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This opinion will be unpublished and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
A18-2066

State of Minnesota,
Respondent,

vs.

Brandon Jon Urban,
Appellant.

Filed January 21, 2020
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Freeborn County District Court
File No. 24-CR-17-1065

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

David J. Walker, Freeborn County Attorney, Karyn D. Sackis Lunn, Assistant County
Attorney, Albert Lea, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this direct appeal, appellant Brandon Jon Urban argues that his convictions must
be reversed because (1) he did not submit a valid waiver of his right to counsel, (2) he did

2
not submit a valid waiver of his right to a ju ry trial, and (3) the district court erred by
entering convictions for two driving while in toxicated (DWI) counts that arose from a
single behavioral incident. Because we conclude that appellant validly waived his right to
counsel and his right to a jury trial, we affirm in part. And because the district court
improperly convicted Urban of two DWI counts for a single behavioral incident, we reverse
in part and remand for the district court to vacate one of Urban’s DWI convictions.
FACTS
On June 19, 2017, officers were dispat ched to Urban’s residence regarding a
possible domestic assault. Urban told the officers that he drove his car into his girlfriend’s
car after she locked herself in her car. The officers could smell alcohol on Urban and asked
Urban if he was drinking. Urban told the officers that he had “had a couple drinks.” The
officers gave Urban a preliminary breath te st. The officers then arrested Urban and
transported him to the local detention center. At the detention center, officers administered
another breath test. The test results revealed a 0.21 alcohol concentration.
The Initial Charges
The state initially charged Urban with felony second-degre e assault with a
dangerous weapon; misdemeanor domestic assault; gross-misdem eanor second-degree
DWI (under the influence of alcohol); gr oss-misdemeanor second-degree DWI (alcohol
concentration of 0.08 or more); and gross-misdemeanor driving after cancellation (inimical
to public safety). The felony assault charge carried a maximum sentence of imprisonment

3
for seven years and a $14,000 fine. 1 See Minn. Stat. § 609.222, subd. 1 (2016). The two
gross-misdemeanor DWI charges and the misd emeanor driving-after-cancellation charge
each carried a maximum sentence of impris onment for one year an d a $3,000 fine. See
Minn. Stat. § 609.03(2) (establishing maximu m sentences for gross misdemeanors). The
misdemeanor domestic assault charge carried a maximum sentence of imprisonment for
90 days and a $7,000 fine. See id.(3) (establishing maximum sentences for misdemeanors).
Urban was initially denied a public defender, but the district court later appointed
one who made his first court appearance on be half of Urban in July 2017. The public
defender represented Urban at multiple court appearances over a period of seven months.
Urban’s first public defender left the ca se for unknown reasons, and a new public
defender appeared for a pretrial hearing on March 23, 2018. At that hearing, Urban stated
that he would like to dismiss his attorney. The district court asked Urban if he would like
to represent himself. Urban responded, “Abs olutely.” The parties then discussed a
possible plea agreement, and the district court refused to discharge Urban’s attorney until
the attorney had a chance to sp eak with Urban about any potential agreement. After an
off-the-record discussion, Urban’s attorney informed the court that the parties had not come
to an agreement. Urban’s attorney also told the court that Urban requested a speedy trial.
The district court did not dismiss Urban’s attorney at that time.
At a pretrial hearing on April 20, Urba n asked the court if it had received his
“memo.” Urban indicat ed that he was referring to a written motion requesting dismissal

1 The district court ultimately dismissed both assault charges for a lack of probable cause.

4
of his attorney. The court indicated that it did not review the mo tion because the motion
was filed by Urban personally, and not by his attorney.
Five days later, Urban signed and filed a petition to proceed pro se. In the petition,
Urban acknowledged that he understood: (1) th e charges against him; (2) the range of
sentences and fines that could be imposed; (3) that he had a right to an attorney; (4) that he
had discussed his desire to represent himself with his attorney; and (5) that, if the petition
was granted, he would be responsible for preparing his case for trial and trying the case.
At the next pretrial hearing on May 25, 2018, Urban and his public defender asked
the court to rule on Urban’s petition to proceed pro se. Th e district court acknowledged
Urban’s written request to procee d pro se and went through a series of waiver questions
with Urban. Urban confirmed that he understood that he had a right to an attorney, that his
written request to proceed pro se meant that he had to represent himself, and that he would
be held to the same standard as an attorney. Urban said that he had “read all the criminal
procedures and all the rules” and that he was “very aware” of his decision. Ultimately, the
district court dismissed Urban’s public defender.
On June 6, Urban filed a writte n waiver of his right to a ju ry trial. On the waiver
form, Urban signified that he had an opport unity to consult with counsel regarding his
decision to waive a trial by jury.
On June 12, Urban appeared pro se at a bail hearing for violating his release
conditions. Urban was again informed of his right to counsel. Urban replied that he would
be representing himself. The court then asked Urban if he wanted to waive a jury trial and
Urban responded, “[a]s long as you are the presiding official.” The court noted that Urban

5
had gone through a jury trial in another case and asked Urban if he understood the
difference between a court trial and a jury trial. Urban said that he did and the court
proceeded to schedule a bench trial for June 19.
The Amended Charges
On the morning of trial, the state amended the two gross-misdemeanor DWI counts
to felony DWI charges. The state amended the complaint because it learned that Urban
had recently been found guilty by jury trial of another DWI and, as part of that proceeding,
had stipulated to two prior DWI convictions. 2 The amended complaint reflected three
counts: felony DWI under Minn. Stat. § 169A. 20, subd. 1(1) (2016) (driving under the
influence of alcohol) (count one), felo ny DWI under Minn. Stat. § 169A.20,
subd. 1(5) (2016) (driving with an alcohol concentration of 0.08 or more) (count two), and
gross-misdemeanor driving after cancellation (count three).
The district court arraigned Urban under the amended complaint. The court named
each felony charge and described the associat ed maximum sentence. The court informed
Urban that count one was a felony charge that carried a maximum penalty of seven years
in prison and a $14,000 fine. The court then reviewed count two, informing Urban that the
second count also was a felony charge that carried a maximum penalty of seven years and

2 Compare Minn. Stat. § 169A.25, subd. 1 (2 016) (A person is guilty of a
gross-misdemeanor second-degree driving while impaired “i f two or more aggravating
factors were present when th e violation was committed.”) with Minn. Stat. § 169A.24,
subd. 1 (2016) (A person is guilty of felony first-degree driving while impaired if the person
“commits the violation within ten years of the first of three or more qualified prior impaired
driving incidents”).

6
a $14,000 fine. Finally, the court reviewed count three, which was unchanged. The court
asked Urban if he understood the charges and he responded, “I do.”
Next, the court advised Urban of his rights. The court told Urban that he had a
“right to an attorney” including having one “appointed to represent [him]” and that the
court would grant a continuance for him to “get or speak to an attorney.” The court told
Urban that he was “entitled to a jury trial on this matter.” The court asked Urban if he
understood his rights and he responded, “I do, your honor.”
The court asked Urban if he intended on being represented by an attorney and Urban
responded, “I do. I’m going to need a continuance . . . .” When the court asked Urban why
he was requesting a continuance, Urban stated that he needed to subpoena a witness. The
state objected to the continuance request noti ng that while the level of the DWI offenses
had changed, “the crime itself has not cha nged.” The state noted that Urban had not
previously disclosed that he would be calling any witnesses and indicated that it was ready
to proceed with trial that da y. The state also emphasized that Urban requested a speedy
trial and that they were past “the 60 days at [that] point.” Urban stated that he was “looking
forward to this going forth to day until [the complaint] got amended to a felony charge,
which carries a mandatory year of prison[.]”
Urban and the court then had a discussion about the likely sentence if Urban were
to be convicted. The court told Urban that the felony DWI charge carried a presumptive
36-month stayed sentence and that he was “not looking at prison.” Urban asked follow up
questions, including what would happen if his criminal history score were higher and if the
sentence would still be stayed. The court confirmed the sentence would be stayed. Urban

7
responded that “as long as [t he sentence is] stayed,” he was “not concerned.” Urban
indicated that he was ready to proceed.
During the course of this discussion, the court also asked Urba n if he wanted to
waive his right to counsel, including his ri ght to a public defender. Urban replied “yes”
and “that’s correct.” The court asked Urban if he wanted to waive his right to a jury trial.
Urban replied “[y]es, [y]our [h]onor.” The court proceeded with trial.
In the middle of the questioning of witne sses, the court stopped the trial to clarify
that Urban had already been arraigned on th e amended complaint, that he was read his
rights, and that he waived his right to counse l and a jury trial. The court asked if Urban
pleaded “not guilty” on all counts. Urban admitted to count three (the
driving-after-cancelation charge) and confirmed that he was proceeding with a “not guilty”
plea on counts one and two (the DWI charges). The bench trial continued.
During the trial, Urban questioned witnesses, cross-examined the state’s witnesses,
and delivered a closing argument. At the end of trial, the district court took the matter
under advisement. In a written verdict and or der, the district court found Urban guilty of
all three counts.
The district court subsequently convicted Urban of all three counts, but sentenced
him on only two of the counts. On count two (driving with an alcohol concentration above
the legal limit), the district court sentenced Urban to 36 months in prison, stayed for seven
years, and ordered Urban to serve 180 days in jail. For count three (driving after
cancellation), the court sentenced Urban to se rve 180 days in jail, consecutive to the

8
sentence for count two. The court did not sentence Urban on count one (driving under the
influence of alcohol), but did enter a conviction.
Urban appeals.
D E C I S I O N
Urban first argues that he did not knowi ngly or intelligently waive his right to
counsel on the amended complaint. Urban th en argues that he did not knowingly or
intelligently waive his right to a jury trial on the amended complaint. Urban also contends
that the district court erred by entering two DWI convictions for conduct that arose out of
the same set of circumstances. We address each issue in turn.
I. The district court did not err in dete rmining that Urban validly waived his
right to counsel.

Urban argues that his DWI convictions should be reversed because he did not
validly waive his right to counsel.3 Urban concedes that the district court told him that the
charges were “more serious because they called for a stayed 36-month sentence” and that
the “maximum penalty was seven years.” Bu t Urban contends that the on-the-record
inquiry was insufficient because the court di d not “sufficiently advise [him] of the
increased allowable punishments” and because the waiver was required to be in writing.
The state argues that the district court was not required to renew Urban’s waiver on the
amended complaint and, regardless, Urban knowingly waived his right to counsel.

3 Urban does not argue that his gross-misdemeanor conviction for driving after cancelation
requires reversal.

9
“Criminal defendants have a constitutional right to an attorn ey and a corollary
constitutional right to choose to represent themselves in their own trial.” State v. Worthy,
583 N.W.2d 270, 279 (Minn. 1998); see also U.S. Const. amend. VI; Minn. Const.
art I, § 6. Accordingly, a defendant can waive his right to an attorney. See Worthy ,
583 N.W.2d at 279. The Minn esota Supreme Court has held th at the right to an attorney
“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).
When a defendant waives hi s constitutional right to counsel, his waiver must be
“knowing, intelligent, and voluntary.” Id. “Whether a waiver of a constitutional right was
knowing, intelligent, and volu ntary depends on the facts and circumstances of the case,
including the background, experience , and conduct of the accused.” State v. Rhoads ,
813 N.W.2d 880, 884 (Minn. 2012). 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.” Rhoads, 813 N.W.2d at 885. The denial of the right to counsel is a
structural error. Bonga v. State, 765 N.W.2d 639, 643 (Minn. 2009). Structural error “does
not require a showing of prejudice to obtain reversal.” State v. Camacho, 561 N.W.2d 160,
171 (Minn. 1997).
Minnesota Statutes and the Minnesota Rules of Criminal Procedure impose
requirements on district courts for accepting a defendant’s waiver of counsel. In felony
cases, a written waiver of the right to counsel is necessary unless the defendant refuses to
sign such a waiver. Minn. Stat. § 611.19 (2018); see also Minn. R. Crim. P. 5.04,

10
subd. 1(4). However, the supreme court has held that deviating from the required
procedures does not invalidate a waiver if the “particular facts and circumstances
surrounding th[e] case including the background, experience, and conduct of the accused”
show that the waiver was valid. Worthy, 583 N.W.2d at 275-76.
The parties agree that Urban’s waiver of counsel on the original complaint was
valid. Generally, a defendant who has knowingly, intelligently, and voluntarily waived his
right to counsel is not required to renew the waiver at subsequent proceedings. Rhoads,
813 N.W.2d at 889. But in Rhoads, the supreme court held that an exception to the general
rule is warranted when an amended charge doubles the maximum possible punishment to
an offense. Id. at 888. Here, the amended complaint increased Urban’s maximum sentence
for each of the DWI charges from one year and a $3,000 fine to seven years and a $14,000
fine. Under Rhoads, the district court was required to obtain a new knowing and intelligent
waiver of Urban’s right of counsel.4 Id.
To determine whether Urban’s renewed waiver of his right to counsel was knowing
and intelligent, we apply the Worthy analysis. Id. at 889. The validity of Urban’s waiver
depends on the particular facts and circumstan ces surrounding this case, including “the
background, experience, and conduct of the accused.” Worthy, 583 N.W.2d at 275-76.
Specifically, under Rhoads, the record must demonstrate that Urban renewed his waiver in

4 We note that in its brief the state in correctly relies on this court’s holding in
State v. Rhoads to assert that Urban was not required to renew his waiver.
802 N.W.2d 794, 805, 808 (Minn. App. 2011), rev’d, 813 N.W.2d 880 (Minn. 2012). But
the supreme court overruled this court’s decision on that issue. See Rhoads, 813 N.W.2d
at 888.

11
a manner that demonstrates that he unders tood the increase in the maximum possible
punishment for the amended charges. 813 N.W.2d at 888.
We conclude that Urban was aware of the maximum possible punishments and
knowingly and intelligently rene wed the waiver of his right to counsel after the state
amended the charges. As discussed above, the record demonstrates that the district court
reviewed the charges and the maximum punishment of seven years in prison with Urban
on the record. Urban acknowledged the charge s, including the increase in the maximum
punishment, and confirmed that he understood them. Urban asked several questions about
his possible sentence and determined that he was “not concerned.” Based on his
understanding of the potential punishment, Urban ultimately decided to waive his right to
counsel.
The surrounding circumstances also demonstrate that Urban was fully aware of the
consequences of proceeding pro se. Urban was familiar with the judicial system. Urban
had contact with the court over a period of approximately one year. He was represented
for ten months out of this year, including when he was charged with a felony assault (later
dismissed) that carried a maximum punishment of seven years in prison. Throughout the
year, Urban made multiple attempts to proceed pro se. The district court judge conducted
a thorough waiver of counsel on the origin al complaint before dismissing the public
defender. Then, Urban appeared pro se on several occas ions, filed motions on his own
behalf, and asked probing questions to the court. When the district court renewed Urban’s
waiver of counsel, the judge expressly and clearly asked Urban if he wanted to waive his

12
right to counsel. Accordingly, Urban’s back ground, experience with the judicial system,
and conduct show that the waiver was valid. See Worthy, 583 N.W.2d at 275-76.
Urban maintains that he could not knowingly waive his right to counsel because the
district court did not explain that the minimum sentences and probation periods increased.
But there is no requirement that Urban understand every potential sentence. See Rhoads,
831 N.W.2d at 889 (determining that “knowingly” relates to a defendant’s understanding
of the “increase in the maximum possible punishment” (emphasis added)). And, a lack of
a written waiver does not require reversal where the facts and circumstances show that the
waiver was valid. Worthy, 583 N.W.2d at 275-76. We conclude that Urban understood
the implications of the increase in the maximum possible sentence and the implications of
proceeding pro se. Thus, we conclude that Ur ban validly waived his right to counsel.
Rhoads, 813 N.W.2d at 889.
II. Urban’s waiver of his right to a jury trial was knowing and intelligent.

Urban alternatively argues that his DWI convictions should be reversed because he
did not validly waive his right to a jury trial. Urban contends that his waiver was not
knowing or intelligent because the district court did not properly advise him about the
consequences of being convicted of the fel onies. The state argues that Urban’s written
waiver of his right to a jury trial for the original charges was a valid waiver on the amended
complaint. The state further argues that the waiver made at trial was knowing and
intelligent. We conclude that Urban’s renewe d waiver of his right to a jury trial was
knowing and intelligent.

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The Minnesota Rules of Criminal Procedure set forth four requirements for waiving
one’s right to a jury trial: (1) the waiver must be personal, (2) the waiver must be written
or on the 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 cons ult with counsel.
Minn. R. Crim. P. 26.01, subd. 1(2)(a). Strict compliance with rule 26.01, subd. 1(2)(a) is
required. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).
In addition to the requiremen ts set forth in the rules, a defendant’s waiver of the
right to a jury trial must be k nowing, intelligent, and voluntary. Brady v. United States ,
397 U.S. 742, 7 48, 90 S. Ct. 1463, 1469 (1970); State v. Little, 851 N.W.2d 878, 882
(Minn. 2014). To ensure a waiver is “knowingly and voluntarily made,” the district court
should engage in an on-the-record colloquy focusing on “the basic elements of a jury trial.”
State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991). “The nature and extent of the inquiry
may vary with the circumstances of a particular case.” Id. A defendant’s familiarity with
the judicial system, such as through past co nvictions, and the extent of the defendant’s
opportunity to consult with his attorney can justify a less probing colloquy. Id. This court
reviews de novo whether a defendant properl y waived his right to a jury trial.
State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn.
June 18, 2002).
Urban completed a valid jury-trial waiver for the original comp laint in early June
after consulting with his then-appointed at torney. But “when the [s]tate amends the
complaint after a defendant’s ju ry-trial waiver, the district court must obtain a renewed
waiver of the defendant’s right to a ju ry trial on the newly added charge.” Little,

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851 N.W.2d at 883. Here, the state amende d the complaint and the court was required to
obtain a renewed waiver of Urban’s right to a jury trial. Id. The requirements for an initial
waiver of one’s right to a jury trial also apply to a renewed waiver. Id.
We conclude that Urban knowingly, inte lligently, and voluntarily waived his right
to a jury trial on the amended complaint. The district court advised Urban of his right to a
jury trial after the charges were amended. The court later asked Ur ban if he wanted to
waive his right to a jury tria l on the amended charges and Urban replied “[y]es, [y]our
[h]onor.” See Minn. R. Crim. Pro. 26.01, subd. 1(2)(a) (a “defendant . . . may waive a jury
trial on the issue of guilt provide d the defendant does so personally, in writing or on the
record in open court”). While the district court could have asked more probing questions,
the circumstances of Urban’s case support th e district court’s less-probing colloquy. See
Ross, 472 N.W.2d at 654. Urban was familia r with the judicial system. Urban had
numerous contacts with the court over a period of a year. This was Urban’s fourth court
proceeding for a DWI charge—including a jury trial in a separate case that took place less
than a month before the trial in this case. And Urban had the opportunity to consult with
counsel when he first decided to waive his right to a jury trial on the original complaint.
Here, Urban’s familiarity with the judicial system and his prior opportunity to consult with
his attorney justified a less probing colloquy. Ross, 472 N.W.2d at 654.
Urban maintains that he did not knowingly waive his right to a jury trial because the
district court did not “properly advise him about the consequences of being convicted” of
the felonies. But there is no requirement that a district court “advise” a defendant on all of
the consequences of being convicted of a crim e. Instead, the district court must “advise”

15
the defendant of his right to a trial by jury and the basic elements of a jury trial. See Minn.
R. Crim. P. 26.01 (requiring a court to “advis e” the defendant of the “right to a trial by
jury”); Ross, 472 N.W.2d at 654 (stating that the colloquy should focus on “the basic
elements of a jury trial”). Here, the court told Urban that he was “entitled to a jury trial on
[the] matter,” and that “any jury verdict must be unanimous before [he could] be found
guilty.” Accordingly, Urban was sufficiently advised of his right to a trial by jury.
Finally, Urban maintains that his waiv er on the amended complaint was not
knowing or intelligent because his case is similar to Little. 851 N.W.2d at 883. In Little,
the supreme court addressed whether a jury -trial waiver was valid on an amended
complaint. Id. In Little, the added charge “significantly increased the range of potential
punishment,” the defendant “did not receive a copy of the amended complaint,” and it was
likely “that [the defendant] did not know about the added charge until after he was found
guilty.” Id. at 885. The defendant in Little did not personally waive his right to a jury trial.
Id. at 881. This case is different. Urban received a copy of the amended complaint before
his waiver. And, unlike Little, Urban was fully aware of the amended charges, and the
maximum punishment associated with those charges, when he waived his right to a jury
trial. Further, unlik e the defendant in Little, Urban personally waived his right to a jury
trial. As a result, Little does not support Urban’s argument that his renewed waiver of his
right to a jury trial was not valid.
While the district court could have ques tioned Urban more thoroughly about his
understanding of a jury trial, we conclude that there is “su fficient evidence in the entire
record from which the [district] court could have determined that [the] defendant’s waiver

16
was voluntarily and in telligently made.” State v. Pietraszewski , 283 N.W.2d 887, 890
(Minn. 1979) (finding that a one-sentence colloquy was sufficient where the trial court had
“numerous contacts” with the defendant prior to trial). Accordingly, Urban’s waiver of his
right to a jury trial was valid.
III. Remand is necessary to vacate one of Urban’s convictions.
Urban argues, and the state concedes, that the district court erred by entering
convictions for both felony DWI charges. Urban argues that one of the convictions should
be vacated because the convictions arose from the same behavioral incident and derive
from different subsections of the same statute.
Under Minn. Stat. § 609.04, subd. 1 (2016), an “actor may be convicted of either
the crime charged or an included offense, bu t not both.” An included offense may be a
“lesser degree of the same crime,” or a crime “necessarily proved if the crime charged were
proved.” Id. We have held that se ction 609.04 forbids “mu ltiple convictions under
different sections of a criminal statute for acts committed durin g a single behavioral
incident.” State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations omitted).
In Clark, this court stated that driving under the influence of alcohol and driving
with an alcohol concentration over the legal limit “do not necessarily rest upon the same
proof and are not lesser-included offenses of each other,” but instructed that statute
“[n]onetheless . . . forbids” multiple convic tions under the same statute for the acts
committed during a single behavioral incident. Id. at 170-71. We held it was plain error
for the district court to convict the defendant both of driving while under the influence of
alcohol and driving with an alcoho l concentration over the legal limit because the

17
defendant’s dual DWI convic tions stemmed from the same series of acts. Id. W e
concluded that “[o]ne of the convictions must be vacated.” Id. at 171.
Similarly, in this case, Urban was convicted of both driving under the influence of
alcohol and driving with an alcohol concentr ation over the legal lim it. Applying this
court’s precedent in Clark, we conclude that it was error fo r the district court to convict
Urban of both DWI charges because both convi ctions were based on the same behavioral
incident. 486 N.W.2d at 170-71. Accordingly, we reverse and remand to the district court
with instructions to vacate one of the DWI convictions, but to leave both findings of guilt
in place.
Affirmed in part, reversed in part, and remanded.