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State v. Dvorak1/19/2000
granted Dvorak a continuance. Dvorak then failed to appear for a rescheduled jury trial in December 1998, and he was arrested under a bench warrant on January 7, 1999. Meanwhile, on December 21, 1998, Secrest moved to withdraw as Dvorak's attorney, claiming Dvorak failed to pay attorney fees and failed to communicate and provide evidence to Secrest. The State did not resist Secrest's motion, and the trial court allowed Secrest to withdraw as Dvorak's counsel on January 8, 1999.
[ ] At a January 28, 1999 status conference, the court noted Dvorak was representing himself. Dvorak said he thought he might have an attorney and indicated if he retained an attorney, the attorney would want a continuance. Dvorak recognized he was aware of the benefits of counsel and the dangers and difficulties of self-representation when he asked for another continuance because "I can't go into court without an attorney." The court continued Dvorak's trial to March 1999 and unambiguously informed him there would be no further continuances. Despite Dvorak's acknowledgment he could not go to court without an attorney and the court's warning there would be no further continuances, Dvorak did not request another court-appointed counsel and appeared pro se at the March 1999 pretrial conference and trial. As we observed above, Dvorak's pretrial conduct suggests a manipulative pattern of delay primarily calculated to serve his goal of having the charge dismissed. Compare Poitra, 1998 ND 88, 13, 578 N.W.2d 121 (stating nothing in the record suggested defendant's actions were intended primarily to delay trial). A defendant's manipulative or obstructive conduct is relevant to whether a decision to proceed pro se is knowing and intelligent. See United States v. Yagow, 953 F.2d 427, 432 (8th Cir. 1992); United States v. Willie, 941 F.2d 1384, 1388-91 (10th Cir. 1991); Meyer v. Sargent, 854 F.2d 1110, 1115 (8th Cir. 1988); United States v. Gallop, 838 F.2d 105, 109-11 (4th Cir. 1988).
[ ] At trial, Dvorak indicated he was ready to proceed and offered several exhibits to support his theory the prior protection order was invalid or illegal. Dvorak's presentation of his case at trial indicates an awareness that he was responsible for the functions of counsel. See Rockwell, 1999 ND 125, 16, 597 N.W.2d 406.
[ ] We conclude Dvorak's pretrial conduct and manipulative pattern of delay, his prior experience with the criminal justice system, and his awareness of the benefits of counsel and the dangers of self-representation indicates he decided to proceed pro se with his eyes open and understood the dangers and disadvantages of self-representation. Dvorak's decision to appear pro se ultimately may have been an error in judgment, but that does not foreclose his decision from being knowingly and intelligently made. Rockwell, 1999 ND 233, 16, 597 N.W.2d 406; Harmon, 1997 ND 233, 23, 575 N.W.2d 635. Although we continue to encourage trial courts to conduct a specific on-the-record colloquy regarding self-representation to provide this Court with an objective basis for reviewing the waiver, under these circumstances, we conclude this record is not silent and establishes Dvorak's functional waiver of his right to counsel was knowingly and intelligently made.
III.
[ ] Dvorak argues N.D.C.C. § 14-07.1-06 is unconstitutional because it does not include a culpability requirement and could be used to punish innocent and mistaken conduct.
[ ] When Dvorak violated the protection order in 1998, N.D.C.C. § 14-07.1-06 provided :
Penalty for violation of a protection order. Whenever a protection order is granted pursuant to section 14-07.1-02 or 14-07.1-03 and the respondent or pe
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