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This opinion will be unpublished and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
A18-1878

State of Minnesota,
Respondent,

vs.

David Devon Bryant,
Appellant.

Filed December 16, 2019
Affirmed
Bratvold, Judge

Steele County District Court
File No. 74-CR-18-1440

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

Daniel A. McIntosh, Steele County Attorney, Laura E. Isenor, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pr esiding Judge; Jesson , Judge; and Kirk,
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
BRATVOLD, Judge
In this appeal from final judgment of conviction for misdemeanor trespassing,
appellant argues that he did not validly waive his right to counsel. Because the law and the
record support the district court’s implicit determination that appellant voluntarily waived
his right to counsel with full knowledge and understanding of his rights, we affirm.
FACTS
In Owatonna on August 3, 2018, C.H. woke up at about 3:00 a.m. and went to the
kitchen. He found his neighbor, appellant David Devon Bryant, passed out and lying
face down on the floor. C.H. called 911. The state charged Bryant with misdemeanor
trespassing in violation of Minn. Stat. § 609.605, subd. 1(b)(4) (2018).
On September 11, 2018, Bryant appeared self-represented for two hearings, which
were scheduled for the same time : an arraignment for the trespassing charge, and an
omnibus hearing for an unrelated felony charge. Although this appeal concerns what
happened during Bryant’s trespassing arraignment, the felony hearing provides important
context.
The district court first called the felony case and began by considering Bryant’s
written petition to proceed pro se. The district court informed Bryant of the statutory
maximum sentence for the felony charge, and Bryant said he understood. The district court
asked Bryant about his mental and physical health, then discussed his right to an attorney,
his right to appointed counsel, the possible consequences of representing himself at trial,
and whether he had sufficient time to think about his decision to represent himself. Bryant
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said that he had been “through the system in the last fifteen years,” had previously been
represented by public defenders, had spoken to two law firm s about serving as his
advisory counsel, and that he understood he would be held to the same standard as a lawyer
throughout the proceedings.
Bryant stated that he was “fairly confident in [his] decision” to proceed without
counsel. When the district court asked whether he had any questions, Bryant responded
that he was “perfectly comfortable”; Bryant also agreed he did not feel pressured into
waiving his right to counsel. The district court did not expressly grant Bryant’s petition,
but stated that Bryant could sign and date the petition and file it with the court, which
Bryant did. The district court then stated it would grant Bryant’s request to appoint advisory
counsel. Bryant requested a continued omnibus hearing in the felony case, which was
scheduled for October 5.
When asked if he had other issues for the district court, Bryant raised three issues.
First, Bryant asked for a competency evaluation under Minn. R. Crim. P. 20.02, which the
district court granted. Second, Bryant asked the district court for a furlough from jail to
participate in treatment. When Bryant was not able to provide documentation about the
treatment plan, the district court stated Bryant could resubmit his request when he had the
information. Third, Bryant challenged his bail on several grounds, referring to his need for
mental-health treatment, his constitutional rights, and his inability to pay the pay the bail
previously set. The state opposed modifying bail and the district court denied Bryant’s
motion, stating that mental-health treatment was available at the jail.
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After finishing the hearing on Bryant’s felony case, the district court called Bryant’s
misdemeanor case. The district court informed Bryant of the maximum statutory sentence
for misdemeanor trespass and described his trial rights, including that he had the right to
an attorney, an attorney would be appointed if he could not afford one, and he was entitled
to a six-juror trial. After Bryant said that he understood those rights, the district court asked,
“And do you want to have an attorney represent you on this case?” Bryant responded, “No.”
The district court asked Bryant to enter a plea, to which he responded, “Not guilty.”
When asked if he wanted a jury trial, Bryant responded, “No. Trial by judge.” The district
court then set a trial date. The two hearings together lasted a total of about four minutes.
About one month later, Bryant represented himself at the misdemeanor trial. The
state presented testimony from C.H. and one of the re sponding officers. Bryant
cross-examined both witnesses, and then testified himself that he was drunk on the day
of his arrest but passed out somewhere else —not C.H.’s home. The district court found
Bryant guilty and sentenced him to the statutory maximum of 90 days in jail with credit for
time served. Bryant appeals.
D E C I S I O N
The United States and Minnesota Constitutions guarantee criminal defendants
the right to counsel. U.S. Const. am end. VI; Minn. Const. art. I, § 6. The right to
self-representation is implicit in the Sixth Amendment. State v. Rhoads, 813 N.W.2d 880,
885 (Minn. 2012). The Minnesota Supreme Court has held that a defendant can waive the
right to counsel in three ways: (1) express waiver, (2) waiver by conduct, or (3) forfeiture.
State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009).
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To be valid, a defendant’s waiver of the right to counsel must be “knowing,
intelligent, and voluntary.” Id.; see also Minn. R. Crim. P. 5.04, subd. 1(3). “Whether a
waiver of a constitutional right was knowing, intelligent, and voluntary depends on the
facts and circumstances of the case, including the background, experience, and conduct of
the accused.” Rhoads, 813 N.W.2d at 884. We review a district court’s finding of a valid
waiver for clear error. Jones, 772 N.W.2d at 504. But when the facts are undisputed, “the
question of whether a waiver-of -counsel was knowing and intelligent is a constitutional
one that is reviewed de novo.”1 Rhoads, 813 N.W.2d at 885.
In misdemeanor criminal cases, district courts must obtain a waiver on the record of
the defendant’s right to counsel, and the waiver may be written or oral. See Minn. Stat.
§ 611.19 (2018); see also Minn. R. Crim. P. 5.04, subd. 1(3) (“Defendants charged with a
misdemeanor . . . who wish to represent themselves[] must waive counsel in writing or on
the record”). “The court must not accept the waiver unless the court is satisfied that it is
voluntary and has been made by the defendant with full knowledge and understanding of
the defendant’s rights.” Id.
Before accepting a defendant’s waiver of counsel in a felony case, district courts
must “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

1 The state argues that there are disputed facts concerning the district court’s reading of
Bryant’s rights during the misdemeanor arraignment. We disagree. The parties do not
dispute what was said during the hearing, which is reflected in the transcript. Instead, the
parties make different legal arguments based on the same facts. We therefore review the
validity of Bryant’s waiver de novo.
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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) . An invalid waiver of counsel is a structural error that requires
automatic reversal. See Bonga v. State, 765 N.W.2d 639, 643 (Minn. 2009).
At the outset, we note that the district court did not explicitly follow the
requirements of rule 5.04, subd. 1(3) with respect to Bryant’s waiver of his right to counsel
during the misdemeanor arraignment. Bryant did not expressly waive his right to counsel
in writing or orally. The district court did not expressly find that it was satisfied that
Bryant’s waiver was made “with full knowledge and understanding of [his] rights.” See
Minn. R. Crim. P. 5.04, subd. 1(3). But Bryant told the district court he did not want an
attorney. And the district court implicitly accepted Bryant’s waiver of his right to counsel
when it allowed Bryant to represent himself, enter a plea of not guilty, waive his right to a
jury trial, and then proceed to trial.
We examine the facts and circumstances of Bryant’s case to determine whether his
waiver was valid. See Rhoads, 813 N.W.2d at 884. During Bryant’s felony hearing, the
district court thoroughly covered Bryant’s history of mental illness, his mental health at the
time of the hearing,2 the nature of the felony charge, the maximum sentence for the felony

2 Bryant has a history of mental illness. Bryant told the district court during the felony
hearing that he had recently started taking medication that made him “a little cloudy and a
little tired.” Bryant also told the district court while arguing his motion for a rule 20.02
competency evaluation that he saw a psychologist twice a week, had been civilly
committed in the past, and suffered from post-traumatic stress disorder. On appeal, Bryant
does not argue his waiver is invalid due to incompetency or mental illness and does not
cite any legal authority for such an argument. Indeed, Bryant acknowledged during the
felony hearing that his mental health did not interf ere with his ability to proceed. Bryant
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charge, the consequences of waiving the right to counsel, the services that advisory counsel
could provide, his trial rights, and other circumstances about the felony prosecution. Bryant
told the district court that he was “fairly confident” and “perfectly comfortable” with his
decision to represent himself . The district court then turned to Bryant’s misdemeanor
arraignment and informed him of the nature of the misdemeanor charge and the statutory
maximum punishment for that charge. When the district court asked Bryant whether he
wanted an attorney to represent him in the misdemeanor case, Bryant said, “No.”
Both the felony and misdemeanor colloquies occurred within the span of about four
minutes with the same district court judge. Taken as a whole, the record supports the district
court’s implicit determination that Bryant voluntarily waived his right to counsel with full
knowledge and understanding of his rights. Thus, under the particular facts and
circumstances in this case, we conclude that Bryant validly waived his right to counsel in
the misdemeanor case.
Bryant argues that we should not consider what happened during the felony hearing
when determining whether his waiver of counsel for the misdemeanor charge was knowing,
intelligent, and voluntary. Bryant relies on Rhoads, in which a defendant waived his right
to counsel in writing at a pretrial hearing for second-degree burglary. 813 N.W.2d at 883.
Later, the state amended the complaint to include a new charge for first-degree burglary.
Id. On the first day of trial, the defendant renewed his waiver of counsel, but the district
court did not discuss the more severe sentence for first-degree burglary with the defendant.

also states in his brief to this court that he validly waived his right to counsel in his felony
case.
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Id. at 883-84. The defendant was found guilty of both burglary charges. Id. at 884. The
supreme court held that the renewed waiver on the first day of trial was invalid
because there was “no evidence” that the defendant understood the significance of the
amended charge. Id. at 889. The supreme court concluded that the renewed waiver was
not knowingly and intelligently made, and, therefore, reversed and remanded the
defendant’s conviction for first-degree burglary. Id.
Bryant’s reliance on Rhoads is misplaced. First, Rhoads is distinguishable from this
case in several respects. Rhoads concerned a renewed waiver after an initial waiver was
validly made. Id. at 883. Here, Bryant agrees he validly waived his right to counsel in the
felony case, but argues he did not do so in the misdemeanor case. Rhoads turned on the
district court failing to inform the defendant of the maximum sentence for a new charge.
Id. at 889. Here, the district court informed Bryant of the statutory maximum sentence for
misdemeanor trespassing and the state did not amend the complaint. And nearly six months
passed between the initial and renewed waivers in Rhoads. Id. at 883. Here, the felony and
misdemeanor waivers were minutes apart.
More fundamentally, Rhoads held that a district court’s failure to follow required
procedures “does not require reversal when the particular facts and circumstances of the
case demonstrate a valid waiver.” Id. at 889. Rhoads therefore does not limit our review to
what happened duri ng Bryant’s misdemeanor arraignment. Because we must assess “the
particular facts and circumstances of the case,” we consider the entire discussion between
Bryant and the district court, starting with Bryant’s felony hearing. See id.
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Bryant’s familiarity with the criminal justice system strengthens our conclusion that
his waiver was valid. See State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (concluding
a defendant’s familiarity with the criminal justice system is a relevant factor in determining
voluntary waiver of right to counsel). Bryant told the district court that he had previously
been represented by the public defender’s office, been “through the system in the last
fifteen years[,]” and contacted two law firms about serving as his advisory counsel in
the felony case. And Bryant argued two motions during his felony hearing: one for a
competency evaluation, and one for bail modification that the district court denied. Bryant
thus demonstrated that he understood motion and trial procedures. Bryant’s familiarity with
the criminal justice system shows he understood what was required of him in proceeding
pro se and understood the consequences of waiving his right to counsel.
In sum, we conclude that Bryant validly waived his right to counsel under the
particular facts and circumstances of this case.
Affirmed.