Kyle Lawrence Shepperson, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0993

Kyle Lawrence Shepperson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 25, 2022
Affirmed
Segal, Chief Judge

Ramsey County District Court
File No. 62-CR-18-7464

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Lyndsey M. Olson, St. Paul City Attorney, Kyle A. Lundgren, Assistant City Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Segal, Chief Judge; Slieter, Judge; and Rodenberg,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this postconviction appeal, appellant argues that his convictions for driving while
impaired and test refusal must be reversed because the district court (1) failed to obtain his
valid waiver of the right to counsel and (2) abused its discretion by not dismissing the case
over what he asserts was the state’s failure to satisfy its discovery obligation. Because we
conclude that appellant waived his right to counsel and the state complied with its
discovery obligation, we affirm.
FACTS
In October 2018, respondent State of Minnesota charged appellant Kyle Lawrence
Shepperson with carrying a pistol while under the influence of alcohol, third-degree driving
while impaired (DWI) for refusal to submit to a breath test, and fourth -degree DWI f or
operating a motor vehicle under the influence of alcohol.
Shepperson applied for a public defender, and the Ramsey County public defender’s
office began representing him. However, at a February 11, 2019 hearing, Shepperson’s
attorney informed the distr ict court that Shepperson “want[ed] to proceed in this matter
pro se.” The district court asked Shepperson whether this was correct, and he answered,
“Yes.” Shepperson further explained that he “would like to fire [his] public defender” and
that he had “ been talking to a criminal attorney about [his] case.” He also stated that his
reason for wanting to discharge the public defender’s office was that his attorney had not
given him copies of the evidence despite his requests.
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The district court told Sheppe rson that the court would address the issue of
discharging his public defender at the next hearing to be held on February 19. The district
court also advised Shepperson, “You at any point have the right to hire whatever attorney
you want to hire, but until that attorney files a Certificate of Representation or shows up in
this courtroom, the court is not going to at this point discharge [the public defender] .”
Finally, the district court stated that, if Shepperson obtained a private attorney, he should
bring that attorney to the next hearing.
At the hearing on February 19, Shepperson renewed his request to discharge his
public defender. The district court asked Shepperson: “just so I’m clear, are you asking
this court to discharge [the public defender] in order to substitute a new attorney, or . . . for
the purpose of you proceeding to represent yourself?” Shepperson responded, “ For a new
attorney.” The district court then asked Shepperson whether he had already hired a new
attorney, and Shepperson ind icated that he had talked to one but needed another month to
hire him.
The district court then summarized each count of the charges against him, listed the
range of punishments, and advised him that he may have defenses and there could be
mitigating circumstances that it would be his responsibility to know and raise. The district
court asked him if he understood what he was being told a fter each step and Shepperson
affirmed that he did. The district court then inquired whether Shepperson (1) understood
that discharging his attorney meant discharging the entire public defender’s office and that
he would be “solely responsible for hiring an attorney,” (2) had enough time to think
through the decision , and (3) understood that if he did not hire a new attorn ey he would
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“be fully required to be prepared to move forward in the process and be prepared . . . to
follow all of the rules that . . . all attorneys are required to follow .” Shepperson also
answered yes to these questions. Finally, the district court a sked:
THE COURT: All right. Do you have any questions about
what you’re doing in waiving your right to counsel in this
matter?
THE DEFENDANT: I do not.

Based on this exchange, the district court found that Shepperson had made a clear
and unequivocal re quest to discharge the public defender’s office and had knowingly and
intelligently waived his right to counsel. The district court advised Shepperson that “[i]n
the event that [Shepperson] is unable to obtain counsel at the next hearing, he will be fully
expected to proceed without counsel and move forward. ” The district court then
discharged the public defender’s office from representing Shepperson.
A discussion about discovery followed. The prosecutor informed Shepperson and
the district court that the defense had been provided with three discs containing discovery
that included a squad video recording, an audio recording of the “implied consent process,”
and photographs. Shepperson asked why he had not received the evid ence disclosed by
the state despite requesting it from his public defender. The district court informed
Shepperson that his now-former public defender would provide him with the evidence, that
he should work with the public defender to get the evidence, and that if he did not receive
it, he could “raise that issue with the Court” at a future hearing.
At the next hear ing on March 20, Shepperson appeared without an attorney. The
district court advised Shepperson that he had a right to have an attorney present at the
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hearing and asked whether he wished to proceed without one; Shepperson explained that
he did not yet hav e an attorney because he was having difficulty obtaining funds to hire
one, and he requested a continuance in order to obtain counsel. The district court granted
a continuance until April 15, but stated that “[o]n April 15th . . . you will need to have your
attorney present. If an attorney is not present, the Court is not granting any further
continuances. We are going to move forward with the process on April 15th.”
On April 15, Shepperson appeared again without an attorney. He explained that he
had experienced further difficulties but had an appointment to talk with someone at the
Neighborhood Justice Center the next day. The district court granted a second continuance
but stated that “I am going to either expect the Neighborhood Justice Center to be there or
a private attorney, and . . . if they are not there, this is the last continuance, and the Court
is not granting any further continuances.” Shepperson then stated that he still had not
received the state’s evidence from the public defender’s offi ce. The district court advised
him to talk to the Neighborhood Justice Center if they became his counsel, and stated that
“once we come back for the pretrial before we go to trial, I will make sure, obviously, that
you have everything that you need so tha t you get a fair trial.”
On May 16, Shepperson appeared for a third time without an attorney. He explained
that he was not able to obtain representation from the Neighborhood Justice Center and
was “still trying to figure out how to get an attorney.” The district court declined to grant
an additional continuance, noting the “number of continuances and the age of the case.”
The district court then set a trial to begin June 10. The district court also appointed standby
counsel for Shepperson , explaining that the standby “attorney is there to assist you with
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understanding what the rules of the court are and to assist you in abiding by those rules.”
The district court further advised that it could appoint the standby counsel to assume
representation of Shepperson during the trial if the court determined that was appropriate.
The parties appeared for a final pretrial hearing on June 10. At the hearing,
Shepperson asked the district court to dismiss the case because he “was supposed to have
[his discovery] back in September” but still did not have it . The district court responded
that it would address Shepperson’s motion to dismiss prior to the start of trial, and informed
Shepperson that he could file something written if he wished to give the court more
information about the alleged discovery violation. Later that day, Shepperson’s standby
counsel filed a letter that Shepperson had dictated to him. In the letter, Shepperson
requested dismissal of the case , in part, because of his complaint that he still had not
received copies of the state’s audio and video evidence. He acknowledge d that he had
received transcripts of the recordings that day but stated that he “dispute[d] the accuracy
of the transcripts” and “ha[d] no way to verify ” them.
Shepperson appeared for his jury trial on June 11 at 9:00 a.m. Prior to the start of
trial, the district court inquired about Shepperson’s motion to dismiss. Shepperson
explained that he had only received transcripts of the video and audio recordings the day
before. He acknowledged that he had seen the video in his public defender’s office, prior
to the public defender’s discharge many months earlier, but complained that he never
personally got copies of the video and audio recordings.
The district court denied the m otion, “find[ing] that the State has disclosed the
exculpatory information and has complied with the rules as it relates to disclosure.” In
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particular, it noted that , “based on the fact that [Shepperson made] arguments about the
accuracy or inaccuracy of the transcript,” it appeared that Shepperson had received and
viewed the video. However, the district court, “in the interest of making sure that
[Shepperson had] a full opportunity to review the video and to fully prepare for [his]
defense,” continued the start of trial to 1:30 p.m. to give him additional time to prepare and
review the video. It also directed the prosecutor to work with Shepperson to identify and
address any inaccuracies in the transcript. The district court told Shepperson, “I do believe
based on my ruling this morning, plus the time which you have already viewed the video,
you have sufficient time to prepare for the trial. And I do not believe that you will be
prejudiced in any way by this trial moving forward today.”
The parties reconvened that afternoon to select a jury, and the trial began the next
day. The jury found Shepperson guilty of refusing to submit to a breath test and operating
a motor vehicle under the influence of alcohol, and the district court sentenced him to a
stayed sentence and a fine of $50. 1
In February 2021, Shepperson filed a petition for postconviction relief, arguing that
the district court failed to secure his knowing and voluntary waiver of the right to counsel
and erred by not granting his motion to dis miss based on the state’s alleged discovery
violation. Shepperson did not request an evidentiary hearing, and the postconviction court
issued an order denying the petition. The postconviction court determined that Shepperson

1 The district court dismissed the other charge, carrying a pistol while under the influence
of alcohol, prior to trial after granting a defens e motion to suppress evidence of the gun
found in Shepperson’s car.
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“voluntarily, knowingly and i ntelligently waived his right to counsel,” and that “the State
provided discovery to [Shepperson].” Shepperson appeals.
DECISION
Shepperson challenges the denial of his petition for postconviction relief, arguing
that he never validly waived his right to counsel and that the case should have been
dismissed because of alleged discovery violations. “We review the denial of a petition for
postconviction relief for an abuse of discretion. A postconviction court abuses its
discretion when it has exercised its discretion in an arbitrary or capricious manner, based
its ruling on an erroneous view of the law, or made clearly erroneous factual findings.”
Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017) (quotation and citation omitted). We
address Shepperson’s two arguments below.
I. The postconviction court did not abuse its discretion in determining that
Shepperson waived his right to counsel .

Shepperson argues that he did not validly waive his right to counsel. He claims that
he asked only to be able to discharge his public defender and never asked or intended to
waive his right to counsel. Shepperson contends that his waiver was therefore not valid,
because he was confused about the scope of the waiver.
A criminal defendant’s waiver of the right to counsel must be “knowing, voluntary,
and intelligent.” State v. Osborne, 715 N.W.2d 436, 443 -44 (Minn. 2006); see also Minn.
R. Crim. P. 5.04, subd. 1(3) (providing that a defendant “charged with a misdemeanor or
gross misdemeanor punishable by incarceration . . . must waive counsel in writing or on
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the record”). 2 The validity of a waiver “depends upon the particular facts and
circumstances surrounding [ the] case, including the background, experience, and conduct
of the accused.” State v. Rhoads , 813 N.W.2d 880, 889 (Minn. 2012) (quoting State v.
Worthy, 583 N.W.2d 270, 275 -76 (Minn. 1998)) (other quotation omitted) . “The denial of
the right to counsel is a structural error . . . that does not require a showing of prejudice to
obtain reversal.” State v. Maddox , 825 N.W.2d 140, 147 (Minn. App. 2013) (quotations
omitted).
Appellate courts will only reverse a postconviction court’s finding that a defendant
validly waived the right to counsel upon a determination that the finding was clearly
erroneous. See Pearson, 891 N.W.2d at 596 (stating that a postconviction court abuses its
discretion when its factual findings are clearly erroneous) ; Rhoads, 813 N.W.2 d at 885
(stating that a district court’s finding of a valid waiver of counsel is reviewed for clear
error). “A finding is clearly erroneous when there is no reasonable evidence to support the
finding or when an appellate court is left with the definite and firm conviction that a mistake
occurred.” Rhoads, 813 N.W.2d at 885.
The postconviction court here reviewed the transcript at length in its order and found
that Shepperson’s “request for self-representation was clear and unequivocal” and that he
validly waived his right to counsel. The record fully supports the postconviction court’s

2 There is also a statutory provision stating that a waiver of counsel must be made “in
writing, signed by the defendant. ” Minn. Stat. § 611.19 (2018). However, we have held
that an oral waiver of counsel on the record satisfies this requirement. State v. Nelson, 523
N.W.2d 667, 670 (Minn. App. 1994) ; see also Minn. R. Crim P. 5.04, subd. 1(3) (stating
that a waiver of counsel in a misdemeanor or gross misdemeanor case can be “ in writing
or on the record”).
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determination. The district court in this case proceeded cautiously and deliberately in
accepting Shepperson’s request for discharge of his public defender. The district court
only considered the request at a second hearing held a week after Shepperson first made
the request. The district court then went through a full waiver -of-counsel colloquy with
Shepperson.3 And the district expressly stated on the record that if Shepperson “is unable
to obtain counsel at the next hearing, he will be fully expected to proceed without counsel
and move forward.” When Shepperson advised the court that he needed more time to
obtain an attorney at subsequent hearings, the district court granted three continuances ,
allowing Shepperson approximately four months between the discharge of the public
defender’s office and the start of trial to obtain alternate counsel. The district court also
appointed standby counsel for the trial.
In arguing that his waiver was invalid, Shepperson relies heavily on State v.
Garibaldi, where we held that a defendant’s waiver of counsel was invalid because, given
the factual context, the district court did not conduct a sufficient on-the-record examination
regarding the waiver. 726 N.W.2d 823, 831 (Minn. App. 2007). But this case is
distinguishable from Garibaldi. In Garibaldi, after an off -the-record discussion, the
district court asked the defendant whether he wanted to represent himself, but “the record
contain[ed] no indication that the district court conducted any further on -the-record
examination, such as informing [the defendant] of the range of possible punishments for

3 The district court followed the more exacting colloquy for a waiver of the right to counsel
in felony cases even though Shepperson had only been charged with a misdemeanor and
two gross misdemeanors. See Minn. R. Crim. P. 5.04, subd. 1(3), (4).
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his offense and the advantages and disadvantages of his decision to waive counsel.” Id. at
830-31. In addition, no standby attorney was appointed in Garibaldi and the defendant in
that case never stated he wanted to discharge his attorney. The defendant “merely indicated
at a pretrial hearing that he ‘couldn’t afford’ his attorney, but that the attorney was
‘supposed to show up’ at the hearing.” Id. at 830. This stands in sharp contrast to the
record in this case.
Shepperson’s argument that he only fired the public defender’s office in order to
obtain another attorney is also unavailing. “The fact that a defendant may first request
another attorn ey before choosing self -representation will not by itself undermine the
knowing, voluntary, and intelligent nature of the defendant’s waiver of counsel.” State v.
Camacho, 561 N.W.2d 160, 173 (Minn. 1997). And “[t] his is particularly true if the
defendan t . . . is aware that he has no right to a different attorney and must proceed pro se
upon rejection of the appointed attorney’s assistance. ” Id. As noted above, the district
court here expressly advised Shepperson that it was his responsibility to obtai n new
counsel, and that if he did not, he would “be fully required to be prepared to move forward
in the process and be prepared . . . to follow all of the rules that . . . all attorneys are required
to follow.”
In short, the record indicates that the dist rict court comprehensively examined
Shepperson about his waiver of counsel, informed him that it was his responsibility to
obtain private counsel, granted him three continuances to obtain private counsel, and
appointed standby counsel when he failed to procure his own counsel. We thus affirm the
postconviction court’s finding that Shepperson validly waived his right to counsel.
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II. The postconviction court did not abuse its discretion in determining that the
district court properly denied Shepperson’s moti on to dismiss based on the
state’s alleged discovery violation.

Shepperson next argues that the state failed to meet its obligation to provide him
with discovery, and that the district court abused its discretion “because it did not weigh
the correct fac tors when deciding whether to grant Shepperson’s motion to dismiss his
case.” We review the postconviction court’s factual findings for clear error. Pearson, 891
N.W.2d at 596. But “[w]hether a discovery violation occurred is an issue of law which this
court reviews de novo.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005).
The state has both procedural and constitutional discovery obligations. Under Minn.
R. Crim. P. 9.01, subd. 1, a prosecutor must disclose “all matters within the prosecutor’ s
possession or control that relate to the case.” This material “ must be disclosed in time to
afford counsel the opportunity to make beneficial use of i t.” Minn. R. Crim. P. 9.03,
subd. 2(a). In addition, the state has a constitutional duty to disclose all exculpatory
evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also U.S. Const. amend. XIV,
§ 1.
Shepperson argues that he “repeatedly said that he did not have the discovery and
the state failed to provide the discovery directly to him until it was too late to adequately
prepare for trial.” The state responds that it did provide discovery to the public defend er’s
office in January 2019, less than three months after charges were brought against
Shepperson, and that Shepperson never requested a replacement copy of discovery from
the state. The postconviction court found that the state complied with its discovery
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obligation by providing copies of the discovery to Shepperson’s public defender and
concluded that no discovery violation occurred. We agree.
The record is clear, and neither party seriously disputes, that Shepperson’s public
defender received discover y from the state. 4 At a pretrial hearing on February 19, 2019,
Shepperson expressed frustration that his public defender had not provided him with copies
of the discovery but never asserted that his public defender did not have the discovery. At
that hearing, the prosecutor identified the discovery that had been provided by the state to
the public defender , which summary was undisputed by the public defender. Further,
Shepperson’s public defender had filed a motion to exclude certain evidence before he was
discharged, indicating that the public defender had received a copy of the state’s discovery.
And on June 11, Shepperson admitted: “I’ve seen the [squad] video. I just never got . . . it
myself. I [saw] it in [the public defender’s] office in the pa st when I requested it then.”
The record therefore supports the postconviction court’s factual finding that the state
provided discovery to the defense. And while the record indicates that Shepperson
requested a copy of the discovery from his public defen der after he discharged the public
defender’s office, the record does not reflect that he requested a replacement copy from the

4 Shepperson asserts that the postconviction court’s factual finding that the state provided
discovery on January 18, 20 19, was clearly erroneous because it is not mentioned in the
January 18 hearing transcript, or other reports, that Shepperson received discovery from
the state on that date. But he then concedes that “there is evidence in the record that . . .
Shepperson’s public defender received discovery from the state” at some point.
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state before the case was called for trial. 5 We therefore conclude as a matter of law that
the state complied with its discove ry obligation.
Affirmed.

5 We also note that the district court granted Shepperson an additional half-day continuance
at the start of trial to ensure that Shepperson did “have a full opportunity to review the
videos and to fully prepare for [his] defense.” See Palubicki, 700 N.W.2d at 489
(“Generally, without a showing of prejudice to the defendant, the state’s violation of a
discovery rule will not result in a new trial.”).