State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A21-1174

State of Minnesota,
Respondent,

vs.

Dakin Adam Braddick,
Appellant.

Filed April 25, 2022
Reversed and remanded
Reilly, Judge

Koochiching County District Court
File No. 36-CR-18-667

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

Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this appeal from the district court’s criminal restitution or der, appellant argues
that the district court violated his constitutional right to counse l at the restitution hearing.
2
Because appellant did not waive or forfeit his ri ght to counsel at the hearing, we reverse
and remand for a new restitution hearing.
FACTS
Respondent State of Minnesota charged ap pellant Dakin Braddick in September
2018 with first-degree criminal sexual conduct, alleging that he sexually assaulted a woman
(the victim). Braddick pleaded guilty to a lesser charge of third-degree criminal sexual
conduct. The district court entered judgment of conviction, pronounced a sentence of
76 months in prison, and stay ed execution of the sentence pu rsuant to the parties’ plea
agreement.
The state later requested a restitution hearin g. In support of the restitution claim,
the state submitted an affidavit by the victim as well as supporting documents detailing the
losses and expenses the victim incurred as a result of the crime. The victim requested more
than $12,000 in restitution for lost wages and out-of-pocket expens es for psychological
treatment.
The district court held an initial restitution hearing on September 15, 2020. At that
hearing, the district court informed Braddick that he had the right to apply for a public
defender to represent him at the restitution hearing. Braddick said that he wished to apply
for a public defender. The district court dir ected court administration to send Braddick a
public-defender application. The district court determined that it would continue the
hearing so that Braddick could submit the public-defender application and the court could
determine whether Braddick qualified for a public defender.
3
When the parties returned for the continued restitution hearing on November 16,
2020,1 the district court asked Braddick whet her he was represented by counsel, and
Braddick said that he was not. The district court told Braddick that public defenders
“usually don’t get involved in restitution matters.” The prosecutor, however, clarified that
it was common practice in the county for the pub lic defender’s office to assist defendants
at restitution hearings.
Braddick told the district court that he had submitted the public-defender application
about one week before the hearing, but the court clerk conveyed that court administration
had not yet received the application. The district court asked Braddick why it took him so
long to submit the application. Braddick responded that he had had a “few factors that . . .
consumed [him] at the time,” including hea lth issues with his mother, as well as
employment and housing issues with his fiancée and children. The district court found that
the prosecutor, the victim, and the victim’s father were all ready to proceed, and it said that
it did not want to make them wait any longe r. Noting Braddick’s delay in submitting his
public-defender application, the district court stated, “I think your tardiness is tantamount
to a waiver.”
The district court proceeded with the restitution hear ing. Braddick was not
represented by counsel. The state called just one witness, the victim’s father, who testified
about the medical expenses and counseling co sts that the victim incurred because of
Braddick’s offense. Braddick did not ask any questions of th e victim’s father. Braddick

1 A different judge presided over the second hearing.
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then told the district court that he was facing financial difficulties and could not pay
restitution, and he reiterated his wish to talk with an attorney about the issues. The district
court stated that it would keep the record open for three weeks to allow Braddick to submit
evidence if he qualified for a public defender, but the district court said that it would not
recall the witness.
One week after the hearing, the district court received Braddick’s public-defender
application, which the district court granted. Braddick, through his appointed counsel, filed
a letter to the district court requesting that the district court not order restitution because
Braddick did not have the financial means to pay restitution. The district court later asked
Braddick to submit pay stubs for his new em ployment to determine his ability to pay
restitution. Braddick submitted his pay stubs as requested, and the district court issued a
restitution order requiring Braddick to pay $16,000 in restitution.
Braddick appeals from the restitution order.
DECISION
Braddick’s sole argument on appeal is that the district court improperly denied him
the right to counsel at the No vember 16, 2020 restitution hear ing. He argues that he is
therefore entitled to a new restitution hearing with help from counsel.2 We agree.
Criminal defendants have the constitutiona l right to counsel in “all criminal
prosecutions.” U.S. Const. am end. VI; Minn. Const. art. I, § 6. The right to counsel

2 The state did not file a respondent’s brief, and this court ordered that the case proceed
under Minn. R. Civ. App. P. 142.03 (providing that if respondent does not file a brief, the
case is to be determined on the merits).
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extends to all critical stages of the proceedings. State v. Maddox, 825 N.W.2d 140, 144
(Minn. App. 2013). A restituti on hearing is a critical stage of the proceeding, to which a
defendant’s right to counsel applies. Id. at 146. A defendant’s right to counsel may be
relinquished in three ways: (1) waiver, (2 ) waiver by conduct, or (3) forfeiture. State v.
Jones, 772 N.W.2d 496, 504 (Minn. 2009). None of these situations was present here.
The record is clear that Braddick did not expressly waive his right to counsel at the
restitution hearing. A defendant may waive the right to counsel if the waiver is knowing,
voluntary, and intelligent. State v. Woods, 961 N.W.2d 238, 247 (Minn. 2021). To ensure
a knowing, intelligent, and voluntary waiver of counsel, the district court “should
comprehensively examine the defendant.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn.
2012) (quoting State v. Worthy , 583 N.W.2d 270, 276 (Minn. 1998)). Here, the district
court did not question Braddick to ensure that he entered a valid waiver of his right to
counsel. Instead, Braddick re peatedly told the district c ourt that he wished to be
represented at the hearing. The district c ourt compounded the error when it stated that
public defenders “usually do n’t get involved in restitution matters,” which incorrectly
suggested that Braddick did not have the right to a public defender at the restitution hearing.
Because the district court neve r obtained a knowing, voluntary, and intelligent waiver of
Braddick’s right to counsel, Braddick did not expressly waive the right.
Similarly, Braddick did not relinquish hi s right to counsel based on waiver by
conduct. “[W]aiver by conduct occurs if a de fendant engages in dila tory tactics after he
has been warned that he will lose his right to counsel.” Jones, 772 N.W.2d at 505. This
concept applies to defendants who “voluntarily engage in misconduct knowing what they
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stand to lose but are not affirmativ ely requesting to proceed pro se.” Id. (quotation
omitted). Before a defendant is considered to have waived his right to counsel by conduct,
the district court must engage in the same colloquy necessary for af firmative waivers of
counsel. Id. Because the district court did not conduct such a colloquy here and Braddick
was not warned of the risks of losing his right to counsel, Braddick did not waive his right
to counsel by conduct.
The final way in which a defendant may relinquish his right to counsel is forfeiture.
Id. at 504. The district court’s comment th at Braddick’s delay in submitting the public-
defender application was “tantamount to a waiver” suggests that it believed that Braddick
forfeited his right to counsel. Forfeiture occu rs when a defendant engages in “extremely
dilatory conduct,” and in those cases the district court need not conduct a waiver colloquy
with the defendant. Id. at 505 (quotation omitted). Forfeiture of the right to counsel occurs
only in cases of “severe misconduct.” Id. For example, in Jones, the supreme court
determined that the defendant engaged in “co nduct that was extremely dilatory” when he
appeared for court without counsel eight times, was repeatedly told to obtain counsel, and
was granted three continuances to allow him time to hire private counsel. Id. at 506. And
in State v. Lehman, this court affirmed the district court’s determination that the defendant
forfeited his right to counsel after he attack ed his public defender in open court. 749
N.W.2d 76, 82 (Minn. App. 2008), rev. denied (Minn. Aug. 5, 2008).
Braddick’s conduct does not rise to the le vel of “severe misconduct” such that he
forfeited the right to counsel. We recognize that Braddick’s lack of counsel at the
restitution hearing was attributab le to his own failure to act more promptly: the district
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court told Braddick to apply for a public defender two months earlier, but Braddick did not
submit the application until one week befo re the continued hearing. Unlike in Jones,
however, Braddick’s failure to obtain counsel was a one-time delay, rather than the result
of multiple opportunities and repeated failures to obtain counsel. 772 N.W.2d at 506. And
Braddick had submitted the public-defender application by the time of the continued
hearing, which ensured that he would be represented at fu ture proceedings if he was
eligible. Although the district court was understandably frustrated with Braddick’s failure
to secure counsel during the two-month inte rval between hearings, Braddick’s one-time
delay in obtaining counsel falls short of the co nduct recognized to constitute forfeiture of
the right to counsel. The district court therefore erred when it determined that Braddick’s
conduct was “tantamount to a waiver” and proc eeded with the restitution hearing without
Braddick being represented.
For these reasons, Braddick was denied his constitutional right to counsel at the
restitution hearing. Denial of the right to counsel is a structural error, which “does not
require a showing of prejudice to obtain reversal.” Maddox, 825 N.W.2d at 147 (quoting
State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997)). As a result, we reverse the district
court’s restitution order and remand for a new restitution hearing.
Reversed and remanded.