State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0500

State of Minnesota,
Respondent,

vs.

Troy James Bonkowske,
Appellant.

Filed March 15, 2021
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Washington County District Court
File No. 82-CR-18-4952

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

Michael A. Welch, Forest Lake City Attorney, Hebert & Welch, P.A., Forest Lake,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.
SYLLABUS
Entering judgments of conviction for both driving while impaired (DWI) and test
refusal, when the offenses are committed during a single behavioral incident, is barred by
Minn. Stat. § 609.04, subd. 1 (2018), because the offenses are set forth in the same criminal
statute.

2
OPINION
SEGAL, Chief Judge
In this direct appeal from the judgment of conviction, appellant argues that he did
not knowingly and intelligently waive his right to counsel, and that the district court erred
by entering judgments of conviction and sentences for both DWI and test refusal. In a pro
se supplemental brief, appellant argues that he was denied his right to an omnibus hearing
and that law enforcement was required to obtain a warrant before entering his apartment
and requesting that he submit to a breath test . We affirm in part, reverse in part, and
remand.
FACTS
At approximately 11:00 p.m. on November 29, 2018, a woman called 911 to report
that a man she believed to be intoxicated had just left a bar and driven away. The woman
provided dispatch with the color, model, and license -plate number of the car the man was
driving. Dispatch relayed the information to law-enforcement officers, who identified the
car as belonging to appellant Troy James Bonkowske. The officers located the car in the
parking lot at Bonkowske’s listed address. One of the officers touched the hood of the car
and discovered that it was still warm.
The officers knocked on Bonkowske’s door and he answered. While speaking with
the officers, Bonkowske struggled to stand still, swayed back and forth, had slurred speech
and bloodshot eyes, and emitted a strong odor of alcohol. Based on these observations, the
officers believed that Bonkowske was under the influence of alcohol. The officers asked
Bonkowske if he had just arrived home, and he responded that he had been home for several

3
hours. The officers also inquired whether he had been drinking. He first told the officers
that he had consumed approximately two glasses of wine in the last 15 minutes, but a few
minutes later told them that he had consumed three “big beers” at a restaurant. He
ultimately admitted to being at the bar identified by the 911 caller. During this interaction,
Bonkowske refused the officers’ requests to perform field sobriety tests.
The officers placed Bonkowske under arrest for suspicion of DWI and transported
him to the police department. The officers then read Bonkowske the breath-test advisory.
After Bonkowske indicated that he wished to consult with an attorney, the officers provided
him with access to a telephone and directories with the phone numbers of attorneys who
handle DWI cases. Bonkowske briefly flipped through the directories but did not otherwise
make any attempt to contact an attorney. The officers repeatedly informed Bonkowske
that, if he was not going to attempt to contact an attorney , then they would continue with
the breath-test-advisory process, but Bonkowske still made no attempt to contact an
attorney. An officer then asked Bonkowske if he would consent to a breath test, and
Bonkowske refused. When asked why he would not submit to a breath test, Bonkowske
responded, “‘cuz I don’t like you.”
Respondent State of Minnesota charged Bonkowske with DWI, test refusal, and
driving after suspension of his license. Bonkowske was appointed counsel, but later filed
a petition to proceed pro se . The petition was granted following an omnibus hearing and
Bonkowske represented himself at trial. A jury found Bonkowske guilty of all charges.
The district court entered judgments of conviction and sentenced Bonkowske for each of
the three offenses. Bonkowske now appeals.

4
ISSUES
I. Did Bonkowske validly waive his right to counsel?
II. Did the district court err by entering judgments of conviction and imposing
sentences for both DWI and test refusal?

III. Do Bonkowske’s pro se arguments entitle him to relief?

ANALYSIS
I. Bonkowske validly waived his right to counsel.
A criminal defendant’s right to counsel is gu aranteed under the United States and
Minnesota Constitutions. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, §§ 6, 7. A
defendant may waive that right, but such waiver must be knowing and intelligent. State v.
Rhoads, 813 N.W.2d 880, 885 (Minn. 2012) (citing Faretta v. California , 422 U.S. 806,
835, 95 S. Ct. 2525, 2541 (1975)). If a defendant knowingly and intelligently waives the
right to counsel, the defe ndant “must be allowed to represent himself despite his lack of
the legal ability to conduct a good defense.” State v. Thornblad , 513 N.W.2d 260, 262
(Minn. App. 1994). We review a finding that a defendant validly waived his right to
counsel for clear error. State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).
The Minnesota Rules of Criminal Procedure provide different waiver requirements
based on the level of the charged offense. Here, Bonkowske was charged with two gross
misdemeanors and one misdemeanor. Pursuant to Minn. R. Crim. P. 5.04, subd. 1(3):
Defendants charged with a misdemeanor or gross
misdemeanor punishable by incarceration who appear without
counsel, do not request counsel, and wish to represent
themselves, must waive counsel in writing or on the record.
The court must not accept the waiver unless the court is
satisfied that it is voluntary and has been made by the

5
defendant with full knowledge and unde rstanding of the
defendant’s rights.

By contrast, when a defendant who has been charged with a felony wishes to waive the
right to counsel, the district court may not accept the waiver before advising the defendant
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 disadvantages of the decision to wai ve
counsel.

Minn. R. Crim. P. 5.04, subd. 1(4).

Bonkowske filed a petition with the court to proceed pro se, having personally filled
out the form provided by the state courts for that purpose. The form is five pages long and
sets forth a summary of rights, responsibilities, and acknowledgments of the consequences
applicable to waiving the right to counsel . As part of the petition, Bonkowske
acknowledged that he had the opportunity to c onsult with counsel, understood the rights
he was w aiving, and that Bonkowske wished to waive his right to counsel and represent
himself. At the omnibus hearing on the petition, the following exchange occurred between
the district court and Bonkowske:
THE COURT: So here we are at this hearing. You filled out
the standard petition to proceed pro se. He has the right to
represent himself; is this how you wish to proceed, sir?
THE DEFENDANT: It is.
THE COURT: So you would represent yourself going forward.
I would terminate the representation of the public defender and

6
it’s unlikely they would ever get reappointed. Usually, when
someone makes this decision to terminate, that means that’s
what they want to do going forward because we try to keep
things on a tight timeframe and in this case you remain in
custody and remain requesting speedy hearings that are coming
up pretty quick, we have trial dates coming up in a hurry.
THE DEFENDANT: I understand.
THE COURT: You did fill out the petition; did you fully
understand the entire petition? Do you read and understand the
English language?
THE DEFENDANT: Yes.
THE COURT: . . . I’m going to discharge [counsel] unless
there is any further comment from the State that would
preclude me from doing that.
PROSECUTOR: I believe he has the right to proceed pro se
provided that he understands he has to comply with all of the
rules.
THE COURT: All right. [Counsel], you’re discharged.

Bonkowske challenges the validity of his waiver, arguing that the district court erred
by failing to conduct a sufficiently comprehens ive on-the-record inquiry before granting
the petition. The rules of criminal procedure, however, do not require a comprehensive
on-the-record inquiry where, as here, the defendant was charged with gross-misdemeanor
and misdemeanor -level offenses , not felonies . As set forth above, rule 5.04 permits a
waiver of the right to counsel “in writing or on the record ,” and requires only th at the
district court be “satisfied that [the waiver] is voluntary and has been made by the defendant
with full knowledge and understanding of the defendant’s rights.” Minn. R. Crim. P. 5.04,
subd. 1(3). The more specific advisements required in rule 5.04, subdivision 1(4), apply
only to cases involving felony charges.
Moreover, “[a] district court’s failure to conduct an on-the-record inquiry regarding
waiver . . . does not require reversal when the particular facts and circumstances of the case

7
demonstrate a valid waiver.” Rhoads, 813 N.W.2d at 886.1 Rather, “whether [a waiver of
the right to counsel] is valid depends upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the accused.”
Id. at 889 (quotations omitted). In assessing the validity of a waiver, the court may consider
the defendant’s familiarity with the criminal justice system and whether he was represented
by counsel prior to the waiver. Worthy, 583 N.W.2d at 276; State v. Garibaldi, 726 N.W.2d
823, 828 (Minn. App. 2007).
Here, Bonkowske filled out the petition himself . On the form he indicated that he
understood the charges and potential consequences, had discussed the issue with his
counsel, and understood his trial rights. At the omnibus hearing , the district court
confirmed that Bonkowske wished to proceed pro se and asked him whether he understood
the entire petition before accepting the waiver. Bonkowske responded that he still wished
to proceed pro se, understood the petition, and he did not ask any questions . In addition,
Bonkowske was represented by counsel from the beginning of the case through the
omnibus hearing and, because he had been involved in numerous prior criminal cases that
resulted in him being sentenced to jail time , had some level of familiarity with criminal
justice proceedings. T hese circumstances support the district court’s conclusion that
Bonkowske’s waiver of the right to counsel was knowing and intelligent.

1 We note that Rhoads involved a defendant who was charged with a felony-level offense
and was therefore subject to the requirements of Minn. R. Crim. P. 5.04, subd. 1(4). 813
N.W.2d at 883.

8
Bonkowske, however, asserts “that he did not understand what it means for the
police to have probable cause to arrest and for the state to have probable cause to file
charges,” and that his lack of understanding undermines the validity of the waiver. But the
petition submitted and signed by Bonkowske contained a specific paragraph where he
acknowledged:
I understand that if the Court grants my petition to represent
myself, I will be responsible for preparing my case for trial and
trying my case. I understand that I will be bound by the same
rules as an attorney. I understand that if I fail to do something
in a timely manner, or make a mistake because of my
unfamiliarity with the law, I will be bound by those decisions
and must deal with them myself.

And, as noted above, if a defendant knowingly and intelligently waives the right to counsel,
the defendant “must be allowed to represent himself despite his lack of the legal ability to
conduct a good defense.” Thornblad, 513 N.W.2d at 262. On this record, we discern no
clear error in the district court’s determination that Bonkowske validly waived his right to
counsel.
II. The district court erred by entering judgments of conviction and imposing
sentences for both DWI and test refusal.

Bonkowske contends that the district court erred by entering judgments of
conviction and imposing sentences for both DWI and test refusal because the offenses are
set forth in different sections of the same criminal statute and arose from a single behavioral
incident. The state agrees. We are also in accord.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. The

9
Minnesota Supreme Court has interpreted Minn. Stat. § 609.04 (2018) to “bar[] multiple
convictions under different sections of a criminal statute for acts committed during a single
behavioral incident.” State v. Jackson , 363 N.W.2d 758, 760 (Minn. 1985). Whether a
conviction violates section 609.04 is a legal question that this court reviews de novo. State
v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Bonkowske was convicted of DWI under Minn. Stat. § 169A.20, subd. 1(1) (2018),
and test refusal under Minn. St at. § 169A.20, subd. 2(1) (2018). He argues that because
these offenses are set forth in the same criminal statu te, Minn. Stat. § 169A.20 (2018),
judgments of conviction cannot be entered for both offenses. Bonkowske compares his
case to State v. Clark. 486 N.W.2d 166, 170-71 (Minn. App. 1992). In Clark, a jury found
the defendant guilty of “driving while under the influence of alcohol and driving with a
blood alcohol concentration of .10 or more .” Id. at 169. The district court entered
judgments of conviction for both offenses and imposed a sentence for the DWI offense .
Id. at 170-71. This court held that, under Jackson, one of the convictions must be vacated
because both convictions were based on different subsections of the same criminal statute
and the offenses were committed during a single behavioral incident. Id.
Bonkowske acknowledges that his argument appears to be inconsistent with this
court’s decision in State v. St. John. 847 N.W.2d 704, 709 (Minn. App. 2014). In St. John,
the defendant pleaded guilty to second -degree test refusal and third -degree driving under
the influence. Id. at 706. The district court determined that the defendant could not be
convicted of both offenses and entered a conviction for test refusal after determining that
the DWI offense was a lesser-included offense. Id. This court reversed, concluding that

10
because it was possible to commit one of the offenses, without necessarily committing the
other, the third-degree DWI offense was not a lesser -included offense of second-degree
test refusal. Id. at 707-08.
The court in St. John, however, did not analyze the issue in light of the supreme
court’s holding in Jackson. Rather, the determination was limited to a lesser -included-
offense analysis. Id. Because Bonkowske does not base his argument on the assertion that
one of the offenses is a lesser-included offense of the other, but on the decision in Jackson,
we are persuaded that the holding in St. John does not bind our decision here.
In Jackson, the defendant was convicted of aggravated forgery and uttering a forged
instrument under subdivisions one and three of Minn. Stat. § 609.625 (1982). 363 N.W.2d
at 760. The supreme court ruled that, because the convictions were for offenses arising
under diff erent sections of the same statute and were committed as part of a si ngle
behavioral incident, the formal adjudication of the multiple convictions was in violation of
Minn. Stat. § 609.04, subd. 1. Id. The court therefore held that “one of the two formal
adjudications of conviction for violating section 609.625 must be vacated.” Id. While the
present case involves convictions for DWI and test refusal, instead of forgery and forged
instruments, we nevertheless determine that Jackson is the controlling precedent and
governs our analysis in this case.2

2 We note that this holding is also consistent with recent nonprecedential decisions of this
court. See, e.g., State v. Londo, No. A19-1296, 2020 WL 3957275, at *4 (Minn. App. July
13, 2020); State v. Skinaway, No. A19-1324, 2020 WL 1910179 , at *5 (Minn. App. Apr.
20, 2020).

11
The Jackson rule consists of two parts: first, the convictions must be for offenses
that arise under different sections of the same statute and, second, the offenses must have
been committed as part of a single behavioral incident. Id. at 759-60. Here, the first part
of the rule is satisfied because Bonkowske’s convictions for DWI and test refusal arise
under different sections of the same criminal statute—Minn. Stat. § 169A.20.
The second part of the rule, whether the offenses arose out of a single behavioral
incident, is also satisfied. Within hours, Bonkowske drove from the bar to his house while
intoxicated, was arrested and, while in custody, committed the offense of test refusal. The
supreme court and numerous decisions of this court have held that DWI and test refusal
committed as part of a continuous course of conduct, as occurred here, arise out of a single
behavioral incident. See State v. Simon, 493 N.W.2d 528 (Minn. 1992) (mem.) (the offense
of test refusal, committed after a DWI arrest and test-refusal advisory, is part of the same
behavioral incident as the preceding DWI offense) ; accord State v. Olson , 887 N.W.2d
692, 701 (Minn. App. 2016); State v. Fichtner, 867 N.W.2d 242, 246, 253-54 (Minn. App.
2015), review denied (Minn. Sept. 29, 2015); St. John, 847 N.W.2d at 708.
Consequently, pursuant to Jackson, the entry of judgments of conviction for the two
offenses violates Minn. Stat. § 609.04 and one of the convictions mus t be vacated. See
State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) ( stating “the proper procedure to
be followed by the trial court when the defendant is convicted on more than one charge for
the same act is for the court to adjudicate formally and impose sentence on one count only,”
retaining the guilty verdicts on the remaining charges, but not formally adjudicating those
charges).

12
III. Bonkowske’s pro se arguments do not entitle him to relief.
In a pro se supplemental brief, Bonkowske argues that he was denied the right to an
omnibus hearing and that law enforcement was required to obtain a warrant before entering
his apartment and requesting that he submit to a breath test. We address each in turn.
Omnibus Hearing
Bonkowske argues that he was denied the right to an omnibus hearing. Minnesota
Rule of Criminal Procedure 11.01 provides that an omnibus hearing must be held in gross
misdemeanor cases unless the defendant has pleaded guilty. The scope of the hearing
includes challenges to probable cause for the charged offenses. Minn. R. Crim. P. 11.02(a).
The district court held an initial omnibus hearing at which the district court granted
Bonkowske’s petition to proceed as pro se counsel and indicated that an additional omnibus
hearing would be held. The district court asked Bonkowske what arguments he would be
raising, and Bonkowske responded that he would be challenging probable cause.
Bonkowske subsequently filed a motion to dismiss the complaint based on a lack of
probable cause, and a contested omnibus hearing was held to address the motion. The
police officers involved in Bonkowske’s arrest testified at the hearing, and he was able to
cross-examine them and present his argument. At the conclusion of the hearing ,
Bonkowske indicated that he did not have any witnesses and , when asked if he wanted
additional time to submit anything in writing , he responded, “You can just take it under
advisement. I have no further written motions.” The district court denied the motion and
found that the state had satisfied its burden of establishing probable cause.

13
Bonkowske later filed an additional motion to dismiss, and a different district court
judge considered the motion. That judge was uncertain whether the record remained open
following the contested omnibus hearing and initially scheduled another omnibus hearing.
The prosecutor requested that the omnibus hearing be canceled , however, on the grounds
that the motion raised no new arguments and that an additional hearing was not necessary.
The district court agreed and canceled the hearing.
On this record, we conclude that Bonkowske was not denied his right to an omnibus
hearing. The district court held a contested omnibus hearing, Bonkowske meaningfully
participated, and the district court inquired whether Bonkowske wished to have the record
remain open before ultimately denying his motion to dismiss for lack of probable cause.
Bonkowske explicitly stated that he did not have any additional motions and that the district
court could take the matter under advisement. Bonkowske has therefore not established
any basis to support his assertion that he was entitled to an additional omnibus hearing.
Failure to Obtain Warrants
Bonkowske asserts that the police offic ers impermissibly entered his apartment
without a warrant and illegally obtained evidence that was used against him. But as the
state notes, Bonkowske never filed a motion to suppress any evidence based on the
warrantless entry to his residence. See Minn. R. Crim. P. 11.02(b) (stating evidentiary
issues are within the scope of an omnibus hearing). In State v. Roby , the Minnesota
Supreme Court observed that the court “do[es] not decide issues which are not first
addressed by the trial court and are raised for the first time on appeal even if the issues
involve constitutional questions regarding criminal procedure.” 463 N.W.2d 506, 508

14
(Minn. 1990) (quotation omitted). “This is especially true when the record is not fully
developed.” State v. Hill , 871 N .W.2d 900, 903 n. 1 (Minn. 2015). But we may, at our
discretion, “deviate from this rule when the interests of justice require consideration of
such issues and doing so would not unfairly surprise a party to the appeal.” State v. Verdon,
757 N.W.2d 879, 882 (Minn. App. 2008), review denied (Minn. Feb. 25, 2009).
When a motion to suppress evidence is filed, the defendant “bears the threshold
burden of proving that he or she has a right protected by the constitution.” State v. Edstrom,
916 N.W.2d 512, 517 (Minn. 2018). The state then “bears the burden of establishing that
the challenged evidence was obtained in accordance with the constitution.” Id.
Bonkowske argues that the state failed to establish that the warrantless entry into his
apartment was justified by an exception to the warrant requirement. The state argues that
Bonkowske gave consent for the officers to enter his apartment. W hether an individual
gave voluntary consent for law enforcement to enter his residence is a question of fact
“based on all relevant circumstances.” State v. Othoudt , 482 N.W.2d 218, 222 (Minn.
1992). B ecause Bonkowske did not file a motion to suppress, the district court did not
make findings of fact relating to the relevant circumstances or an ultimate finding whether
Bonkowske gave consent for the officer to enter the apartment. The record is therefore not
fully developed, and we decline to exercise our discretion to address the issue for the first
time on appeal.
Bonkowske’s final argument is that the guilty verdict for breath-test refusal must be
overturned because the police did not first obtain a search warrant for the test. He bases
this argument on Birchfield v. North Dakota , 136 S. Ct. 2160, 2185 -86 (2016), and

15
subsequent Minnesota cases holding that it is unconstitutional to criminalize the refusal to
submit to blood and urine testing unless a warrant has been obtained. State v. Trahan, 886
N.W.2d 216, 224 (Minn. 2016); State v. Thompson, 886 N.W.2d 224, 233-34 (Minn. 2016).
The warrant requirement does not, however, extend to breath tests and this argument is
thus also without merit. See, e.g., Birchfield, 136 S. Ct. at 21 86 (noting that states may
criminalize the refusal to submit to a warrantless breath test because a person under arrest
has no right to refuse a breath test).
DECISION
The district court did not clearly err by determining that Bonkowske validly waived
his right to counsel. But the district court erred by entering judgments of conviction and
imposing sentences for both DWI and test refusal because the offenses are set forth in
different sections of the same criminal statute and arose during a single behavioral incident.
We therefore affirm in part, reverse in part, and remand for the district court to vacate one
of Bonkowske’s convictions and the related sentence.
Affirmed in part, reversed in part, and remanded.