This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1391
State of Minnesota,
Respondent,
vs.
Rico Patrick Howard,
Appellant.
Filed April 11, 2016
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-CR-14-24219
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his conviction of second-degree murder after a guilty plea,
appellant Rico Patrick Howard argues that the district court abused its discretion when it
denied his request for substitute counsel at trial and when it denied his motion for a
downward durational departure at sentencing. We affirm.
FACTS
The state charged appellant with one count of intentional second-degree murder in
violation of Minn. Stat. § 609.19, subd. 1(1) (2014), after he shot and killed another man.
Appellant applied for and was provided public defenders to represent him.
On the first day of trial, before jury selection, the prosecutor explained the status
of plea negotiations:
[T]here wasn’t actually an offer extended. There were some
discussions regarding whether or not [appellant] would be
amenable to the potential of a range. And so in the interests
of not negotiating against ourselves, what I indicated to
counsel was whether or not [appellant] would be interested in
a range of something between 363 months and 240 months,
wherein he would argue to the Court [concerning a downward
departure] after a plea. And what I got back from the defense
was that he wasn’t interested in that.
The district court gave appellant and his public defenders time to discuss the possibilities
for a plea agreement, and court recessed for the day.
The next day, the prosecutor formally offered a sentencing range of 204 to 400
months if appellant were to plead guilty, with the understanding that the state would
argue at sentencing for a 363-month prison term, and appellant would argue for a
downward durational departure. Based on appellant’s criminal history score, the
presumptive sentencing range under the Minnesota Sentencing Guidelines was 363 to
480 months. Appellant stated that he understood the offer and agreed to accept it. He
was sworn and was questioned by counsel as required by Minn. R. Crim. P. 15.01. He
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stopped short of entering a plea, saying that he was “not comfortable” with the plea
agreement.
Appellant then made a pro se motion for substitute counsel because he was also
“not comfortable” with his public defenders. The district court denied appellant’s request
because it was made on the day of trial and because appellant’s proposed substitute
counsel was not present.
The prospective jury panel was then brought into the courtroom. After the district
court concluded general questioning of the prospective jurors, appellant again indicated
that he wanted to accept the plea offer. Appellant pleaded guilty in exchange for the
state’s earlier offer. During the resumed plea colloquy with his attorneys, appellant
explained that his earlier frustrations resulted from having felt rushed to make a decision
about the plea offer. “[B]ecause of that . . . [he] felt like [he] either lost trust in [his]
attorneys or felt like [they] weren’t operating in [his] best interests.” Appellant
confirmed that he was “okay” with the public defenders facilitating the plea agreement
and expressed that he wanted them to argue on his behalf at sentencing.
The district court ordered a presentence-investigation report (PSI) and encouraged
appellant to cooperate with that process, explaining that appellant’s counsel would “use
that report to argue . . . for a more lenient sentence.” After the PSI was prepared, the
district court sentenced appellant to 363 months in prison, which was the bottom-of-the-
box under the Minnesota Sentencing Guidelines. The district court denied appellant’s
request for a downward durational departure, explaining that “the Court would have to
find compelling reasons that justify a departure and in this case [the Court] cannot do so.”
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The district court’s conclusion that it did not have enough information on which to base a
departure resulted in part because “the probation officer indicated that [appellant] didn’t
want to talk about some of the facts of the case.” This appeal followed.
DECISION
I. Substitute Counsel
Appellant argues that the district court erred in denying his request for substitute
counsel. Although made on the first day of trial, he asserts that his request was
nevertheless timely because his “tremendous frustration with his attorneys caused
exceptional circumstances.” The state argues that appellant waived his substitute-counsel
argument by pleading guilty and that the only issue properly before us for consideration
on appeal is whether appellant may withdraw his plea. Appellant replies that “it is
inconsequential whether this claim is raised as a constitutional violation of appellant’s
right to counsel or as a manifest injustice [under the plea-withdrawal standard] . . .
because the end result is the same.” In support, appellant argues that “[i]t is clear from
appellant’s principal brief the crux of his argument is that, by denying him substitute
counsel, his guilty plea was not voluntary.”
Improper denial of a substitute-counsel request may form the basis for a plea
withdrawal, where the plea is shown to have been involuntary because of the denial. See
United States v. Taylor, 652 F.3d 905, 909 (8th Cir. 2011) (noting that, for example, “[a]
waiver [of counsel] is involuntary if the defendant is offered the ‘Hobson’s choice’ of
proceeding to trial with unprepared counsel or no counsel at all”). We therefore first
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consider whether the district court erred in denying appellant’s request for substitute
counsel.
A. The district court did not abuse its discretion.
We review a district court’s denial of a substitute-counsel request for abuse of
discretion. State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006). A criminal defendant’s
right to counsel entitles the defendant to be allowed “a fair opportunity to secure counsel
of his choice,” and an indigent defendant must “be provided competent counsel in all
criminal proceedings.” State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). But an
indigent defendant’s right to counsel is limited and “does not give him the unbridled right
to be represented by counsel of his choice.” Id. “Although he may request a substitution
of counsel, his request will be granted only if exceptional circumstances exist and the
demand is timely and reasonably made.” Id. “[E]xceptional circumstances are those that
affect a court-appointed attorney’s ability or competence to represent the client.” State v.
Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
Appellant requested substitute counsel because he was “not comfortable” and “not
satisfied” with his appointed counsel. Appellant relies on Gillam for the principle that
“in certain circumstances an indigent defendant’s disagreements or dissatisfaction with
his court-appointed attorney could affect the court-appointed attorney’s ability or
competence in representing the defendant.” Gillam, 629 N.W.2d at 450. But Gillam held
that general dissatisfaction with counsel was not an exceptional circumstance. Id. at 449-
50. Appellant cites no other law in support of his argument, and existing caselaw
indicates that the circumstances here are not exceptional. See State v. Voorhees, 596
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N.W.2d 241, 255 (Minn. 1999) (concluding that personal tension between counsel and
defendant was not an exceptional circumstance); State v. Worthy, 583 N.W.2d 270, 279
(Minn. 1988) (noting that general disagreement with counsel’s assessment of the case
was not an exceptional circumstance). Appellant’s counsel had already argued for and
obtained a favorable pre-trial ruling for appellant. See Clark, 722 N.W.2d at 464-65
(holding that the district court did not abuse its discretion in denying a request for
substitute counsel where the appointed counsel obtained favorable pretrial rulings and the
district court was satisfied that the attorney was prepared for trial). We conclude that
exceptional circumstances did not support appellant’s request for substitute counsel.
In addition to the absence of exceptional circumstances, appellant’s request was
untimely. In Clark, the Minnesota Supreme Court concluded that a request for substitute
counsel was untimely when it was made on the first morning of trial after jury selection
had begun and appellant had made a speedy-trial request. Id. at 465. In Worthy, the
supreme court concluded that a request to obtain substitute counsel on the first day of
trial because of dissatisfaction with counsel’s opinion was untimely. 583 N.W.2d at 276-
77. Here, appellant made his request on the first day of trial, just before jury selection
had begun. Although appellant named a particular attorney as prospective substitute
counsel, appellant also acknowledged that he had not yet hired that lawyer. There was no
indication that the lawyer would take appellant’s case, then or ever, and the lawyer was
not present in court. Appellant had nearly seven months to hire private counsel, which is
a “fair opportunity to secure counsel of his choice.” See Vance, 254 N.W.2d at 358. The
district court acted within its discretion in declining to delay trial when appellant’s
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competent, court-appointed counsel was willing to represent him and no alternative
counsel had been hired or was available. See Worthy, 583 N.W.2d at 278 (noting that
appointed counsel was “experienced, competent, and prepared to try the case”); Vance,
254 N.W.2d at 359 (noting that appointed counsel was “competent and able . . . and was
prepared for trial”).
The district court did not abuse its discretion in denying appellant’s request for
substitute counsel. Because denial of this request is appellant’s only challenge to his
guilty plea, there is no basis for allowing him to withdraw his plea.
B. Even if the district court abused its discretion, appellant waived this argument
by pleading guilty.
The state argues that appellant waived his substitute-counsel argument by pleading
guilty. Appellant responds that he did not waive the argument because the improper
denial of substitute counsel is a structural error, which warrants reversal even in the
absence of a showing of manifest injustice.
A counseled guilty plea “operates as a waiver of all nonjurisdictional defects,”
including claimed constitutional violations. State v. Iverson, 664 N.W.2d 346, 350
(Minn. 2003). The United States Supreme Court has held, however, that a proven
violation of the constitutional right to choice of counsel is a structural error that requires
reversal. United States v. Gonzalez-Lopez, 548 U.S. 140, 140-41, 126 S. Ct. 2557, 2559
(2006). But importantly, Gonzalez-Lopez excludes indigent defendants from its holding.
See id. at 151, 126 S. Ct. at 2565 (“[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.”). At no point in the process
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did appellant show that he had private counsel available and willing to represent him.
Because appellant is indigent, Gonzalez-Lopez provides no support for his structural-error
argument.
Critically, and after his substitute-counsel request was denied, appellant confirmed
that he wanted his public defenders to continue representing him in the plea and
sentencing processes. He explained during his plea that his earlier request was born of
frustration at feeling rushed to make a decision. He made no claim during the plea
colloquy that his plea was involuntary or the result of the earlier denial of his request for
substitute counsel. Appellant therefore waived his substitute-counsel argument, even if
the district court earlier abused its discretion, which we conclude it did not.
II. Downward Departure
Appellant argues that the district court erred in denying his motion for a
downward durational departure because his offense was less serious than the typical
second-degree murder. We review a district court’s refusal to depart from the guidelines
for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). Only in
a “rare” case will an appellate court reverse a sentencing court’s refusal to depart. State
v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The district court must order the presumptive sentence provided in the Minnesota
Sentencing Guidelines unless the case involves “substantial and compelling
circumstances” to warrant a departure. Id. A district court only considers offense-related
factors when determining whether to grant a durational departure. State v. Peter, 825
N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). Specifically,
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the district court considers “whether the conduct involved in the offense of conviction
was significantly more or less serious than the typical conduct for that crime.” Id.
Appellant identifies two reasons supporting his argument that the district court
erred in not granting him a durational departure. First, he points to the PSI, which recited
appellant’s claim that the murder victim had threatened to “throw a pot of boiling water
on him.” Appellant argues from this that the victim was an aggressor, which is a
permissible basis for a durational departure under Minn. Sent. Guidelines 2.D.3.a(1)
(2014). The district court considered appellant’s version of events and concluded that the
record did not support it “because no details were provided [to the probation officer].”
The district court found appellant’s version of events not credible. And, even if the
district court were to have believed that the victim was an aggressor, that fact would only
permit departure—it would never require it. See State v. Jackson, 749 N.W.2d 353, 360
(Minn. 2008) (stating that if mitigating factors are shown, the district court may, but is
not required to, depart).
Second, appellant argues, without legal citation or other support, that his having
killed the victim with only a single shot makes this murder less serious than is typical.
Appellant pleaded guilty to second-degree murder and admitted to shooting the victim,
knowing that the shot would likely result in death. There is no legal support for
appellant’s argument that murdering a person with a single shot is significantly less
serious than other second-degree murders. The district court acted within its discretion in
concluding that this fact does not support a durational departure.
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The district court acted within its discretion in denying appellant’s motion for a
durational departure.
Affirmed.
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State of Minnesota v. Rico Patrick Howard
Combined Opinion