Casimir Robert Krithers, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2065

Casimir Robert Krithers, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 14, 2020
Affirmed
Bjorkman, Judge

St. Louis County District Court
File No. 69DU-CR-15-1596

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, M innesota; and

Mark S. Rubin, St. Louis County Attorney, Nathaniel T. Stumme , Assistant County
Attorney, Duluth, Minnesota (for respondent)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
In this postconviction appeal following an evidentiary hearing, appel lant contends
that his domestic-assault conviction should be vacated because his pretrial waiver of the

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right to counsel was not voluntary. Because we discern neither clear error in the d istrict
court’s findings of fact nor an abuse of discretion, we affirm.
FACTS
At the heart of this matter is appellant Casimir Robert Krithers’s assertion that
respondent State of Minnesota violated his Sixth Amendment right by inadvertently
recording certain phone calls he had with his lawyer while he was in jail. This claimed
constitutional violation has been the subject of extensive trial and appellate litigatio n,
including a direct appeal of his 2017 conviction. See State v. Krithers, No. A17-1232, 2018
WL 3340045 (Minn. App. July 9, 2018), review denied (Minn. Sept. 18, 2018); Krithers v.
State, No. A16-0829, 2016 WL 6395337 (Minn. App. Oct. 31, 2016), review denied (Minn.
Dec. 27, 2016).
The relevant facts regarding the recorded calls are more fully set out in this court’s
prior opinions. In short, Krithers was detained in May 2015 i n this domestic-assault case.
While in jail, he made several phone calls to his lawyer. Jail calls are recorded with the
exception of calls made to lawyers, which are desig nated as private. But certain of
Krithers’s calls to his lawyer were inadvertently recorded by the jail’s new phone-service
provider. An investigator from the prosecutor’s office downloaded these calls, p roviding
two CDs to the prosecutor . The prosecutor immediately recognized defense counsel’s
number, alerted and sent defense counsel one CD , and then destroyed her CD. And the
software glitch was quickly resolved. Following a two-day evidentiary hearing, the district
court found that neither the prosecutor nor the police investigator had listened to the calls
and that the prosecution had not initiated further investigation based on the ir content. The

3
district court rejected Krithers’s argument that the inadvertent recording violated his Sixth
Amendment right to counsel.
After his efforts to obtain discretionary review by this court and habeas relief in
state and federal court f ailed, Krithers returned to district court for a pretrial hearing. He
again raised the issue of the recorded jail c alls. The district court responded that Krithers
should speak through his lawyer and that the call issue would not be part of the trial.
Krithers then asked to discharge his lawyer, asserting their interests conflicted because he
wanted to argue the Sixth Amendment issue and his lawyer would not do so. Krithers
completed a waiver petition and had a lengthy colloquy with the district court. When asked
why he wanted to represent himself, Krithers responded, “There’s issues that I want to
argue further,” t hat are “barred somewhat by my attorney to argue and bring up and
address.” When the district court described the situation between Krithers and his lawyer
as “tactical differences,” Krithers replied, “it’s because of mainly the issue about being
able to argue the recorded call aspect . . . . To bring that in front of the jury.” Krithers also
stated that he was not waiving his right to counsel ba sed on any threats or promises. The
district court granted his request, finding t hat Krithers knowingly and voluntarily waived
his right to counsel.
The parties submitted the case for a bench trial on stipulated facts. Krithers appealed
his subsequent conviction, arguing that he was entitled to a new trial because the jail
recordings violated his constitutional rights. We affirmed the conviction, concluding that
there was no Sixth Amendment violation because he did not suffer prejudice as no state
agent listened to the phone calls. Krithers, 2018 WL 3340045 at *5 . We declined to

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address Krithers’s argument that his waiver of counsel was not voluntary, noting the issue
was appropriate for postconviction proceedings in the district court. Id.
Krithers then commenced this action seeking postconviction relief on the basis that
he did not voluntarily waive his right to counsel. The same district court judge who granted
Krithers’s request to represent himself presided at the evidentiary hearing. Krithers
testified that he waived his right to counsel because he believed he could not communicate
privately with his attorney over the phone. He expressed his beliefs that the software glitch
in the phone system had not been resolved and that the state was able to listen to his calls
with his lawyer. And he testified that the fact he rarely saw his lawyer in person left him
with no choice but to r epresent himself. The district court denied the petition, expressly
finding that Krithers’s testimony at the postconviction hearing was not credible and
concluding that he validly waived his right to counsel. Krithers app eals.
ANALYSIS

We review the denial of postconviction relief for an abuse of discretion. Pearson v.
State, 891 N.W.2d 590, 596 (Minn. 2017). A district court abuses its discretion when it
bases its decision “on an erroneous view of the law, or made cle arly erroneous factual
findings.” Rhodes v. State, 875 N.W.2d 779, 786 (Minn. 2016) (quotation omitted).
Both the United States and Minnesota Constitutions guarantee a defendant the right
to counsel. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6. But a defendant also
has a constitutional right to represent himself. State v. Camacho, 561 N.W.2d 160, 170-71
(Minn. 1997). Waiver of the right to counsel must be knowing, intelligent, and voluntary.
State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009).

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We review a district court’s findings with respect to waiver of counsel for clear
error. State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). Findings are clearly erroneous
where either there “is no reasonable evidence to support the finding” or we are left with
“the definite and firm conviction” that a mistake has been made. Id. And we employ a
“fact-specific examination” in determining whether a waiver of the right to counsel was
voluntary. State v. Garibaldi, 726 N.W.2d 823, 829 (Minn. App. 2007).
Krithers argues that the district court clearly erred by finding that he voluntarily
waived his right to counsel.1 He contends that he decided to represent himself because the
inadvertent jail recordings in effect deprived him of his Sixth Amendment right througho ut
the entire pretrial proceedings. We are not persuaded.
First, the district court carefully reviewed the record of Krithers’s waiver and found
that Krithers’s conflicting testimony at the postconviction hearing about why he chose to
represent himself was not credible. We afford great deference to a district court’s
credibility determinations. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). The
district court found that Krithers discharged his lawyer due to “a difference in opinion on
trial strategy,” rather than any “lingering concerns” about ongoing recording of his jail
calls. The court noted that Krithers was given “at least three clear opportunities” to state
his reasons for waiving his counsel in his own words, but “never indicated an ongoing
concern about confidentiality of his phone communications as a reason.” And the court
observed that the written motion Krithers submitted regarding waiver of counsel noted

1 Krithers does not argue that his waiver of counsel was not knowing or intelligent.

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conflict with his lawyer about trial strate gies; it did not indicate that concerns about the
security of their ongoing communications “were forcing him to discharge counsel.”
The record supports the district court’s credibility determination s. Our review of
the pretrial hearing transcript revea ls that Krithers never stated or even suggested that he
was waiving his right to counsel because he felt compelled to do so . He did not express
concern that his calls with his lawyer were compromised , or indicate that any external
circumstance was forcing his hand. The district court made it clear that the issue of the
recorded calls would not be re -litigated at trial and that Krithers could not present any
arguments about the calls. In response, Krithers said he wanted “to make a record of my
argument” and that the district court’s decis ion “doesn’t change my position. ” He later
reiterated that he wanted “the opportunity to argue” that “the recorded phone calls should
be brought in.” Krithers and his lawyer disagreed about this strategy. When repeatedly
asked why he wanted to discharge his lawyer and represent himself, Krithers consistently
identified the disagreement over dropping the recorded -call issue as the reason . On this
record, we decline to second-guess the district court’s credibi lity findings and its
determination that Krithers voluntarily waived his right to counsel.
Second, the totality of the circumstances surrounding Krithers’s waiver supports the
district court’s finding that it was voluntary. See Garibaldi, 726 N.W.2d at 829; see also
State v. Miller, 573 N.W.2d 661, 672 (Minn. 1998) (stating appellate courts should evaluate
the totality of the circumstances to determine if a waiver is voluntary). Before accepting
the waiver, the district court had Krithers complete a petition in accordance with Minn. R.
Crim. P. 5.04, subd. 1(4) , and engaged in an extended colloqu y to ensure that Krithers

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knew what he was doing and understood the consequences of his decision. The district
court advised Krithers of the constitutional right he was entitled to and was giving up .
Krithers affirmed he was not waiving his right to counsel because of any promises, threats,
or coercion. Krithers reiterated several times that it was his decision to discharge his
counsel and proceed on his ow n behalf. Taken together, these circumstances persuade us
that Krithers’s waiver was knowing, intelligent, and voluntary.
Finally, Krithers raises multiple pro se arguments in voluminous supplemental
briefing. Based on our careful review of the recor d, we conclude these arguments lack
merit. To the extent Krithers s eeks to relitigate his ultimate argument—that the recorded
phone calls in October 2015 violated his Sixth Amendment right to counsel —we decline
the invitation to reconsider that which has been resolved in prior appeals. The district court
did not clearly err in finding that Krithers’s waiver of the right to counsel was voluntary
and did not otherwise abuse its discretion by denying postconviction relief.
Affirmed.