the trial. Winzenburg requested that his

counsel assist him with presenting segments of a dashcam video that showed Franchi’s and

Boka’s interviews. Winzenburg did not testify and provided a brief closing argument.

¶15    The jury returned a verdict of guilty for the crime of robbery. Winzenburg received

a sentence to the Montana State Prison for 20 years, with no time suspended. The District

Court granted Winzenburg 216 days of credit for time served.

                             STANDARD OF REVIEW

¶16    “The validity of a Faretta waiver is a mixed question of law and fact reviewed de

novo.” State v. Barrows, 

, 

, 

. We will not

presume that a defendant has waived his right to counsel. State v. Swan, 

, 

, 

, (citing Brewer v. Williams, 

,

 (1977)). We will not disturb a district court’s findings of fact

regarding waiver of counsel “as long as substantial credible evidence exists to support that

decision.” Marquart, ¶ 16.

¶17    If a defendant had the opportunity to object to a jury instruction but failed to do so

we will ordinarily not examine the issue unless it qualifies for plain error review. State v.

Birthmark, 

, 

, 

. “Plain error review is used

sparingly and only in situations that implicate a manifest miscarriage of justice, leave


                                             8
unsettled the question of the fundamental fairness of the proceedings, or compromise the

integrity of the judicial process.” Birthmark, ¶ 11.

                                      DISCUSSION

¶18    1. Did Winzenburg knowingly and voluntarily waive his right to counsel?

¶19    Under the Sixth Amendment of the United States Constitution, criminal defendants

have the right to “the assistance of counsel.” U.S. Const. amend. VI. The right to counsel

has been incorporated to the States through the Fourteenth Amendment Due Process

Clause. Faretta, 

, 

. The purpose of the right to counsel is

to “protect the integrity and fairness of the adversary criminal process.” State v. Scheffer,

, 

, 

. The Sixth Amendment imposes “rigorous

restrictions” before a defendant can waive his right to counsel at trial and acknowledges

“the enormous importance and role that an attorney plays at a criminal trial.” Patterson v.

Illinois, 

, 

 (1988).

¶20    Criminal defendants nonetheless have the right to represent themselves if they

desire. Faretta, 

, 

; State v. Colt, 

, 

 (1992). A defendant may waive his right to counsel only if a district court

finds that the waiver is made knowingly, intelligently, voluntarily, and unequivocally.

Marquart, ¶ 28. At a Faretta hearing, a defendant “should be made aware of the dangers

and disadvantages of self-representation, so that the record will establish that he knows

what he is doing and his choice is made with eyes open.” Faretta, 

, 

 (citations omitted). A waiver of trial counsel should “be made with apprehension
                                             9
of the nature of the charges, the statutory offenses included within them, [and] the range of

allowable punishments thereunder[.]” Von Moltke v. Gillies, 

, 

 (1948) (plurality opinion of Black, J.). The defendant should also be advised of

the “possible defenses to the charges and circumstances in mitigation thereof, and other

facts essential to a broad understanding of the whole matter.” Von Moltke, 

,

. However, the factors articulated in Von Moltke, are merely “a catalog of

concerns for trial court consideration, not as a prescribed litany of questions and answers

leading to mandatory reversal in the event that one or more is omitted.”             Hsu v.

United States, 

 (D.C. App. 1978). As such, the United States Supreme

Court has declined to “prescribe any formula or script to be read to a defendant who states

that he elects to proceed without counsel” and has explained that the information a

defendant must possess depends on “case-specific factors.” Iowa v. Tovar, 

, 

 (2004).

¶21    In Tovar, the United States Supreme Court explained that the “law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully

understands the nature of the right and how it would likely apply in general in the

circumstances—even though the defendant may not know the specific detailed

consequences of invoking it.” Tovar, 

, 

 (quoting United

States v. Ruiz, 

, 

 (2002)). The United States

Supreme Court held that a warning regarding potential punishment satisfies the

constitutional threshold “when the trial court informs the accused of the nature of the
                                             10
charges against him, of his right to be counseled regarding his plea, and of the range of

allowable punishments attendant upon the entry of a guilty plea.” Tovar, 

,

.

¶22    The Montana Constitution guarantees that the accused in criminal prosecutions

“shall have the right to appear and defend in person and by counsel.” Mont. Const. art. II,

§ 24. We have previously established that trial courts must meaningfully engage with

defendants to ensure they understand the risks associated with waiving counsel. Colt, 

, 

. However, we have declined to “require district courts to

adhere to a rigid set of requirements in ascertaining whether a defendant in a criminal

proceeding has made a knowing and intelligent waiver of his right to counsel.” Colt, 

, 

. We defer to district courts to determine whether the

defendant has waived his right to counsel knowingly and intelligently because the district

court is in the best position to make such a determination. Colt, 

, 

. We have declined to adopt the Ninth Circuit’s test regarding waiver of

counsel, which requires a district court to ensure that the defendant “understands 1) the

nature of the charges against him, 2) the possible penalties, and 3) the dangers and

disadvantages of self-representation.” United States v. Erskine, 

(9th Cir. 2004) (citations omitted). Mandating that district courts “specifically discuss the

dangers and disadvantages of pro se representation is far beyond the scope of what Faretta

or our case law requires.” Colt, 

, 

. Faretta merely requires

that the accused “be made aware of the dangers and disadvantages of self-representation.”
                                             11
Colt, 

, 

; Faretta, 

, 

. We

will not disturb a right to counsel waiver on appeal “so long as substantial credible

[evidence] exists to support the decision of the District Court that the defendant made a

voluntary, knowing, and intelligent waiver.” Colt, 

, 

.

¶23    On appeal, Winzenburg argues that his “risk analysis would have been different”

when deciding to represent himself because he did not understand the actual severity of the

charges and its range of potential penalties. He asserts that the District Court failed to

satisfy the “stricter and higher standard” required by the Montana Constitution because it

advised him of the “wrong” potential penalties when it told him that he faced a two-year

mandatory minimum for the penalty for robbery rather than the five-year mandatory

minimum for the PFO penalty. Winzenburg contends that had he been so advised; he

would not have waived his right to counsel.

¶24    We do not apply the same rigid standard for waiver of counsel as the Ninth Circuit.

We require that defendants understand the “range of allowable punishments” and “be made

aware of the dangers and disadvantages of self-representation . . .” Colt, 

,

 (quoting Faretta, 

, 

). The District Court

held several colloquies with Winzenburg about the “dangers” of self-representation and the

numerous benefits and rights he was relinquishing if he were to proceed without counsel.

The District Court advised him of the “inherent disadvantages” of self-representation—

that without any formal legal training, he would be prosecuted by attorneys “who have

extensive experience in this area of the law” and that he would have to “strictly” comply
                                              12
with the criminal code and rules of criminal procedure. He told the District Court that he

understood these risks. The District Court also advised him that he was charged with

robbery, which included the penalty of “a term in the State prison of not less than two years

or more than 40 years.” When the District Court accepted his not guilty plea, it informed

Winzenburg that the sentencing options would change once the State filed the PFO notice.

¶25    Additionally, the State indicated at Winzenburg’s arraignment that it was going to

file a notice of intent to designate him a PFO. When the State filed the PFO notice,

Winzenburg was represented by counsel. The notice informed Winzenburg that he

qualified as a PFO and stated the penalty if he were convicted—imprisonment for not less

than 5 years or more than 100 years, and the first 5 years could not be deferred or

suspended.      After receiving the PFO notice of an enhanced penalty, Winzenburg

nonetheless renewed his motion to proceed pro se. Importantly, the twenty year sentence

that was imposed by the District Court fell well under the maximum sentence the District

Court could have imposed for robbery—forty years—and was similarly well under what

Winzenburg could have received as a PFO.

¶26    Based on this record, we conclude Winzenburg’s waiver of counsel was voluntarily,

knowingly, intelligently, and unequivocally entered. He understood the risks associated

with self-representation and the full range of potential penalties after the District Court’s

numerous advisements and the State’s filing of a PFO notice indicating the enhancement

of penalties.


                                             13
¶27 2. Should this Court exercise plain error review to address Winzenburg’s
unpreserved claim that the District Court should have given a specific unanimity
instruction?

¶28    Winzenburg argues that his right to a unanimous jury verdict was compromised

when the District Court did not give a specific unanimity instruction requiring the jury to

agree that either or both victims were in fear of immediate bodily injury. Winzenburg

failed to raise this issue before the District Court.

¶29    When a party fails to object to jury instructions in the district court and declines to

request a specific unanimity instruction, the party has failed to preserve his argument for

appeal. State v. Harris, 

, 

, 

. We have

previously established that to properly preserve an issue or argument for appeal, a party

must raise it in the district court. State v. Rosling, 

, 

, 

. An issue or claim must be timely raised in the first instance in the trial court

because “it is fundamentally unfair to fault the trial court for failing to rule correctly on an

issue it was never given the opportunity to consider.” State v. West, 

,

, 

 (citations omitted).

¶30    Winzenburg and the State proposed the same jury instructions, which did not

include a specific unanimity instruction. Winzenburg never argued that he should have

received a specific unanimity instruction in addition to the general unanimity instruction.

The jury received a general unanimity instruction stating that “[t]he law requires the jury

verdict in this case to be unanimous.” We are not convinced that the jury was not fully and

adequately instructed and decline to exercise plain error review. See State v. Mathis, 2022
                                               

, ¶ 42, 

, 

. Winzenburg failed to object to this instruction

and has waived this argument for appellate review.

                                    CONCLUSION

¶31    We conclude Winzenburg knowingly and voluntarily waived his right to counsel.

The District Court advised him numerous times about the penalties he faced and dangers

of self-representation. The State’s PFO notice informed him of the enhanced penalty

associated with PFO status.     We decline to exercise plain error review to address

Winzenburg’s request for a specific unanimity instruction because he did not preserve it

for appeal.

¶32    Affirmed.


                                                 /S/ LAURIE McKINNON


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON




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