Frank James Bammert v. State of Minnesota

This opinion will be unpublished and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
A14-1366

Frank James Bammert, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 2, 2015
Affirmed
Ross, Judge

Stearns County District Court
File No. 73-CR-10-9016

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

Considered and decided by Smith, Presiding Judge; Ross, Judge; and Schellhas,

Judge.

UNPUBLISHED OPINION

ROSS, Judge

Jailers carted Frank Bammert to court in a wheelchair and shackles after he

refused to attend the third day of his assault and firearm criminal trial. Bammert
attempted to discharge his attorney as soon as he entered the courtroom. The district court

refused to accept the attorney’s withdrawal. Bammert later filed an unsuccessful

postconviction petition alleging that his right to self-representation had been violated.

Because we conclude that Bammert never made a clear, unequivocal request to represent

himself, we affirm.

FACTS

Frank Bammert fired a gun at St. Cloud police during an incident at his apartment.

Bammert pleaded not guilty to two charges of first-degree assault and one charge of

being an ineligible person possessing a firearm. The district court held a five-day jury

trial in 2012.

Bammert refused to attend court on the third day of his trial. The district court

ordered jail staff to bring Bammert to the courtroom anyway—in shackles and a

wheelchair if necessary. Jail staff had to shock Bammert with a Taser device to restrain

him and wheel him into the courtroom. When they brought him in, Bammert immediately

told his attorney, “You’re fired.”

The district court attempted to explain to Bammert that it would have to accept his

attorney’s withdrawal before Bammert could proceed without him:

THE COURT: So you don’t want to be in trial?
THE DEFENDANT: Nope.
THE COURT: [Your attorney] would continue to be here
representing you in your absence; you understand that?
THE DEFENDANT: Not if I fire him. He can’t be here.
THE COURT: But the court would have to accept his
withdrawal as counsel in this matter.
THE DEFENDANT: Well, then if he’s here I’m not, so just
keep tasing me. I don’t give a s - - t.

2
 At that point, the prosecutor suggested that Bammert may want to represent

himself, which prompted the district court to highlight Bammert’s apparently conflicting

requests. The court explained, “Mr. Bammert, you seem to be asking of this court two

separate things. One, you don’t want to be at trial, but, two, you want to represent

yourself.” Bammert did not respond directly to the district court’s exposition. Instead, he

replied that he was “waiving all [his] rights.” The district court then asked Bammert if he

knew how to make a criminal defense, and Bammert responded that he would “just ask

them a question.”

The district court determined that it would not allow Bammert to proceed pro se

after it made “the finding that he could not do so adequately.” The court also made a

record of the fact that Bammert had waived his right to attend his trial. It noted that

Bammert’s combative conduct made it likely that he would “obstruct the trial process”

and be “disruptive in the presence of [the] jury.” The district court therefore relied on

Bammert’s counsel to marshal Bammert’s defense, and it held the trial in Bammert’s

absence. The jury found him guilty of two counts of first-degree assault, two lesser-

included counts of second-degree assault, and one count of being an ineligible person

possessing a firearm.

Bammert filed a motion for postconviction relief in April 2014. He argued that the

district court had violated his right to self-representation by refusing to accept his

attorney’s withdrawal. The postconviction court denied relief because it found that

Bammert never made a clear, unequivocal request to represent himself. And even if he

3
had, the court found that the request was properly denied due to “the potential for

disruption and delay based on the defendant’s behaviors.” Bammert appeals.

DECISION

Criminal defendants have a constitutional right to the assistance of counsel. U.S.

Const. amend. VI; Minn. Const. art. I, § 6. This right implies the right to represent

oneself personally. Faretta v. California, 422 U.S. 806, 819–20, 95 S. Ct. 2525, 2533

(1975); see also State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). The district court

should grant a defendant’s request to represent himself if the request is clear,

unequivocal, and timely and if the defendant knowingly and intelligently waives his right

to counsel. State v. Christian, 657 N.W.2d 186, 191 (Minn. 2003). But the right to self-

representation is unqualified only until trial begins: “[M]otions made after the beginning

of trial are addressed to the discretion of the district court to balance the defendant’s right

of self-representation against the potential for disruption and delay.” Id. at 193–94.

Bammert argues that the postconviction court erred by finding that he did not

make a clear, unequivocal request to represent himself. A postconviction court’s factual

findings are reviewed for clear error. Dobbins v. State, 788 N.W.2d 719, 725 (Minn.

2010). Bammert contends that the postconviction court clearly erred because he

repeatedly said that he was firing his lawyer, that he did not want his lawyer present, and

that he did not want to attend trial if his lawyer was present. But Bammert’s ambiguous

and conflicting trial statements could carry a different meaning. They could be

reasonably interpreted to mean that Bammert did not want to be represented by his then-

attorney (and that Bammert would not attend trial if the attorney was going to represent

4
him) and that Bammert wanted to replace him with a different attorney. Bammert never

expressly declared that he wanted to represent himself, even after the court inquired. His

statements and actions do not clearly establish which of two (or more) plausible

outcomes he was seeking. The ambiguity in his request informs us that the request was

equivocal. See State v. Blom, 682 N.W.2d 578, 613–14 (Minn. 2004) (noting that the

defendant had not made a clear, unequivocal request to represent himself even though he

said that he did not want to proceed with his extant attorney). Adding to the ambiguity,

Bammert claimed that he was “waiving all [his] rights” in response to the district court’s

pointing out that he appeared to be asking both to not attend trial and to represent

himself. Given its context, this express “waiver” could reasonably be interpreted to

include Bammert’s right to self-representation. For these reasons, the postconviction

court did not clearly err by finding that Bammert never unequivocally requested to

represent himself.

Because Bammert’s supposed request for self-representation was at best

equivocal, we need not address his argument that the district court’s alternative

rationales—that Bammert was incompetent to represent himself and would disrupt the

trial process—are erroneous.

Affirmed.

5