Omar Kwabena Walford, petitioner, Appellant,

This opinion will be unpublished and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
A19-1746

Omar Kwabena Walford, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 8, 2020
Reversed and remanded
Jesson, Judge

Dakota County District Court
File No. 19HA-CR-16-3677

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney , Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After discharging his public defender and representing himself at trial, appellant
Omar Kwabena Walford was convicted of felony theft. Later, Walford filed a

2
postconviction petition alleging, in part, that his waiver of counsel was invalid, but the
court denied him relief. Because Walford’s waiver colloquy was insufficient and the facts
and circumstances at the time of his counsel’s discharge do not demonstrate that he entered
a knowing and intelligent waiver, we reverse and remand.
FACTS
In September 2016, a Target employee noticed a man acting suspicious in the store.
The employee spotted him coming to the front of the store with two “spider wrapped”
Dyson vacuums in black laundry baskets. The employee then witnessed the man carrying
the items out of the store to a white van. When he confronted the man about stealing the
items, the man said he paid for them and cl aimed to have a receipt. The employee took
photos of the man putting the items in his van and of the van’s license plate, 550 LNN.
The employee verified that no cashier in th e store had sold these items and called local
police to report the theft.
About three hours later, a state trooper noticed a white van struggling to stay in its
lane and initiated a traffic stop. The van— license plate 262 VLG—pulled over and the
driver gave the trooper a work ID that identified him as appellant Omar Kwabena Walford.
Because Walford appeared int oxicated, the trooper asked him to step out of the van and
eventually arrested him on suspicion of driving while intoxicated.
After arresting Walford, the trooper cond ucted an inventory search of the van
because it would be towed. In the van, th e trooper discovered several items, including a
pair of black laundry baskets, two new Dyson vacuum cleaners, and a license plate reading
550 LNN. Recalling that a neighboring police department reported the theft of some Dyson

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vacuums by a suspect in a white van, the trooper called them to the scene. Police identified
the white van the trooper pulled over as the same one from Target earlier.
Following the traffic stop, the state charged Walford with felony theft ($1,000 up to
$5,000). At his first appearance, the district court appointed a public defender to represent
Walford. An attorney from the public defe nder’s office then appear ed with Walford at
several preliminary hearings.
At a contested omnibus hearing about se ven months later, Walford requested to
discharge his public defender and represent hi mself because of differences in strategy,
concern over his attorney’s preparation, and a lack of trust. The district court offered
Walford a continuance with the intent that he and his attorney might be able to resolve their
differences. Walford declined. Then, the district court informed Walford of his options: he
could hire a private attorney at his own expe nse, represent himself, or keep his public
defender, which the court described as his “bes t bet.” Walford replied that he wanted to
“go pro se.” Without further questioning, the district court granted his request.
Shortly after, Walford also asked for the c ourt to appoint him standby or advisory
counsel, and he requested a specific attorney by name. The district court told Walford that
the trial judge would “deal with” his request at the next hearing.
At a hearing in a separate matter just over two weeks later, Walford appeared
pro se.1 Walford raised concerns that he had not received the correct discovery in either of

1 There was quite a bit of over lap between these two cases. They were proceeding in the
same county around the same time and invo lved the same prosecutor, the same public
defender (before discharge), and often the same judges. That matter was also appealed and

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his cases, including this one. And he claimed he wanted to contest several omnibus issues,
including the allegedly unlawful search of his van—a concern first raised by his public
defender. Because Walford said he needed th e discovery to argue th e issues, the district
court rescheduled a contested omnibus heari ng. In addition, Walford requested standby
counsel. The district court took the matter under advisement but noted, “[I]f you discharge
your public defender, that you don’t have the right to choose—you can’t reapply for a PD
and then choose the public defender, which is kind of what you’re looking to try to do
here.”
In a written order following that hearing, the district court denied Walford’s request
for standby counsel, finding that the “matter is not expected to involve a lengthy or complex
trial. The defendant is also articulate, knowledgeable about the legal process, and
experienced.”
While this matter was pending, the district court continued several hearings due to
issues that Walford raised. Walford continue d to assert that he did not have the full
discovery. And Walford claimed that he had trouble reviewing the physical evidence while
he was incarcerated and being moved between the county jail and prison. He further voiced
frustration about having to na vigate the court process alone, without the benefit of an
attorney or advisory counsel like he had in another case.2

recently decided by this court. See State v. Walford , No. A18-0524 (Minn. App.
May 26, 2020).
2 For example, Walford explained that he wa nted to use an investigator to contact
witnesses, but claimed he was unable to do so because he did not have a court order
providing the funds for the investigator. While the court explained the process for filing a
motion to request such funds, Walford never did so.

5
During this period of continuances, Walf ord repeatedly requested a contested
hearing on four issues, including claims of an illegal search. But he alleged that he needed
the full discovery in order to prepare to argue those issues. Because the district court
determined that Walford had received the discovery and the trial had been continued “over
and over and over again,” the court required Walford to proceed to trial.
On the morning of the trial, the district court heard Walford’s motion challenging
the search of his vehicle. The district concluded that the search was lawfully conducted as
part of an inventory search following his arrest . A jury trial followe d. There, a Target
employee, a Target security staff member, and two police officers testified consistent with
the facts above. The jury fo und Walford guilty of felony th eft, and the district court
sentenced him to 21 months in prison.
About a year later, represented by couns el, Walford filed a postconviction petition
challenging his waiver of counsel, the district court’s denial of his request for standby
counsel, and an evidentiary ruling that allegedly prevented him from presenting a complete
defense. In a written order, the postconvictio n court denied Walford’s petition. Walford
appeals.
D E C I S I O N
Walford asserts that the postconviction cour t erred when it found that he validly
waived his right to counsel by his conduct. While we generally review the denial of a
postconviction petition for an abuse of discretion, Pearson v. State , 891 N.W.2d 590,
596 (Minn. 2017), we review the court’s findi ng that Walford validly waived counsel for
clear error. See State v. Jones , 772 N.W.2d 496, 504 (Minn. 2009). And when a court

6
accepts an inadequate waiver of counsel, it is necessary for this court to reverse the
conviction and remand for a new trial. State v. Garibaldi, 726 N.W.2d 823, 831 (Minn.
App. 2007).
Both the United States and Minnesota Constitutions guarantee Walford the right to
counsel. See U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6. Likewise, he enjoys
a constitutional right to represent himself. See State v. Camacho, 561 N.W.2d 160, 170-71
(Minn. 1997). Walford may relinquish his constitutional right to counsel in one of “three
ways: (1) waiver, (2) waiver by conduct, and (3) forfeiture.” Jones, 772 N.W.2d at 504.
Here, the parties agree that there was no written waiver, waiver by conduct,3 or waiver by
forfeiture. The dispute accordingly centers on whether Walford affirmatively—but
implicitly—waived his right to counsel.
The criminal rules are straightforward. In Minnesota, a district court must ensure
that defendants charged with a felony who wish to represent them selves “enter on the
record a voluntary and intelligent written wavier of the right to counsel.” Minn. R. Crim.
P. 5.04, subd. 1(4); see also Minn. Stat. § 611.19 (2016). When a defendant refuses to sign
a written waiver, a waiver must be made on the record. Minn. R. Crim. P. 5.04, subd. 1(4).

3 The state acknowledged th at the postconviction court may have “incorrectly”
characterized Walford’s situation as one wh ere he “waived his right to counsel by his
conduct.” “[W]aiver by conduct occurs if a de fendant engages in dilatory tactics after he
has been warned that he will lose his right to counsel.” Jones, 772 N.W.2d at 505. In
reviewing the record, Walford’s conduct was not dilatory nor did the district court ever
warn him he was at risk of losing his right to counsel. Thus, the court erred by finding a
valid waiver by conduct. Moreover, we observe that the postconviction court’s reasoning
in its order does not support a finding of waiver by conduct, but rather it appears to describe
an affirmative implicit waiver. Because the crux of the partie s’ dispute is whether there
was an affirmative waiver, that dispute is the focus of this opinion.

7
Notwithstanding these clear requirements that a waiver be either in writing or on the
record, the Minnesota Supreme Court has affirmed that implicit waivers may be valid under
certain limited circumstances. In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000).
But in these circumstances, district courts should exercise a “heightened degree of
caution.” Garibaldi, 726 N.W.2d at 830 (quotation omitted). Before accepting a waiver,
a district court is required “to fully ad vise the defendant by intense inquiry.” Jones,
772 N.W.2d at 504. The court’s inquiry must ensure that the defendant is aware 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 understanding of the
consequences of the waiver of the right to counsel, including
the advantages and disadvantag es of the decision to waive
counsel.

Minn. R. Crim. P. 5.04, subd. 1(4)(a)-(f). Here, the district court did not go through these
items on the record. After Walford asked to discharge his public defender, the district court
described his options and offered him a continuance, but he declined and expressed that he
did not want to be represented by his public defender. The court explained:
[DISTRICT COURT]: So, Mr. Wa lford, I know that [the
public defender] has been quite busy and I know that he’s had
a couple of trials and even one earlier this week. You are
certainly welcome to get your own lawyer. I think, for a case
like this, it probably costs about $10,000. So that’s up to you.
You can do it yourself, or you can work with [the public
defender], which I think is probably your best bet. If you feel
that your attorney is not ready, we can postpone this a week or
so, so that you two are on the same page. However, [the public

8
defender] is trained in the law. I assume you do not have a law
license, that you did not graduate law school, and I don’t know
if you graduated college or even high school. I don’t know. I
don’t know you. But he has. And so you have to make some
important decisions: Whether you want to do it yourself, hire
your own private lawyer, because when you’re paying
$10,000, they answer the phone when you call. When you have
someone who’s in [the public defender’s] position, he will
work as hard as he can but he ha s a lot of clients. He wished
he were a private lawyer and had the number of clients that he
has as a public defender because he’d be quite wealthy.

So what would you like to do? Do you want to go it
alone, get your own private lawy er, or maybe postpone this a
week or so so that you can get on the same page?

[WALFORD]: I definitely will not go --

[DISTRICT COURT]: I can’t hear you.

[WALFORD]: I definitely will not go with him another week.
There is no trust and it’s not to be restored so I’ll rather go
pro se.

. . . .

[DISTRICT COURT]: So do you want to relieve [the public
defender] --

[WALFORD]: Yes, Your Honor.

[DISTRICT COURT]: -- and represent yourself?

[WALFORD]: I spoke with him and demand full discovery on
my case, too.

(Emphasis added.)
While this colloquy briefly addressed th e disadvantages of Walford representing
himself, it failed to account for the other required advisories articulated in the rule. It did

9
not address the nature of Walford’s charges. Nor did it allude to the possibility of defenses
and mitigating circumstances.
Of particular concern is the district c ourt’s failure to info rm Walford about the
possible punishments in this case. While he was informed about the state’s plea offer at an
earlier hearing, he was not advised of the possible range of sentences that he was facing at
the time when he discharged his attorney. And when the district court and prosecutor were
explaining possible concurrent or consecutive sentencing at a later hearing, Walford said
he did not understand. Walford also expressed frustration that the plea agreement’s offer
was what he was facing if he went to trial and lost, demonstrating he did not understand
the full range of possible punishments.4
The colloquy also failed to ensure Walfor d understood what would be expected of
him, should he act as his own attorney at tr ial, including presenting opening and closing
arguments, subpoenaing and questioning witnesses, and obtaining evidence and presenting
it at trial. As a whole, the questioning fell fa r short of the “intense inquiry” intended to
make Walford aware of all facts essential to his broad understanding of the consequences
of his waiver. See Jones, 772 N.W.2d at 504.

4 And the record does not cont ain evidence that, at the time he discharged his attorney,
Walford’s background and experience would provide him sufficient insight about his
decision to discharge counsel.

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In sum, while district courts need not ad here to a strict waiver procedure and the
circumstances of the waiver may be considered , this waiver colloquy lacked key aspects
that are required for its sufficiency. As the United States Supreme Court has articulated:
Although a defendant need not himself have the skill and
experience of a lawyer in orde r competently and intelligently
to choose self-representation, he should be made aware of the
dangers and disadvantage s of self-representation , so that the
record will establish that he knows what he is doing and his
choice is made with eyes open.

Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) (quotation omitted)
(emphasis added). Here, Walford’s waiver was not voluntary and intelligent, nor made
with his “eyes open.” See id. The record does not suppo rt the postconviction court’s
finding that Walford validly waived his right to counsel.
Still, the state articulates four reasons wh y the waiver was valid. First, the state
attempts to take refuge in the presumption that a defendant who has counsel but discharges
that counsel had the advantages of counsel’ s advice when deciding to proceed pro se.
Minnesota courts have held that having the benefit of counsel at some point in a proceeding
helps support a knowing and inte lligent waiver of counsel. See State v. Worthy ,
583 N.W.2d 270, 275-76 (Minn. 1998); State v. Brodie , 532 N.W.2d 557, 557
(Minn. 1995); Finne v. State , 648 N.W.2d 732, 736 (Minn. App. 2002), review denied
(Minn. Oct. 29, 2002).
But here, the benefit Walford received from counsel appears limited. The district
court did not question Walford about whether he talked to his attorney about representing
himself, and the record casts doubt on whether he did. At an earlier hearing in April 2017,

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his public defender admitted that he had only spoken to Wa lford for about five to ten
minutes when the matter was set for trial. And about a month later, when Walford
discharged his public defender, he commented that he had not “seen or talked to” his
attorney since the previous hearing.5 Accordingly, whatever benefit Walford received from
his previous representation was likely limited.6
Second, the state argues that the district court credited Walford’s experience with
the criminal justice system as contributing to his knowle dge about waiving counsel. See
Worthy, 583 N.W.2d at 275-76 (noting that courts may consider a defendant’s experience
as part of the particular facts and circumstances of a case). The postconviction court noted
that Walford had “extensive” experience with the justice system, stating that he referenced
several times “that he was representing hims elf on other criminal matters in another
county.” But at the time of Walford’s waiver, there is no evidence in th e record that
Walford was representing himself in other matters. Immediately after the waiver colloquy,
Walford even said, “This is my first time going pro se.” Walford’s statements about other
cases in which he was representing himself came later and should not be used after the fact

5 While the public defender noted that the tw o “met several times,” it remains unclear
whether they discussed the consequences of Walford representing himself.
6 We also observe that each of the cases relied on by the state in this regard is
distinguishable. In Brodie, the defendant discharged his public defender but that attorney
stayed on as standby counsel, even delivering the closing argu ment at trial. 532 N.W.2d
at 557. In Finne, the defendant fired her public defend er so that she could hire private
counsel but failed to do so, and she also had the benefit of standby counsel. 648 N.W.2d
at 736. And in Worthy, the defendants fired their public defenders after voir dire had begun
and expressed their desire for private counsel . 583 N.W.2d at 274. While that request—
one assumed to be a delaying tactic—was denied, the defendants benefited from advisory
counsel. Id. In each case, the defendants fired th eir public defenders but were appointed
advisory counsel—an advantage that Walford requested multiple times but was denied.

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to bolster a weak waiver. Further, his statements about other matters generally concerned
his experience with his appointed standby counsel, which was noticeably absent here.
Third, according to the st ate, Walford was inform ed about the mitigating
circumstances and possible defenses here because he challenged the search of his van and
asserted a mistaken identity defense. But Walford argued his search challenge and
mistaken identity defense long after his waiv er. And the search challenge was first
advanced by his public defe nder, which undercuts an assertion that it demonstrates
Walford’s own knowledge.
Finally, the state reiterates the district court’s conclusion that this case was not
complex. But the case involved a felony criminal charge culminating in a jury trial, where
Walford faced significant consequences. And the state provided no legal authority to
support its implicit contentio n that the constitutional right to counsel is somehow less
important, or that the standard to waive that right is lowered, when a criminal case is
purportedly simple.
In sum, the postconviction court clearl y erred by finding that Walford validly
waived his right to counsel. The record does not support such a finding. Instead, it reveals
that, after discharging his counsel, Walford st ruggled to represent himself in this matter
and to prepare for trial while incarcerated. He expressed feeling unprepared and stated, “I
am a little frustrated being I represent myself pro se and it wasn’t by choice.” And when
he asked for advisory counsel, the district court declined. On th is record, we cannot
conclude that Walford’s waiver was volunt ary and intelligent. When considering his

13
postconviction petition, the court abused its discretion by denying him relief on this basis.
Accordingly, we reverse and remand for a new trial.7
Reversed and remanded.

7 Because we reverse and remand on this issue, we do not reach the other two issues that
Walford raised in this appeal.