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This opinion will be unpublished and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
A18-1658

State of Minnesota,
Respondent,

vs.

Dwight Lee Docken,
Appellant.

Filed September 23, 2019
Reversed and remanded
Hooten, Judge

Carver County District Court
File No. 10-CR-17-897

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

Mark Metz, Carver County Attorney, David W. Hunt, Assistant County Attorney, Chaska,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Hooten, 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
HOOTEN, Judge
In this appeal from a conviction of first-degree driving while impaired (DWI) and
other related charges, appellant argues that his conviction must be reversed because he did
not validly waive his right to counsel. We reverse and remand for a new trial.
FACTS
In late August of 2017, at around 1:30 a.m., Carver County Sheriff’s Deputy Adam
Peterson observed a vehicle traveling southbound in a northbound lane. He positioned his
squad car behind the vehicle to follow it and turned on his squad lights in an attempt to get
the vehicle to stop. But the vehicle did not stop immediately. After the squad car and the
vehicle made several turns together, Deputy Peterson activated his siren a s an additional
signal to stop and, after “some distance,” the vehicle finally pulled over.
Deputy Peterson approached the driver ’s side window in an attempt to speak with
the driver; appellant Dwight Docken was sitting in the driver ’s seat and was the vehicle ’s
sole occupant. Unusually, appellant had opened the window roughly three or four inches,
but sta red straight ahead, no t looking at Deputy Peterson. Deputy Peterson asked for
appellant’s driver ’s license , but appellant refused to produce one, saying that Deputy
Peterson “didn’t have a right to stop him. ” Deputy Peterson asked appellant to roll down
his window further, and appellant refused.
Deputy Peterson advised appellant that he had pulled him over because of his erratic
driving, that appellant was not free to leave and reiterated his request for identification.
Appellant claimed that he did n ot need to produce his license because he was “traveling

3
under the constitution of the republic of the United States.” During this exchange, Deputy
Peterson observed that appellant’s eyes were “glassy, watery,” smelled “a strong odor of a
consumed alcoholic beverage coming from the cabin of the vehicle through the window, ”
and noticed that appellant’s speech was slurred. Deputy Peterson also observed an orange
band on appellant’s wrist, “similar to those used to identify people being 21 years of age
or older at establishments.”
Around the time that other deputies arrived, appellant told Deputy Peterson his name
and date of birth, and Deputy Peterson learned from dispatch that appellant had a restricted
license and was not supposed to be driving after he consumed any alcohol. According to
the restrictions on his license, appellant was also required to have an “interlock device”—
a mechanism connected to a vehicle ’s ignition that the driver would blow in t o test for
alcohol consumption—installed in his vehicle, but Deputy Peterson did not observe one.
Deputy Peterson informed appellant that he was under arrest, but he refused to exit
his vehicle. After several orders for appellant to exit his vehicle, deputies eventually broke
one of the vehicle ’s windows so they could unlock the door, removed appellant from his
vehicle, and placed him under arrest. Back at the jail, Deputy Peterson read appellant the
implied-consent advisory and informed appellant that he was required to take a test for the
presence of alcohol. When Deputy Peterson directly asked appellant to take a breath test,
appellant did not respond. At trial, appellant testified that he refused to take the breath test.
The state charged appellant by comp laint with first-degree driving while impaired
(test refusal), in violation of Minn. Stat. § 169A.20, sub d. 2 (2016), driving after
cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2016), driving in violation of a

4
restricted driver’s license, in violation of Minn. Stat. § 171.0 9, subd. 1(f)(1) (2016), and
obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2016).
Appellant appeared at a total of nine pre-trial hearings, and at his jury trial on these
charges, in front of a total of four dif ferent district court judges. At no point during these
proceedings was appellant represented by counsel. At no point did any of the judges that
appellant appeared before offer him a written waiver of counsel , make an explicit finding
that appellant had waived his right to counsel, or mention “waiver” of the right to counsel.
At no point did any of the judges offer to appoint advisory counsel to assist appellant. At
one point, one of the four judges explained some of the disadvantages of representing
oneself. However, none of the judges complied with Minn. R. Crim. P. 5.04, subd. 1(4) ,
which requires the district court to advise the defendant of the following: the nature of the
charges and all offenses included within the charges; the range of allowable punishments;
that there may be defenses; that mitigating circumstances may exist; and of all other facts
essential 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 cou nsel. Minn. R.
Crim. P. 5.04, subd. 1(4)(a)–(f).
Appellant was extremely obstreperous at his hearings. This included: asking judges
and a witness multiple times if they were going to uphold their respective oaths of office;
arguing that maritime admiralty jurisdiction applied to his case; asking a state’s witness on
cross-examination, “are we at land or at sea,” presumably in an attempt to support his claim
that maritime jurisdiction applied; objecting over and over again to the jur isdiction of the
court after such objections had been overruled multiple times, including during the state ’s

5
direct examination of a witness; refusing to answer the judges’ questions; refusing to enter
a plea; asserting that he could not be charged under M innesota statutes because they are
“contractual corporate statutes ”; arguing that Minnesota statutes are not valid because of
the Supremacy Clause in the Uni ted States Constitution ; asserting that he could only be
criminally charged in federal court ; telli ng the judge “I am here upon your ship under
duress . . . . I had no intention of boarding your ship ”; talking over the judge s multiple
times; when one judge left the courtroom for a moment, appellant declared that he was the
highest authority in the courtroom and that he was dismissing the case against himself “in
its entirety with prejudice”; reading a prepared statement into the record against one judge’s
direction; objecting to the introduction of evidence without asserting a legal basis as to
why; asking the witness, “Are you aware that it is unconstitutional to deprive someone
about their life, liberty, and property? ”; stating, “This is a farce and a fraud ”; in response
to a judge’s question on whether appellant wished to make a written motion, he replied, “I
realize that because it would be a violation of my due process and it would be a violation
of my due process for you to answer, correct?”; in response to a question asking if appellant
wished to call a witness or testify himself, appellant answ ered “I wish you to not violate
my due process”; stating that he did not “wish to participate” in the proceedings; bringing
up new legal arguments at inappropriate times after the judge had asked for written briefing
on any new arguments ; insisting that he was not named in the complaint because he was
“a living person and I am not the corporate entity listed on your paperwork ”; stating that
he would not “acquiesce to quasi jurisdiction”; asking the prosecutor to “certify [his] right
to subrogation” for the criminal charge against him; when asked if he wanted to apply for

6
a public defender, appellant stated that “the defendant is not even capable because the
defendant is a piece of paper”; and finally, inquiring into the prosecutor’s law license and
certification and requesting that he submit his law license into the record.
Appellant did assert at multiple hearings that he intended to represent himself or
that he was appearing “in propria persona,”1 including to the judge who presided over the
jury trial. At one of these hearings, appellant specifically stated that while he was
representing himself “for this particular hearing ,” he did “reserve the right to have
representation.” On six other occasions , appellant specifically stated that he wished to
reserve “all rights. ” The district court, at appellant ’s final pre-trial hearing , warned
appellant about some of the dangers of representing himself at trial. After a two-day jury
trial, the jury found appellant guilty of all charges. This appeal follows.
D E C I S I O N
I. Appellant did not validly waive his right to counsel

The Sixth and Fourteenth Amendments to the United States Constitution guarantee
criminal defendants the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 340–43, 83
S. Ct. 792, 794–96 (1963). A defendant may relinquish this right by “(1) waiver, (2) waiver
by conduct, [or] (3) forfeiture.” State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009).
We will only overturn a trial court’s finding of a valid waiver of a defendant’s right
to counsel if that finding is clearly erroneous. State v. Camacho , 561 N.W.2d 160, 168

1 Just like the phrase “pro se, ” we understand a defendant referring to themselves as
appearing “in propria persona” as meaning that they are representing themselves in court.
Ledden v. State, 686 N.W.2d 873, 878 (Minn. App. 2004), review denied (Minn. Dec. 14,
2004).

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(Minn. 1997). Here, the district court’s finding that appellant waived his right to counsel
is implicit in its decision to proceed to trial. “When the facts are undisputed, however, the
question of whether a waiver -of-counsel was knowing and intelligent is a constitutional
one that is reviewed de novo.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). The
absence of a valid waiver of the right to counsel is a structural error. State v. Dorsey, 701
N.W.2d 238, 252 (Minn. 2005). And structural errors do “not require a showing of
prejudice to obtain reversal.” Camacho, 561 N.W.2d at 171.
(1) Waiver
Waiver is the voluntary relinquishment of a known
right. We have required the waiver of the constitutional right
to counsel to be knowing, intelligent, and voluntary. A written
waiver of the right to counsel is necessary in felony cases
unless the defendant refuses to sign such a waiver. And we
require district courts, before accepting a waiver of the right to
counsel, to fully advise the defendant by intense inquiry
regarding the nature of the charges, the possible punishment,
mitigating circumstances, and all facts essential 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 (quotations and citations omitted).

One of the sources of the requirement for a written waiver is the Min nesota Rules
of Criminal Procedure. Specifically, rule 5.04 requires that “defendants charged with a
felony who appear without counsel, do not request counsel, and wish to represent
themselves, enter on the record a voluntary and intelligent written waive r of the right to
counsel.” Minn. R. Crim. P. 5.04, subd. 1(4). Before accepting such a waiver, the district
court must advise the defendant of the following:

8
(a) nature of the charges;
(b) all offenses included within the charges;
(c) range of allowable punishments;
(d) there may be defenses;
(e) mitigating circumstances may exist; and
(f) all other facts essential 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.

Minn. R. Crim. P. 5.04, subd. 1(4)(a)-(f). In addition to the requirement in the Minnesota
Rules of Criminal Procedure, Minnesota statutes echo the written requirement. “Where
counsel is waived by a defendant, the waiver shall in all instances be made in writing,
signed by the defendant, except that in such situation if the defendant refuses to sign the
written waiver, then the court shall make a record evidencing such refusal of counsel. ”
Minn. Stat. § 611 .19 (2018). Caselaw also emphasizes the written requirement, and the
necessity of clear warnings from the district court even when a defendant signs a written
waiver. See Jones, 772 N.W.2d at 504.
To be valid, even when there is a written waiver , a defendant’s waiver of the right
to counsel must be made knowingly, intelligently, and voluntarily. Rhoads, 813 N.W.2d
at 885. This turns on “the facts and circumstances of the case, including the background,
experience, and conduct of the accused. ” Id. at 884. “[T]o ensure a knowing, intelligent,
and voluntary waiver -of-counsel, district courts 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. at 885–86 (quotations omitted).

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Appellant argues that the district court failed to comply with the rule and statutory
requirements for waiver of the right to counsel and that his waiver was not knowing,
voluntary, and intelligent. Respondent does not argue that the district court complied with
the rule and statutory requirement for the district court to obtain a written wai ver of the
right to counsel. Nor does it argue that appellant refused to sign a written waiver. Instead,
respondent characterizes these requiremen ts as merely being “recommended” and argues
that appellant’s waiver was valid.
Because a violation of the constitutional right to counsel is a structural error and not
subject to harmless -error analysis, we begin by addressing appellant ’s argument that his
constitutional right to counsel was violated. Our review of the record does not reflect any
attempt by the district court—at trial or during any of the nine pre-trial hearings—to obtain
a written waiver of counsel and does not contain any indication that appellant refused to
sign such a waiver. While such non compliance is not dispositive in and of itself, it is
important to consider in an analysis of whether a waiver of the right to counsel was valid.
See Jones, 772 N.W.2d at 504 ( “A written waiver of the right to counsel is necessary in
felony cases unless the defendant refuses to sign such a waiver. . . . The district court ’s
finding that Jones expressly waived his right to counsel is unsupported by the record. There
was no written waiver.”); see also Rhoads, 813 N.W.2d at 886 ( “A district court’s failure
to conduct an on -the-record inquiry regarding waiver, however, does not require reversal
when the particular facts and circumstances of the case demonstrate a valid waiver.”).
In addition to the lack of a written waiver, and the non-compliance with the colloquy
mandated by Minn. R. Crim. P. 5.04, subd. 1(4), appellant explicitly reserved his right to

10
counsel once, and reserved “all rights” six separate times. While he did state that he was
appearing “in propria persona,” he at least once specified that was only for “this particular
hearing.” When asked if he wanted to apply for a public defender, appellant stated that
“the defendant is not even capable because the de fendant is a piece of paper.” Further, it
is worth reiterating that at no point did any of the presiding judges offer to appoint advisory
counsel, as strongly recommended by the Minne sota Supreme Court. State v. Jones, 266
N.W.2d 706, 711 n.1 (Minn. 1978) (“[W]e strongly encourage trial courts to liberally use
the authority provided in Rule [5.04], subd. 2 [to appoint advisory counsel], especially
before accepting waivers. ”). And, at no point was appellant ever represented by counsel
in this matter. Cf. State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (indicating that the
district court could reasonably presume that defendants were fully advised by their
previous attorney on the con sequences of proceeding pro se when they “were provided
with competent legal representation for over a month before trial and took full advantage
of that representation up until the morning of their scheduled trial date”).
Given these “particular facts and circumstances,” we conclude that appellant did not
waive his right to counsel because appellant did not do so knowingly, intelligently, and
voluntarily.2 Rhoads, 813 N.W.2d at 886.

2 Respondent makes an argument that because the district court potentially “covered” the
points in the colloquy recommended in State v. Osborne, appellant validly waived his right
to counsel . 715 N.W.2d 436 (Minn. 2006). This argument fail s for at least two clear
reasons. First, Osborne was about the waiver of the right to a jury tria l that did not
implicate the rule and statutory requirements regarding waiver of the right to counsel. Id.
at 438–39. Second, to the extent that Osborne conflicts with Jones, Jones controls because
both cases were released by the Minnesota Supreme Court, but Jones was released three
years after Osborne.

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(2) Waiver by conduct
Waiver by conduct is a separate concept. . . . [W]aiver
by conduct occurs if a defendant engages in dilatory tactics
after he has been warned that he will lose his right to counsel.
Waiver by conduct applies to those defendants who voluntarily
engage in misconduct knowing what they stand to lose but are
not affirmatively requesting to proceed pro se. The same
colloquy required for affirmative waivers must also be given
before a defendant can be said to have waived his right to
counsel by conduct.

Jones, 772 N.W.2d at 505 (quotations and citations omitted).

Similarly, the same requirements placed on the district court to accept a valid waiver
also apply before a district court can make a finding of waiver by conduct. Id. (“Again, in
this case, the district court failed to conduct a colloquy sufficient to satisfy the requirements
of Minn. R. Crim. P. [5.04], subd. 1(4).”). It is also undisputed that the district court never
offered to appellant a written waiver of the right to counsel, or accepted one from him .
And because appellant w as requesting to proceed pro se, waiver-by-conduct simply does
not apply.
(3) Forfeiture.
The final method of relinquishing the right to counsel is
forfeiture. . . . a defendant who engages in extremely dilatory
conduct may be said to have forfeited his right to counsel.
Forfeiture does not require the court to conduct a waiver
colloquy with the defendant. Forfeiture is usually reserved for
severe misconduct, when other efforts to remedy the situation
have failed.

Jones, 772 N.W.2d at 505 (quotations and citations omitted).

Jones was the first case in Minnesota history to apply the forfeiture doctrine to the
right to counsel. Id. In that case, the court described Jones ’s conduct as “extremely

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dilatory.” Id. at 506. Jones applied for and was denied a public defender three times. Id.
“He repeatedly told the district court that he was planning on retaining private counsel, ”
and was granted three continuances “solely” for the purpose of allowing him to pursue
private counsel. Id. The district court set the trial date four months after the omnibus
hearing to allow Jones additional time to hire private counsel. Id. And maybe even more
importantly, the district court made an explicit finding that because Jones was “somebody
who [was] not taking the initiative to do what they need to do to get counsel,” he had “given
up [his] right to have an attorney.” Id. The Minnesota Supreme Court affirmed this finding
as “not clearly erroneous.” Id.
Here, appellant never applied for a public defender, never told the district court that
he was planning on retaining private counsel, was not granted any continuances for the
purpose of retaining counsel, and had a trial date set around two and one-half months from
his last hearing in order to gather witnesses.3 Although appellant’s conduct was egregious,
he did not engage in “extremely dilatory” conduct, and we therefore conclude that appellant
did not waive his right to counsel through forfeiture.
Because the error is structural, we must remand for a new trial. In Garibaldi, we
reversed that defendant ’s conviction based on the district court’s failure to elicit a valid
waiver of the right to counsel in accordance with the waiver rule set forth in the Minnesota

3 While the transcript shows that appellant was often abrasive and consistently challenged
the authority of the district court, the legitimacy of the state ’s authority to prosecute him,
and other argumen ts that are generally only made by so -called “sovereign citizens,” that
does not change the district court ’s obligation to protect appellant ’s right to counsel, nor
does it change the district court’s obligation to comport with Minnesota rules and statutes.

13
Rules of Criminal Procedure. State v. Garibaldi, 726 N.W.2d 823 (Minn. App. 2007). In
doing so, we explained that there are significant policy justifications for a remand:
In deciding as we have in this case, we are keenly aware
of both the specific requirements of the rule and the policy
reasons for accepting less than strict adherence to those
requirements. We are not insensitive to the very real time
pressures present each day in the trial courts of the state. And
a temptation to cynicism might lead a reviewing court to be
reluctant to provide a defendant with “two bites at the apple,”
a chance to retry a case based on a contention that a previous
waiver of counsel was not voluntary, knowing, and intelligent.
But adherence to the mandates of the rule should be required
when addressing the issue of waiver, especially when, as here,
the record is unclear on the extent of Garibaldi ’s previous
representation, and standby counsel was not appointed.
Further, a thorough and careful waiver procedure will
ultimately result in conservation of time and treasure, and will
reduce the emotional toll extracted from all participants in the
judicial system. Conversely, acceptance of an inadequate
waiver invites not only appeal, but reversal and remand for a
new trial.

Id. at 831.

And as Justice Sutherland wrote, in a criminal trial, “Even the intelligent and
educated layman has small and sometimes no skill in the science of law” and while he may
be actually innocent, “he faces the danger of conviction because he does not know how to
establish his innocence” if not represented by counsel. Powell v. Alabama, 287 U.S. 45,
69, 53 S. Ct. 55, 64 (1932). Given the risk of erroneous deprivation of liberty, this warning
is particularly applicable to waiver of the right to counsel. While appel lant’s conduct in
court may have been offensive and sometimes disruptive, it served only to increase the
importance of the district court’s obligation to protect appellant’s right to counsel.

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II. Appellant’s pro se arguments are meritless
Even though we reverse and remand for a new trial, we still address appellant’s pro
se arguments because, if any of them were successful, the remedy would be reversal of his
convictions rather than remand. Appellant raises a number of distinct arguments.
“Although some accommodations may be made for pro se litigants, this court has
repeatedly emphasized that pro se litigants are generally held to the same standards as
attorneys and must comply with court rules .” Fitzgerald v. Fitzgerald, 629 N.W.2d 115,
119 (Minn. App. 2001). “[O]n appeal error is never presumed. It must be made to appear
affirmatively before there can be reversal . . . [and] the burden of showing error rests upon
the one who relies upon it.” Waters v. Fiebelkorn, 13 N.W.2d 461, 464–65 (Minn. 1944).
Appellate courts decline to reach issues that are inadequately briefed. State v. Butcher, 563
N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). An assignment
of error in a brief based on “mere assertion” and not supported by argument or authority is
waived unless prejudicial error is obvious on mere inspection. State v. Anderson , 871
N.W.2d 910, 915 (Minn. 2015).
Validity of Minnesota statutes
Appellant argues that his conviction is not valid because, “It is clear that this [United
States] Constitution is the governing document by which all criminal law will be decided.”
It is unclear what exactly appellant is arguing in this section, but we conclude that, to the
extent appellant is raising any argument, we reject it on the grounds that it is undeveloped
and unsupported by relevant authority. See Andersen, 871 N.W.2d at 915.

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Probable cause for arrest
Appellant next argues that the arresting officer did not have probable cause to place
him under arrest. He argues that, “The fact that the deputy believed that the defendant
committed a misdemeanor . . . did not authorize him to arrest” appellant.
A district court ’s determination of probable cause is reviewed de novo. State v.
Burbach, 706 N.W.2d 484, 487 (Minn. 2005). Probable ca use for DWI exists “whenever
there are facts and circumstances known to the officer which would warrant a prudent man
in believing that the individual was driving or was operating a motor vehicle on the
highway while under the influence of an alcoholic beverage.” State v. Harris, 202 N.W.2d
878, 881 (Minn. 1972). If an officer has probable cause to believe that an individual is
driving while impaired, in violation of Minn. Stat. § 169A.20, the officer has the authority
to arrest that individual without a warrant. Minn. Stat. § 169A.40, subd. 1 (2018).
To the extent that appellant is arguing that Deputy Peterson needed a warrant to
arrest him, section 169A.40 explicitly defeats that argument. To the extent that appellant
is arguing that the facts were ins ufficient to constitute probable cause that he had been
driving while impaired, the facts clearly support the district court ’s finding of probable
cause. Appellant was driving on the wrong side of the road ; he did not stop immediately
after Deputy Peterso n started following him with his squad lights on ; when Deputy
Peterson approached appellant’s vehicle the odor of alcohol emanated from it; the time was
roughly 1:30 a.m.; appellant was wearing a wristband of the type used to signify at bars
that someone is allowed to drink alcohol; and appellant refused to comply with off icer
requests and directives. All of these facts are certainly sufficient to “warrant a prudent man

16
in believing that the individual was driving or was operating a motor vehicle on the
highway while under the inf luence of an alcoholic beverage, ” as required for a finding of
probable cause. Harris, 202 N.W.2d at 881.
Jurisdiction
Appellant also challenges the jurisdiction of this court. A district court’s finding of
jurisdiction is reviewed de novo. State v. Ali, 806 N.W.2d 45, 51 (Minn. 2011). Minnesota
courts have jurisdiction and may convict and sentence a person under Minnesota laws if
the person “commits an offense . . . within this state. ” Minn. Stat. § 609.025(1) (2018).
The record demonstrates that the offense took place within the State of Min nesota, in
Carver County, and appellant does not contest the actual location of the offense. Therefore,
Minnesota courts have jurisdiction over the offense that appellant is now challenging. This
argument also fails.
Cause of action
Appellant finally argues that his conviction must fail because there is, “No case or
cause of action (corpus delicti). ” Appellant’s argument is that because “there is no
accusation alleged the defendant did not violate anyone ’s legal rights. ” He argues that
because the state cannot point to a “true adversary,” there is no victim and therefore no
crime. Appellant does not cite to any relevant legal authority to support this argument, and
does not articulate a cogent argument. We therefore reject the argument as undeveloped
and not properly before the court. See Andersen, 871 N.W.2d at 915.
Reversed and Remanded.