State of Minnesota, Respondent, vs. Kevin Herman Larson, Appellant.

State of Minnesota, Respondent, vs. Kevin Herman Larson, Appellant. A05-40, Court of Appeals Unpublished, March 14, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-40

 

State of Minnesota,

Respondent,

 

vs.

 

Kevin Herman Larson,

Appellant.

 

Filed March 14, 2006

Affirmed Willis, Judge

 

Morrison County District Court

File No. K2-03-1517

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN  56345 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this appeal from convictions of failure to register as a sex offender and failure to register a change of address, appellant argues that the district court failed to obtain a knowing and intelligent waiver of appellant's right to counsel at trial, that the evidence is insufficient to prove that he knowingly violated the registration statute, and that the predatory-offender registration statute is unconstitutional.  We affirm.

FACTS

In July 1992, appellant Kevin Larson pleaded guilty to second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (1990).  The district court imposed a 36-month sentence.  In November 1994 and several times in 1995, while still in prison, Larson refused to sign a predatory-offender registration form after being ordered to do so by a corrections officer. 

            The record shows that from July 1997 to August 2003, the predatory-offender registration unit of the Bureau of Criminal Apprehension (BCA) sent Larson nine letters informing him that he was required to register as a sex offender.  Five of the letters were returned to the BCA marked undeliverable, but Larson concedes that he received the other four.  Larson did not respond to these letters, nor did he register as a sex offender.  At some time not clear from the record, Larson moved to Morrison County.  In July 2003, a Morrison County deputy, while investigating another crime, interviewed Larson and told him that he needed to register as a sex offender.

            Larson was later charged with failure of sex offender to register and failure of sex offender to register a change of address, in violation of Minn. Stat. § 243.166, subd. 3(a), (b) (2002).  Larson appeared at several pretrial hearings without an attorney.  At each hearing and at his trial, the district court informed Larson of his right to an attorney and encouraged Larson to obtain counsel.  Larson consistently replied that he was not eligible for a public defender and that he could not afford a private attorney.  Larson represented himself at trial, and a jury found him guilty on both charges.  The district court stated that it merged the convictions for sentencing and imposed a sentence of one year and one day.  This appeal follows. 

D E C I S I O N

Larson first argues that he did not knowingly and intelligently waive his right to counsel.  The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney.  Gideon v. Wainwright, 372 U.S. 335, 34345, 83 S. Ct. 792, 796-97 (1963).  The right to an attorney may be waived if the waiver is knowing and intelligent.  State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998) (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019 (1938)).  A finding that a defendant has validly waived his right to counsel will be reversed only if it is clearly erroneous.  Worthy, 583 N.W.2d at 276.

Minnesota law requires that when a defendant waives the right to counsel, "the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel."  Minn. Stat. § 611.19 (2002); see also Minn. R. Crim. P. 5.02 cmt. ("Minnesota law requires that a waiver of counsel be in writing unless the defendant refuses to sign the written waiver form.  In that case a record of the waiver is permitted.").  Here, the record shows that Larson neither signed nor refused to sign a written waiver of his right to counsel.

But even when there is no written waiver or refusal to sign a written waiver, a determination that a waiver is valid need not be reversed when the facts and circumstances surrounding a case, including the defendant's experience and conduct, make clear that the defendant "knows what he is doing and [that] his choice is made with eyes open."  Worthy, 583 N.W.2d at 276 (quotation omitted); see also In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000) (analyzing Minn. R. Crim. P. 5.02, subd. 1(4), and stating that a district court's failure to follow "a particular procedure" does not automatically render a waiver invalid).  A defendant's refusal to apply for a public defender or obtain private counsel can demonstrate waiver of the right to counsel.  Finne v. State, 648 N.W.2d 732, 736 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002).

For an oral waiver of the right to counsel to be valid, the district court must advise the defendant of

the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and 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 waive counsel.

 

Minn. R. Crim. P. 5.02, subd. 1(4).  But the district court need not make a detailed, on-the-record inquiry.  See Worthy, 583 N.W.2d at 276.

Here, the record shows that the district court advised Larson of his options to either apply for a public defender or hire private counsel and encouraged Larson to obtain representation.  The district court also warned Larson of the nature of the charges, the difficulties of proceeding pro se, and the seriousness of the possible punishments.  The district court gave Larson several opportunities to seek counsel and appears to have done everything reasonably in its power to protect Larson's right to counsel.  Despite the district court's efforts, Larson repeatedly insisted that he was not eligible for a public defender and that he could not afford a private attorney.  In light of the district court's advice and Larson's continued resistance to obtaining counsel, we conclude that Larson's decision to proceed pro se was knowing and intelligent and that the district court did not err by determining that Larson validly waived his right to counsel.

            Larson next argues that the record is insufficient to support his convictions.  When an appellant challenges the sufficiency of the evidence, our review is limited to a thorough analysis of the record to determine "whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt."  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We review the record in the light most favorable to the conviction.  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, and we assume that the fact-finder believed the evidence supporting the state's case and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

            Larson was convicted of failing as a sex offender to register and failing to register a change of address.  A person convicted of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343 is required to register as a predatory offender.  Minn. Stat. § 243.166, subds. 1(a)(1)(iii), 3(a) (2002).  When a person required to register "starts living at a new primary address, . . . the person shall give written notice of the new primary living address to the assigned corrections agent or to the law enforcement authority with which the person is currently registered."  Id., subd. 3(b) (2002).  It is a felony to knowingly violate any of the provisions of the offender-registration statute.  Id., subd. 5(a) (2002).

            Larson concedes that he pleaded guilty to second-degree criminal sexual conduct.  He argues that he did not knowingly violate the registration requirement because he believed that the registration statute did not apply to him.  He points to a comment by the district court at the hearing for sentencing on Larson's criminal-sexual-conduct conviction that a particular "sentencing statute" was not applicable to Larson.  But the transcript from the sentencing hearing shows that the district court did not refer to the registration statute. 

            The record further shows that a corrections officer told Larson several times while Larson was in prison that he had to register as a sex offender, that the BCA informed Larson of the registration requirement four times by letter after he was released, and that a Morrison County deputy who interviewed Larson in 2003 again told Larson that he had to register.  Larson did not register as a sex offender, nor did he provide written notice of his new primary address when he moved to Morrison County.  Despite Larson's claims that he thought that he was not required to register as a sex offender, the record shows that he was informed repeatedly of the registration requirement.  We therefore conclude that the record evidence supports his convictions beyond a reasonable doubt.     

Larson argues pro se that the predatory-offender registration statute is a bill of attainder, in violation of the United States and Minnesota constitutions.  See U.S. Const. art. I, § 9, cl. 3 (providing that no bill of attainder shall be passed); Minn. Const. art. I, § 11 (same).  A statute's constitutionality is a question of law, which we review de novo.  Granville v. Minneapolis Pub. Sch., 668 N.W.2d 227, 230 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  Statutes are presumed to be constitutional.  Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 93 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000).

A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."  Council of Indep. Tobacco Mfrs. of Am. v. State, 685 N.W.2d 467, 474 (Minn. App. 2004) (quoting Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S. Ct. 2777, 2803 (1977)), review granted (Minn. Nov. 16, 2004).  The prohibition against bills of attainder "is designed to prevent a legislative body from usurping the role of the judiciary by legislatively determining issues of guilt and punishment."  Id.  To show that a statute is a bill of attainder, an appellant must show that the statute singles out an identifiable individual or group and punishes that individual or group without a judicial trial.  Id.

Larson argues that the predatory-offender registration form requires him to agree that he is an offender even though he has "never been charged for being an offensive person."  But Larson pleaded guilty to second-degree criminal sexual conduct and, in doing so, waived his right to a judicial trial.  See State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711 (1969)).  His conviction of second-degree criminal sexual conduct requires registration as a sex offender.  Minn. Stat. § 243.166, subd. 1(a)(1)(iii).  Furthermore, registration as a sex offender does not advance traditional aims of punishment and is, therefore, not punitive.  See State v. Manning, 532 N.W.2d 244, 248 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Because Larson waived his right to a judicial trial and because sex-offender registration is not punishment, we conclude that the predatory-offender registration statute is not a bill of attainder.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.