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This opinion will be unpublished and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
A19-0754

State of Minnesota,
Respondent,

vs.

Dominique Demetris Wright,
Appellant.

Filed March 16, 2020
Remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-18-10970

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Segal ,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The day before Dominique Wright’s trial for prohibited possession of a firearm, his
attorney allowed Wright to present his own motion for a continuance. The next day, Wright
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told the district court that he was discharging his public defender for misleading him
and requested a different attorney. The district court refused his request for substitute
counsel without inquiring further into the nature of the attorney’s representation. Wright
represented himself at trial, the jury found him guilty , and the district court denied him
187 days’ jail credit at sentencing. Wright appeals, arguing that he was deprived counsel
at a critical stage, that the district court erred by failing to appoint substitute counsel, and
that the district court improperly denied him jail credit. We conclude that Wright was not
deprived of counsel, but that the district court erred by refusing to inquire into whether the
circumstances warranted the appointment of substitute counsel. The error left the record
undeveloped as to whether the district court should have appointed substitute counsel. We
therefore remand to the district court to conduct a hearing to determine whether exceptional
circumstances existed entitling Wright to the appointment. If the district court determines
that the appointment was unnecessary, Wright should receive 187 days’ jail credit.
FACTS
The state charged Dominique Wright in April 2018 with prohibited possession of a
firearm after police stopped him for speeding, learned that he was the subject of an arrest
warrant, and discovered a handgun in his car in a post-arrest inventory search. The district
court appointed a public defender to represent Wright. Wright requested a Rasmussen
hearing to challenge the stop and the search. The district court scheduled the hearing with
the trial to begin days later. But the district court rescheduled the trial because the state did
not timely disclose a DNA report. The district court canceled the Rasmussen hearing and
it was not rescheduled.
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The parties appeared for a hearing on the day of the rescheduled trial. Wright’s
attorney indicated that Wright wanted him to ask for a continuance, saying, “I will let him
address the Court directly as to the basis for that.” Wright said that he wanted a continuance
to allow him to find additional evidence he wanted to present at trial. The district court
denied Wright’s request for a continuance, observing the tardiness of the request on the eve
of trial and noting that Wright had had months to prepare his defense.
The parties appeared for trial the next day, and the district court asked if either had
anything to discuss before bringing the potential jurors into the courtroom. Wright
answered, “I don’t wish to proceed with my current representation.” He said that he
believed his attorney was “inefficient” and had “misled” him.
The judge asked Wright, “So are you prepared to continue on your own?”
Wright answered, “If I have to.”
The judge replied, “Yeah. You will have to. . . . I’m not going to give you another
chance to get another attorney.” She added, “You either have to continue with [appointed
counsel] . . . as your standby counsel. However, if you do decide that you don’t want the
Public Defender’s Office representing you, you will . . . have to proceed today pro se on
your own behalf. So it’s your choice.” When Wright asked whether he had the right to
effective counsel, the judge answered, “I don’t make the decision or determination whether
or not you have one.”
Wright asked, “Could you tell me who does make that decision?”
The judge answered, “No. Because I don’t get involved in relationships between
attorney [and] client.”
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The district court therefore did not inquire into the nature of the breakdown between
Wright and his attorney. It said that it would not give Wright additional time to get a new
attorney because trial was about to proceed and Wright had not raised the issue the previous
day when he had sought a continuance. Wright explained that he was requesting a new
attorney because, the previous day, he had wanted a continuance to obtain new evidence
but his attorney had not moved for a continuance as Wright had expected.
The district court obtained a form petition to proceed pro se and directed Wright to
fill it out. The district court then found that Wright knowingly, voluntarily, and intelligently
waived his right to counsel.
Wright represented himself at the trial. He stated that he intended to tell the jury he
had just discharged his attorney and was unprepared, but the district court told him that he
could not. Wright gave no opening statement. He called no witnesses. He cross-examined
none of the state’s witnesses. Wright did ask if he could recall one of the state’s witnesses,
but the district court denied the request because Wright had not submitted a witness list
and the state’s subpoena no longer bound the witness to testify. The district court told
Wright that he could not argue that the gun b elonged to someone else because he had not
given the state notice of an alternative-perpetrator defense. Wright made no closing
argument.
The jury found Wright guilty. The district court sentenced him to 60 months in
prison. It refused to give Wright credit for the 187 days that he spent in custody after his
arrest, reasoning that he was on conditional release at the time of his arrest and that his new
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sentence should be served consecutive to a previous sentence. The district court credited
39 days, which was the time Wright served after the verdict but before sentencing.
Wright appeals.
D E C I S I O N
Wright urges us to reverse his conviction and remand for a new trial, arguing that
he was denied his right to counsel by having to move for a continuance on his own behalf
and that he involuntari ly waived his right to counsel because the district court refused to
appoint substitute counsel. He argues alternatively that the district court improperly failed
to award him jail credit for the 187 days he spent incarcerated before his conviction. We
remand to the district court for a hearing on the substitute-counsel issue.
I
Wright argues that his right to counsel was violated because he had to move for a
continuance himself, rather than his attorney making the motion on his behalf. The federal
and state constitutions provide a criminal defendant the right to the assistance of counsel.
U.S. Const. amend. VI; Minn. Const. art. I, § 6. Whether a defendant’s right to counsel was
violated is a constitutional question that we review de novo. State v. Slette, 585 N.W.2d
407, 409 (Minn. App. 1998). A defendant is entitled to the presence of counsel at all
“critical stage[s]” of the criminal proceedings. Rothgery v. Gillespie County, 554 U.S. 191,
212, 128 S. Ct. 2578, 2591 (2008). We assume for the purposes of this appeal that Wright’s
motion for a continuance was a critical stage.
Wright points to no evidence in the record indicating that he was denied counsel.
Wright’s attorney appeared at the proceeding, told the district court that Wright wanted to
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move for a continuance, and presented Wright to explain the reasons for requesting a
continuance. After the district court denied the motion, Wright’s attorney continued to
speak on Wright’s behalf at the proceeding. Wright identifies no authority for the
proposition that a defendant’s rig ht to counsel is violated by his attorney’s presenting
the defendant to inform the district court of the basis for requesting a continuance. The
thin record lacks any evidence of either the absence of representation or deficient
representation, and it may be interpreted to reflect that Wright’s a ttorney momentarily
served as standby counsel during the brief exchange after raising the continuance issue on
Wright’s behalf. See State v. Lande, 376 N.W.2d 483, 485 (Minn. App. 1985) (recognizing
that a pro se defendant’s right to counsel may be satisfied by appointment of standby
counsel), review denied (Minn. Jan. 17, 1986). Because the record is silent about the
attorney’s rationale for handling the hearing in the fashion he did, we cannot say that his
actions amounted to a denial of Wright’s right to counsel.
II
Wright argues that his waiver of his right to counsel was involuntary because the
district court erred by refusing to appoint substitute counsel after Wright discharged his
publicly appointed attorney. The constitutional right to assistance of counsel discussed in
the previous section “includes a [defendant’s] fair opportunity to secure counsel of his
choice.” State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). But the right to substitution
of counsel has limits. Id. We review a district court’s decision denying a defendant’s
request to substitute counsel for an abuse of discretion. State v. Clark, 722 N.W.2d 460,
464 (Minn. 2006). The district court should grant a defendant’s request to substitute
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counsel in “exceptional circumstances” if the defendant made the request “timely and
reasonably.” State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998). Exceptional
circumstances are those that affect an attorney’s “ability or competence” to represent a
defendant. State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
The thin nature of the record prevents us from reviewing whether “exceptional
circumstances” existed here. When a defendant “voices serious allegations of inadequate
representation,” the district court should conduct a “searching inquiry” to determine
whether appointment of substitute counsel is warranted. State v. Mu nt, 831 N.W.2d 569,
586 (Minn. 2013) (quoting Clark, 722 N.W.2d at 464). Wright’s explanation to the district
court should have triggered this sort of inquiry. He told the district court that his attorney
had “misled” him. He explained that he had believed that his attorney was going to seek a
continuance the previous day to give him time to obtain additional evidence, but his
attorney never did. His contention that his attorney had misled him and his description of
the unusual exchange that occurred the previous day in the court’s presence implied a
serious allegation relating to the attorney-client relationship and suggested that the attorney
was not adequately representing Wright. The allegation sufficiently alerted the district
court that it must searchingly inquire into whether an exceptional circumstance existed.
The district court erred by failing to so inquire.
We reject the state’s contention that the circumstances implied no serious allegation
of inadequate representation. It is true that the district court need not inquire simply because
a defendant has voiced displeasure with his attorney and that a statement of general
dissatisfaction is not a serious allegation requiring a searching inquiry. Id. at 586–87.
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At oral argument on appeal, the state’s counsel postulated that Wright’s attorney’s decision
to turn the floor over to Wright rather than to argue for a continuance on Wright’s behalf
rested on his belief that a continuance motion would have lacked any good-faith
justification. Counsel theorized further that Wright’s discharging his attorney was merely
another attempt to gain the continuance that the district court had denied him. These are
indeed reasonable inferences one might draw from the limited record. But the record does
not exclude less favorable inferences about the representation. For example, the record
does not rule out the possibility that the attorney had promised Wright to move for a
continuance but then left Wright to defend the motion for himself, unprepared. It also does
not rule out the possibility that the attorney had left Wright to obtain evidence that his
attorney had failed to secure on Wright’s behalf. Because the district court did not inquire
further, it never learned the circumstances that would have informed a finding of either
adequate or inadequate representation. And the omission likewise leaves us unable to
review whether the quality of representation justified allowing Wright to substitute his
counsel.
The district court amplified the error by thrice misstating the law. It told Wright that
it could not appoint a new attorney on the same day . It told him that the court was not the
entity to decide whether Wright was receiving effective assistance of counsel. And it told
Wright that the attorney-client privilege prevented it from inquiring into the relationship to
assess the adequacy of the representation. These statements are inconsistent with the
court’s duty to searchingly inquire after a defendant requests substitute counsel and alleges
a serious representation deficiency. See State v. Lamar, 474 N.W.2d 1, 3 (Minn. App.
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1991) (“While the trial court told [the defendant] he could not have a different public
defender under any circumstances, this is not an accurate statement of the law.”), review
denied (Minn. Sept. 13, 1991). The district court’s misstatement of the law, by itself, does
not require reversal. See State v. Benniefield, 668 N.W.2d 430, 434–35 (Minn. App. 2003)
(holding that district court’s erroneous suggestion that it could not appoint substitute
counsel was harmless because defendant did not present any exceptional circumstances),
aff’d, 678 N.W.2d 42 (Minn. 2004). But in this case, the district court’s misstatements
accompanied its failure to inquire to determine the nature of Wright’s reason for seeking
to discharge his attorney.
We add that, as far as we can tell from the inadequate record, Wright’s request for
substitute counsel was also timely under the circumstances. We recognize that a request
for substitute counsel ordinarily will be appropriately denied when the defendant makes
the request just before trial. See Clark, 722 N.W.2d at 465; Worthy, 583 N.W.2d at
278–79. But although Wright made his request the day that the trial was set to begin , he
implied that the representation deficiency ripened only on the previous day. On these facts,
Wright’s request was timely.
A remand is necessary. See State v. Paige, 765 N.W.2d 134, 140 (Minn. App. 2009)
(concluding that district court erred by failing to determine how defendant wished to
proceed after discharging counsel and remanding “to clarify and address [defendant’s]
request to discharge counsel”). We remand the case to the district court to conduct a hearing
inquiring into the circumstances leading W right to discharge his attorney and seek
substitute counsel. If the district court finds that exceptional circumstances support the
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requested discharge and substitution, then Wright’s waiver of his right to counsel was
involuntary and he is entitled to a new trial.
III
Wright argues that the district court incorrectly denied him 187 days’ credit for the
time he spent in jail prior to his conviction. We consider this issue de novo. State v. Clarkin,
817 N.W.2d 678, 687 (Minn. 2012). A defendant is entitled to jail credit for convictions
that would have led to concurrent prison terms, but not for convictions that would have led
to consecutive terms. Id. at 685. The district court rejected the proposed jail credit because
Wright was on conditional release for a previous offense when police arrested him, and
because the prosecutor erroneously stated that Wright’s presumptive sentence called for
consecutive prison terms. But supervised release does not trigger a presumptive
consecutive sentence. See Minn. Sent. Guidelines 2.F.1.a (Supp. 2017). The state therefore
correctly concedes that Wright is entitled to the jail credit. If the district court on remand
determines that Wright is not entitled to a new trial, then it must amend Wright’s sentence
to reflect 187 days of jail credit.
Remanded.