State v. Hanson, CX-84-1522
| Decision Date | 15 January 1985 |
| Docket Number | No. CX-84-1522,CX-84-1522 |
| Citation | 360 N.W.2d 460 |
| Parties | STATE of Minnesota, Respondent, v. John R. HANSON, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
The trial court record of the prior D.W.I. plea did not establish a valid waiver of counsel.
Norbert P. Smith, North Mankato City Atty., Mankato, for respondent.
C. Paul Jones, State Public Defender, Mary C. Cade, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by POPOVICH, C.J., and RANDALL and CRIPPEN, JJ. with oral argument waived.
Appellant claims that the record of his prior D.W.I. conviction did not contain a valid waiver of right to counsel and, therefore, cannot be used to enhance his present D.W.I. conviction from a misdemeanor to a gross misdemeanor. We agree and reverse.
Appellant was convicted of gross misdemeanor D.W.I., Minn.Stat. § 169.121, subd. 1(a) and subd. 3(a) (Supp.1983) for driving with an alcohol concentration of .10 within five years of a previous conviction. The omnibus court ruled that the record of appellant's prior 1981 D.W.I. conviction showed that in entering a plea of guilty appellant had validly waived his right to counsel pursuant to Minnesota Rules of Criminal Procedure 15.03, subd. 1. The 1981 record showed that appellant received a group advisory of his rights, including right to counsel. The advisory also stated that each person was to be told whether the charge against him was a misdemeanor and asked whether the person wished an attorney. The advisory added that if anyone had any questions regarding those rights he should ask them before entering a plea. Appellant, when questioned individually and told of the charges, was only asked if he desired to see an attorney. He was not asked if he understood the constitutional rights recited during the group advisory.
After being told the charges and asked whether he decided to see an attorney, appellant replied "no" and then pled guilty. On appeal, appellant claims that the omnibus court erred in finding that his 1981 plea was entered with a valid waiver of counsel and thus his present conviction should only be misdemeanor D.W.I. rather than a gross misdemeanor.
After the group advisory, appellant was questioned individually as follows:
Did the trial court record of the 1981 D.W.I. conviction establish that the appellant made a valid waiver of his right to counsel?
In State v. Nordstrom, 331 N.W.2d 901 (Minn.1983) the supreme court held that a prior uncounseled guilty plea cannot be used to convert a subsequent D.W.I. offense into a gross misdemeanor absent a valid waiver of counsel on the record. See State v. Brown, 346 N.W.2d 187 (Minn.Ct.App.1984). The trial court decided that, based on the totality of the facts, appellant intelligently and knowingly waived his right to counsel. We disagree.
Minnesota Rules of Criminal Procedure 15.03, subd. 1 states as follows:
When [a group advisory] procedure is followed the court's statement shall be recorded and each defendant when called before the court shall be asked whether he heard and understood the statement.
When the group advisory as to constitutional rights is used, Rule 15.03 mandates that each defendant shall at least be individually questioned by the court as to whether he heard and understood the constitutional rights recited. The record from appellant's 1981 D.W.I. conviction does not display either that question or an answer by appellant that he understood the constitutional rights recited to the group and waived them. Appellant was asked if he desired to see an attorney and he gave a one word answer, "no." That question and answer does not satisfy the minimum requirements of Rule 15.03, as appellant was not asked before waiving an attorney whether he understood that he was entitled to all the rights (including an attorney) recited in the group advisory.
The State cites State v. Motl, 337 N.W.2d 664 (Minn.1983) in support of its contention that there was a valid waiver of counsel on the record. In examining Motl, it is clear that the supreme court did not hold out the questioning used by the court in Motl as either complete or recommended. The supreme court stated
The individual interrogation of defendant in this case constitutes the absolute bare minimum that is acceptable in a case like this. In general trial courts accepting guilty pleas from misdemeanants should be more specific in their questions, particularly in determining whether the defendant waives his right to counsel and whether there is a factual basis for the plea.
Id. at 666 (emphasis added).
The supreme court also stated
In the past we have sometimes upheld guilty pleas even though the trial court neglected to question the defendant about a particular right, at least where the defendant was represented by counsel, the theory being that counsel presumably advised the defendant of the particular right. Shackelford v. State, 312 Minn. 602, 253 N.W.2d 149 (Minn.1977); Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976). But where the plea was made without benefit of counsel we have been strict. See, e.g., Burt v. State, 256 N.W.2d 633 (Minn.1977), where we reversed an order denying postconviction relief from a conviction based on an uncounseled guilty plea. See also State v. Jones, 266 N.W.2d 706 (Minn.1978).
Id. at 666 (emphasis added).
Although that conviction was upheld, the logical inference to be drawn from Motl is that the specific individual questions asked in Motl should be expanded to insure that a defendant's waiver of his right to an attorney is an intelligent and knowing waiver.
In addition, the court in Motl did, in fact, ask the individual question relative to awareness of constitutional rights called for by Rule 15.03, which is lacking in appellant's case:
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