State v. Nordstrom

• Decision Date: 25 March 1983
• Docket Number: No. C0-82-1069.,C0-82-1069.
• Citation: 331 NW 2d 901
• Parties: STATE of Minnesota, Respondent, v. Paul Richard NORDSTROM, Appellant.
• Court: Minnesota Supreme Court

331 N.W.2d 901 (1983)

STATE of Minnesota, Respondent, v. Paul Richard NORDSTROM, Appellant.

No. C0-82-1069.

Supreme Court of Minnesota.

March 25, 1983.

O'Brien, Ehrick, Wolf, Deaner & Downing and Charles F. Richards, Rochester, for appellant.

Hubert H. Humphrey, III, Atty. Gen., and Norman B. Coleman, Jr., Sp. Asst. Atty. Gen., St. Paul, Douglas J. Gregor, Asst. Rochester City Atty., Rochester, for respondent.

C. Paul Jones, Public Defender, and Kathy King, Asst. Public Defender, Minneapolis, amicus curiae.

Heard, considered and decided by the court en banc.

WAHL, Justice.

The legislature, in 1982, enacted certain amendments to the DWI statute, Minn.Stat. § 169.121 (1982), which authorize the arrest of DWI suspects on probable cause and convert misdemeanor DWI offenses to gross misdemeanor DWI offenses in certain cases.¹ In this case, defendant having challenged those provisions, the Olmsted County District Court has certified to this court two questions as follows:

1. Does 1982 Minn.Laws, ch. 423, § 4,² violate the individual's right to counsel, protected by the United States Constitution, the Minnesota Constitution, or Minnesota Statutes, when it is applied to individuals who were uncounseled but received only a fine as penalty for their prior violation and are subsequently subject to possible gross misdemeanor penalties for a new offense instead of misdemeanor penalties, based on that prior offense?

2. Does 1982 Minn.Laws, ch. 423, § 2,³ violate the constitutional right to equal protection by allowing a DWI arrest for acts not committed in the presence of police, in certain limited circumstances, if probable cause is established?

The parties have stipulated to the following facts:

On May 4, 1979, Paul Richard Nordstrom was arrested in the City of Rochester for an offense of driving while under the influence of alcohol. On May 18, 1979, Mr. Nordstrom appeared in Olmsted County Court without the assistance of counsel and pled guilty to a charge of driving while under the influence of alcohol, a misdemeanor crime punishable by a maximum penalty of a $500.00 fine, 90 days in jail, or both. Sentencing occurred the same date and without the assistance of counsel, and Mr. Nordstrom was fined $300.00. Mr. Nordstrom was not indigent at the time of his plea.

Judges of Olmsted County Court typically advise persons appearing for arraignment as a group of their various constitutional rights, including their right to counsel. Judge Lawrence Agerter was the presiding judge at Mr. Nordstrom\'s arraignment before the Olmsted County Court. If called to testify, he would state that he typically advises persons tendering pleas of guilty to misdemeanor offenses of their right to counsel and requires a verbal waiver of such right before he accepts their plea of guilty. However, Judge Agerter has no independent recollection of an individual warning of his right to counsel or of requiring a verbal waiver of such right from Mr. Nordstrom. Mr. Nordstrom does not recall receiving any group warning at the time of his arraignment nor does he recall any individual advice to him from the judge concerning his right to counsel. There are no notes, court documents, or other materials which would confirm either that Mr. Nordstrom was present for any group advice on his constitutional rights or that he received any individual advice concerning his constitutional rights from the court.

It is this uncounseled plea which serves as the basis of converting Mr. Nordstrom\'s activities on May 13, 1982 into a gross misdemeanor under Minn.Stat. § 169.121, subd. 3(a).

On May 13, 1982, Mr. Nordstrom was arrested by Officer Daniel Pulford of the Rochester Police Department. The arrest would have been illegal under Minn.Stat. § 629.34, as Officer Pulford did not observe any driving conduct, operation, or actual physical control of a motor vehicle by Mr. Nordstrom, and the offense was not "committed in his presence." However, the said arrest was facially valid under Minn.Stat. § 169.121, subd. 1, as amended by the 1982 Minnesota Legislature, as an accident had occurred and as probable cause to establish a violation of driving under the influence of alcohol was established by the officer prior to the arrest.

1. The first certified question must be restated in light of the stipulated facts. The question before the trial court and before this court is whether a prior misdemeanor DWI conviction based on an uncounseled plea of guilty can be used to convert a subsequent DWI offense into a gross misdemeanor under section 169.121, subd. 3(a) absent a valid waiver of counsel on the record. The state seeks to use such a prior conviction to bring about a gross misdemeanor conviction in defendant Nordstrom's case. Nordstrom contends that he should be prosecuted only for a misdemeanor because his prior conviction, based on an uncounseled and unrecorded guilty plea, is in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Casarez, 295 Minn. 534, 203 N.W.2d 406 (1973); and Minn.R.Crim.P. 5.01(b), 15.02 and 15.09 and cannot be used to prove the gross misdemeanor.

One accused in a criminal prosecution, misdemeanor as well as felony, has a right to the assistance of counsel under Minn. Const. art. 1, § 6 and, further, must be informed of that right to counsel.⁴ State v. Moosbrugger, 263 Minn. 56, 116 N.W.2d 68 (1962).

Rules 5.01(b) and 15.02 of the Minnesota Rules of Criminal Procedure mandate that a defendant must be informed of his right to counsel in misdemeanors, and to appointed counsel if indigent.⁵

Not only must a defendant be informed of his right to counsel before pleading guilty, he must make a knowing and intelligent waiver of that right on the record.⁶ Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; State v. Casarez, 203 N.W.2d 406. Furthermore, the Minnesota Rules of Criminal Procedure set out in Rule 15.09 the record of guilty plea proceedings which must be made by Minnesota courts.⁷ In the case of misdemeanors, a verbatim record "shall be made" or "a petition to enter a plea of guilty, as provided in the Appendix B to Rule 15, shall be filed with the court." The Comments to Rule 15.09, citing Casarez, Boykin and Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal. Rptr. 329, 515 P.2d 273 (1973), note: "This provision for either a verbatim record or a petition is included to satisfy the constitutional requirement that a plea to a misdemeanor offense punishable by incarceration must be shown on the record to be knowingly and voluntarily entered." There is no record whatsoever in relation to Nordstrom's guilty plea and conviction.

Where a defendant is unrepresented and there is no record of waiver of counsel, a prior conviction may be collaterally attacked on constitutional grounds and invalidated in a subsequent proceeding for purposes of an enhanced penalty statute, Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). In Baldasar, the United States Supreme Court refused to permit an uncounseled misdemeanor conviction to be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony.

The state argues that under Baldasar a defendant's federal constitutional right to counsel is not violated in a case where, as here, the conviction is punishable by imprisonment of 90 days and the defendant is not in fact incarcerated but receives only a fine, so that the conviction is valid for enhancement purposes. The state has also recognized, however, that, regardless of federal constitutional underpinnings, Minnesota law has established a broad-based right to counsel which goes beyond the dictates of Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (right of indigent defendant to appointed counsel whenever convicted of an offense and actually imprisoned). Five years before Argersinger was decided, this court, in the exercise of its supervisory power to insure the fair administration of justice, decided "that counsel should be provided in any case, whether it be a misdemeanor or not, which may lead to incarceration in a penal institution." State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967) (emphasis added). Our concern, expressed in Borst, that an accused person may wind up in jail without the assistance of counsel to present what defense he may have remains unchanged. That right to counsel and the Rules of Criminal Procedure we have established to protect it must be observed. Whether a defendant is indigent or not, there must be a valid waiver of the right to counsel on the record when the plea of guilty is entered or that conviction cannot be used to enhance the term of incarceration for a subsequent offense.⁸

In Baldasar there was a record, but that record did not indicate any formal waiver of counsel. In Nordstrom's case there is no record. As the statement of stipulated facts sets out, "there are no notes, court documents, or other materials which would confirm either that Mr. Nordstrom was present for any group advice * * * or that he received any individual advice concerning his constitutional rights from the court." The state argues that, because Rule 15.09 does not require a record in a misdemeanor case to be transcribed unless requested by the court, the defendant or the prosecution, the court is, in this case, relieved of record-keeping requirements. Rule 15.09 does state that the record need not be transcribed in misdemeanor cases unless requested. It does not state that the record may be destroyed. Courts have the option under Rule 15.09 of retaining the untranscribed tape or reporter's notes in case of appeal of misdemeanor guilty plea convictions or of requiring that a petition to enter a plea of guilty as provided in Appendix B to Rule 15 be signed by the defendant and filed with the court as part of the record. Otherwise...