State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0888

State of Minnesota,
Respondent,

vs.

Chaquetta Alicia Merie Tolbert,
Appellant.

Filed May 6, 2019
Affirmed
Cleary, Chief Judge

Dakota County District Court
File No. 19HA-CR-17-481

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Deanna Natoli, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella t e Publ i c De f e nde r , J e s s i ca Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Stauber,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by ap pointment 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
CLEARY, Chief Judge
Following a bench trial during which she proceeded pro se, app ellant Chaquetta
Alicia Merie Tolbert was found guilty of felony theft. She now challenges her conviction,
arguing that the district court did not obtain her knowing, int elligent, and voluntary
waiver of her right to counsel before requiring her to represent herself at trial. We affirm.
FACTS
In January 2017, at an Inver Grove Heights Target, an employee called the police
department after he observed To lbert place merchandise in a car t, walk out of the store
without paying, and load the items into her van. An officer st opped Tolbert, spotted the
merchandise in plain view, and placed her under arrest. Police found $1,195.40 worth of
merchandise in Tolbert’s van, and the state charged her with felony theft under Minn. Stat.
§ 609.52, subd. 2(a)(1) (2016).
At Tolbert’s first appearance in early February, the district court appointed a public
defender to represent her. The district court set an omnibus hearing for March 29 and trial
for July 10. At the omnibus hearing, the parties discussed a p lea deal, but Tolbert was
hesitant to plead guilty. She requested that the matter be con tinued until May 18 so she
could speak with another attorney about the plea deal. The dis trict court granted her
request. At the May hearing, Tolbert complained that her publi c defender was not
communicating with her and was unable to explain what was going on in a way that she
could understand. She then stated she wanted to discharge her public defender and find a
different attorney. The district court explained that Tolbert would be discharging the whole

3
public defender’s office, and if she could not get a private at torney, she would have to
proceed pro se. When the district court asked if Tolbert was willing to accept that risk, she
maintained that she wanted to discharge her public defender. The district court then asked
if Tolbert knew what she was doing, and she responded, “I’m praying that I do so, yeah.”
The district court also asked if Tolbert thought she could affo rd an attorney, and she
responded that she did. After T olbert stated that she would ne ed five weeks to find an
attorney, the district court discharged the public defender and continued the matter until
June 15.
By the June hearing, Tolbert had not hired an attorney. She explained that she had
spoken with two firms that were out of her price range, but was still looking for counsel.
The district court suggested that Tolbert speak with Neighborho od Justice and that she
reconsider her decision to disc harge the public defender’s offi ce. After warning Tolbert
that this would be the last con tinuance, the district court set an omnibus hearing for July
26 and trial for October 16. In July, Tolbert again requested a continuance so she could
find counsel. She claimed that she had spoken to the same firms she had mentioned before
and was saving up for the retainer. She stated that she had ma naged to save $380 of the
$1,000 retainer, but was hoping family would be able to provide the remainder. The state
opposed continuing the matter. The district court set a new omnibus hearing for September
20, but refused to set a new tria l date. The district court ex plained that if Tolbert did not
have counsel by the trial date, she would have to proceed pro se.
At the September hearing, Tolbert did not have counsel. The district court told her
that the matter would proceed to trial in October, and that if she did not have counsel, she

4
would be expected to represent herself. Tolbert indicated that she understood. She did not
obtain counsel by the trial date, and the district court required her to proceed pro se. At no
point did the district court engage in a waiver colloquy with T olbert. Tolbert requested a
bench trial, and the district court found her guilty.
D E C I S I O N
Criminal defendants have a constitutional right to counsel. U.S. Const. amend. VI;
Minn. Const. art. I, § 6. The right to counsel applies to all critical stages in a criminal
proceeding. State v. Maddox, 825 N.W.2d 140, 144 (Minn. App. 2013). But this right can
be relinquished in three ways: affirmative waiver, waiver by conduct, and forfeiture. State
v. Jones, 772 N.W.2d 496, 504 (Minn. 2009). Here, the district court’s finding that Tolbert
waived her right to counsel is implicit in its decision to proc eed with trial. We review a
district court’s finding that a defendant waived her right to c ounsel under a “clearly
erroneous” standard of review. Id. But when the facts are undisputed, the question is a
constitutional one that we review de novo. State v. Rhoads, 813 N.W.2d 880, 885 (Minn.
2012). The denial of the right to counsel “is a structural error,” Bonga v. State, 765 N.W.2d
639, 643 (Minn. 2009), that “does not require a showing of prej udice to obtain reversal,”
State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).
“Waiver is the voluntary relinquishment of a known right.” Jones, 772 N.W.2d at
504. A defendant’s waiver of the right to counsel must be knowing, v oluntary, and
intelligent. State v. Osborne, 715 N.W.2d 436, 443 (Minn. 2006). In felony cases, a written
waiver is required, unless the defendant refuses to sign the wr itten waiver, in which case
the waiver must be made on the record. Minn. Stat. § 611.19 (2 016); Minn. R. Crim. P.

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5.04, subd. 1(4). And before accepting a waiver of counsel, district courts are required to
“fully advise the defendant by intense inquiry regarding the na ture of the charges, the
possible punishment, mitigating circumstances, and all facts es sential to a broad
understanding of the consequences of the waiver of the right to counsel, including the
advantages and disadvantages of the decision to waive counsel.” Jones, 772 N.W.2d at
504 (quotation omitted).
“Waiver by conduct is a separate concept.” Id. at 505. It occurs when a defendant
voluntarily engages in misconduct, knowing that she may lose the right to counsel, but does
not request to proceed pro se. Id. The “same colloquy required for affirmative waivers
must also be given before a defendant can be said to have waived [her] right to counsel by
conduct.” Id. A district court’s failure to c onduct a waiver colloquy, howe ver, does not
require reversal if the particular facts and circumstances of t he case demonstrate waiver.
Rhoads, 813 N.W.2d at 886.
We conclude that, although the district court failed to engage in a waiver colloquy
with Tolbert, the facts and circumstances of this case demonstr ate a valid waiver by
conduct. The supreme court has previously held that if a defen dant fires her public
defender knowing that she does not have the right to a differen t public defender and may
have to represent herself, the record may demonstrate a valid waiver of the right to counsel.
State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995). Here, Tolbert was represen ted for a
little over three months. At her first omnibus hearing in March, she told her public defender
that she was interested in speaking with different counsel. At her second hearing in May,
she informed the district court that she wanted to discharge he r public defender. The

6
district court repeatedly advised Tolbert of the risk that she would have to represent herself
if she failed to obtain counsel, pointed Tolbert to resources where she could find affordable
counsel, and urged her to reconsider her decision to fire her public defender. Under these
circumstances, we conclude that Tolbert was aware of the consequences of discharging her
public defender and proceeding pro se. Cf. State v. Worthy, 583 N.W.2d 270, 276 (Minn.
1998) (concluding that the district court could presume counsel informed a defendant of
the risks of proceeding pro se w hen the defendant had competent legal representation for
over a month).
In addition, we find our decision in Finne v. State instructive. 648 N.W.2d 732
(Minn. App. 2002), review denied (Minn. Oct. 29, 2002). In that case, Finne was appointed
a public defender, but she asked to dismiss counsel in order to hire private counsel. Id. at
734. The district court granted her at least two continuances in order to hire private counsel.
Id. at 734-35. The district court also appointed the public defender as standby counsel, and
the public defender’s office state d that it would take over ful l representation if Finne
requested it. Id. at 735. Finne did not request that the public defender take over. Id. This
court concluded that under these circumstances, the district co urt did not err in finding a
valid waiver by conduct. Id. at 736.
Here, Tolbert was given a public d efender and then released tha t public defender,
knowing that if she failed to hire private counsel she would be expected to represent herself.
The district court gave Tolbert several continuances to find counsel, and despite the district
court’s repeated warning that she would have to represent herse lf if she failed to obtain
counsel, Tolbert did not retain private counsel. Tolbert understood that it would be best to

7
have representation, as she expr essed concern that she was not a lawyer and would be
unable to adequately represent herself. Yet when the district court asked her to reconsider
her decision to discharge the public defender’s office, she refused. Accordingly, the facts
and circumstances of this case demonstrate that Tolbert waived her right to counsel.
Although the district court’s l ack of a waiver colloquy in this case does not warrant
reversal, we note that the right to counsel is basic to our adv ersary system of justice and
the waiver colloquy is a vital sa feguard to ensure that a defen dant is making a knowing,
intelligent, and voluntary waiver of counsel. Rhoads, 813 N.W.2d at 885. Consequently,
whenever possible—and as a best practice—district courts should e n g a g e i n a w a i v e r
colloquy.
Affirmed.