State of Minnesota v. Derrick Jacqueay Roberson ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0506, A15-1003
State of Minnesota,
Respondent,
vs.
Derrick Jacqueay Roberson,
Appellant
Filed May 9, 2016
Affirmed
Worke, Judge
Steele County District Court
File No. 74-CR-12-1621
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Dan McIntosh, Steele County Attorney, James S. Cole, Assistant County Attorney,
Owatonna, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and
Johnson, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his third-degree-assault conviction, arguing that (1) the
district court violated his right to counsel by denying his request to rescind his right of
self-representation and for advisory counsel to assume representation or reappointment of
the public defender; (2) his waiver of counsel was invalid; (3) his criminal-history score
was miscalculated; and (4) he was denied jail credit. We affirm.
FACTS
On July 15, 2012, appellant Derrick Jacqueay Roberson was in custody and
assaulted another inmate. He was charged with third-degree assault—infliction of
substantial bodily harm.
On August 3, Roberson requested a public defender. The district court noted that,
historically, Roberson has refused to apply for a public defender. Roberson explained
that he wanted a public defender because his advisory counsel on other files was
ineffective. The district court appointed a public defender.
On August 27, Roberson discharged the public defender and asserted his right to
self-representation. The public defender stated: “[I]f [Roberson] removes me, he is
effectively removing the entire public defender system.” Roberson agreed, stating:
“That’s what I did. I removed all the public defenders.” The district court informed
Roberson that if he discharged the public defender he may not be able to have another
appointed.
Because the district court was concerned as to whether Roberson was fully advised
of his right to counsel and self-representation, it appointed a public defender solely to
advise Roberson regarding his waiver of counsel. The district court then held a hearing
on September 12 to ensure that Roberson’s waiver of counsel was voluntary and
intelligent.
2
The public defender stated that she consulted with Roberson, and he wished to
waive his right to counsel. Because Roberson refused to fill out the petition to proceed
pro se, claiming that his name is not Roberson and that he is to be referred to as Prince Ja
Quay El, the district court stated that it would clarify Roberson’s waiver on the record.
The district court explained to Roberson, among other things: (1) the nature of the
charges; (2) the possible penalties; (3) that he could avail himself to defenses; (4) that
mitigating circumstances may exist; (5) the advantages, disadvantages, duties, and
obligations of self-representation; (6) that the state may introduce evidence it believes
supports a conviction; (7) that he has a right to a pretrial hearing and a court trial or jury
trial; (8) that he is responsible for conducting all phases of the trial, including filing
motions, jury selection, cross-examination of witnesses, and opening and closing
arguments; and (9) that he is entitled to subpoena witnesses and could petition for
investigative and expert services.
The district court also informed Roberson that he had the right to advisory
counsel. Roberson stated that he wanted to represent himself and requested advisory
counsel. The district court found that Roberson voluntarily and intelligently waived his
right to counsel and appointed advisory counsel, stating: “[Y]ou have the right to
determine when and how you use advisory counsel, and decisions about how you use
advisory counsel may affect a later request to allow advisory counsel to assume full
representation.” The district court further stated that advisory counsel was appointed due
to concerns about delays, potential disruption by Roberson, or the complexity and length
of the trial. The district court informed Roberson that advisory counsel “will assume a
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full representation” if he became disruptive, his conduct constituted a waiver of the right
of self-representation, or he requested advisory counsel to take over representation.
On Friday, March 1, 2013, Roberson appeared for a settlement conference; his
trial was scheduled for the following Monday. Roberson claimed that he could not
proceed because his advisory counsel was ineffective. He requested appointment of
advisory counsel from outside the district. He also stated that he planned to retain an
attorney or reapply for a public defender. The district court instructed Roberson to
appear on Monday with the attorney he wished to retain to discuss scheduling.
On Monday, March 4, Roberson requested a continuance. Roberson again stated
that he believed advisory counsel was ineffective and requested reappointment of the
public defender. The district court continued the matter to the next day to consider
whether Roberson was entitled to relinquish his right to self-representation and have a
public defender reappointed.
On March 5, Roberson stated that he wanted advisory counsel to assume
representation. The district court asked Roberson if he requested his advisory counsel to
take over the case. Advisory counsel stated that Roberson never asked him to assume
representation. Roberson asserted that he had been advised that he could request at any
time to have advisory counsel assume representation. The district court stated: “The law
does not provide for advisory counsel to switch from being advisory counsel to being
your attorney.”
The district court found that Roberson’s request for a continuance was not timely,
stating that there “has been delay after delay after delay while [Roberson] [has] gone one
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way and the other. And on the day of trial [he] now want[s] another continuance.” The
district court also found that advisory counsel was not prepared to assume representation
because Roberson had been representing himself through the proceedings and asked for
limited assistance. Based on the district court’s review of Roberson’s file, it also found
Roberson “somewhat manipulative” of the system. The district court denied Roberson’s
request to have advisory counsel assume representation.
The district court also denied Roberson’s request to reappoint the public defender
based on the public defender’s position and the length of a continuance. The lead
attorney from the public defender’s office stated that the policy is that once it is
discharged, it would ask the district court not to reappoint. He also stated that if the court
reappointed the public defender’s office, Roberson’s original public defender would be
reassigned.
Public defenders in the courtroom agreed that if the matter were reassigned to the
public defender, counsel would not be ready for trial within two weeks. It was noted that
Roberson’s original public defender was part-time and in the middle of another matter.
Additionally, the district court noted that if continued, the matter could not be assigned to
the next trial block because Roberson had removed one judge and another judge recused.
The district court surmised that the matter would be continued out over two months.
That afternoon, Roberson waived his right to a jury trial. Roberson’s advisory
counsel remained in that position. The district court found Roberson guilty of third-
degree assault. Roberson, who was incarcerated in Illinois, returned to Minnesota
following release from the Illinois Department of Corrections.
5
The district court sentenced Roberson to 24 months in prison, and gave him 143
days of jail credit.1 Roberson’s presumptive sentence with five criminal-history points
and a severity-level-four offense was 27 months in prison, with a range between 23 and
32 months. Roberson thereafter moved to correct his sentence, arguing that his criminal-
history score was miscalculated and that he did not receive all of his jail credit. The
district court denied Roberson’s motion. This appeal follows.
DECISION
Right to rescind self-representation
Roberson first argues that the district court denied him his right to counsel when it
denied his request for advisory counsel to assume representation or reappointment of a
public defender. This court reviews a district court’s denial of a defendant’s request to
relinquish self-representation and appointment of counsel for an abuse of discretion.
State v. Richards, 552 N.W.2d 197, 206-07 (Minn. 1996).
Advisory counsel
Roberson claims that he is entitled to reversal because the district court
misinterpreted rule 5.04.
(1) If the court appoints advisory counsel because of concerns
about fairness of the process, the court must state that on the
record. The court must advise the defendant and advisory
counsel on the record that the defendant retains the right to
decide when and how to use advisory counsel, and that
decisions about the use of advisory counsel may affect a later
request by the defendant to allow . . . advisory counsel to
assume full representation.
1
The district court later corrected this to 145 days of jail credit.
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(2) If the court appoints advisory counsel because of concerns
about delays in completing the trial, the potential disruption
by the defendant, or the complexity or length of the trial, the
court must state that on the record.
The court must then advise the defendant and advisory
counsel on the record that advisory counsel will assume full
representation of the defendant if the defendant:
(a) becomes so disruptive during the proceedings that
the defendant’s conduct is determined to constitute a waiver
of the right of self representation; or
(b) requests advisory counsel to take over
representation during the proceeding.
Minn. R. Crim. P. 5.04, subd. 2(1)-(2). When Roberson requested that advisory counsel
assume full representation, the district court stated: “The law does not provide for
advisory counsel to switch from being advisory counsel to being your attorney.”
Rule 5.04 contemplates advisory counsel assuming full representation. But
Roberson incorrectly asserts that the district court’s denial of his request to have advisory
counsel assume full representation was reversible error because there is no absolute right
to relinquish self-representation and have advisory counsel assume full representation.
Richards, 552 N.W.2d at 206.
The rule states that advisory counsel will assume full representation when the
defendant “requests advisory counsel to take over representation during the proceeding.”
Minn. R. Crim. P. 5.04, subd. 2(2)(b). But Roberson never made the request to his
advisory counsel; rather, he made repeated requests to the district court to have other
counsel appointed and then for advisory counsel to assume representation when advisory
counsel was not aware of the request. This may seem like splitting hairs, but because the
request was not made to advisory counsel, advisory counsel was not prepared to assume
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full representation. The district court also must advise the defendant that “decisions
about the use of advisory counsel may affect a later request by the defendant to allow . . .
advisory counsel to assume full representation.” Id., subd. 2(1). Roberson represented
himself throughout the proceedings and sought limited assistance from advisory counsel.
Because Roberson chose to seek only meager assistance from advisory counsel, this
appropriately, as contemplated by the rule, affected Roberson’s request to allow advisory
counsel to assume full representation.
There are “[t]wo main reasons . . . for appointing advisory counsel . . . (1) the
fairness of a criminal process . . . and (2) the disruption of the criminal process before its
completion caused by the removal of an unruly defendant or a request for counsel during
a long or complicated trial.” Minn. R. Crim. P. 5.04 cmt. The district court appointed
advisory counsel, in part, because of a possible disruption by Roberson. Roberson was
uncooperative,2 disrespectful,3 and argumentative.4 The rule contemplates that advisory
counsel assume representation following a disruption and the pro se defendant’s removal
from the courtroom. Id. Roberson was never removed from the courtroom.
2
Roberson refused to sign the petition to proceed pro se because he claimed that his
name was not Roberson.
3
When the district court refused to recognize anything other than Roberson’s legal name,
Roberson responded, “I don’t recognize you.”
4
When Roberson discharged the public defender, he stated: “They can’t represent me. I
am not a corporation. I am not a creature. I am a man. I am a man with a nationality[.]
....
And I have the right to defend myself. I am not representing myself. I am myself. I do
not want any more help or services from the public defender. I am not a corporate
person. I hereby disclaim. . . . I am back. I am competent. I am myself.”
8
Additionally, even if the district court appointed advisory counsel due to concerns
regarding the length or complexity of a trial, the rule intends for advisory counsel to
assume representation following a defendant’s request “during a long or complicated
trial.” Id. The trial had not begun when Roberson made his request; thus, the length of
the trial or its complexity did not overwhelm Roberson to a point where he needed the
assistance of advisory counsel. Moreover, Roberson conceded that it was a
“straightforward” case that was “not particularly complicated,” and took “less than one
working day to complete.” Because of the circumstances here, the district court was not
mandated under rule 5.04 to appoint advisory counsel to assume representation based on
Roberson’s request.
Contrary to Roberson’s assertion that the district court was required to appoint
advisory counsel to full representation based on his request, a “defendant shall not be
permitted to request substitution of standby counsel unless, in the [district] court’s
discretion, his request is timely and reasonable and reflects extraordinary circumstances.”
Richards, 552 N.W.2d at 206 (quotation omitted). The defendant in Richards claimed
that he was too ill to represent himself after “over six weeks of jury selection,” and
moved the district court to relinquish his right to self-representation and appoint his
standby counsel. Id. at 202. Standby counsel opposed the request due to unfamiliarity
with the evidence and suspicion that Richards was seeking a mistrial. Id. The supreme
court determined that the district court did not abuse its discretion in denying Richards’s
motion, noting that it properly “balanced [the] motion against the progress of the trial to
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date, the readiness of standby counsel to proceed, and the possible disruption of the
proceedings.” Id. at 206-07.
Roberson argues that his request was timely because he made it before jury
selection. The district court, however, determined that Roberson’s request was not
timely. Despite the request being made before jury selection, the district court noted that
there had been “delay after delay after delay while [Roberson] [has] gone one way and
the other. And on the day of trial [he] now want[s] another continuance.” Indeed,
Roberson asserted his right to self-representation in August 2012, and did not request to
rescind that right until over six months later, on the day trial was to begin.
Roberson argues that his request was reasonable because he requested the
appointment of his advisory counsel and did not request the appointment of a different
attorney. But Roberson complained on more than one occasion that his advisory counsel
was ineffective and sought the appointment of advisory counsel from outside the district.
The district court also determined that Roberson’s request was not reasonable because
advisory counsel was not prepared to assume full representation because Roberson had
been representing himself through the proceedings and asked for limited assistance.
Finally, the district court did not find Roberson’s request reasonable because his history
demonstrated that he was “somewhat manipulative” of the system.
Roberson argues that extraordinary circumstances supported his request because
he had another trial scheduled for the same day and there was a lack of continuity in the
proceedings because of the involvement of several district court judges. Roberson
conceded that this case was “straightforward”; thus, any concern that he was not prepared
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for his other trial is a scheduling issue, which the district court offered to address. And
the “lack of continuity” was due to Roberson because he removed one judge and another
had to recuse. Additionally, Roberson represented himself previously and expressed
familiarity with the system. He claimed that his “great choice” in discharging the public
defender in a previous case led to a dismissal. Based on a balancing of the factors and
consideration of the circumstances in this matter, the district court did not abuse its
discretion by denying Roberson’s request to relinquish self-representation and have
advisory counsel assume full representation.
Public defender
Roberson also argues that he was entitled to relinquish self-representation and
have a public defender reassigned. In denying Roberson’s request, the district court
considered the public defender’s position. The lead attorney from the public defender’s
office asked that it not be reappointed. The district court also considered the length of a
continuance. The matter would be continued out two weeks at a minimum because the
public defender had to familiarize himself with the case and due to the fact that he was a
part-time public defender, in the middle of another matter. The district court also noted
that it would be continued out over two months based on its calendar and the fact that one
judge was removed and another recused. The district court did not abuse its discretion by
denying Roberson’s request to relinquish self-representation and have a public defender
reappointed.
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Waiver
Roberson next argues that his waiver of counsel was invalid. A valid waiver of
counsel must be knowing, voluntary, and intelligent. State v. Camacho, 561 N.W.2d 160,
171 (Minn. 1997). This court reviews the district court’s finding that a defendant
knowingly, voluntarily, and intelligently waived the right to counsel for clear error. Id. at
173.
Whether a waiver of a constitutional right is valid depends on the facts and
circumstances of the case, including the background, experience, and conduct of the
accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); State v.
Worthy, 583 N.W.2d 270, 275-76 (Minn. 1998). To ensure that a waiver of counsel is
knowing, voluntary, and intelligent, district courts “should comprehensively examine the
defendant regarding the defendant’s comprehension of the charges, the possible
punishments, mitigating circumstances, and any other facts relevant to the defendant’s
understanding of the consequences of the waiver.” Camacho, 561 N.W.2d at 173.
Roberson argues that his waiver was invalid because it was based on two district
court judges assuring him that he could at any time request advisory counsel to assume
full representation. The record does not support Roberson’s argument.
At the hearing on August 27, Roberson discharged the public defender and
asserted his right to self-representation. To ensure that Roberson was fully advised of his
rights, the district court appointed a public defender to advise Roberson regarding his
waiver of counsel. At the follow-up hearing on September 12, the public defender stated
that Roberson wanted to waive his right to counsel. Because Roberson refused to fill out
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the petition to proceed pro se, the district court thoroughly examined Roberson on the
record regarding his understanding of the waiver, as required by Minn. R. Crim. P. 5.04,
subd. 1(4). The district court asked Roberson if he wanted to represent himself.
Roberson replied that he wanted to represent himself. The district court then found that
Roberson voluntarily and intelligently waived his right to counsel and appointed advisory
counsel.
Following the waiver and appointment of advisory counsel, the district court stated
that advisory counsel “will assume a full representation” if Roberson became disruptive
or requested advisory counsel to take over representation. At a bail hearing on October 2,
a different district court judge likewise noted that Roberson had appointed advisory
counsel who “will be required to assume full representation” if Roberson became
disruptive or requested advisory counsel to take over representation.
The district court ensured that Roberson’s waiver was knowing, voluntary, and
intelligent by exhaustively examining Roberson’s understanding of the consequences of
the waiver. See id. Moreover, Roberson’s waiver did not result from district court judges
“explicitly advis[ing]” him that advisory counsel would take over representation if he
requested because he waived his right to counsel before he was told that advisory counsel
could assume representation. Roberson’s waiver of counsel was valid.
Pro se arguments
Criminal-history score
In July 1999, Roberson pleaded guilty to felony terroristic threats, and his sentence
was stayed for five years. Roberson’s criminal-history score includes one point for this
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offense. He argues that a point should not be assigned for this offense because the order
discharging him from probation stated that this offense will be deemed a misdemeanor.
This court reviews a district court’s determination of a defendant’s criminal-
history score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn.
App. 2002), review denied (Minn. Aug. 20, 2002). But the interpretation of the
Minnesota Sentencing Guidelines is a question of law reviewed de novo. State v.
Maurstad, 733 N.W.2d 141, 148 (Minn. 2007). We adhere to the plain and unambiguous
language of the sentencing guidelines and accompanying commentary during our
interpretation. State v. Mondry, 682 N.W.2d 183, 184 (Minn. App. 2004).
A felony conviction is deemed a misdemeanor when “the imposition of the prison
sentence is stayed, the defendant is placed on probation, and the defendant is thereafter
discharged without a prison sentence.” Minn. Stat. § 609.13, subd. 1(2) (2012). But if a
prior felony conviction resulted in a stayed sentence, the conviction should be treated as a
felony for purposes of calculating a criminal-history score. Minn. Sent. Guidelines 2.B.1,
cmt. 2.B.101 (2012); State v. Campbell, 814 N.W.2d 1, 7 (Minn. 2012).
In Campbell, the appellant similarly argued that the district court erred in
calculating his criminal-history score by including one point for a felony conviction for
which he received a stay of imposition and a sentence within the gross-misdemeanor
range. 814 N.W.2d at 6. The supreme court stated that even though the prior felony
conviction resulted in a stay of imposition, it is treated as a felony for purposes of
calculating a criminal-history score. Id. at 7. The supreme court explained that a prior
felony conviction may be treated as a gross misdemeanor for purposes of calculating a
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criminal-history score only when a sentence was actually imposed on the prior conviction
and, “[b]y definition, when a court stays imposition of sentence it imposes no sentence.”
Id.
Accordingly, Roberson’s prior felony conviction, which resulted in a stay of
imposition, was properly treated as a felony for purposes of calculating his criminal-
history score. The district court did not miscalculate Roberson’s criminal-history score
by including a point for his 1999 felony terroristic-threats conviction.
Jail credit
Finally, Roberson argues that he should have received jail credit for time spent
incarcerated in Illinois. “The decision whether to award credit is a mixed question of fact
and law.” State v. Clarkin, 817 N.W.2d 678, 687 (Minn. 2012) (quotation omitted). We
review the district court’s factual findings under the clearly erroneous standard and then
apply the rules of law to those circumstances under the de novo standard. Id.The decision to grant credit is not discretionary with the district court. State v.
Doyle, 386 N.W.2d 352, 354 (Minn. App. 1986). “When pronouncing sentence the court
must . . . [s]tate the number of days spent in custody in connection with the offense or
behavioral incident being sentenced. That credit must be deducted from the sentence and
term of imprisonment . . . .” Minn. R. Crim. P. 27.03, subd. 4(B). “A defendant bears
the burden of establishing that he/she is entitled to jail credit.” State v. Garcia, 683
N.W.2d 294, 297 (Minn. 2004).
In State v. Willis, the supreme court stated that “credit should be given for time
spent in jail in another state solely in connection with the offense of sentencing.” 376
15
N.W.2d 427, 428 (Minn. 1985) (emphasis added). The supreme court relied on State v.
Brown, in which it stated, “Of course, if part of the time [the] defendant spent in jail in
Illinois was in connection with an Illinois charge, he would not be entitled to a credit for
that time.” Id. at 428–29 (quotation omitted); see State v. Bentley, 329 N.W.2d 39, 40
(Minn. 1983) (stating that a defendant receives no jail credit for time spent in prison in
another state before being paroled to and jailed in Minnesota for Minnesota charges);
State v. Mavis, 405 N.W.2d 547, 549 (Minn. App. 1987) (sustaining district court ruling
that jail credit is allowed for time spent in another state only when the Minnesota offense
was the “sole reason” for incarceration in the foreign jurisdiction), rev’d on other
grounds, 409 N.W.2d 853 (Minn. 1987); State v. Parr, 414 N.W.2d 776, 779 (Minn.
App. 1987) (stating that a defendant incarcerated in another jurisdiction for an offense
committed in that jurisdiction is not entitled to jail credit in Minnesota for the out-of-state
offense), review denied (Minn. Jan. 15, 1988).
Roberson was incarcerated in Illinois for aggravated battery of a peace officer in
Illinois. The time Roberson spent incarcerated in Illinois was wholly unrelated to the
Minnesota offense. The district court correctly determined that Roberson was not
entitled to jail credit for time served in Illinois.
Affirmed.
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