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This opinion will be unpublished and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
A17-0954

State of Minnesota,
Respondent,

vs.

Phillip Andrew Jones,
Appellant.

Filed February 12, 2018
Reversed and remanded
Reyes, Judge

Hennepin County District Court
File No. 27-CR-13-22820

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

Michael O. Freeman, Hennepin County Attorney, Ch ristina I. Warren, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Hooten, Pres iding Judge; Reyes, Judge; and Smith,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
In this probation-revocation appeal, appellant argues that the district court failed to
obtain a knowing, voluntar y, and intelligent waiver of appe llant’s right to counsel. We
reverse and remand.
FACTS
On October 21, 2013, appellant Philip Andr ew Jones pleaded guilty to a charge of
first-degree robbery. The district court se ntenced appellant to 81 months imprisonment,
stayed for five years of probation with 365 days of local incarceration with a report date of
January 28, 2014. After appella nt violated the conditions of probation, the district court
revoked probation and executed his sentence. This court reversed and remanded the
decision for lack of findings on the third Austin factor.1 State v. Jones , No. A14-2058,
2015 WL 4528943 (Minn. App. July 6, 2015).
At the remand hearing, the district cour t reinstated appellant’s probation pursuant
to several conditions. Within six months, ho wever, appellant violat ed the terms of his
probation twice. The district court ordered that appellant complete an in-custody Rule 25
chemical-dependency assessment, which recommended that a ppellant complete inpatient
treatment for chemical dependency and ment al health. Appellant completed inpatient
treatment. He was scheduled to attend the aftercare program, but was discharged because

1 Prior to revoking probation, the district court must “1) designate the specific condition or
conditions that were violated; 2) find that the violation was intentional or inexcusable; and
3) find that need for confinement outwe ighs the policies favoring probation.” State v.
Austin, 295 N.W. 2d 246, 250 (Minn. 1980).
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of his absences. Appellant also failed to a ppear in court to attend a probation-revocation
hearing and left Minnesota without permission.
In March 2017, appellant appeared in di strict court to set a new date on the
probation-revocation hearing. At the hearing, appellant chose to represent himself after
finding out that his previously-appointed pub lic defender was unavailable. The district
court discharged the newly appointed public defender w ithout further discussion and
continued the hearing. The following exchange occurred:
Defense counsel: And now [the defendant] came back
yesterday; now I’m the attorney appointed
on the case.
District Court: Got it.
Defense counsel: So he can have me re present him or he can
represent himself.
Defendant: I would like to represent myself.
District Court: Okay. So I’m discharging you from
representation.
Defendant: Thank you.
Defense counsel: Thank you. Thank you. Works for me.

At a subsequent probation-revocation heari ng, the district court sought to confirm
appellant’s intention to represent himself. The district court told appellant, “You know the
role that the attorneys play in court proceedings. You know it’s an important proceeding
to be going forward. I’m going to give you another chance if you’d like to reconsider that
decision.” Upon receiving the confirmation from appellant that he would like to represent
himself, the district court permitted appellant to appear pro se without further discussion.
Thereafter, the district court filed a written order revoking appellant’s probation and
subsequently executed appellant’s 81-month sentence. This appeal follows.

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D E C I S I O N
Appellant argues, and the state concedes, th at the district court failed to obtain a
valid waiver of counsel from him.2 We agree.
On appeal, when the facts are undisputed, the question of whether appellant validly
waived his right to counsel is a constitutional one we review de novo. State v. Rhoads, 813
N.W.2d 880, 885 (Minn. 2012). Here, the state does not dispute appellant’s factual
allegations, so our review is de novo.
Both the United States and Minnesota Co nstitutions guarantee criminal defendants
the right to the assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The
right to counsel attaches to every critical stage of the pros ecution, including a probation-
revocation hearing. State v. Kouba , 709 N.W.2d 299, 304 (Minn. App. 2006) (citations
omitted).
Implicit in the Sixth and Fourteenth Amendments of the U.S. Constitution is the
right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2532
(1975). When a defendant asserts the implied right of self-representation, he relinquishes
many of the traditional benefits of the right to counsel. Rhoads, 813 N.W.2d at 885. The
Supreme Court has noted that a defendant “should be made aware of the dangers and
disadvantages of self-representation, so that the record will establis h that he knows what
he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S. Ct. at

2 The state filed only an info rmal letter brief, agreeing with appellant that reversal is
required because of an invalid wavier. Alt hough we are reviewing th is issue because we
have a responsibility “to decide cases in accordance with law,” State v. Hannuksela, 452
N.W.2d 668, 673 n.7 (Minn. 1990), we limit our review to appellant’s arguments.
5
2541 (quotation omitted). Theref ore, any decision to forego th e right to counsel must be
made voluntarily and it must be made knowingly and intelligently. Rhoads, 813 N.W.2d
at 885. Evaluation of valid waiver consists of two co mponents: Whether it is voluntary
and whether it is knowing and intelligent. See Moran v. Burbine, 475 U.S. 412, 421, 106
S. Ct. 1135, 1141 (1986). Minnesota provides additional safeguards to ensure that criminal
defendants voluntarily, knowingl y, and intelligently waive thei r right to counsel. Minn.
Stat. § 611.19 (2016); Minn. R. Crim. P. 5.04, subd. 1(4).
I. The requirements of Minn. Stat. § 611.19 were not met.
Minn. Stat. § 611.19 states that “the waiver shall in all instances be made in writing,
signed by the defendant, except that in such situation if th e defendant refuses to sign the
written waiver, then the court shall make a record evidencing su ch refusal of counsel.”
Minn. Stat. § 611.19 (emphasis added). The word “shall” is mandatory, State v. Humes,
581 N.W.2d 317, 319 (Minn. 1998), and the plain language of the statute clearly indicates
that the district court must ask the probationer to sign the written waiver form.
Here, appellant did not s ubmit the written waiver of th e right to counsel, and the
district court did not ask him to do so. Ther efore, the district court did not meet this
statutory requirement.
II. The requirements of Minn. R. Crim. P. 5.04, subd. 1(4), were not met.

The Minnesota Rules of Criminal Proc edure also recognize the need for a
“heightened degree of caution in waiver procedure,” In re welfare of G.L.H., 614 N.W.2d
718, 723 (Minn. 2000), stating that the district court “must ensure that defendants . . . enter
on the record a voluntary and intelligent written waiver of the right to counsel.” Minn. R.
6
Crim. P. 5.04, subd. 1(4) (emphasis added). The district court must also advise the
defendant of the implications of self-represe ntation, including: (1) the nature of the
charges; (2) all offenses included within the charges; (3) the range of punishments;
(4) possible defenses; (5) any mitigating circumstances; and (6) any other facts necessary
to a broad understanding of the consequences of the waiver of the right to counsel,
including the pros and cons of waiving counsel. Id.
The importance of observing Ru le 5.04 is well recognized. See e.g., State v.
Beaulieu, 859 N.W.2d 275 (Minn. 2015). In State v. Garibaldi, we specifically noted that
Rule 5.04 “must have some continuing ro le in the process of evaluating whether a
defendant validly waived his right to counsel, especially as the trial itself draws close” and
required the district court to adhere to the ma ndates of the rule when addressing the issue
of waiver. Garibaldi, 726 N.W.2d 823, 830-31 (Minn. App. 2007). In deciding so, this
court carefully weighed the specific requireme nts of the rule and the policy reasons for
accepting less than strict adherence to those requirements, concluding that a thorough and
careful waiver procedure will ultimately result in a more effective judicial system. Id.
Here, the district court did not enter appellant’s written waiver of the right to counsel
into the record. Moreover, it did not advise appellant on the reco rd about any of the
possible consequences of relinquishing counsel as mandated by Rule 5.04 subd. 1 (4)(a)-
(f). The district court’s reminder that the pr obation-revocation proceeding is “important”
7
is not sufficient to satisfy subdivision 1(4) of Rule 5.04. Therefore, we conclude that there
was no valid waiver.3
Reversed and remanded.

3 Because we reverse and remand for a proceedi ng consistent with this opinion, based on
appellant’s invalid waiver of counsel, we need not address his argument that the district
court abused its discretion when it revoked appellant’s probation.