State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0946

State of Minnesota,
Respondent,

vs.

Dominick Dwayne Johnson,
Appellant.

Filed May 29, 2018
Affirmed
Smith, John, Judge*

Ramsey County District Court
File No. 62-CR-16-7933

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

John J. Choi, Ramsey Co unty Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Melissa Sheridan, Eagan, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm b ecause the district court did not commit reversible error by not
substituting a new public defender after the appellant discharged his public defender.
FACTS
Appellant Dominick Dwayne Johnson held a BB gun to a woman’s head and
threatened to kill her. The state charged him with threatening a crime of violence and, by
amended complaint, second -degree assault. See Minn. Stat. §§ 609.222, subd. 1, .713,
subd. 1 (2016).
The government provid ed Johnson a public defender. But a t a pretrial hearing,
Johnson’s public defender informed the district court that Johnson “wishe[d] to discharge
the public defender’s office and represent himself.” Johnson explained to the district court
that he was frustrated with how the public defender had been handling the case. The public
defender told the district court that he believed he had been representing Johnson diligently,
and that Johnson’s frustrations stemmed from a damaging statement made by Johnson’s
parole officer during the public defender’s investigation. Johnson clarified that he did not
want to discharge the public defender’s office; instead, he wanted a different public
defender.
The district court advised Johnson that he could not pick and choose his public
defender, and that if he chose to discharge his public defender, he would be discharging
the entire public defender’s office, leaving him with the option of hiring private counsel or

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proceeding pro se. Johnson said he would rather represent himself. The district cou rt
discharged the public defender’s office and Johnson proceeded pro se.
Johnson waived his jury-trial right. Over Johnson’s repeated objections, the district
court appointed advisory counsel for Johnson’s bench trial. At trial, Johnson reiterated his
intent to proceed pro se. Before opening statements, the state dismissed the second-degree-
assault charge. The district court convicted Johnson of threatening a violent crime.
D E C I S I O N
Johnson argues that the district court abused its discretion by telling him that if he
chose to discharge his public defender, he could either proceed pro se or hire his own
counsel, without analyzing if exceptional circumstances existed to justify appointing
substitute counsel . We review a district court’s decisi on whether to appoint substitute
counsel for abuse of discretion. State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
Criminal defendants have a constitutional right to counsel and a corollary
constitutional right to choose to represent themselves. U.S. Const. amend. VI; Minn.
Const. art. I, § 6; see State v. Worthy , 583 N.W.2d 270, 279 (Minn. 1998). The right to
counsel includes “a fair opportunity to secure an attorney of choice,” but it does not
guarantee an indigent defendant the “unbridled right to be represented by the attorney of
his choice.” Worthy, 583 N.W.2d at 278.
If “a defendant raises complaints about the eff ectiveness of appointed counsel’ s
representation and requests substitute counsel, the district court must grant such a request
only if exceptional circumstances exist and the demand is timely and reasonably made .”
State v. Munt , 831 N.W.2d 569, 586 (Minn . 2013) (quotation omitted) . Alt hough what

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constitutes an exceptional circumstance is fact -specific, it generally includes those
scenarios that “affect a court -appointed attorney’s ability or competence to represent the
client.” Gillam, 629 N.W.2d at 449. But it is well -established that an exceptional
circumstance does not include “ [g]eneral dissatisfaction or disagreement with appo inted
counsel’s assessment of the case.” Worthy, 583 N.W.2d at 279.
At the pretrial hearing, Johnson’s public defender told the district court that Johnson
wished to discharge the public defender’s office. Johnson replied, “ I never said I wanted
to dismiss the Ramsey County Public Defender’s Office. I want to dismiss Mr. Sadowski
as my public defender. And I have many reasons why. ” The district court told Johnson
that he did not get “to pick and choose [his] public defender.” The district court explained
that if it discharged Johnson’s public defender, it would be “discharging the public
defender’s office from representing [him].” The district court then said, “And that means
that one of two things would happen. Either [Johnson] would represent [him]self or [he]
would retain another lawyer.”
Johnson told the district court that he would rather represent himself, explaining that
he would “feel more comfortable with doing that than having [the public defender]
represent [him].” But Johnson wanted “to put on record why.” Johnson explained that he
could not understand why his parole officer would tell the investigator that he violated
parole for drinking, reasoning that the parole officer had “no reason to lie.” Johnson also
attacked the public defender’s investigation, explaining that all the evidence Johnson had
received “was a police call that wa s made to get [him] arrested.” The public defender
responded that he “did get an investigator assigned and [ he] did in fact contact that PO .”

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The public defender further stated that he believed he had diligently done his job, but he
also said that the “results may not have been what Mr. Johnson hoped.”
The district court explained to Johnson that by discharging the public defender’s
office he would be losing an experienced attorney who understands rules of evidence and
criminal procedure and all of the resources that go along with that office. The district court
also explained that he would be losing the opportunity to have an attorney file motions and
subpoena witnesses. The district court presented Johnson his different options. The district
court could appoint standby or advisory counsel, or Johnson could represent himself
without any attorney assistance. Johnson chose to represent himself pro se. The district
court offered Johnson additional time to consider his options, but he declined. The district
court discharged the public defender and, over Johnson’s repeated objections, eventually
appointed advisory counsel.
The facts presented here are similar to those in State v. Benniefield, 668 N.W.2d 430
(Minn. App. 2003), aff’d on other grounds, 678 N.W.2d 42 (Minn. 2004). In Benniefield,
the defendant discharged his public defender, expressing “dissatisfaction with the way the
attorney had been handling his case.” 668 N.W.2d at 434. The discharged public defender
told the district court that he and the defendant disagreed over his representation. Id. The
defendant explained to the district court that he wanted an attorney who would be “willing
to fight [the defendant’s] case in [his] best interest.” (quotation omitted). Id. The district
court allegedly told the defendant that it could not appoint substitute counsel, and if the
defendant chose to discharge his public defender, he would be discharging the entire public
defender’s office. Id at 433.

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The defendant argued that the district court erred by not appointing substitute
counsel. Id. at 434. We explained that “[t]o the extent that the district court’s commen ts
may have suggested that it could not appoint substitute counsel, it was incorrect.” Id. But
we reasoned that exceptional circumstances warranting substitute counsel did not exist
because the defendant “expressed mere dissatisfaction with his attorney’ s representation,
and did not show that his attorney was incompetent or otherwise unable to adequately
represent him.” Id. at 434 -35. We also reasoned that the defendant was “extensively
warned of the consequences of discharging his public defender” ; the defendant was
“informed that the responsibility of finding new counsel would fall on him”; and the district
court “appointed standby counsel who was available to appellant throughout trial.” Id. at
435. We concluded that the district court did not e rr “when it refused to appoint another
public defender after appellant made it clear he did not want to be represented by the public
defender initially appointed.” Id.
Here, like in Benniefield, the district court might have made it seem like it could not
have substituted counsel; therefore, to the extent that the district court did so, it was wrong.
See id. at 434. But, as in Benniefield, the record here makes it clear that exceptional
circumstances did not exist to justify substituting counsel because Johnson did not show
that the public defender was incompetent or otherwise unable to adequately represent him.
Id. at 435-35. When the district court asked Johnson to explain why he wanted to discharge
his public defender, he discussed his dissatisfication with the results of the investigation
and his parole officer’s comments. Mere dissatisfaction with an attorney’s representation
does not rise to an exceptional circumstance. See id. Also, like in Benniefield, (1) Johnson

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was “extensively warned of th e consequences of discharging his public defender,” (2) he
was “informed that the responsibility of finding new counsel would fall on him,” and (3)
the district court “appointed [advisory] counsel who was available to [Johnson] throughout
trial.” See id. at 435.
Although Johnson may have preferred having a new public defender rather than
proceeding pro se, it is clear from the record that he unambiguously chose to discharge his
public defender, failed to show the district court that exceptional circumstanc es existed to
justify appointing another public defender, and then failed to retain alternative counsel.
See id. For the above reasons, on these facts, we conclude that the district court did not
abuse its discretion in discharging Johnson’s public defender.
Affirmed.