State v. Seifert , 1988 Minn. LEXIS 95 ( 1988 )

SIMONETT, Justice

(dissenting).

I respectfully dissent.

I agree with the majority that Minn.Stat. § 611.25 and Rule 28.02 do no more than entitle a defendant to the Public Defender’s help on appeal; neither the statute nor the rule says the defendant must accept the Public Defender’s help. At this point, however, I part company with the majority opinion. Because neither the statute nor the rule says the defendant must accept what he is entitled to, it does not mean that this court is precluded from addressing the question our rule fails to address, namely, should the Public Defender represent the defendant even when the defendant objects? I do not read sections 481.02, subd. 1, and 611.14 to answer the question. We need not read our rule to say what it does not say. In other words, we are free to decide whether or not pro se appeals are permissible.

As Justice Wahl points out in her dissent, there is a basic theoretical and functional difference between the rights to counsel and self-representation on appeal and the same rights at trial. See United States v. Gillis, 773 F.2d 549, 559-60 (4th Cir.1985). Moreover, as a practical matter, an appeal, both with respect to its procedural processing and its substantive presentation, requires a professional expertise that a pro se defendant simply does not have. To allow a rudderless appeal accompanied by an unwieldy procedural superstructure is unfair to the defendant and unfair to the appellate court.

I would hold that pro se appeals are not allowed and that the Public Defender’s current practice in handling these appeals should govern, including the practice of giving the defendant an opportunity to “represent himself” by filing a supplemental pro se brief, plus access, as needed, to the already prepared transcript. Our advisory rules committee should then draft a rule guided by our directions as given in our opinion and submit it to us for our consideration. For the reasons set out in Justice Wahl’s dissent, I see no constitutional problems in doing this.