State v. Seifert

• Decision Date: 29 April 1988
• Docket Number: No. C1-87-452,C1-87-452
• Parties: STATE of Minnesota, Respondent, v. Craig Thomas SEIFERT, Appellant.
• Court: Minnesota Supreme Court

Page 368

423 N.W.2d 368

STATE of Minnesota, Respondent, v. Craig Thomas SEIFERT, Appellant.

No. C1-87-452.

Supreme Court of Minnesota.

April 29, 1988.

Syllabus by the Court

Minnesota Statutes Section 611.25 (1986) and Rule 28.02, subdivision 5 of the Minnesota Rules of Criminal Procedure allow an indigent criminal defendant to proceed pro se on direct appeal.

An indigent criminal defendant who elects to proceed pro se on direct appeal has a right of access to the trial transcript to assist in the preparation of his pro se appellate brief.

An indigent criminal defendant who elects to proceed pro se must abide by all rules of procedure and will be given no special dispensations.

Steven H. Goldberg, St. Louis Park, for appellant.

Craig Thomas Seifert, pro se.

Hubert H. Humphrey, III, State Atty. Gen., Thomas Foley, Ramsey Co. Atty., St. Paul, for respondent.

C. Paul Jones, J. Christopher Cuneo, Minneapolis, amicus for MN State Public Defender.

Mark Nathan Liptig, Asst. Dakota Co. Atty., Hastings, amicus for MN Co. Atty's Ass'n.

Lucinda E. Jesson, Julie A. Oseid, Minneapolis, amicus for MN Civil Liberties Union.

Heard, considered and decided by the court en banc.

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 Seifert, 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.

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(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. Prior 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 indigency. 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 "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to...