State v. Seifert

423 N.W.2d 368, 1988 Minn. LEXIS 95, 1988 WL 38841

• Court: Supreme Court of Minnesota
• Decided: April 29, 1988
• Docket: C1-87-452
• Status: Published

Opinions

AMDAHL, Chief Justice.

The issues presented by this appeal are whether an indigent criminal defendant may waive counsel on direct appeal and proceed pro se; and if so, whether he has a right of access to the trial transcript to assist him in preparing his brief. We hold that he may so waive under current Minnesota law and may have access to the transcript.

Appellant Craig Thomas Seifert, who is eligible for public defender representation, wants to proceed pro se in two appeals from felony convictions and have access to the trial transcripts of the underlying cases to assist him in the appeals. He claims that the assertion of the State Public Defender’s Office (SPDO) that it must represent him in the appeals and that he is not entitled to the transcript is without merit.

Seifert construes Minnesota Statutes Section 611.25 (1986) and Rule 28.02, subdivision 5 of the Minnesota Rules of Criminal Procedure to grant him this right. Alternatively, he argues that principles of due process and equal protection dictate that he be allowed to proceed pro se and have access to the transcripts.

The SPDO asserts that it must represent Seifert on appeal and that it, and not Sei-fert, should have access to the transcripts.¹ It argues that the statute and rule dictate this result and that no constitutional principle mandates a contrary ruling.

We agree with Seifert that the current statute and rule authorize him to proceed pro se on direct appeal and have access to the trial transcripts. Consequently, we need not reach the constitutional questions raised.

Seifert was convicted of two separate felony offenses. After each conviction, he took steps to perfect a pro se appeal and to receive a copy of the trial transcripts at state expense. In each case the SPDO, in accord with its usual practice, filed notices of appeal and requests for transcripts on Seifert’s behalf.

Seifert objected to the actions of the SPDO and attempted to dismiss the SPDO as counsel. He filed pro se motions with the court of appeals to enjoin the SPDO from acting on his behalf and to obtain the trial transcripts. These motions were denied. Seifert then filed a pro se petition for accelerated review with this court. The petition was granted and we appointed counsel to represent Seifert for the express purpose of arguing the self-representation and transcript issues.

The basic dispute in this case arises out of the SPDO’s interpretation of the statute and rule authorizing it to represent indigent criminal defendants. Section 611.25 states, in relevant part:

The state public defender shall represent, without charge, a defendant or other person appealing from a conviction or pursuing a post conviction proceeding after the time for appeal has expired when the state public defender is directed to do so by a judge of the district court, of the court of appeals or of the supreme court.

Minn.Stat. § 611.25 (1986). Similarly, Rule 28.02, subdivision 5, which sets up the procedure by which an indigent criminal defendant may obtain appellate counsel on appeal, states, in relevant part:

(1) An indigent defendant wishing the service of an attorney in an appeal or postconviction case shall make application therefore to the office of the Public Defender, * * *.

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(5) The State Public Defender’s office shall determine if the applicant is financially and otherwise eligible for representation. If the applicant is so eligible then the State Public Defender shall represent him regarding a judicial review or an evaluation of the merits of a judicial review of his case in a felony case * * *.

(6) All requests for transcripts necessary for judicial review or efforts to have cases reviewed in which the defendant is not represented by an attorney shall be referred by the court receiving the same to the office of the State Public Defender for processing as in paragraphs (2) through (5) above.

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(9) Unless otherwise specifically provided by Supreme Court order, the State Public Defender’s office shall be appointed to represent all eligible indigent defendants in all appeal or postconviction cases as provided above, regardless of which county in the state is the county in which the defendant was accused. ******

(11) The cost of transcripts and other necessary expenses in all indigent appeal cases shall likewise be paid from funds available to the State Public Defender’s office when the county in which the defendant was accused is within a judicial district which has a District Public Defender, including Ramsey and Hennepin Counties, if approved by the State Public Defender.

A fair reading of the statute and rule is that the SPDO may not refuse to represent an indigent defendant on appeal who applies for such representation. It does not, however, require that such a defendant must accept representation if he wishes to go it alone.²

Keeping in mind the Canons of statutory construction and statutory presumptions, we conclude that pro se indigent direct appeals are authorized. See Minn.Stat. § 645.16, 645.17 (1986). The right to proceed pro se is also implicitly recognized by Section 481.02, subdivision 1, which prohibits the unauthorized practice of law. This section prohibits any nonlawyer from appearing in any proceeding “except personally as a party thereto in other than a representative capacity.” Cf. State v. Townley, 149 Minn. 5, 182 N.W. 773 (1921) (predecessor statute construed). Furthermore, Section 611.14 bolsters our belief that pro se appeals are statutorily authorized. This statute enumerates what classes of persons are “entitled to be represented by a public defender.” Id. (emphasis added). It does not say that these persons must accept such representation, only that they are entitled to it.

Lastly, Rule 28.02, subdivision 5, in its present form, does not unambiguously demand SPDO representation of indigent defendants when the defendant wants to proceed pro se. In fact, the language of the rule hints at an opposite result. Paragraph 1 of Rule 28.02, subdivision 5, contemplates just such a result when it states: “An indigent defendant wishing the service of an attorney on appeal * * * shall make application * * (emphasis added). If an indigent defendant must be represented by the SPDO, as argued, then this is certainly an odd choice of words. Furthermore, paragraph six states that “all requests for transcripts * * * in which the defendant is not represented by an attorney shall be referred” to the SPDO for processing, (emphasis added). The language clearly contemplates situations involving pro se appeals. This paragraph seems to merely require processing the transcript request through the SPDO without regard to whether actual representation will result.

The SPDO points to the “shall represent” language of the Rule and statute to forbid self-representation. However, Section 611.25 is not unambiguous in its application to the present issue. In fact, prior to 1983, pro se indigent appeals were expressly authorized by Rule while this statute was unchanged. Consequently, it cannot be said that the statute unambiguously mandates the result sought by the SPDO. Indeed, Section 611.25 plainly stands for the contrary proposition. This section only authorizes SPDO representation when “directed to do so by a judge.” If not so directed, the SPDO is not authorized. Pri- or to 1983, the Rules required specific appointment by this court. See Minn.R. Crim.P. 29.02, subd. 7(5) (1982). Now appointment is automatic in all cases where application by the defendant is made. Minn.R.Crim.P. 28.02, subd. 5(5).

We do not read this deletion of the express authorization language as mandating reversal of the policy of permitting pro se representation on direct appeal. Rather, the 1983 amendments were enacted primarily to accommodate the court of appeals and to remove this court from the process of making the preliminary finding of indi-gency. They were not intended to change substantive rights. The fact that the SPDO is now automatically appointed when application is made does not change the fact that exceptions are allowed, as this case. Consequently, we hold that Seifert may proceed pro se on his direct appeal.³

Since Seifert has the right of self-representation on appeal, he must be given a copy of his trial transcripts to assist him in his preparations. See Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); see also Byrd v. Wainwright, 722 F.2d 716, 718 (11th Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 217, 83 L.Ed.2d 147 (1984) (transcript needed for pro se representation). This is nothing more than a concrete example of the rationale that “[djestitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, reh’g denied, 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956).

Our state law allows no less. Paragraph 6 of Rule 28.02, subdivision 5, gives Seifert this right. The SPDO will order the transcripts⁴ and make one copy available to the defendant. The defendant shall sign a receipt for the transcript, including an agreement not to make the transcript available to other persons not attorneys of record in the appellate proceeding, and acknowledging that the defendant has no more than 60 days to prepare, file and serve the appeal brief. The transcript is available to the defendant for his use while preparing his pro se brief. Upon completion of the pro se brief, the transcript must be returned to the SPDO and that office will provide the defendant with a signed receipt.⁵ That receipt must be provided to the Office of the Appellate Courts as a prerequisite to acceptance of the defendant’s brief.

These safeguards will greatly lessen the possibility of lost, destroyed or stolen transcripts. A system similar to this was used and constitutionally approved in Lumbert v. Finley, 735 F.2d 239, 246 (7th Cir.1984) (applying Illinois state rule).

What we have done today is merely give Seifert the right to represent himself and have use of a transcript. However, Seifert may not reject the SPDO in favor of another attorney retained at public expense. While an indigent criminal defendant has the right to counsel, he does not have a constitutional right to choose who his counsel will be. State v. Vance, 254 N.W.2d 353, 358 (Minn.1977); see State v. Nace, 404 N.W.2d 357, 362 (Minn.App.1987). Seifert must choose to either accept the SPDO or go it alone and take the consequences of his decision. The law requires no more.

A defendant who elects to represent himself must still comply with all procedural rules. The rules of procedure apply the same to all litigants whether represented by counsel or not. No extra benefits will be given to pro se litigants. See State v. Alowonle, 356 N.W.2d 385, 387 (Minn.App.1984). As stated by one court:

The right of self-representation is not a license to capriciously upset the appellate timetable or to thwart the orderly and fair administration of justice.

Webb v. State, 533 S.W.2d 780, 786 (Tex.Cr.App.1976). The implication of this is that the pro se defendant will be held to the standard of an attorney in presenting his appeal.

Lastly, and most significantly, refusal to accept counsel on direct appeal will have impacts that the typical defendant might not foresee. For example, an incarcerated defendant will not be provided an opportunity for oral argument. A more serious impact arises from Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), where the United States Supreme Court held that a state must provide prisoners with the means to vindicate their rights. The state can accomplish this either by providing counsel for discretionary appeals or by providing an adequate law library. Id. at 828, 97 S.Ct. at 1498. The state has the option of deciding which of these the defendant gets. Minnesota has opted to provide counsel.

Bounds has a significant impact on the right of self representation. In United States ex rel. George v. Lane, 718 F.2d 226, 231 (7th Cir.1983), the court held that a defendant who refuses appointed counsel at the pretrial stages does not have a right to a law library or other materials. Accord United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir.1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983), reh’g denied, 467 U.S. 1211, 104 S.Ct. 2402, 81 L.Ed.2d 358 (1984). Most significantly, in Bell v. Hopper, 511 F.Supp. 452, 453 (S.D.Ga.1981), the court applied the same rule to a self representation appeal. The court reasoned:

A criminal defendant certainly has a right, correlative with his right to assistance of counsel, to dispense with counsel, and conduct his defense in propria persona. Having asserted this right, however, does a defendant in the lawful custody of the state then have the right to demand and receive for his use a fifteen thousand dollar law library? This Court opines that he does not.

Plaintiff could reason, no doubt, that the lack of access to a proper library renders empty his choice to proceed pro se, and thereby effectively denies him the right to make that choice. This logic has a certain appeal, granted, but the law does not support it to the degree plaintiff needs. A trial court cannot deny a defendant the freedom to choose to represent himself so long as he is competent to make the choice; this is so even if he obviously lacks the skill and knowledge necessary to present a good defense, and even if it seems that the choice would foreclose the likelihood of success. A defendant’s “* * * technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” Faretta v. California, supra, 422 U.S. [806] at 836, 95 S.Ct. [2525] at 2541 [45 L.Ed.2d 562 (1975)]. A necessary corollary to this doctrine, however, is that the defendant who makes this choice must abide by the consequences of this choice. That is, if a defendant makes his bed, he must sleep in it.

The defendants in the cases just cited were required to accept the hard reality of their own ignorance of the law and court procedure as part and parcel of their choice to defend themselves. Here, the Court believes this plaintiff must accept the hard reality of his own conscious choice: that the prison did not have an adequate law library, and could not reasonably be expected to get one in the time it would take to process an appeal.

Id. (citations omitted); accord Kelsey v. State of Minnesota, 622 F.2d 956, 958 (8th Cir.1980) (access to the courts may be given through supplying legal help or a law library).

We find the reasoning in Bell persuasive. The defendant may not have it both ways. He must either accept appointed appellate counsel or proceed pro se at his own risk, which, we might add, is considerable. If he makes that choice, the defendant must proceed with whatever limited resources are on hand.

Additionally, we note that each request to proceed pro se on direct appeal must be viewed in light of its own circumstances. Since Seifert has the right to counsel on direct appeal, he may not be deprived of that right unless he makes a valid waiver. That waiver must be knowing, voluntary and intelligent. We direct that the indigent defendant must confer with the SPDO as is required under the system currently in place. If, at that time, the defendant insists on proceeding pro se, the SPDO should secure a detailed, written and signed waiver after consultation.⁶ In the consultation, the SPDO must determine the defendant’s wishes, and should inquire for his reasons for preferring self-representation. Thereafter, the SPDO must advise a defendant concerning the consequences and ramifications of his choice. The advice given to the defendant should include, among other pertinent information and answers to the defendant’s inquiries, advising the defendant of the logistic difficulties of appealing while the defendant is incarcerated, that if he proceeds pro se, that he must comply with all the procedural rules and that he will be held to the same standard as an attorney, that his access to materials might be very limited because of his incarceration and that all existing legal issues must be raised in the appeal or the issues are waived under both state and federal law. While most of the items about which advice is given could be listed in a general form, additional specific items not listed should be put in writing as part of an addendum to the form. The defendant shall acknowledge in writing that he has read the lists and received advice on the noted items. A copy of the document shall be provided to the SPDO and to the defendant. After this consultation, if the defendant still wishes to waive counsel, he may do so. If the SPDO believes, after the consultation, that the defendant is not competent to waive counsel,⁷ it should seek an order from the district court determining the competency or incompetency of the defendant.⁸

Once a defendant has properly waived SPDO representation on appeal, he must be left to his own devices. If the SPDO determines that a particular case presents any issue of broad interest and significant scope, it may file for amicus status in order to present its views on these issues. We expect, however, that the need to do so will arise only in those rare cases when novel or constitutional issues are involved. If ami-cus status is granted and the SPDO determines that it needs a transcript in order to brief the issues, it will need to obtain an additional copy of the transcript and pay for it out of its own operating budget.

We conclude by noting that a criminal defendant who elects to appeal pro se will very likely harm rather than help his chances for success. However, while our state law allows him to do so, he must live with the consequences of so doing. Reversed.

WAHL and SIMONETT, JJ., dissenting. POPOVICH, J., took no part in the consideration or decision of this case.

1 . At oral argument, the SPDO stated that disagreement sometimes exists between it and its clients in how best to prosecute appeals. In those cases, the SPDO has allowed its clients to file what it terms "Supplemental pro se briefs,” raising issues not covered by the main brief prepared by the SPDO. In such cases, the SPDO forwards a copy of its brief to the defendant for his use in preparing the supplemental brief. However, the SPDO’s policy is to not turn the transcript over to the defendant. The SPDO asserts that this system gives the defendant the best of both worlds as it allows him both personal and professional advocacy.

2 . Prior to 1983 when the Rules of Criminal Procedure were amended to accommodate the creation of the court of appeals, pro se appeals were expressly authorized. The predecessor to Rule 28.02, subd. 5, was found at Rule 29.02, subd. 7. The former rule was essentially the same except that the last sentence of paragraph 6 was deleted. Paragraph 6 previously read as follows:

All requests for transcripts or efforts to have cases reviewed in which the defendant is not represented by an attorney shall be referred by the court receiving the same to the office of the State Public Defender for processing. Any applicant who then wishes to proceed without an attorney representing him shall advise the court and the State Public Defender’s office in writing that he waives any right he may have to the services of the State Public Defender’s office.

(emphasis added).

We do not believe this deletion changes the result, as Section 611.25 and the other operative sections in the rule have not been changed to eliminate the right to appeal pro se.

3 . Because this is the first time this court has considered the issue of pro se representation in a direct appeal by a convicted offender and its related issue of the provision of transcripts to such pro se, we anticipate that practical problems will arise in the procedures to be followed in such cases. We request that the Supreme Court Advisory Committee on Rules of Criminal Procedure take up the matter and draft rules for recommendation to this court for adoption. It must also be noted that the present Rules of Criminal Procedure provide the basis for our opinion here. If the Committee determines that the conclusions we have reached in interpreting the existing Rules is not in accord with the intention of the Committee in its original and amendatory drafting of the rules, it may recommend redrafted rules to more clearly express its intention.

4 . We note that four copies of the trial transcript are generally prepared for appeal. See Minn.R. Crim.P. 28.02, subd. 9. This Rule incorporates the Minnesota Rules of Civil Appellate Procedure concerning transcripts. Rule 110.02, subdivision 4 of the Appellate Rules provides that the original and first copy of the transcript are sent to the clerk of the trial court, while a copy is sent to the attorney for each party. One copy is normally given to the SPDO and one copy to the prosecutor. In this case, the copy normally retained by the SPDO will be provided to Sei-fert.

5 . We believe such a requirement is permissible since the transcript is still state property. The defendant has no right to keep it indefinitely. The risk of theft or loss is on the defendant while the transcript is in his possession. No additional copies or time extensions will be provided to defendants who claim loss or theft. If a transcript or a portion thereof is inadvertently lost or destroyed, a motion shall be filed requesting permission to file the brief.

6 . We request that the Supreme Court Advisory Committee on Criminal Procedure draft a detailed and thorough waiver which shall be executed by defendant. The committee should also consider amending Rule 28.02, subdivision 5 to expressly accommodate the issues raised. Specifically, the committee should consider and solicit input on how best to effectuate the defendants’ access to transcripts.

7 . Competency to waive counsel does not address whether the waiver is wise. The defendant may be totally unprepared to handle the intricacies of the appellate process. However, that is a choice the competent defendant will have made after consultation. Once that choice is made, he must live with its consequences.

8 . We note that in most cases defendant will have recently been involved in a trial setting so that the issue of his competency to assist in his defense will have been determined if questioned there or prior to that trial.