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This opinion will be unpublished and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
A18-1921

State of Minnesota,
Respondent,

vs.

Joseph Thomas Rewitzer,
Appellant.

Filed September 30, 2019
Affirmed
Smith, Tracy M., Judge

Brown County District Court
File No. 08-CR-17-924

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

Charles W. Hanson, Brown County Attorney, Paul J. Gunderson, As sistant County
Attorney, New Ulm, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Suzanne M . Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Re yes, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Following a trial to the district court, appellant Joseph Rewit zer was found guilty
and convicted of multiple crimes deriving from an incident in w hich he repeatedly

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threatened a gas station employee and robbed the gas station. In this direct appeal, he argues
that the district court erred by holding a court trial without receiving a proper waiver of his
right to a trial by jury. We affirm.
FACTS
According to trial testimony, over the course of several hours one morning in
September 2017, Rewitzer came and went from a gas station multiple times. During those
visits, he left disjointed but v aguely threatening notes, verba lly threatened an employee,
and stole a small amount of property from the store. The employ ee called the police, who
arrested Rewitzer when he returned for the fourth time that morning.
Rewitzer was charged with one count of threats of violence, two counts of stalking,
one count of disorderly conduct, one count of theft, and one count of possession of a small
amount of marijuana. At an omnibus hearing in October 2017, Rew itzer’s attorney asked
for a bench trial. The district court set the case for a court trial without asking Rewitzer
personally whether he wished to waive his right to a jury trial. A week before the scheduled
trial date, the state amended th e complaint, adding a charge of simple robbery. The trial
was delayed when, on the day of trial, the district court grant ed Rewitzer’s attorney’s
request for a competency examination pursuant to Minn. R. Crim. P. 20.01.
Rewitzer was determined to be co mpetent to proceed, and new pre trial hearings
were held. At a pretrial hearing in April 2018, during a discussion among counsel and the
court about the length of trial, the prosecutor suggested that the length would depend on
whether it was a jury trial or a court trial. Rewitzer interrupted to ask that the trial continue
to be a court trial, and the district court indicated that it would be.

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Rewitzer’s trial was held in June 2018. At the beginning of tri al, the district court
ruled that a second amended complaint filed two days earlier by the state would not be
allowed and proceeded under the c omplaint as amended in Novembe r 2017. The district
court then had the following interaction with Rewitzer:
THE COURT: Mr. Rewitzer, I know we’ve discussed this in
the past, but we’re set for a trial by a judge today, without a
jury. You understand you do have the right to a 12-person jury
in this case or you can have the case tried by a judge; it’s your
choice. Are you choosing to have this case tried by me and not
by a jury?
THE DEFENDANT: Yes, Your Honor.
The district court immediately went on to receive Rewitzer’s wa iver of his right to a jury
trial on the issue of aggravating factors for an enhanced sentence. In doing so, the district
court gave a more in-depth explanation of Rewitzer’s rights for the sentencing phase than
it had when asking about Rewitzer’s waiver on the guilt phase of the trial.
The district court found Rewitzer guilty on all counts except f or possession of a
small amount of marijuana and sentenced Rewitzer to two concurr ent 54-month terms of
imprisonment.
Rewitzer appeals.
D E C I S I O N
Rewitzer argues that the district court erred by conducting a bench trial because he
did not validly waive his right t o a jury trial. Criminal defen dants are constitutionally
entitled to trial by jury. U.S. Const. amend VI; Minn. Const. a rt. I, § 6. But the right may
be waived by a “knowing, intelligent and voluntary” waiver. State v. Ross , 472 N.W.2d
651, 653 (Minn. 1991). Under the Minnesota Rules of Criminal Pr ocedure, a “defendant,

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with the approval of the court, may waive a jury trial on the i ssue of guilt provided the
defendant does so personally, . . . on the record in open court , after being advised by the
court of the right to trial by jury, and after having had an op portunity to consult with
counsel.” Minn. R. Crim. P. 26.01, subd. 1(2)(a).
We review de novo the question of w h e t h e r a d e f e n d a n t h a s b e e n denied the
constitutional right to a jury trial. See State v. Kuhlmann, 806 N.W.2d 844, 848-49 (Minn.
2011). Similarly, we review de novo the “construction and application of procedural rules.”
See St. Croix Dev., LLC v. Gossman, 735 N.W.2d 320, 324 (Minn. 2007).
I. A personal waiver after a court trial is scheduled is not au tomatically
ineffective.

Rewitzer’s principal brief argues that he never personally waived the right to a jury
trial and that the only on-the-record waiver was by his attorney at the October 2017 hearing.
His principal brief never addresses the two instances when Rewi tzer personally, on the
record, asked for a court trial on these charges. Only in his reply brief, filed after the state
pointed out that the district cour t had asked Rewitzer personal ly about the waiver on the
day of trial, does Rewitzer raise the argument that his persona l waiver on the day of trial
was invalid because the trial w as already scheduled when it too k place. 1 Rewitzer’s
position, though not expressly ar gued as such, appears to be th at a defendant must

1 We note that there is a significant difference between a claim that a personal waiver never
occurred and a claim that a purported personal waiver was ineffective for some reason. The
fairest account of the facts includes that Rewitzer personally waived his right to a trial by
jury on the day of trial, and the appropriate framing of the issue is whether that waiver was
effective.

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personally waive the right to a jury trial before the trial is scheduled and that any waiver of
the right to a jury trial after a court trial has been scheduled is ineffective.
Rewitzer cites no case law supporting the proposition that a de fendant must
personally waive the jury-trial right before a court trial is scheduled, rather than before the
court trial takes place, and we believe that no cases addressing this question exist.
Minn. R. Crim. P. 26.01, subd. 1(2)(a), which provides the basi c standards which
must be followed for a defendant to waive the right to trial by jury on the issue of guilt,
says nothing about when a waiver must take place. And the requirements of the rule—that
a defendant waive the right “personally, . . . on the record in open court, after being advised
by the court of the right to trial by jury, and after having had an opportunity to consult with
counsel,” Minn. R. Crim. P. 26.01, subd. 1(2)(a)—can be followed at the start of trial just
as they can before the trial is scheduled.
The district court can also eval uate the knowledge, intelligence, and voluntariness
underlying the defendant’s decision up to the start of trial. See Ross, 472 N.W.2d at 653
(requiring that a waiver of the right to a jury trial be knowin g, intelligent, and voluntary).
Rewitzer does not suggest any reason that knowledge, intelligen ce, and voluntariness
would necessarily be affected by the fact that a formal waiver is provided after a trial is
scheduled, nor can we conceive of any.
W e r e j e c t R e w i t z e r ’ s a r g u m e n t t h a t a w a i v e r o f t h e r i g h t t o a jury trial is
automatically ineffective if it occurs after a court trial has been scheduled.

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II. Rewitzer’s wa iver was valid.
Having determined that Rewitzer’s waiver was not automatically ineffective
because it occurred on the day o f trial, we turn to the questio n of whether the waiver
complied with the procedural and constitutional requirements for a valid waiver.
A. Procedural Requirements
Rule 26.01 establishes four requirements for waiver of the right to a jury trial: (1) the
waiver must be personal, (2) the waiver must be written or on t he record in open court,
(3) the court must advise the defendant “of the right to trial by jury,” and (4) the defendant
must have had an opportunity to consult with counsel. Minn. R. Crim. P. 26.01, subd.
1(2)(a). Strict compliance with rule 26.01, subd. 1(2)(a) is re quired. State v. Sandmoen ,
390 N.W.2d 419, 423 (Minn. App. 1986).
The first two requirements of ru le 26.01, subd. 1(2)(a) are sat isfied: Rewitzer
personally said, on the record, that he wished to waive his rig ht to trial by jury. The third
requirement is also satisfied because the district court informed Rewitzer that he had “the
right to a 12-person jury in this case.” While this is certainly not the most detailed advisory
of Rewitzer’s rights, he was advi sed that he had the right to a jury, which is all the rule
requires.
As to the fourth requirement, Rewitzer was not asked whether he was satisfied that
he had the opportunity to fully d iscuss the matter with counsel , nor did he volunteer that
information. While we think it a good practice for the district court to ask whether a
defendant has had time to discuss the waiver with counsel, thus ensuring that there is a
clear record of that fact, such i nquiry is not required by the rule. See Minn. R. Crim. P.

7
26.01, subd. 1(2)(a). Rather, the rule only requires that a def endant actually have had the
opportunity. Id. Additionally, the “opportunity t o consult with counsel” need n ot be
anything more than an opportunity—actual consultation is not re quired. State v. Johnson,
354 N.W.2d 541, 543 (Minn. App. 1984) (upholding a pro se defen dant’s waiver of his
right to a jury trial because the defendant could have consulted with counsel). And district
courts are discouraged from the sort of inquiry that could dete rmine whether a defendant
actually discussed the waiver with counsel. See Ross, 472 N.W.2d at 654 (noting that courts
should avoid inquiry into attorney-client communications when evaluating the validity of
a waiver). Thus, if a defendant, in fact, had the opportunity to consult with counsel, a lack
of inquiry by the district court about that opportunity is immaterial.
Rewitzer’s argument that he did not have an adequate opportunit y to consult with
counsel is based wholly on his position that the waiver occurred in early October 2017. He
contends that, because he was as signed a new attorney at the en d of September and had
only been represented by his attorney for a few days when that attorney requested a court
trial at the October omnibus hearing, he lacked an opportunity to consult with counsel. But
the waiver that we consider took place in June 2018. Rewitzer gives no reason that he could
not consult with counsel during the eight months that he was represented between the end
of September and the beginning of June. Thus, we conclude that Rewitzer did have a
sufficient opportunity to consult with counsel.
Rewitzer’s day-of-trial waiver of his right to a jury trial com plied with the four
requirements of Minn. R. Crim. P. 26.01, subd. 1(2)(a).

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B. Constitutional Requirements
In addition to strict compliance with the requirements of Minn. R. Crim. P. 26.01, a
defendant’s waiver of the right to a jury trial must be knowing , intelligent, and voluntary.
Brady v. United States , 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970) (“Waivers of
constitutional rights not only must be voluntary but must be knowing, intelligent acts done
with sufficient awareness of the relevant circumstances and lik ely consequences.”); State
v. Little, 851 N.W.2d 878, 882 (Minn. 2014). The district court therefore must engage in a
colloquy “to learn whether the defendant’s waiver is knowingly and voluntarily made,”
focusing on “the basic elements of a jury trial.” Ross, 472 N.W.2d at 654. However, the
precise nature of the colloquy is flexible; “[t]he nature and extent of the inquiry may vary
with the circumstances of a particular case.” Id. Thus, while it may be helpful in many
cases for a defendant to be told about the number of jurors, th e defendant’s ability to
participate in the selection of jurors, the requirement of unan imity, or the judge’s role if
the right to a jury is waived, none of those things is strictly required. Id. A defendant’s
familiarity with the judicial system, such as through past convictions, and the extent of the
defendant’s opportunity to consult with his attorney can justify a less probing colloquy. Id.
Rewitzer argues that the colloquy fails to demonstrate that his waiver was knowing,
intelligent, and voluntary. He is c orrect that the colloquy alone is insufficient to establish
those facts. The entire colloquy is a single question and answe r, in which Rewitzer is
informed that he has a right to a 12-person jury and that it is his choice whether to have the
trial before a jury or a judge.

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But the supreme court has affirm ed a waiver involving an even l ess informative
colloquy. In State v. Pietraszewski, the entire colloquy was:
T H E C O U R T : T h e n e x t q u e s t i o n , M r . P i e t r a s z e w s k i , y o u r
counsel tells me that you were willing and in fact preferred to
waive jury for the purpose of this Trial, but I want to confirm
that for the record at this time.
MR. PIETRASZEWSKI: That’s true, Your Honor.
283 N.W.2d 887, 890 (Minn. 1979). The district court in Pietraszewski told the defendant
nothing about the substance of the right he was waiving or even that waiver was his
decision to make and not his attorney’s. Id. Nonetheless, the supreme court concluded that
there was “sufficient evidence i n the entire record from which the trial court could have
determined that [the] defendant’s waiver was voluntarily and intelligently made.” Id.
Rewitzer does not make any argument that the entire record is i nsufficient to show
voluntariness, intelligence, or knowledge, and our review of the record suggests that those
requirements were satisfied. Rew itzer was advised of his right to a jury trial at his first
appearance. That advisory was moderately detailed, and Rewitzer affirmed that he
understood his rights. Rewitzer w as also advised of his jury tr ial right during part of a
hearing related to another crime. While that advisory related to a misdemeanor, so Rewitzer
was informed of the right to a six-person jury, the other jury rights were the same. And
Rewitzer had been convicted of seven prior felonies, meaning that he was familiar with the
court system. On this record, Rewitzer’s waiver was knowing and intelligent.
The last issue is whether Rewitzer’s waiver was voluntary. At a pretrial hearing,
immediately after the state said that the length of trial would depend on whether it was a
jury trial or court trial, Rewitzer, unprompted, said “I would like -- I would like to remain

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court trial.” At the time, no one was suggesting that it should be one or the other, and
Rewitzer’s comment appears to be nothing more than an expression of his will. Similarly,
during the colloquy on the day of trial, the district court did inform Rewitzer that it was his
choice whether to have a court trial or a jury trial and Rewitz er affirmed that he wanted a
court trial. On this record, it is apparent that Rewitzer’s wai ver of his right to a jury trial
was voluntary.
Rewitzer’s waiver of the right to a jury trial complied with the requirements of rule
26.01, subd. 1(2)(a), and was knowing, intelligent, and voluntary. The district court did not
err by accepting the waiver.
Affirmed.