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This opinion will be unpublished and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
A19-1388

State of Minnesota,
Respondent,

vs.

Michael Ryan Tverberg,
Appellant.

Filed November 23, 2020
Affirmed
Jesson, Judge

Itasca County District Court
File No. 31-CR-19-675

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

Matti R. Adam, Itasca County Attorney, Rachel A. Evenson, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Johnson, Judge; and
Larkin, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
While awaiting trial on charges of diso rderly conduct and obstruction of legal
process, appellant Michael Ryan Tverberg twice discharged his public defender. After

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each dismissal Tverberg requested the appointment of advisory counsel. The district court
allowed him to discharge his public defender on both occasions—and even reappointed his
public defender after he reconsidered hi s choice—but did not grant his requests for
advisory counsel, finding it unne cessary because the issues pr esented were not complex.
Tverberg alleges that the district court’s deni al was an abuse of discretion and resulted in
an unfair trial. We affirm.
FACTS
Officers were called to the Itasca Coin & Laundry after the owner reported the
presence of two men, neither of whom were paying customers, in the laundromat.1 Upon
arrival, Sergeant Carlson and Officer Norris found one man unconscious on the floor and
another, appellant Michael Ryan Tverberg, lock ed in a bathroom, refusing to come out.
When Tverberg exited the bathroom a few minut es later, Sgt. Carlson told him that he
needed to leave. Tverberg became upset, yelling and cursing at the owner, yet then did as
instructed and left the laundromat. But onc e outside Tverberg threw something at the
window. Sgt. Carlson then placed Tverberg under arrest.
Upon arrival at the Itasca County Jail, Tverberg was searched. Uncooperative
during the search, Tverberg clench ed his fists to keep jailers from taking items out of his
hands and pressed himself against the patrol ca r to keep jailers from searching his front
pockets. When jailers complete d the search and attempted to lead Tverberg upstairs and

1 These facts are a summary of those established at trial.

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into the jail, he resisted and stated “F--k you.” Jailers then carried Tverberg inside and
placed him into a restraint chair.
After two hours in the chair, jailers told Tverberg that he needed to change into jail
clothing. Tverberg agreed to comply and was taken out of the restraint chair. But when
Tverberg was released he refu sed to change his clothes. Jailers tried multiple times to
convince Tverberg to change clothes himself, but eventually decided to do it themselves.
While jailers restrained Tverberg, he managed to free a leg and kick two jailers in the groin.
A Taser was used on Tverberg twice before jailers changed Tverberg’s clothing and placed
him back in the restraint chair.
Tverberg’s conduct at the laundromat resulted in one count of misdemeanor
disorderly conduct,2 while his altercation with jailers and officers at the jail led to two
counts of gross misdemeanor obstructing legal process.3 A public defender was appointed
to represent Tverberg.
Tverberg’s public defender represented hi m at three pretrial hearings. During his
representation, the public defender successfully sought the dismissal of one count of gross
misdemeanor obstruction of legal process and obtained rule 20.02 and 20.04 psychological
evaluations for Tverberg.4 The psychological evaluations found that while Tverberg “does
have some mental health problems,” they we re not severe enough to “grossly impair his

2 Minn. Stat. § 609.72, subd. 1(3) (2018).
3 Minn. Stat. § 609.50, subds. 1(2), 2(2) (2018).
4 The court dismissed one count of gross misdemeanor obstruction of legal process because
there was insufficient probable cause to support the charge that Tverberg’s actions
immediately upon arrival at the jail “were accompanied by such force or violence necessary
to rise to a gross misdemeanor level.”

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judgment, behavior, or capacity to recognize reality.” As a result, the evaluator determined
that Tverberg was competent to stand trial.
Twice during these pretrial proceedings Tv erberg requested to discharge his public
defender. The court granted Tverberg’s fi rst request after confirming that Tverberg
understood the consequences of his decision. When Tverbe rg then requested advisory
counsel, the court initially granted the request, but the state objected, citing the simplicity
of the trial and the cost of advisory counsel to the county. Tverberg then withdrew his
request, agreeing that the trial could be comp leted in one day and saying of the charges,
“it’s not that big of a deal.”
But one week later, during another pret rial hearing, Tverberg requested the
reappointment of a public defender. The cour t granted the request. After Tverberg met
with his reappointed counsel, he again requested to discharge his public defender, this time
because of a scheduling conflict. Tverberg was not willing to move his scheduled trial so
that the public defender could attend and represent him at a later date. 5 After confirming
Tverberg’s wishes and ensuring that he understood the cons equences of his actions, the
court granted the request and dismissed the public defender. Tverberg again requested
advisory counsel. Citing the state’s previous objections, the court stated that the matters
“aren’t that difficult” and denied the request for advisory counsel.

5 When asked about moving his trial date, Tver berg stated: “I want to move forward next
week because I know I want to get it over with and have whatever’s going to happen
happen.”

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A jury trial commenced the following week. At trial, the state introduced testimony
from eight witnesses, including the laundromat owner, Sgt. Carlson, and five jailers who
saw Tverberg’s actions at the jail. The st ate also introduced—w ithout objection—three
videos that captured much of Tverberg’s behavior while in the jail.
Tverberg, appearing pro se, attempted to introduce evidence related to claims of
self-defense, voluntary intoxication, and mental illness.6 But Tverberg had not notified the
court or the state of his inte nt to introduce such evidence. 7 As such, the court barred
Tverberg from introducing that evidence or asking questions on cross-examination that
related to those defenses.
Another issue arose when the court asked Tverberg if he was going to testify.
Although Tverberg answ ered in the affirmative, when directed to be gin giving his
testimony, Tverberg said “I think I misunders tood what you meant by this.” The court
called a recess for the day so that Tverberg could think about his decision to testify
overnight and conduct further research if necessary.
The next day, Tverberg decided not to testify. But during closing arguments,
Tverberg again tried to assert facts in support of his ment al-illness defense. When the
state objected and the court sustained the objections, Tverberg responded by saying,

6 Tverberg also tried to introduce his moth er as a witness, but was barred from doing so
because he did not provide the requisite notice to the court or the state.
7 Prior to any of the hearings before the court, the state re quested Tverberg disclose all
defenses and witnesses he intended to presen t at trial, pursuant to Minnesota Rules of
Criminal Procedure 9.02, 9.03 , and 10.3. Under those rule s, Tverberg was required to
disclose that information prio r to the omnibus hearing, which took place more than two
months before the trial.

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“Okay. F--k it. I’m guilty.” After deliber ating, the jury found Tverberg guilty on both
counts. Tverberg appeals.
D E C I S I O N
Tverberg appeals his convictions on the pr emise that the district court abused its
discretion when it denied his requests for advisory counsel. To evaluate this claim, we turn
to the Minnesota Rules of Criminal Procedur e which state that “[t] he court may appoint
advisory counsel to assist a defendant who voluntarily and intelligently waives the right to
counsel.” Minn. R. Crim. P. 5.04, subd. 2. The primary purpose of appointing advisory
counsel is to ensure fairness, promote judici al efficiency, and “pre serv[e] the appearance
of judicial impartiality” by helping a defendant navigate courtroom procedures at trial.
State v. Clark , 722 N.W.2d 460, 468 (Minn. 2006); see also State v. Jones ,
772 N.W.2d 496, 507 (Minn. 2009) (explainin g the role of advisory counsel). Though
rule 5.04, subdivision 2, does not identify factors that a district court is required to address
when making its determination on a request for advisory counsel, it does provide elements
that the court should consider. Therefore, when a district court is especially concerned
about the “fairness of the process[.] . . . delays in completing the trial, . . . or the complexity
or length of the trial,” the court should appoint advisory counsel and note their concerns in
the record. Minn. R. Crim. P. 5.04, subd. 2(1), (2).
In reviewing the district court’s actions fo r an abuse of discretion we address in turn
each consideration outlined in rule 5.04, subdivision 2.

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Fairness of Proceedings
In reviewing the fairness of the proceedings, we begin with the pretrial process, then
move to the trial itself. Prior to trial, the court reappointed Tverberg’s public defender at
his request. By reappointing counsel, the court ensured that the pretrial process remained
fair to Tverberg, despite his previous discharge of the public defender. With a similar eye
toward fairness, the court granted the pub lic defender’s request for a psychological
evaluation. In sum, the dist rict court took concrete steps to ensure the fairness of the
pretrial proceedings before making a final decision on whether to grant advisory counsel.
We now turn to consider the fairness of the trial as it proceede d. During trial,
Tverberg repeatedly violated evidentiary and procedural rules when he sought to introduce
evidence and witne ss testimony related to claims of self-defense, voluntary intoxication,
and mental illness. Each time Tverberg di d so, the court explai ned why such evidence
could not be admitted. Fo r example, when Tverberg asked the court whether his
psychological evaluations were adequate support for his mental-illness defense, the court
clarified that “[j]ust the fact you have those evaluations and you have this diagnosis is not
enough to be able to have t hose things admitted if you have n’t provided notice.” When
Tverberg tried once again to assert his voluntary intoxication and mental-illness defenses
during cross-examination of one of the state’s witnesses, the court reminded him that “any
questions that relate to any of that, the Court has ruled are not admissible. That means you
can’t ask questions [that] go to those issues.” Given these explanations of what Tverberg
could and could not introduce and why, Tver berg was not unfairly uninformed about the
proceedings.

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Similarly, when it came to Tverberg’s decision not to testify, the district court
provided guidance regarding proc edures. Although Tverberg in itially chose to testify, it
became clear that he did not understand the im plications of choosing to do so. In the
interest of fairness, the court gave him until the next day to conduct additional research and
consider his choice. In sum, we conclude that the district court, as reflected by its pretrial
decisions and explanations during trial, considered fairness concerns raised by Tverberg’s
request for advisory counsel.8
Despite this, Tverberg tries to argue that the proceedings were unfair because he
would have benefited from the assistance of a dvisory counsel. With that help, Tverberg
argues he would have been able to adequately prepare for trial, especially with regard to
the procedural notice requirements for his defe nse claims and his desi re to introduce his
mother as a witness. But by the second time Tverberg requested advisory counsel, the
deadline for disclosing defenses and witnesses intended to be introduced at trial had already
passed more than two months earlier.9 This fact limits the purported benefit of an advisory
counsel appointment.
Potential for Delay
Tverberg made his desire for a speedy tr ial known early on in the proceedings.
During his arraignment hearing, Tverberg requested that the next pretrial hearing take place

8 We observe that through its actions during trial, the dist rict court fulfilled one of the
primary roles of advisory counsel by “explain[ ing] and enforc[ing] basic rules” of the
courtroom and trial proceedings. Minn. R. Crim. P. 5.04, subd. 2 cmt.
9 The second request for adviso ry counsel is the pivotal one since Tverberg withdrew his
first request.

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the following week, rather than on the originally scheduled date three weeks later. In fact,
Tverberg was so concerned with reducing delay that he discha rged his public defender a
second time based solely on a scheduling conflic t that would have delayed his trial by at
least one month. As Tverberg stated, his ma in concern was “to get it over with and have
whatever’s going to happen happen.” It is clear from the record that by granting Tverberg’s
scheduling requests, the court considered the potential for delay when denying the request
for advisory counsel.
Complexity of the Issu es and Length of Trial
Tverberg was charged with two crimes: one count of obstruction of legal process
and one count of disorderly conduct. There were no material factual disputes about what
happened at the laundromat or jail, and the state intended to introduce video evidence from
the jail. Nor were expert witnesses to testif y. The court, the state, and Tverberg all
anticipated that the trial woul d only take one or two days to complete because the issues
were not complicated. In fact, when the district court stated that the issues “aren’t that
difficult,” Tverberg himself agreed , saying of his charges, “it’s not that big of a deal.”
Based on these facts, the court’s determinati on that the issues were not complex was not
an abuse of discretion.
Nor was Tverberg’s trial lengthy. The tr ial took two days, consistent with what
Tverberg, the state, and the court anticipated. The bulk of the proceedings occurred on the
first day, while the second day primarily consisted of the court reading the jury instructions,
the parties providing their closing arguments, and the jury delivering its verdict.

10
In sum, the court’s decision to deny Tver berg’s request for a dvisory counsel was
based on the correct review of the relevant law and was supporte d by both logic and the
facts in the record. See State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (a district
court abuses its discretion when the decision in question is “based on an erroneous review
of the law or is against logic and the facts in the record”). The relevant law, Minnesota
Rule of Criminal Procedure 5. 04, subdivision 2, allows, but does not require, courts to
appoint advisory counsel. A nd, as the record shows, the district court adequately
considered fairness, the potential for delay, and the complexity of the issues throughout the
proceedings.
To attempt to persuade us otherwise, Tv erberg first points out that his request for
advisory counsel was timely made and clear. Bu t nothing in rule 5.04 requires a district
court to appoint advisory counsel upon a timely request. Minn. R. Crim. P. 5.04, subd. 2.
Nor do the cases Tverberg cites support his argument on timeliness, as they do not reflect
rule 5.04, subdivision 2 as it exists today. In Clark, 722 N.W.2d at 465, and
State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998) , the court only considered the
timeliness of the appellants’ requests with regard to the requests for substitute counsel, not
advisory counsel.10 And in State v. Lande, the decision involved an old version of the rule

10 Advisory counsel is “fundamentally different from the role of counsel generally,” and is
generally limited to assistance. State v. Richards , 552 N.W.2d 197, 207 (Minn. 1996).
Substitute counsel is typica lly sought when a defendant still wants representation by
general counsel, but wants that representation to come from a different attorney. See Clark,
722 N.W.2d at 463 (“Clark informed the trial court that he wanted another attorney because
his assigned public defender was ‘not repres enting [his] interests in this case.’”); Worthy,
583 N.W.2d at 279 (“[Defendants] told the tr ial court they wanted new counsel because
they felt they were not being properly represented.”).

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which did not feature the discretionary language included in the rule today.
376 N.W.2d 483, 485 (Minn. App. 1985).
Finally, Tverberg argues that district c ourts are “strongly encouraged” to appoint
advisory counsel when a defendant chooses to proceed pro se. But Tverberg supports this
assertion with language from Lande, which applied a previous version of rule 5.04,
subdivision 2 that was compulsory, not discretionary. Id. And while the supreme court
has acknowledged that appointment of adviso ry counsel has been “long encouraged,” it
has also confirmed in its most recent decision s that the district court’s determinations on
the matter are ultimately discretionary. Clark, 722 N.W.2d at 469; see Jones, 772 N.W.2d
at 507 (“The appointment [of advisory counsel] is discretionary for a district court . . . .”).11
The district court acted within its wi de discretion here, and its decision was
supported by relevant law and the facts in th e record. The decision to deny Tverberg’s
requests for advisory counsel was not an abuse of discretion.
Affirmed.

11 Furthermore, as Tverberg himself ackno wledges, there is no federal or state
constitutional right to advisory counsel.