Wilson v. State, 2013 ND 124

Scott Wilson was tried by jury and convicted on four counts of issuing checks without sufficient funds; he represented himself at trial after the court denied court-appointed counsel, finding him not indigent.
Wilson stated he had attempted to retain private counsel shortly before trial (contacting several attorneys) but offered no written proof that attorneys refused representation.
The court informed Wilson of his options to retain counsel or apply for court-appointed counsel; Wilson proceeded pro se, conducted voir dire and cross-examination, and made trial and sentencing remarks.
At sentencing the court did not advise Wilson of his right to appeal; Wilson’s direct appeal was dismissed as untimely and he later sought post-conviction relief alleging denial of counsel and lack of notice of appeal rights.
The district court denied post-conviction relief, finding the omission to advise of appeal rights was harmless (per Peguero), and that Wilson’s conduct and failure to secure counsel after being advised amounted to a functional waiver of the right to counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to advise defendant of right to appeal requires automatic resentencing or is subject to harmless-error review	Wilson: Failure to advise of appeal under N.D.R.Crim.P. 32 mandates relief (relies on older Carmody rule)	State: Peguero harmless-error standard applies; defendant must show prejudice	Court applied Peguero; adopted harmless-error standard and held Wilson had independent knowledge of appeal rights, so omission was harmless
Whether denial of court-appointed counsel violated Sixth Amendment / whether Wilson validly waived right to counsel	Wilson: Court erred in denying appointment; he attempted to retain counsel and was effectively denied counsel	State: Wilson was not indigent, gave no written proof attorneys refused, had reasonable opportunity and knowingly proceeded pro se; conduct amounted to waiver	Court found findings not clearly erroneous: Wilson waived/forfeited counsel by failing to secure counsel after being informed and given opportunity; appointment not required

Peguero v. United States, 526 U.S. 23 (1999) (failure to advise of appeal rights warrants collateral relief only if defendant is prejudiced)
State v. Carmody, 243 N.W.2d 348 (N.D. 1976) (earlier rule requiring resentencing for failure to advise of appeal rights)
City of Grand Forks v. Corman, 767 N.W.2d 847 (N.D. 2009) (appointment of counsel limited to indigent or those unable to obtain counsel; waiver principles)
State v. Sivesind, 439 N.W.2d 530 (N.D. 1989) (harmless-error review standard)