[¶ 1] Eugеne Schneeweiss appeals from the judgment of conviction based on a jury verdict of guilty for driving a vehicle while under the influence of intoxicating liquor. Schneeweiss claims the trial court improperly denied him assistance of counsel in his defense. We affirm.
I
[¶ 2] On December 17, 1999, Schneew-eiss was arrested for driving a motor vehicle while under the influence of intoxicating liquor. At his initial appearance, the trial court advised Schneeweiss of his right to court-appointed counsel if Schneeweiss was indigent and asked if Schneeweiss was going to hire his own attorney. Schneew-eiss replied that he already had talked to an attorney and was going to hire his own. However, on January 18, 2000, Schneew-eiss submitted an application for a court-appointed attorney. The trial court denied the request because Schneeweiss was not indigent, as he had no dependents and was earning $1,200 pеr month, which exceeds the guideline requirement for appointed counsel. Schneeweiss appeared pro se at his pretrial conference and requested a jury trial.
[¶ 3] On March 13, 2000, Schneeweiss reapplied for a court-appointed attorney, this time claiming no income. The trial court appointed an attorney and continued the trial date. One day before the rescheduled trial, Schneeweiss requested a nеw court-appointed attorney after threatening a malpractice suit and demanding the attorney to withdraw for allegedly failing to conduct sufficient discovery, failing to call requested witnesses, and refusing to file perjury charges against the arresting officer. The attorney filed a motion to withdraw, stating much of the requested discovery was irrelevant and undiscovera-ble, the requested witnesses were in jail and had never been arrested by the officer so would not be able to prove the officer improperly arrested Schneeweiss, and the attorney refused to be “a tool for [Schneeweiss] to exact his retribution” against the arresting officer. At a hearing on the motion to withdraw, the State requested placing conditions on Schneew-eiss’s request for a court-appointed attorney as sanctions for harassing attorneys and delaying process. The trial court grantеd the motion to withdraw, stating Schneeweiss would be allowed one additional appointed counsel, and rescheduled the trial a second time.
[¶ 4] Subsequently, the newly appointed counsel asked the trial court why Schneeweiss, who was working, qualified for appointed counsel. Schneeweiss had not notified the trial court he was working, although the application for court-appointed counsel required notifying the judge of any changеs occurring after filing the ap
[¶ 5] On October 10, 2000, the trial court administrator received a letter from Schneeweiss, dated September 6, 2000, alleging harassment by the state’s attorney to “stall this case beyond the limits set do[wn] for a speedy trial.” Schneeweiss stated he had a right to a speedy trial, but the court-appointed attorneys did not file requested papers so as “to stall this case to continue to terrorize me.” The court administrator immediately replied that the trial wоuld take place as scheduled on October 19, 2000, and suggested Schneew-eiss take the necessary steps to prepare his case. On October 13, 2000, Schneew-eiss again applied for appointed counsel, claiming he was temporarily unemployed and reporting no monthly income. The trial court indicated Schneeweiss was not indigent and did not approve his application. Schneeweiss defended his case pro se; the jury found him guilty. Schneew-eiss appeals, arguing he improperly was denied assistance of counsel in his defense.
II
[¶ 6] The right to counsel in a criminal case is mandated both by the North Dakota Constitution and the Sixth Amendment of the United States Constitution.
State v. DuPaul,
[¶ 7] Indigent defendants have the right to counsel appointed by the court, under N.D.R.Crim.P. 44(a), which provides:
Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through аppeal in the courts of this state in all felony cases ... [and] in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at the defendant’s expense if the defendant is unable to secure the assistance of counsel and is not indigent.
The right to appointed counsel is a limited right, not an absolute right. DuPaul, 527 N.W.2d at 240-41. We have cautioned there is no legal reason to appoint counsel for defendants who can afford to obtain their own counsel. Id at 241. On review of a trial court’s denial of a request for appointed counsel, we inquire whether the trial court acted arbitrarily, unconscionably, or unreasonably. Id at 240.
Ill
[¶ 8] Schneeweiss argues because the trial court vacated the appointment of his second appointed counsel just 10 dаys before trial, the trial court improperly denied Schneeweiss the assistance of counsel in his defense. The trial court vacated the appointment of counsel due to Schneew-eiss’s reported monthly income, yet Schneeweiss asserts the trial court (1) failed to consider whether he had the present assets to retain an attorney, (2) re
1
[¶ 9] Schneeweiss contends the trial court improperly made no inquiry into whether he had the present resources to pay the retainer necessary to hire an attorney to represent him at a jury trial, notwithstanding his reported monthly income.
[¶ 10] The guidelines establish eligibility for indigent defense services for an individual with no dependents at a maximum annual gross income of $10,438. N.D. Legal Counsel for Indigents Comm’n, N.D. Sup.Ct.,
Indigent Defense Procedures and Guidelines,
Dec. 1995, at 1.4 (rev.Apr. 2000). Defendants bear the burden of proving they are indigent and qualify for appointed counsel.
State v. DuPaul,
[¶ 11] Similarly, we affirmed a trial court’s revocation of a defendant’s indigen-cy status after first determining him to be indigent and appointing counsel for representation in all matters pertaining to the case.
State v. Fontaine,
[¶ 12] On January 18, 2000, Schneeweiss submitted his first application for appointed defense services, indicating hе had no dependents and reporting a monthly income of $1,200. This monthly income results in an annual income of $14,400, which is $4,000 over the guideline amount required for indigent defense services eligibility. Thus, the trial court properly disapproved of Schneeweiss’s application on the basis that he was not indigent. Two months later, on March 13, 2000, Schneeweiss again applied for appointed counsel, this time reporting no income. The trial court apprоved his application and appointed counsel. However, the trial court later issued an Order to Show Cause, as Schneeweiss informed counsel he was now gainfully employed and failed to respond to the court’s request for disclosure of current financial information regarding such employment. After a hearing, the trial court found Schneew-eiss’s earned income exceeded the guideline requirements and vacated the aрpointment of counsel. A mere three days later, Schneeweiss again reapplied for appointed counsel, stating he was temporarily unemployed and reporting no income. The trial court denied his application, indicating Schneeweiss was not indigent.
[¶ 13] Our review of the record demonstrates the trial court did not act arbitrarily, unconscionably, or unreasonably when determining Schneeweiss was not indigent. Schneeweiss failed tо carry his burden of proving his indigency to the trial court. We conclude the trial court did not abuse
2
[¶ 14] Schneeweiss claims because the trial court vacated the appointment of his second appointed counsel just 10 days before trial, without appointing a substitute counsel, Schneeweiss was improperly denied the assistance of counsel in his defense.
[¶ 15] Substitution of appointed counsel is committed to the trial court’s sound discretion.
State v. Harmon,
[¶ 16] The trial court issued an Order to Show Cause because Schneeweiss fаiled to respond to requests for disclosure of his financial information regarding his current employment. At the hearing, Schneeweiss affirmed under oath his employment and earning capacity of $1,200 per month and indicated he supported no one other than himself. Thus, we conclude Schneeweiss failed to show good cause for substitution of appointed counsel, and the trial court did not abuse its discretion by refusing to substitute counsel.
3
[¶ 17] Schneewеiss argues he asked for a continuance of trial, after his appointed counsel was terminated, so Schneeweiss could prepare his own defense. Schneew-eiss contends the trial court denied his request for a continuance.
[¶ 18] When a defendant seeks a continuance to change lawyers, this right must be carefully balanced against the public interest in the orderly administration of justice.
State v. Wicks,
[¶ 19] A close reading of the record indicates Schneeweiss did nоt request a continuance of the trial to prepare his own defense. In fact, just the opposite occurred, as Schneeweiss asserted his right to a speedy trial in his letter received by the trial court on October 10, 2000. The letter claimed appointed counsel and the state’s attorney conspired to terrorize Schneeweiss and “to stall this case beyond the limits set do[wn] for a speedy trial.” The district court administrator replied immediately, indicating the trial
“will
take place as scheduled” on October 19, 2000. The court administrator further admonished Schneeweiss to “take the necessary steps to prepare your case.” The trial court’s Order to Show Cause affirmed the trial date would “not be continued for substitution of legal counsel.” Moreover, the transcript of the hearing to vacate appointed counsel indicates the trial court informed Schneеweiss of the trial date and stated: “That grants you ten days to secure counsel or in the alternative represent yourself.” This situation is a far cry from that of the defendant whose counsel was excused on the very day of trial.
Wicks,
4
[¶ 21] Schneeweiss asserts after the trial court found he was not indigent, the court should have allowed the second appointed counsel to continue his representation and ordered Schneeweiss to pay for the attorney at private expense.
[¶ 22] Under N.D.R.Crim.P. 44(a), provisions are made for appointment of counsel at the private expense of the defendant, with two conditions: “The court shall appoint counsel to reрresent a defendant at the defendant’s expense if the defendant is unable to secure the assistance of counsel and is not indigent.” Thus, even someone who is not indigent is entitled to appointed counsel, if unable to find an attorney; but such appointment must be at the party’s own expense, not the expense of the public.
State v. DuPaul,
[¶ 23] Schneeweiss contradicts himself, first by stating he had no assets available to retain an attorney, notwithstanding his monthly income, and then by stating the trial court should have required him to privately pay for an appointed counsel. Moreover, our review of the reсord does not disclose any unsuccessful efforts of Schneeweiss to obtain private counsel.
See DuPaul,
[¶ 24] We conclude the trial court did not err in failing to allow appointed counsel to continue representation and to order Schneeweiss to privately pay, аfter determining he was not indigent, because Schneeweiss did not demonstrate he was otherwise unable to secure the assistance of counsel.
IV
[¶ 25] Although Schneeweiss ultimately proceeded pro se, he argues he desired the assistance of counsel at trial, or he would not have made his last application for court-appointed counsel three days before the trial. Schneeweiss insists the trial court was “grossly unfair” in demanding him tо acquire complete mastery of the rules of evidence and procedure in 10 days and in threatening him with contempt of court if he attempted to introduce evidence the trial court found to be irrelevant. The State resists this argument and argues Schneeweiss’s conduct constituted a knowing and intelligent functional waiver of counsel. We agree.
[¶ 26] Criminal defendants who proceed pro se must voluntarily, knowingly, and intelligently relinquish the benefits of counsel.
State v. Dvorak,
1
[¶ 27] Under the first part of the test for waiver of the right to counsel, we have recognized a defendant need not make unequivocal statements indicating a voluntary desire to proceed pro se; rather, the defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to сounsel.
State v. Harmon,
[¶ 28] Here, Schneeweiss indicаted at his initial appearance that he had already talked to an attorney and was going to hire his own. Schneeweiss later requested appointed counsel, but the trial court denied his request because Schneew-eiss reported a monthly income of $1,200, which exceeded the guidelines. Schneew-eiss appeared pro se at his pretrial conference, but later reapplied for appointed counsel, claiming no income. The trial court appointed counsel and continued the trial date. However, one day before the rescheduled trial, Schneeweiss requested a new appointed counsel, which the trial court granted, admonishing Schneeweiss that he would be allowed only one additional appointed counsel. The court rescheduled the trial a second time. Because Schneeweiss failed to report his changed employment status and current financial information to the court, the trial court vacated the appointment of counsel 10 days before the trial. The court stated the trial would not be continued for substitution of counsel, and once again turned down Schneeweiss’s third application for indigent services which he submitted three days after he informed the trial court he was employed again.
[¶ 29] The record provides evidence of Schneeweiss’s pattern of obstructing the legal process by his conduct: repeatedly requesting appointed counsel after his request was denied, manipulating his income when applying for indigent services, failing to report his changed employment status to the court, and refusing to respond to the trial court’s request for current financial information from his gainful employment. Although Schneeweiss claims he desired the assistance of counsel, or he would not have made his last application for court-appointed counsel, we conclude Schneew-eiss’s conduct constitutes the functional equivalent of a voluntary waiver of his right to counsel.
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[¶ 30] Under the second part of the test for waiver of the right to counsel, we analyze the record and the facts and circumstances of each case to determine whether the functional waiver was knowing and intelligent.
State v. Dvorak,
That grants you ten days to secure counsel or in the alternative represent yourself.
Let me assure you if you choose to represent yourself, I’ll hold you to the North Dаkota Rules of Criminal Procedure, including all rules applicable to jury selection. Do you understand?
When Schneeweiss answered in the affirmative and asked the court if he could subpoena witnesses, the trial court stated:
You are entitled to that process. I caution you, however, that anyone who is subpoenaed must have factual information that is relevant to your case; and if you exercise it towards anyone who does not, аs someone who is exercising that authority I reserve the contempt powers of the court. And I don’t mean that as an intimidation. All I’m saying, I don’t want some citizen to be subpoenaed to sit in the courtroom to find out that they have no factual information to offer at the time of trial. Do you understand?
[¶ 32] Our review of the record indicates Schneeweiss understood the dangers and disadvantages of self-representation and proceeded with eyеs open. We conclude Schneeweiss knowingly and intelligently waived his right to counsel.
V
[¶ 33] In summary, Schneeweiss was, not denied assistance of counsel, but rather he failed to prove his indigency, failed to request a continuance of trial, and failed to show, he was unable to obtain his own attorney in the 10 days before trial. Schneeweiss voluntarily proceeded pro se, functionally waiving his right to counsel, fully aware of the dangers and disadvantages of self-representation. The judgment of conviction is affirmed.