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This opinion will be unpublished and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
A18-1011

State of Minnesota,
Respondent,

vs.

Miyo Marchon-Montine Alexander,
Appellant.

Filed July 8, 2019
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-16-28371

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, Maria Mulvihill (certified student attorney), St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and Klaphake,
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
JOHNSON, Judge
A Hennepin County jury found Miyo Marchon-Montine Alexander guilty of third-
degree assault based on evidence that he beat his wife, causing her substantial injuries.
Alexander discharged a public defender six months after being charged, represented
himself during several pre-trial hearings, and dismissed his privately retained attorney on
the first day of trial. On appeal, Alexander argues that he did not voluntarily and
intelligently waive his constitutional right to counsel . We conclude that Alexander ’s
waiver of his constitutional right to counsel is valid and, therefore, affirm.
FACTS
On the evening of October 28, 2016, the Minneapolis Police Department received a
report of a domestic assault that was in progress at a home in north Minneapolis. When
officers arrived at the home, they found Alexander, a woman with severe injuries, and two
other women. The two other women told the officers that Alexander had assaulted the
injured woman, his wife , and had continued to do so even after she was unconscious.
Alexander denied injuring his wife. Paramedics transported Alexander’s wife to a hospital,
where she was diagnosed with a right orbital fracture, a traumatic brain injury, and facial
swelling and abrasions.
The state charged Alexander with third-degree assault resulting in substantial bodily
harm, in violation of Minn. Stat. § 609.223, subd. 1 (2016). At his arraignment, a public
defender was appointed to represent him, and the public defender made appearances on
Alexander’s behalf at omnibus and pre-trial hearings during the next five months.

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At a hearing in April 2017, Alexander asked the district court to discharge his public
defender. The public defender informed the district court that Alexander was “dissatisfied
with [his] services.” The public defender also stated that he had informed Alexander that,
if he were discharged, the public defender’s office as a whole would be discharged and no
other public defender would be appointed to represent him. Alexander stated to the district
court that he understood that he did not have the option of being represented by a different
public defender but still wished to discharge his public defender. Based on Alexander’s
stated intention to find a private attorney, the district court continued the case but postponed
a decision on Alexander’s request to discharge his public defender.
At a hearing in May 2017, Alexander informed the district court that he had
identified a private attorney who had agreed to represent him but that he needed 60 days or
more to pay the attorney’s requested retainer. T he district court granted a thr ee-week
continuance of the pre-trial hearing and discharged the public defender.
At another hearing three weeks later , Alexander appeared without an attorney
because he had not yet paid the requested retainer. He requested another 60-day
continuance of the pre -trial hearing. The di strict court granted Alexander a seven -week
continuance but stated that he would not be allowed to “delay this case indefinitely.” The
district court also modified the terms of Alexander’s conditional release to allow him to
travel for busines s purposes so that he could earn additional money to pay the private
attorney’s requested retainer.
In July 2017 , Alexander a gain a ppeared for a hearing without an attorney . He
informed the district court that he had lost contact with the attorney he previously intended

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to retain but had identified another private attorney , who agreed to represent him and
advised him to request a continuance. The district court granted the request and scheduled
trial to begin on September 11, 2017.
At the final pre-trial hearing in August 2017, Alexander again appeared without an
attorney. The district court informed him that he faced “a presumptive stayed sentence or
probationary sentence [of] 18 months,” that he could “typically be sentenced up to 365
days in jail and have oth er conditions on a probationary term,” and that a felony offense
typically has a three-year term of probation but sometimes a longer term. The district court
also told Alexander that , if he did not find a private attorney, he would need to represent
himself. The district court informed Alexander that, if he represent ed himself at trial, he
would be held to the same standards as an attorney, and the district court stated that it would
give him a packet of written information for pro se parties. The prosecutor reiterated the
state’s plea offer, and the district court explained the terms of the offer and basic sentencing
procedures. Alexander stated that he expected his new private attorney to appear with him
for trial and that he would call his new attorney after the hearing to update him.
On September 11, 2017, the day on which trial was scheduled to begin, Alexander
appeared with his new private attorney. But the attorney requested a continuance in order
to have sufficient time to prepare for tria l. The district court granted the request for a
continuance and rescheduled trial for November 27, 2017 . The district court later
rescheduled the trial again for reasons that do not appear in the record.
Alexander and his private attorney appeared for tr ial on February 27, 2018, as
scheduled. Before voir dire, the attorney informed the district court that Alexander was

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“having some difficulties communicating” with him and that Alexander wished to address
the court. Alexander personally stated to the district court that he did not believe that his
new private attorney was working toward his “best interest,” that they had not had “a lot
of opportunity to talk in regards of the case ,” and that he did not “feel comfortable with
him making a selection on my j ury in regards to my case.” The attorney informed the
district court that he frequently had had difficulty contacting Alexander but that he was
prepared for trial. Alexander responded that he and the attorney “ha[d] not discussed
anything in regards of a case or anything” and that the attorney “ha[d] only made contact
with me in regards of finances.”
The district court asked Alexander how he wished to proceed, and Alexander stated
that he wished to represent h imself. The district court appointed Alexander’s private
attorney to be stand-by counsel and explained to Alexander that the attorney would remain
in the courtroom “in the event you need to consult with him regarding how you should
proceed to inquire with regards to picking a jury, with regards to cross -examining
witnesses” or “in the event that anything comes up that you don’t know what you’re doing.”
The district court informed Alexander that he would be “held to the same level as any other
attorney in this courtroom.” The district court confirmed that Alexander understood the
presumptive sentence he was facing. The district court also stated that the state had filed a
notice of intent to seek an upward sentencing departure and explained the procedures and
consequences of the notice. Alexander stated that he would like to go forward with his
trial. When the district court stated that it would keep the private attorney “on the sidelines
just in case,” Alexander responded, “But he’s not adequate counsel for me, Your Honor.”

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The district court explained the purpose of stand-by counsel and told Alexander that it was
his choice as to whether the district court should discharge the attorney. Alexander
requested a discharge, and the district court did so.
Alexander represented himself throughout the trial. The state called six witnesses,
including Alexander’s wife , law -enforcement officers, and medical professionals who
treated his wife. Alexander did not offer any evidence. The jury found him guilty. The
jury also found that the state proved an aggravating sentencing factor, that the offense was
committed in a location in which the victim had an expectation of privacy. The district
court granted the state’s request for an upward durational departure and imposed a sentence
of 36 months of imprisonment, stayed for three years. Alexander appeals.
D E C I S I O N
Alexander argues that he was tried and convicted in violation of his constitutional
right to counsel on the ground that his waiver of that right is invalid.
Both the United States and Minnesota constitutions guarantee criminal defendants
the right to the assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But
the right to counsel “may be relinquished in three ways: (1) waiver, (2) waiver by conduct,
and (3) forfeiture.” State v. Jones , 772 N.W.2d 496, 504 (Minn. 2009) . Alexander’s
argument implicates the first means of relinquishing the right to counsel because he argues
that he did not make a knowing and intelligent waiver of his right to counsel.
“Waiver is the voluntary relinquishment of a known right. ” Id. To be valid, a
waiver of the constitutional right to counsel must be “knowing, intelligent, and voluntary.”
Id. “Whether a waiver of a constitutional right is valid depends ‘upon the particular facts

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and circumstances surrounding that case, including the background, experience, and
conduct of the accused.’” State v. Worthy, 583 N.W.2d 270, 275-76 (Minn. 1998) (quoting
Johnson v. Zerbst , 304 U.S. 458, 464, 58 S. Ct. 1019 , 1023 (1938)). To ensure that this
standard is satisfied, a defendant “‘should be made aware of the dangers and disadvantages
of self-representation, so that the record will establish that he knows what he is doing and
his choice is made with eyes open. ’” Id. at 276 (quoting Faretta v. California , 422 U.S.
806, 835, 95 S. Ct. 2525 , 2541 (1975)). In addition, a district court “‘should
comprehensively examine the defendant regarding the defendant’ s comprehension of the
charges, the possible punishments, mitigating circumstances, and any other facts relevant
to the defendant’s understanding of the consequences of the waiver. ’” Id. (quoting State
v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997)). In Minnesota, a rule of court requires a
defendant to waive his or her right to counsel in writing or on the record and requires a
district court to advise a defendant charged with a felony of, among other things, the nature
of the charges, the range of possible punishments, and “all other facts essential to a broad
understanding of the consequences of the waiver of the right to counsel.” Minn. R. Crim.
P. 5.04, subd. 1(3), (4). At oral argument, Alexander’s appellate co unsel clarified that he
is seeking reversal only on constitutional grounds.
If a district court makes an express finding that a defendant has validly waived the
right to counsel, this court applies a clear-error standard of review to that finding. Worthy,
583 N.W.2d at 276. If the facts are undisputed, however, this court applies a de novo
standard of review to the question whether a defendant entered a constitutionally valid
waiver of counsel. State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).

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In this case, Alexander and the district court engaged in many discussions
concerning his constitutional right to counsel throughout the pendency of the case.
Alexander previously had asked the district court to discharge the public defender who had
been appointed to represent him, and the district court did so. Alexander and the district
court had additional discussions about his efforts to retain a private attorney. In the course
of those discussions, the district court occasionally referred to the benefits of being
represented by an attorney at trial. The district court also informed Alexander that, if he
were to represent himself at trial, he would be held to the same standards as an attorney.
Alexander asked for a continuance of pre-trial proceedings on three occasions, which tends
to demonstrate that he was aware of the benefits of representation. By the time of trial,
Alexander was quite familiar with the fact that he had a constitutional right to counsel and
the benefits of being represented at trial.
On the first day of trial, Alexander informed the district court that he wished to
discharge his private attorney because, based on their interactions, he did not feel
comfortable going to trial with the attorney. The district court cautioned him that it would
be beneficial for him t o be represented by an attorney, that “trials are not easy matters to
handle,” and that “[t]hese are serious allegations against you.” The district court warned
Alexander that the state’s offer of a plea agreement would be revo ked after the jury was
sworn. The district court inquired, “So, do you understand what you’re looking at here?,”
and the district court proceeded to inform Alexander about the possibility of an upward
sentencing departure. The district court offered Alexander additional time in which to
discuss a plea agreement with the prosecutor. Alexander responded by saying that he

9
appreciated the explanation and that he would like to proceed to trial. The district court
stated that the attorney would be stand-by counsel. But Alexander asked that the attorney
be discharged.
This record indicates that Alexander made a knowing, intelligent, and voluntary
waiver of his constitutional right to counsel. On multiple occasions, he had expressed an
interest in representation by an attorney and had been warned about representing himself,
but he nonetheless decided to represent himself. The circumstances of this case are similar
to the circumstances of Worthy, in which two defendants, who had been provided with
competent legal representation for more than one month before trial, fired their attorneys
on the first day of trial. 583 N.W.2d at 274, 276. The district court informed the defendants
that they would be expected to represent themselves if they chose to fire their attorneys,
who were prepared to proceed. Id. at 276. The district court also advised them that, if they
chose to proceed pro se, they would be held to the same standard as attorneys. Id. The
supreme court upheld the waivers even though the district court’s “on -the-record inquiry
regarding waiver did not include a recitation of the charges or potential punishments.” Id.;
see also Rhoads, 813 N.W.2d at 886 n.7. In this case, however, the district court explained
the relevant sentencing issues to Alexander.
The circumstances of this case also are similar to the circumstances of State v.
Brodie, 532 N.W.2d 557 (Minn. 1995), in which the defendant was provided with an
appointed attorney and later fired the attorney. Id. at 557. In concluding that the defendant
knowingly and intelligently waived his constitutional right to counsel, the supreme court
stated, “The record is clear that defendant knew that he did not have a right to a different

10
public defender but would have to represent himself if he did not accept the services of the
public defender.” Id. Like the defendants in Worthy and Brodie, Alexander previously
was represented, which allows a district court to “reasonably presume that the benefits of
legal assistance and the risks of proceeding without it had been described to defendant in
detail by counsel.” See Worthy, 583 N.W.2d at 276 (quotation omitted).
In arguing for a contrary conclusion, Alexander relies heavily on this court’s opinion
in State v. Garibaldi, 726 N.W.2d 823 (Minn. App. 2007). This court concluded that the
defendant in that case did not make a valid waiver of his constitutional right to counsel for
three primary reasons: the record was si lent as to whether the defendant was sufficiently
informed by his previous attorney of the consequences of representing himself, the
defendant did not unequivocally fire his attorney shortly before trial, and the defendant was
not offered the benefit of stand-by counsel to assist him before or during trial. Id. at 829-30.
We also recognized that the district court’s “cursory examination of Garibaldi . . . did not
meet the heightened degree of caution in waiver procedure.” Id. at 830 (quotation omitted).
The Garibaldi opinion is distinguishable because none of th e three factors that led to
reversal in that case is present in this case. Unlike the defendant in Garibaldi, who was
only briefly represented by an attorney at his first appearance , Alexander was represented
by two different attorneys at different periods of time, each time for several months. See
id. at 825. In addition, Alexander unequivocally fired his private attorney on the first day
of trial and did not object to proceeding without rep resentation. Furthermore, Alexander
was offered the benefit of stand -by counsel but requested that his attorney be discharged.
Thus, the Garibaldi opinion does not require the reversal of Alexander’s conviction.

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In sum, Alexander validly waived his constitutional right to counsel. In light of that
conclusion, we need not address the state’s alternative argument that Alexander
relinquished his constitutional right to counsel by forfeiture.
Affirmed.