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This opinion is nonprecedential except as provided by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
A22-0093

State of Minnesota,
Respondent,

vs.

Andrew John Kramer,
Appellant.

Filed December 27, 2022
Reversed and remanded
Cochran, Judge

Steele County District Court
File No. 74-CR-20-1552

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

Daniel McIntosh, Steele County Attorney, Robert J. Jarrett, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly , Presiding Judge; Cochran, 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NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal, appellant challenges h is conviction of fifth- degree assault,
arguing that the district court failed to obtain a valid waiver of his constitutional right to
counsel. Because the record does not establish a valid waiver of appellant’s right to
counsel, we reverse and remand for a new trial.
FACTS
In July 2020, a man hit and killed a dog with his truck in Owatonna, Minnesota.
The man did not see anyone around, so he continued driving and returned to the accident
site approximately 20 minutes later. By that time, a crowd of peop le, including appellant
Andrew John Kramer, had gathered. The man stepped out of his truck to apologize.
According to the man, Kramer proceeded to yell and swear at him and also tried to hit him
with a stick. Kramer and the man fought for some time before the man returned to his truck
to call the police.
Respondent State of Minnesota charged Kramer with misdemeanor fifth-degree
assault in violation of Minn. Stat. § 690.224, subd. 1(2) (2018). Kramer appeared without
counsel at his arraignment, an evidentiary hearing, three settlement conferences, a jury
trial, and sentencing. The following summarizes the facts relevant to the issue of his waiver
of counsel.
Arraignment
On December 10, 2020, the district court arraigned multiple defendants, including
Kramer, via Zoom. The district court first addressed the defendants as a group, providing
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a general description of their rights. The district court noted that jury trials are available to
gross misdemeanor and misdemeanor defendants but not to petty misdemeanor defendants,
and then reviewed a defendant’s rights at trial. The district court explained that gross
misdemeanor and misdemeanor defendants (but not petty misdemeanor defendants) are
entitled to legal representation because conviction of those charges can result in
imprisonment. The district court also clarified that defendants must qualify and apply for
a public defender to obtain one. The district court then conducted individual arraignments.
At his arraignment, Kramer appeared without counsel. When the district court
asked Kramer if he wanted to apply for a public defender, Kramer initially declined. The
district court then asked Kramer if he wanted to represent himself, and Kramer said, “Sure.”
The district court did not expressly ask Kramer if he was waiving his right to counsel. Nor
did the district court make any inquiry into Kramer’s knowledge and understanding of his
rights. Instead, the district court next asked Kramer if he wanted a jury or bench trial, and
Kramer opted for a jury trial. Kramer also requested an “evidence” hearing, which the
district court interpreted to be a request for a probable cause hearing. The district court set
a date for the hearing.
Toward the end of Kramer’s arraignment, following Kramer’s request for an
evidentiary hearing, the prosecutor asked Kramer to complete a petition to proceed pro se.
At this point, Kramer requested an application for a public defender. After conf irming
with Kramer that he wanted to apply for a public defender, the district court said, “Okay.
So we’ll try a public defender.” The district court gave Kramer an application for a public
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defender and a petition to proceed pro se, and Kramer responded, “Make sure I know which
[form is] which. I’m kind of illiterate.”
Evidentiary Hearing
Kramer appeared without counsel at the evidentiary hearing, which was held by
Zoom. The district court did not ask Kramer about the public-defender application or the
petition to proceed pro se that Kramer received at the end of the arraignment. The record
on appeal does not reflect that Kramer filed either form.
Kramer proceeded to represent himself at the evidentiary hearing. At the beginning
of the hearing, the district court confirmed with the parties that the purpose of the hearing
was to address whether the state had probable cause to charge Kramer with fifth-degree
assault. However, throughout the hearing, Kramer appeared confused about the hearing’s
purpose and seemed to think that he was at trial. In response, the district court explained
the difference between an evidentiary hearing and a trial. Kramer continued to be confused.
At one point, Kramer said, “So you’re leaving me here misunderstanding everything that’s
going on. I thought I had a right to a fair trial.” The district court re minded Kramer that
he had “elected to represent [himself],” which Kramer neither confirmed nor denied.
In a written order following the hearing, the district court found that the state
established probable cause and denied Kramer’s request to dismiss the fifth-degree assault
charge.
Settlement Conferences
Kramer also appeared without counsel and represented himself at three settlement
conferences. During the first settlement conference, the district court asked Kramer, “And
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you’re representing yourself, Mr. Kramer, and you want to continue to represent yourself?”
Kramer replied, “Yes.” The district court also asked, “And you understand you have the
right to an attorney, and if you can’t afford one, you can apply for a public defender?”
Kramer again replied, “Yes.”
At the second settlement conference, the district court neither mentioned Kramer’s
right to counsel nor inquired about his decision to appear without counsel.
At the third settlement conference, at which the district court also addressed the
state’s motions in limine, the district court asked Kramer if he knew that he could still apply
for a public defender. Kramer responded, “Yep.”
Jury Trial
Kramer appeared for trial without counsel. At the beginning of the trial, the district
court asked whether Kramer had “been through” a jury trial before, and Kramer confirmed
that he had. The court did not ask Kramer if he was representing himself or conduct any
formal inquiry into whether Kramer was waiving his right to counsel.
At trial, the state called three witnesses: the man who alleged that he was assaulted
by Kramer and two responding police officers. The state also presented photographs of
the man’s injuries, the man’s truck, and a stick found at the scene. Kramer cross-examined
the state’s witnesses, but he did not call any witnesses of his own. During the trial, Kramer
seemed confused about trial procedure and the burden of proof. The jury found Kramer
guilty of fifth-degree assault.
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Sentencing
Finally, Kramer appeared without counsel at sentencing. During the sentencing
hearing, the district court did not remind Kramer of his right to counsel or inquire about
whether he was waiving his right to counsel at sentencing. The district court sentenced
Kramer to 90 days in jail, with credit for time served.
Kramer appeals.
DECISION
The United States and Minnesota Constitutions guarantee a criminal defendant the
right to counsel. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, §§ 6, 7. In Minnesota,
an accused has a right to the assistance of counsel in a misdemeanor prosecution whenever
a conviction may lead to incarceration. State v. Nordstrom, 331 N.W.2d 901, 905
(Minn. 1983). This right applies to all critical stages of a criminal proceeding, including
sentencing. State v. Maddox, 825 N.W.2d 140, 144 (Minn. App. 2013). A defendant may
waive this right, but they must do so knowingly and intelligently. State v. Rhoads,
813 N.W.2d 880, 885 (Minn. 2012). The district court has a duty to ensure a knowing and
intelligent waiver of the right to counsel. State v. Hawanchak, 669 N.W.2d 912, 914 (Minn.
App. 2003).
Waiver requirements vary based on the level of the charged offense. See Minn. R.
Crim. P. 5.04, subd. 1(3)-(4). For a misdemeanor punishable by incarceration, the rules
provide that a defendant “must waive counsel in writing or on the record.” Id., subd. 1(3).
In addition, a district court cannot accept that waiver “unless the court is satisfied that it is
voluntary and has been made by the defendant with full knowledge and understanding of
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the defendant’s rights.” Id. Caselaw also establishes that “[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 demonstrate a valid waiver.”
State v. Bonkowske, 957 N.W.2d 437, 442 (Minn. App. 2021) (quoting Rhoads ,
813 N.W.2d at 886); see State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).
We review a finding that a defendant validly waived the right to counsel for clear
error. Rhoads, 813 N.W.2d at 885; Bonkowske, 957 N.W.2d at 440. But where a district
court makes no findings as to waiver and the facts are not disputed, we review de novo
whether there was a valid waiver of the right to counsel. See Rhoads, 813 N.W.2d at 885.
An invalid waiver and the corresponding denial of the right to counsel are “structural
error[s]” that require reversal. Bonga v. State, 765 N.W.2d 639, 643 (Minn. 2009).
Kramer argues that the district court erred because it did not obtain a valid waiver
of his right to counsel. Kramer specifically contends that the district court erred by failing
to conduct a comprehensive on-the-record inquiry into Kramer’s decision to represent
himself. And Kramer asserts that the circumstances do not otherwise indicate that he
waived his right to counsel. We consider these arguments in turn.
First, Kramer argues that the district court erred by failing to “comprehensively
examine” him to determine whether he knowingly and intelligently waived his right to
counsel. Here, Kramer misapprehends the law of express waiver. For a criminal defendant
charged with a misdemeanor, the law does not require a comprehensive on-the-record
inquiry into defendant’s waiver of counsel. Minn. R. Crim. P. 5.04, subd. 1(3); Bonkowske,
957 N.W.2d at 441-42. Rather, the law only requires that a misdemeanor defendant “waive
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counsel in writing or on the record” and that the district court be “satisfied that [the waiver]
is voluntary and has been made . . . with full knowledge and understanding of the
defendant’s rights.” Minn. R. Crim. P. 5.04, subd. 1(3). The more comprehensive
on-the-record inquiry applies to defendants charged with a felony. Id., subd. 1(4);
Bonkowske, 957 N.W.2d at 441-42.
But even by the less -demanding misdemeanor standard, the record does not
establish a valid waiver by Kramer of his right to counsel. The record does not contain
either an express written waiver or an oral waiver. The district court did inquire as to
whether Kramer intended to represent himself, but the district court never obtained an
express oral or written waiver by Kramer of his right to counsel. At most, the district court
confirmed with Kramer that he was representing himself. Moreover, it did so without
questioning Kramer to ensure that he fully knew and understood his rights.
In sum, Kramer did not expressly waive his right to counsel during any of his
appearances before the district court, and the district court’s bare inquiry did not ensure
that Kramer’s waiver was knowing and intelligent. Accordingly, we conclude that Kramer
did not expressly waive his right to counsel.
Having concluded that there was no express waiver, we next consider whether the
circumstances of this case permit an inference of waiver. As discussed above, courts may
infer waiver based on the particular facts and circumstances of the case. Bonkowske ,
957 N.W.2d at 442. When determining whether the circumstances support an inference of
waiver, we consider the background, experience, and conduct of the defendant. Id. In
doing so, we consider the defendant’s familiarity with the criminal justice system and
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whether the defendant had an opportunity to consult with counsel prior to proceeding
self-represented. Id. Here, these factors do not support a finding of waiver.
The record shows that Kramer was not represented by an attorney at any point
during this case. This suggests that Kramer did not have an opportunity to consult with
counsel about the implications of his decision to proceed pro se, which cuts against waiver.
Cf. Bonkowske, 957 N.W.2d at 440, 442 (concluding that the appellant’s representation by
counsel from the beginning of the case through an evidentiary hearing supported the district
court’s finding of waiver of counsel for trial). Thus, this factor does not support an
inference that Kramer waived his right to counsel.
Additionally, the record contains only three pieces of evidence of Kramer’s
familiarity with the criminal justice system: (1) Kramer’s on-the-record statement
indicating that he had “been through a jury trial before,” (2) a sentencing order in a previous
case which was executed by the same district court judge who presided over this case, and
(3) the presentence investigation report in this case, which lists several previous
convictions of felony and misdemeanor offenses.
1 Although this evidence shows that
Kramer was familiar with the criminal justice system, it does not show that he knew or
understood the rights he was waiving in this case. In fact, there is ample evidence that

1 The state asserts that Kramer has participated in two prior jury trials: one where he was
represented by counsel and one where he represented himself. The state further contends
that, when Kramer represented himself, he appeared before the same district court judge
who presided over this case. The record before us does not support these assertions.
Accordingly, we do not consider them. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.
1988) (“An appellate court may not base its decision on matters outside the record on
appeal, and may not consider matters not produced and received in evidence below.”).
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Kramer did not understand the implications of proceeding pro se. For instance, during
trial, Kramer became increasingly frustrated by the district court’s enforcement of the rules
of trial practice, in part because he did not understand them. Thus, we conclude that
Kramer’s experience with the criminal justice system does not support an inference of
waiver and that the circumstances, as a whole, do not justify such a finding.
We are not persuaded otherwise by the state’s reliance on Worthy. In Worthy, the
defendants fired their attorneys on the morning of trial, despite being told that they would
be held to the same standard as attorneys if they chose to represent themselves. Worthy,
583 N.W.2d at 276. In considering the question of whether the defendants’ waiver of
counsel was valid, the supreme court noted that the defendants had legal representation for
over a month before trial and “took full advantage of that representation up until the
morning of their scheduled trial date.” Id. The supreme court also emphasized that the
defendants “were familiar with the criminal justice system,” noting that both defendants
had at least four prior felony convictions and at least one of them “had seen a lot of trials
of late.” Id. Accordingly, the supreme court concluded that the defendants “were fully
aware of the consequences” of proceeding pro se and had waived their right to counsel. Id.
at 276-77. By contrast, Kramer was not represented by counsel during any of his
appearances before the district court, and the district court did not explain what would be
expected of him if he chose to represent himself. Additionally, although Kramer has been
convicted of one felony and a number of misdemeanors, the record does not show that he
has participated in multiple jury trials. Thus, the circumstances here do not support the
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conclusion that Kramer was aware of the consequences of proceeding pro se, and the state’s
reliance on Worthy is unavailing.
In summary, Kramer did not expressly waive his right to counsel, and the
circumstances do not support an inference of waiver. Accordingly, Kramer’s conviction
must be reversed and remanded for a new trial. See Bonga, 765 N.W.2d at 643.
Reversed and remanded.