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This opinion will be unpublished and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
A19-0198

State of Minnesota,
Respondent,

vs.

Daniel Cole Simmons,
Appellant.

Filed December 30, 2019
Affirmed
Rodenberg, Judge

Clay County District Court
File No. 14-CR-18-1028

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

Brian J. Melton, Clay County Attorney, Michael D. Leeser , Assistant Coun ty Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, J odi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judg e; Ross, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Daniel Simmons appeals from th e district court’s final judgment of
conviction for a controlled-substance crime, ar guing that his conviction must be reversed

2
and remanded because he validly waived neither his right to counsel nor his right to a jury
trial. We affirm.
FACTS
Police seized drugs at appellant’s house pursuant to a search warrant. Appellant
was arrested and charged with one count of first-degree controlled-substance sale under
Minn. Stat. § 152.021, subd. 1(1) (2016), and two counts of fift h-degree controlled-
substance possession under Minn. Stat. § 152.025, subd. 2( 1) (2016). At appellant’s
request, the district court appointed a public defender to represent appellant.
At the contested omnibus hear ing, appellant’s public defender told the district court
that appellant did not want to talk to his la wyer and that jail staf f informed the public
defender that appellant wanted to ask the dist rict court to fire him and proceed pro se.
Appellant told the district court that he want ed the public defender’s office to represent
him, but that he wanted a different public defender. The district court instructed appellant
“to go up the chain in the public defender’s o ffice” before bringing his complaints to the
district court. When the district court attempted to get appellant to talk to his current public
defender about any omnibus issues, appellant st ated that he had “lost complete trust and
confidence” in his current public defender.
Three days later, appellant’s public defe nder moved the district court to discharge
him. At the motion hearing, appellant confir med that he wanted to discharge his public
defender. When the district c ourt inquired further, appellant st ated that he “would really
like another [public defender] appointed, if they’re not w ith the Clay C ounty Public
Defender’s Office.” The district court expl ained to appellant that the record was

3
insufficient to permit the district court to “f ind that exceptional ci rcumstances exist[ed]”
and thereby appoint a substitute public defender.
The district court volunteered that it was able—if appellant wished—to discharge
appellant’s public defender and let appellant represent himself. The district court explained
that if appellant proceeded pro se, the distri ct court could not give him legal advice and
that he would be held to the same standard as an attorney. The district court told appellant
that, if his case went to trial, appellant “wou ld be required to examine and cross examine
witnesses,” investigate the matter, issue subp oenas, question the jury and witnesses, and
“be held to all of the duties that [his] at torney would generally perform.” Appellant
indicated that he understood. He stated, “That’s what I want to do. I want to represent
myself.” The district court discharged appellant’s public defender.
Appellant confirmed to the district court that he wanted to represent himself and
asked, “Can I waive my contested omnibus toda y? Can I just do that right now?” The
district court inquired further, advising appellant, “And by waiving omnibus today,
effectively you’re saying you waive any objections to the gathering of evidence, probable
cause to support the charges or any other omni bus issues, meaning legal issues, that need
to be resolved prior to trial?” Appellant responded, “Yeah, I’m waiving them.” Appellant
also indicated that he understood that, by waiving the omnibus hearing, he was
withdrawing the motion challenging the search warrant that his now-discharged public
defender had filed earlier. The district court as ked appellant a final time if he wanted to
waive his omnibus hearing and appellant again responded, “Yes.”

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Appellant pleaded not guilty and made a sp eedy-trial demand. The case was set for
trial, and the district court explained to appellant his right to a trial by jury:
You do have the right to a trial by jury. You can also
waive your right to a jury trial and instead request that a Court
trial be held.
If you request a Court trial, the Judge, or myself, would
act as both the finder of fact and the finder of law, so to speak.

Appellant requested a court trial. The di strict court explained to appellant that by
waiving his right to a jury trial, he was waiv ing the right to “a unanimous trial by jury of
12,” and that with a court trial there is “just one fact finder.” Appellant acknowledged that
he understood and had no other questions about the jury -trial waiver. No written waiver
was completed.
Four days before trial, the state file d an amended complaint dismissing the fifth-
degree possession counts and adding one coun t of second-degree controlled-substance
possession under Minn. Stat. § 152.022, subd. 2(a)(1) (2016).
At the start of the court tria l, the district court confirmed with appellant that a court
trial was still his preference. The district court then asked appellant if he received a copy
of the amended complaint. Appellant replied that he had received it the previous day and
stated, “I’m ready to go to—to go to trial over this, Your Honor.” The district court asked
appellant if he felt that he “suffer[ed] a ny prejudice or harm given the timing of the
[amended complaint],” to which appellant responded, “I don’t think it does any harm, Your
Honor. I just want to get this resolved today.” Appellant was arraigned on the new charge,
pleaded not guilty, and waived an omnibus hearing. Ag ain, no written waiver was
completed.

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Before the trial started, appellant men tioned a challenge to the search warrant,
prompting the district court to again explai n that, by his earlier waiver of the omnibus
hearing and motion, appellant waived the ch allenge to the search warrant. Appellant
eventually clarified that he did not want to challenge the sufficiency of probable cause to
support the search warrant, but instead want ed “to show some of the unscrupulous”
behavior of a detective on the case.
Throughout the trial, appellant became frus trated after the district court repeatedly
sustained the state’s objections to appellant’s questioning of witnesses. At one point,
appellant told the district court, “I don’t understand any of this. Like, I’m not even going
to try to pretend I do.”
The district court found appellant guilty of both counts and sentenced appellant to
95 months in prison, the presumptive guidelines sentence.
This appeal followed.
D E C I S I O N
Appellant validly waived his right to counsel.
Appellant argues that his waiver of his ri ght to counsel is invalid because it was not
knowing, intelligent, and volunt ary. Appellant contends that the district court failed to
fully advise him of his right to counsel because it did not obtain a written waiver of counsel,
did not meaningfully advise hi m as required by Minn. R. Cr im. P. 5.04, subd. 1(4), and
erred when it allowed him to waive his right to a contested omnibus hearing on a potentially
dispositive issue.

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Criminal defendants have a constitutional right to counsel. U.S. Const. amend. VI;
Minn. Const. art. I, § 6. “Criminal defendant s have a . . . corollary constitutional right to
choose to represent themselves in their own trial.” State v. Worthy, 583 N.W.2d 270, 279
(Minn. 1998). In a felony case, a waiver of counsel must be voluntary, intelligent, and in
writing, unless the defendant refuses to sign th e waiver. Minn. R. Crim. P. 5.04, subd.
1(4). If the defendant refuses to sign a waiver, an on-the-record oral waiver is valid as long
as it is knowing and intelligent. State v. Nelson , 523 N.W.2d 667, 670-71 (Minn. App.
1994). Before accepting the waiv er, the district court must advise the defendant of the
following:
(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 unders tanding 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). “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 cas e demonstrate a valid waiver.” State v. Rhoads , 813
N.W.2d 880, 886 (Minn. 2012).
When the facts are undisputed, the ques tion of whether a defendant entered a
constitutionally valid waiver of counsel is reviewed de novo. Id. at 885.
In Worthy, the supreme court concluded that , “although the trial court’s on-the-
record inquiry regarding waiver did not include a recitation of the charges or potential

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punishments,” the defendants had counsel, fi red them, and “were fully aware of the
consequences.” 583 N.W.2d at 276. Moreover, the supreme court found that the
defendants “knew that they would be expected to conduct their own defense if they chose
to fire their attorneys” and advised them that “if they chose to proceed pro se, they would
be held to the same standard as the attorneys and would be expected to call and examine
witnesses.” Id. The supreme court held that the district court “did not err in determining
that [the defendants] waived their right to counsel.” Id. at 277.
In State v. Krejci, the supreme court concluded that, although the district court “did
not make the full, on-the-record inquiry wh ich is normally required to ensure a valid
waiver,” the surrounding circumstances made clear that defendant “was fully aware of the
consequences of proceeding pro se.” 458 N.W.2d 407, 412-13 (Minn. 1990). The supreme
court held that defendant’s waiver of counsel was valid. Id. at 413.
Both of these cases are similar to this one . Before allowing appellant to discharge
his public defender, the district court analyz ed whether appellant’s concerns rose to the
level of allowing a substitution of couns el and it applied th e correct exceptional-
circumstances standard when it declined to appoint a different public defender. State v.
Fagerstrom, 176 N.W.2d 261, 264 (Minn. 1970); State v. Gillam, 629 N.W.2d 440, 449-
50 (Minn. 2001). After it declined to appoint a substitute public defender, the district court
advised appellant of his right to proceed pro se and to have the district court discharge the
earlier-appointed public defender.

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The district court should have required a written waiver of counsel and should have
fully advised appellant according to Mi nn. R. Crim. P. 5.04, subd. 1(4). 1 However, its
failure to do so does not require reversal in this instance because the record demonstrates
a valid waiver. See Rhoads, 813 N.W.2d at 886.
The district court clearly advised appellant that, by proceeding pro se, he would be
held to the same standard as an attorney. The district court further explained to appellant
in detail what would be required if his case went to trial:
THE COURT: And you would be in the position if this matter
ultimately did go to trial that you would be required to examine
and cross examine witnesses; you would be required to do your
own investigation in this matter; you’d be required to secure
your own subpoenas that would compel people to come testify.
In your case you would be required to do jury
questioning initially if you want ed to; you would be required
to do an opening if you chose; to question and cross examine
witnesses; and to do closings.
Really, you would be held to all of the duties that your
attorney would generally perform, do you understand that?
APPELLANT: Yes, Your Honor.

Immediately following the district court’ s explanation, appellant stated, “That’s
what I want to do. I want to represent myself.” Appellant understood what discharging
his public defender and proceeding pro se entailed, and he repeatedly told the district court
that he wanted to represent himself. His in itial desire to request another public defender
does not undermine his later decision to waive his right to counsel. See State v. Camacho,
561 N.W.2d 160, 173 (Minn. 19 97) (“The fact that a defendant may first request another

1 It would have been best if the district court had utilized Minn. R. Crim. P. Form 11,
Petition to Proceed As Pro Se Counsel.

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attorney before choosing self-representa tion will not by itself undermine the knowing,
voluntary, and intelligent waiver of the defendant’s counsel.”).
Appellant was represented by an attorney for several months before waiving his
right to counsel. He was familiar with the criminal justice system. Although not perfect,
appellant’s waiver of his right to counsel was adequate.2
Appellant also seems to argue that the validity of his waiver of counsel is undercut
by his waiver of the contested omnibus hearing immediately thereafter. Appellant contends
that his “ongoing confusion about the natu re of the omnibus waiver” and his failed
appreciation of the fact “that his entire case might succeed or fail on the search warrant
issue” further show that he did not understand or appreciate “the benefits of legal assistance
or the risks of proceeding without it.”
The district court, after carefully advising appellant of his right to represent himself
i f h e w i s h e d t o d o s o , p r o vided appellant ample opportun ity to change his mind about
waiving the contested omnibus hearing, to ask questions, and to present issues. But
appellant repeatedly affirmed his desire to waive the hearing. Appellant validly waived his
right to counsel; any consequent problems do not affect the validity of his waiver.

2 Appellant does not challenge on appeal the district court’s denial of his request for a
different public defender. He argues only that he was not sufficiently advised and did not
validly waive his right to a lawyer. The district court was not required to appoint advisory
counsel for appellant after discharging his public defender. Minn. R. Crim. P. 5.04,
subd. 2.

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Appellant validly waived his right to a jury trial.
Appellant argues that his jury-trial waiv er concerning the or iginal complaint was
invalid because he was not given an opportunity to consult with counsel. It is true that the
waiver came after appellant’s decision to proceed without counsel.
Whether a defendant has been denied the constitutional right to a jury trial is a
question we review de novo. State v. Kuhlmann, 806 N.W.2d 844, 848-49 (Minn. 2011).
Criminal rule interpretations are also reviewed de novo. State v. Tlapa, 642 N.W.2d 72,
74 (Minn. App. 2002), review denied (Minn. June 18, 2002).
The Minnesota Rules of Criminal Procedure allow a defendant to waive his right to
“a jury trial on the issue of guilt provided the defendant doe s 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 opportunity to consult with counsel.” Minn. R. Crim. P. 26.01, subd. 1(2)(a).
A jury-trial waiver therefore requires four things: (1) the waiver must be personal, (2) the
waiver must be “written or on the record in open court,” (3) the waiv er must occur after
the court advised the defendant “of the right to trial by jury,” and (4) the defendant must
have “had an opportunity to consult with counsel.” Strict compliance with Minn. R. Crim.
P. 26.01 is required. Tlapa, 642 N.W.2d at 74.
The first two requirements are easily satisfi ed here. Appellant clearly stated on the
record in open court that he wanted a bench trial. The thir d requirement is also satisfied
because the district court confirmed the rights that appellant was foregoing by waiving his
right to a jury trial:

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You understand that by waiving your right to a jury trial
you are waiving—so in your cas e, because it’s a felony, it
would be a jury of 12 and those 12 would need to be unanimous
as to their verdict.
Alternatively, the Court trial, it’s just one fact finder, so
it’s one judge or 12 jurors. So you’re waiving your right to a
unanimous trial by a jury of 12, do you understand that?

Concerning the fourth requirement, the dist rict court did not directly ask appellant
if he wished to consult with an attorney prior to waiving his jury-trial rights. But, Minn.
R. Crim. P. 26.01, subd. 1(2)(a), does not require consultation with counsel; it requires the
“opportunity to consul t with counsel.” See State v. Ross , 472 N.W.2d 651, 654 (Minn.
1991) (finding that “defendant had ample opportunity to co nsult with his attorneys who
presumably also told him about the pros and cons of a jury trial”). Here, appellant had a
public defender until just minutes before he wa ived his jury-trial ri ght. “The fact that
appellant was acting pro se did not deprive him of the opportunity to consult with counsel
before waiver of jury trial.” State v. Johnson, 354 N.W.2d 541, 543 (Minn. App. 1984).
Appellant did have the opportu nity to consult with counse l—and in fact had counsel—
before he waived his right to a trial by jury. The district court did not explicitly advise
appellant that he could consult with an atto rney before appellant waived his jury-trial
rights. But this waiver came only minutes after appellant had been represented by a public
defender. Appellant had an opportunity to c onsult with counsel, and the absence of a
renewed opportunity to do so after appellant had his lawyer discharged does not invalidate
the jury-trial waiver.

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The district court’s failure to renew appe llant’s jury-trial waiv er after the state
amended the complaint does not require reversal.

Appellant argues that, even if his initial jury-trial waiver was valid, the district court
committed reversible error by failing to renew his jury-trial waiver after the state amended
the complaint.
Although the state does not argue it, we not e that the district court found appellant
guilty of the charge that the state added s hortly before trial—second-degree controlled-
substance possession—but did not enter a conviction for that count. A conviction was only
entered for the original count of first-degree sale of a controlled substance. Accordingly,
appellant was only convicted and sentenced for the first-degree sale.
“While . . . findings of guilt by a court are often referred to as ‘convictions,’ a formal
adjudication of conviction requires more.” State v. Hoelzel, 639 N.W.2d 605, 609 (Minn.
2002). “A conviction appearing in the official judgment of conviction or in a conviction
order entered by the court has been formally adjudicated.” Id. (quotation omitted). A
verdict of guilt alone, without a formal adjudication of conviction, is not a final, appealable
judgment. See State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979); see also Hoelzel, 639
N.W.2d at 609.
No formal adjudication of conviction ex ists for appellant concerning the second-
degree-possession charge. Appellant adequately waived his rights concerning the first-
degree sale charge, of which he was convicte d and sentenced. We need not reach the
question of whether appellant should have been required to renew his jury-trial waiver and
if a failure to do so requires reversal.

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But even if we were to reach the question, there would still be no reversible error.
The failure to obtain a new jury-trial waiver after th e complaint was amended was
unquestionably harmless, because appellant ’s conviction of first-degree controlled-
substance sale—on which there was a valid waiver—necessarily includes a conviction of
second-degree controlled-substance possession. The amendment to add a second-degree
count did not increase the potential punishment and charged an included offense.
The elements of first-degree controlled-substance sale 3 are: (1) defendant, on one
or more occasions within a ninety-day period, sold one or more mixtures of a total weight
of 17 grams or more containing methamphetamine; (2) defendant knew or believed that the
substance sold was a controlled substance; (3) defendant’s sale was unlawful; and (4) one
or more sales took place on, or about, March 13, 2018, in Clay County, Minnesota. 10
Minnesota Practice, CRIMJIG 20.02 (2017). The elements of second-degree controlled-
substance possession are: (1) defendant knowin gly possessed one or more mixtures of a
total weight of 25 grams or more containi ng methamphetamine; (2) defendant knew or
believed that the substance possessed was a controlled substance; (3) defendant’s
possession was unlawful; and (4) defendant’s act took place on, or about, March 13, 2018,
in Clay County, Minnesota. 10 Minnesota Practice, CRIMJIG 20.14 (2017). The elements
of the two crimes of which appellant was found guilty are identic al, except for the
requirement to sell a mixture of 17 grams or more under first-degree controlled-substance
sale and the requirement to possess a mixtur e of 25 grams or more under second-degree

3 “To sell” includes possession with intent to sell. 10 Minnesota Practice, CRIMJIG 20.02.

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controlled-substance possession. Appellant was found to have possessed, with the intent
to sell, 27.369 grams of methamphetamine. Appellant’s convicti on of first-degree
controlled-substance sale necessarily enco mpasses the elements of second-degree
controlled-substance possession.
The district court was unde r no obligation to obtain a renewed waiver when the
included second-degree charge was added. It is a less-serious charge than the original first-
degree charge, and the proof of the initial charge necessarily proved the added offense (of
which appellant has not been convicted).
Affirmed.