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This opinion will be unpublished and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
A19-0386

State of Minnesota,
Respondent,

vs.

Gary Burnette, Jr.,
Appellant.

Filed December 30, 2019
Reversed and remanded
Rodenberg, Judge

Rice County District Court
File No. 66-CR-18-1781

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

Tom Weidner, Wendy A. Murphy, Northfield C ity Prosecutors, Eckberg Lammers, P.C.,
Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, 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 Gary Burnette, Jr., challenges hi s conviction for fifth-degree assault,
arguing that (1) he was deprived of his right to a speedy trial, and (2) he did not validly

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waive his right to counsel. Because the reco rd does not establish a valid waiver of
appellant’s right to counsel, we reverse and remand for a new trial.
FACTS
In July 2018, appellant slapped a grocery store employee after the employee bumped
into him with a cart. The state charged appellant with misdemeanor fifth-degree assault.
On August 29, 2018, appellant appeared without counsel for arraignment. The
district court inquired of appellant as follows:
THE COURT: You understand that you have the right to a
lawyer in this case?
THE DEFENDANT: Yes.
THE COURT: And you understand that you have the right to
apply for a public defender if you don’t believe you can afford
an attorney?
THE DEFENDANT: Yes.
THE COURT: Okay. Do you wish to make an application?
THE DEFENDANT: No.
THE COURT: Okay. . . . If you do decide to hire an attorney
and your attorney is not availabl e for that date, he or she can
change the date of the pretrial conference once he or she has
filed their certificate of representation with us letting us know
that they’re representing you.

There was no further discussion at the hearing of whether appellant wanted to represent
himself.
On October 15, 2018, appellant appeared without counsel for a plea hearing and
confirmed that he was representing himself. There was no conversation about appellant’s
right to counsel or whether he waived that right. Appellant pleaded not guilty, waived his
right to a jury trial, and demanded a speedy trial. The district court set trial for
November 30, 2018, within the 60-day window for speedy-trial demands.

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On November 30, 2018, appellant appeared for his trial, again without counsel. The
district court realized there was a schedulin g issue and asked about arranging a new trial
date. Appellant told the district court that he was ready and wanted to start his trial because
he was having housing issues and appearing at court on yet another date would be a
hardship since appellant did not have a car. The district court nevertheless rescheduled the
trial for December 13, 2018, still within the speedy-trial window.
On December 12, 2018, the district cour t rescheduled the trial to December 31,
2018—beyond the speedy-trial window—beca use of judge unavailability. Appellant
moved to dismiss the complain t the following week, arguing in part that the most-recent
rescheduling violated his right to a speedy trial.
Appellant appeared several hours late for the December 31, 2018 trial date,
purportedly because he could not find a ride to the courth ouse. The state’s witnesses had
left by the time appellant arrived, so the dist rict court rescheduled appellant’s trial for
February 6, 2019, which was the earliest availa ble trial date. At the state’s request, the
district court confirmed that appellant wanted a bench trial. The district court did not ask
about whether appellant wanted to represen t himself and did not obtain a waiver of
appellant’s right to counsel.
Appellant’s trial began on February 6, 2019 . The district court advised appellant
concerning how trial would proceed. It did not ask whether appellant wanted to represent
himself. The district court then heard argument on appellant’s motion to dismiss.
Appellant argued that he had been prejudiced by the delay becaus e he had been unsure
about whether his witness would be able to testify, he had to hire a babysitter to watch his

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children, and he had to arrange for transportation to the courthouse. The district court
denied the motion to dismiss because it found that good cause existed for the delays and
that appellant suffered no prejudice.
The case was tried to the district court, and the district court found appellant guilty
of fifth-degree assault.
This appeal followed.
D E C I S I O N
Appellant’s right to a speedy trial was not violated.
Appellant argues that the district court and the state violated his right to a speedy
trial because the trial did not occur within 60 days of his sp eedy-trial demand. The state
contends that appellant’s speedy-trial rights were not violated because the district court had
good cause for the trial delays and appellant suffered no prejudice. We address this
argument first because, if appellant is entitled to a remedy because of a speedy-trial-right
violation, the remedy is dismissal of the charge. State v. Osorio , 891 N.W.2d 620, 627
(Minn. 2017). If appellant’s speedy-trial right s were violated, there could be no trial on
remand.
The United States and Minnesota Constituti ons guarantee criminal defendants the
right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6; State v. DeRosier,
695 N.W.2d 97, 108 (Minn. 2005). We apply a four-factor balancing test to determine
whether a speedy-trial violation occurred: (1) the length of the delay, (2) the reasons for
the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the
delay prejudiced the defendant. State v. Windish , 590 N.W.2d 311, 315 (Minn. 1999)

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(citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972)). We review
alleged speedy-trial violations de novo. Osorio, 891 N.W.2d at 627.
The first factor, the length of delay, is a “triggering mechanism which determines
whether further review is necessary.” Windish, 590 N.W.2d at 315 (quotation omitted). In
Minnesota, a trial must begin within 60 days from the date of the speedy-trial demand.
Minn. R. Crim. P. 11.09(b). A delay beyond 60 days creates a presumption that a violation
has occurred. State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015).
Here, appellant demanded a speedy trial on October 15, 2018. This presumptively
required appellant’s trial to begin no later than December 14, 2018. See Minn. R. Crim. P.
11.09(b). After several continuances of the trial date occasioned by the district court’s
calendar, appellant did not appear on time for tr ial on December 31, 2018. The district
court then rescheduled the trial to February 6, 2019, when the ca se was tried. The
December 31, 2018 trial date was 17 days beyond the speedy-trial window. Although this
delay is de minimis, it creates a presumptive violation of appellant’s right to a speedy trial.
The first factor therefore weighs in appellant’s favor.
The second factor analyzes “whether the government or the criminal defendant is
more to blame for the delay.” Osorio, 891 N.W.2d at 628 (quotations omitted). We
consider delays caused by the state and th e courts together for this factor. See State v.
Cham, 680 N.W.2d 121, 1 25 (Minn. App. 2004), review denied (Minn. July 20, 2004).
Deliberate attempts to delay trial weigh heavily against the state, Osorio, 891 N.W.2d at
628 (quotation omitted), whereas more neutral reasons like court calendar congestion
weigh less heavily, State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).

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There are two delays at issue here. The first is the 17-day delay between the end of
the speedy-trial window on December 14, 2018, and the scheduled trial date on
December 31, 2018. The second is the 37-day delay between December 31, 2018, and the
February 6, 2019 trial. Appellant concedes that the 37-day delay is attributable to his late
appearance to court on December 31, but argues that the 17-day delay from December 14
to December 31 weighs in favor of reversal.
In State v. Griffin, a district court rescheduled the defendant’s trial at least 30 times
over six months because of its congested ca lendar. 760 N.W.2d 336, 339 (Minn. App.
2009). On the second factor of the speedy- trial-violation balancing test, we emphasized
that the defendant was not responsible for any of the continuances and that no exceptional
circumstances justified the delays. Id. at 340. We determined that the second factor, the
reason for the delay, weighed in favor of a sp eedy-trial violation and ultimately reversed.
Id. at 340-42.
Like in Griffin, the district court’s congested calendar is responsible for the 17-day
delay. Appellant is not responsible for that delay and objected to it immediately. There is
no indication in the record that the state deliberately delayed appellant’s trial, as evidenced
by the state’s appearing at each scheduled tria l date, on time, with witnesses present and
ready to testify. The 17-day delay thus weighs in favor of a violation of appellant’s speedy-
trial rights because the delay was caused by the district court’s congested calendar, but we
give it little weight because the delay was not deliberate. See Friberg, 435 N.W.2d at 513.
The third factor is whether appellant a sserted his right to a speedy trial. Windish,
590 N.W.2d at 315. The state and appellant agree that appellant properly and timely

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asserted his right to a speedy trial at his plea hearing and again in his motion to dismiss.
The record supports this. This factor weighs in favor of a speedy-trial violation.
The final factor analyzes the prejudice suffe red by the defendant as a result of the
delay. Id. We consider three types of interests he re: “(1) preventing oppressive pretrial
incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing
the possibility that the defense will be impaired.” Id. at 318. The third of these interests,
preventing the possibility that the defense will be impaired, is the most serious. Id.
Appellant told the district court several times that he had trouble appearing for court
because he did not have a car, had a busy personal life, and wanted to finish the trial sooner
rather than later. On appeal, appellant contends that the delays impacted his personal life,
interfered with his ability to handle a housing issue, caused him to lose work, caused him
to incur additional expenses, and “amplifie d rather than minimi zed his anxiety and
concern.” Even assuming these claims to be true, these types of general stress, anxiety,
and inconvenience are not unique to appellant but are common among all persons involved
in a trial. See Friberg, 435 N.W.2d at 515. Appellant has shown no additional stress,
anxiety, or inconvenience beyond that which is experienced by all criminal defendants.
Appellant was not incarcerated during the 17-day delay (or otherwise), nothing in the
record suggests a loss of evidence or test imony, and appellant was not hampered in
preparing his defense. Nor has appellant identified any way in which the 17-day delay
prejudiced his defense. Here, the complete absence of any prejudice to appellant caused
by the short trial delay strongly weighs against a violation of appellant’s speedy-trial rights.

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On balance, the absence of any prejudi ce suffered by appellant outweighs the de
minimis delay caused by the district court’s busy calendar. We therefore conclude that
appellant’s speedy-trial rights were not violated.
The record does not establish a valid waiver of appellant’s right to counsel.
Appellant argues that the district court erred by failing to obtain a valid waiver of
his right to counsel, either orally or on the record.
The United States and Minnesota Constitutions guarantee criminal defendants the
right to counsel. U.S. Const. ame nd. VI; Minn. Const. art. I, § 6; see also Gideon v.
Wainwright, 372 U.S. 335, 343-45, 83 S. Ct. 79 2, 796-97 (1963). The right to counsel
extends to misdemeanor cases. State v. Nordstrom, 331 N.W.2d 901, 903 (Minn. 1983).
By statute, “[w]here counsel is waived by a defendant, the waiver shall in all instances be
made in writing, signed by the defendant, exce pt that in such situation if the defendant
refuses to sign the written waiv er, then the court shall make a record evidencing such
refusal of counsel.” Minn. Stat. § 611.19 (2018). The Minnesota Rules of Criminal
Procedure similarly provide that criminal defendants charged with a misdemeanor “who
appear without counsel, do not request counse l, and wish to repres ent themselves, must
waive counsel in writing or on the record.” Minn. R. Crim. P. 5.04, subd. 1(3).
If a defendant chooses to represent himself, the district court must ensure that the
defendant’s waiver of counsel is knowing and intelligent. State v. Hawanchak , 669
N.W.2d 912, 915 (Minn. App. 2003). “Where there is no reco rd of a defendant’s waiver
of counsel, it is impossible to determine upon appellate review whether a waiver was
knowing and intelligent.” Id. at 915. “In such instances, the defendant is entitled to a new

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trial” because “a denial of the right to coun sel does not require a showing of prejudice to
obtain reversal.” Id.
Here, the district court touched on appella nt’s right to counse l only twice during
the various hearings: once during appellant’s arraignment when the district court asked
whether appellant wanted to apply for a public defender, and once during appellant’s plea
hearing when the district court asked whet her appellant was representing himself. The
district court did not question appellant on either occasion about whether he knowingly and
intelligently waived his right to counsel. Appellant did not want to apply for a public
defender, but he never waived his right to an attorney and was never asked whether he
waived that right. The district court did not refer to or provide appellant with Minn. R.
Crim. P. Form 11, Petition to Proceed as Pro Se Counsel, at any point during the
proceedings.1 At best, a generous reading of th e district court’s limited questioning
establishes that appellant wa ived the option to ask for a public defender—a far cry from
waiving his constitutional right to counsel.
The record is insufficient to permit a conclusion that appellant waived his right to
counsel by conduct or forfeiture. See State v. Jones, 772 N.W.2d 496, 505 (Minn. 2009)
(holding that a criminal defe ndant may be found to have wa ived or forfeited the right to
counsel by dilatory conduct). We see nothing in the record that would even remotely
suggest any such conduct by appellant here.

1 We encourage district courts to use Form 11 when establishing a waiver of the right to
counsel.

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We also note that, because appellant does not have an extensive criminal history
and appellant was not previously represented by counsel in this matter, this is not a situation
in which we can infer a knowing and intelligent waiver. See State v. Worthy, 583 N.W.2d
270, 276 (Minn. 1998) (stating that an on-the-record inquiry concerning waiver of counsel
was unnecessary where a defendant fired his attorney and had experience with the criminal
justice system); see also State v. Krejci , 458 N.W.2d 407, 412-13 (Minn. 1990) (holding
that an on-the-record inquiry concerning waiver of counsel was unnecessary where a
defendant was unwilling to accept representation from public defenders and had extensive
conversations on the matter with multiple judges).
The record does not establish a knowing and intelligent waiver of appellant’s right
to counsel. The constitution therefore requires reversal and remand for a new trial.
Reversed and remanded.