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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41879

KEVIN MILTON MINGO,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2015 Unpublished Opinion No. 458

Filed: April 8, 2015

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. Randy J. Stoker, District Judge. 

Judgment denying post-conviction relief, affirmed.

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy 

Attorney General, Boise, for respondent. 

LANSING, Judge 

Kevin Milton Mingo was convicted of possessing a controlled substance. He challenged 

that conviction in a petition for post-conviction relief. Before an evidentiary hearing, Mingo 

became dissatisfied with counsel and requested either permission to fire counsel and represent 

himself or the appointment of substitute counsel. The court denied the request for substitute 

counsel, but allowed Mingo to represent himself. After an evidentiary hearing, the court found 

that Mingo was not entitled to post-conviction relief. Mingo appeals. 
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I.

BACKGROUND

Mingo entered an Alford1 plea to a charge of possessing a controlled substance in 

violation of Idaho Code § 37-2732(c)(1). The district court imposed a unified seven-year

sentence with two years fixed. 

Several months later, Mingo filed a petition for post-conviction relief asserting 

approximately six grounds for relief: (1) the State changed its theory of the case;2 (2) due to 

injuries sustained in a motorcycle wreck, he was not competent to stand trial; (3) counsel failed 

to explain the import of certain procedures--notably his signing the plea agreement; (4) counsel 

failed to investigate and raise the issues Mingo believed were critical to his case; (5) counsel 

failed to file a Rule 35 motion after being asked to do so; and (6) his counsel colluded with the 

State to coerce his plea.3 Mingo also requested the appointment of counsel. 

 1 See North Carolina v. Alford, 400 U.S. 25 (1970).

2 This claim appears to have several subparts. Generally, Mingo believed that he was 

originally arrested and charged with possession of a bag of methamphetamine. He believed that 

the State later changed its legal theory of the case, and intended to prove that he possessed scales 

with methamphetamine residue. The first subpart of his claim is an argument that he was 

entitled to be informed of this change in legal theory and re-arraigned. Second, he believed that 

it was not proper to convict him for conduct relating to the scales. He noted that his girlfriend 

was convicted of possessing scales with methamphetamine residue on them and argued that an 

injustice occurred because two people cannot simultaneously possess a single object. Third, he 

contended that he had a defense to a charge that he possessed the bag of methamphetamine, and 

the change in theory prejudiced his ability to raise that defense. 

Although it is not necessary to the disposition of this appeal, we note that the charging 

document did not specify whether Mingo was being charged with possession of the residue on 

the scales or possession of the bag of methamphetamine found in the car. Accordingly, the 

record does not show that the State changed its theory. Indeed, it seems very likely that the State 

intended to prove that Mingo possessed both items, as it did when Mingo’s girlfriend went to 

trial. See State v. Southwick, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2014), rev. pending. 

Finally, to the extent there was any change in the State’s focus, the record indicates that the 

change in focus occurred after the State obtained a video of Mingo saying that police would not 

find any methamphetamine on the scales because he had “licked them clean.” 

3 Mingo claims he was threatened by both the State and defense counsel. The threats 

amounted to the State charging Mingo as a persistent violator and counsel explaining the import 

of a persistent violator enhancement to Mingo’s potential sentence. The trial court explained

during the plea colloquy that these actions did not amount to coercion. 
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On July 31, 2013, the court appointed counsel, but Mingo continued to file various 

documents, including requests to proceed pro se. First, he filed two documents attempting to 

amend his petition and further explaining his post-conviction claims. Next, he requested 

transcripts and copies of any papers he had signed. He waited for a period of time to receive the 

requested transcripts, but when he did not receive them, Mingo filed his first written request to 

proceed pro se. By letter to the court received on September 24, 2013, he asserted that counsel 

had failed to respond to his calls or letters and that he was not receiving the paperwork he had 

requested or any response from the State. 

Several days later, Mingo filed a second request to proceed pro se or, in the alternative, 

be appointed substitute counsel. Along with the motion, Mingo filed an affidavit explaining why 

he preferred having counsel: he was untrained in the law and lacked access to resources 

available to those outside of prison.

The court responded by letter, explaining that it did not intend to appoint new counsel at 

that time. Instead, it asked if Mingo wished to proceed with the appointed attorney or to proceed 

pro se. Mingo responded to the court’s letter and explained that he would rather proceed pro se 

than continue to be represented by his current attorney, but he also wanted the court to appoint 

substitute counsel. At that time, he requested to be permitted to appear in person in all future 

proceedings. 

Two weeks later, on November 1, 2013, the court held a status conference without 

transporting Mingo or allowing him to participate by telephone. There, Mingo’s counsel 

indicated that he had “addressed [Mingo’s] concerns in regard to counsel and asked to remain on 

[the] case for [the] time being.” The court permitted the attorney to continue working on the 

case and told him that it would not be accepting further filings from Mingo unless Mingo fired 

the attorney. 

Mingo continued to file documents objecting to the fact that he was not receiving 

paperwork personally. Following a December 16 pretrial conference at which Mingo again was 

not present, he filed a motion seeking to proceed “propra personal.”4

 The court did not respond. 

The court arranged to have Mingo appear in person at the evidentiary hearing. At that 

time, Mingo’s counsel informed the court that Mingo had refused to see him at the jail and asked 

the court to determine whether Mingo wished to proceed pro se. In response to questioning, 

 4 We infer that he meant he wished to proceed in propria persona, i.e., pro se. 
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Mingo reiterated his wish to proceed pro se, referencing his repeated motions making that 

request. He also requested a legal adviser to confer with and to perform research for him, but 

made clear that he wanted to represent himself. The court then briefly inquired of Mingo:

THE COURT: So you want to fire [defense counsel]?

MR. MINGO: Yes, I do.

THE COURT: You want to represent yourself today?

MR. MINGO: Yes, I do.

The court thereupon excused counsel and informed Mingo that he would be permitted to 

represent himself. Mingo made an opening statement and presented the testimony of two 

witnesses: himself and his trial counsel. After the hearing concluded, the court issued a written 

decision holding that Mingo had failed to prove any of his claims. 

Mingo appeals and raises a single claim of error. He argues the district court erred by 

excusing counsel and permitting him to proceed pro se. Mingo also argues he should have either 

been provided substitute counsel or been affirmatively warned of the dangers of selfrepresentation. 

II.

ANALYSIS

If a post-conviction petitioner is unable to pay for the expenses of representation, the trial 

court may appoint counsel to represent the petitioner in preparing the petition, in the trial court,

and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed 

counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 

102 P.3d 1108, 1111 (2004). However, a post-conviction court commits reversible error when it 

denies counsel to a petitioner who asserts nonfrivolous claims. Murphy v. State, 156 Idaho 389, 

393, 327 P.3d 365, 369 (2014) (“The standard for determining whether to appoint counsel for an 

indigent petitioner in a post-conviction proceeding is whether the petition alleges facts showing 

the possibility of a valid claim.”); Swader v. State, 143 Idaho 651, 654, 152 P.3d 12, 15 (2007) 

(“[T]he court should appoint counsel if the facts alleged raise the possibility of a valid claim.”); 

Charboneau, 140 Idaho at 793, 102 P.3d at 1112 (setting forth the conditions under which a 

post-conviction court should appoint counsel). In its analysis, the district court should consider 

that petitions filed by a pro se petitioner may be conclusory and incomplete. See Charboneau, 

140 Idaho at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged 

because they do not exist or because the pro se petitioner does not know the essential elements of 
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a claim. Id. Some claims are so patently frivolous that they could not be developed into viable 

claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 

644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid 

claim, the district court should appoint counsel in order to give the petitioner an opportunity to 

work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at 

793, 102 P.3d at 1112. 

Apparently, the district court did not consider Mingo’s claims frivolous and accordingly, 

Mingo was appointed counsel. On appeal, the State does not contend that the court erred by 

initially appointing counsel. 

A. Mingo Failed to Provide an Adequate Record of the Post-Conviction Court’s Denial 

of His Request for Substitute Counsel

Mingo contends that the post-conviction court erred by denying his request for substitute 

counsel before permitting him to represent himself. Mingo’s complaints about counsel, made in 

written, repeated motions were clear. He said post-conviction counsel had not maintained 

adequate contact, and Mingo was upset that counsel wanted to eliminate some of his claims. On 

October 1, 2013, the court sent a letter to Mingo explaining that it was disinclined to appoint 

substitute counsel at that time.

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At the November 1 status conference, the court took up the issue and allowed counsel the 

opportunity to respond to Mingo’s complaints. Mingo was not present at that hearing, but his 

absence is not, standing alone, grounds for reversal. In Rios-Lopez v. State, 144 Idaho 340, 160 

P.3d 1275 (Ct. App. 2007), as here, the petitioner made various arguments in support of his 

request for substitute counsel, including a complaint that counsel infrequently contacted him. Id. 

at 342, 160 P.3d at 1277. Thereafter, the court held a hearing on that matter, without the 

petitioner present, and denied the motion. We concluded that the petitioner had been given “a 

full and fair opportunity to present the facts and reasons in support of a motion for substitution of 

counsel,” and therefore had not been denied due process. Id. at 344, 160 P.3d at 1279. Here, 

 5 In our view, the letter did not amount to a ruling on the motion. First, the district court 

had not yet heard from counsel and would have lacked the factual basis required to decide the 

motion. Second, it is not clear that a letter sent to a party would be a procedurally proper means 

of rendering a ruling. Third, in context, the phrase “at this time” appears to mean that any ruling 

was tentative, an indication of what the court was likely to rule, given the information available 

at the time. The ultimate decision to permit appointed counsel to continue representing Mingo 

was made after the relevant facts were gathered and on the record. 
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Mingo’s filings had thoroughly explained to the court his dissatisfaction with appointed counsel 

prior to the status conference. Therefore, as in Rios-Lopez, we conclude that Mingo’s absence 

from the status conference did not deprive him of an opportunity to support his request for 

substitute counsel. 

At the status conference, the court permitted appointed counsel to remain on the case, 

essentially denying the request for substitute counsel. Unfortunately, our record of that

proceeding is very limited; we have no transcript but only court minutes summarizing the 

proceedings. Therefore, we cannot determine whether counsel’s responses to Mingo’s 

complaints were pertinent or persuasive or whether the court’s determination was proper. We 

know only that counsel “addressed petitioner’s concerns” and that the district court found the 

explanation persuasive. It is the responsibility of an appellant to provide a sufficient record to 

substantiate his or her claims on appeal. State v. Mowrey, 128 Idaho 804, 805, 919 P.2d 333, 

334 (1996). In the absence of an adequate record on appeal to support the appellant’s claims, we 

will not presume error. Id. Therefore, because Mingo failed to present an essential transcript, 

we are constrained to hold that he has failed to show error when at the status conference the court 

denied Mingo’s request for substitute counsel or to proceed pro se.

B. The Court Was Not Required to Give Mingo Faretta Warnings

Mingo argues that the district court erred by failing to warn him of the dangers of selfrepresentation before letting him represent himself at the evidentiary hearing. Mingo cites 

authorities that stand for the proposition that criminal defendants should be given warnings 

before they waive the right to counsel. See Faretta v. California, 422 U.S. 806, 819 (1975). In 

Faretta, the Court held that the Sixth Amendment grants a criminal defendant the right to make 

his defense personally, i.e., to proceed pro se. However, the Court recognized that in “most 

criminal prosecutions defendants could better defend with counsel’s guidance than by their own 

unskilled efforts.” Id. at 834. Because the choice to self-represent is usually so deleterious to a 

defendant’s interests, Faretta requires that the trial court ensure that a defendant understands the 

import of his decision before he waives the right to counsel:

[H]e should be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that he knows what he is doing and 

his choice is made with eyes open.

Id. at 835 (internal quotation marks omitted). 
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Mingo does not argue that the Faretta decision is directly applicable. He concedes that 

the Faretta decision was based upon the Sixth Amendment right to counsel in criminal cases. 

Likewise, he concedes that our Supreme Court has held that a post-conviction petitioner does not 

enjoy a Sixth Amendment right to counsel. See Murphy, 156 Idaho at 394, 327 P.3d at 370. 

Accordingly, rather than arguing that Faretta is directly applicable, Mingo asserts that the Due 

Process Clause of the Fourteenth Amendment requires some warnings in the post-conviction 

context.

In support of his view, Mingo cites authority from a variety of other states. But, these 

cases do not hold that Faretta warnings must be given to a post-conviction petitioner. For 

example, a Florida court held that Faretta warnings are not required, but that a post-conviction 

court should inquire to determine whether the petitioner’s decision is voluntary and intelligent. 

Jones v. State, 69 So. 3d 329, 335 (Fla. Dist. Ct. App. 2011). Likewise, a Colorado court held 

that the post-conviction court should develop a record to show that a petitioner’s decision was 

voluntary, but need not give the warnings required by Faretta. People v. Duran, 757 P.2d 1096, 

1097 (Colo. App. 1988). 

We conclude that no warnings were required in this case. Our Supreme Court has held 

that even in criminal cases, the warnings suggested in Faretta are not necessarily required. The 

Court described such warnings as one “prudent means to ensure the defendant’s grasp of the 

disadvantages of self-representation.” State v. Dalrymple, 144 Idaho 628, 634, 167 P.3d 765, 

771 (2007). Instead of deeming such warnings essential in every case, the Idaho Supreme Court 

has held that it will search “the record as a whole to determine if [a criminal defendant]

knowingly, intelligently, and voluntarily waived his constitutional right” to counsel. Id. at 634, 

167 P.3d at 771. Thus, even assuming, arguendo, that Mingo was entitled to the same 

protections as a criminal defendant, it is necessary only that the “record as a whole” show that 

Mingo knowingly, intelligently, and voluntarily chose to discharge his attorney and proceed 

pro se. 

The record here shows that Mingo’s decision was voluntary--he persistently requested 

permission to represent himself. And, the record shows that Mingo understood “the dangers and 

disadvantages of self-representation.” See Faretta, 422 U.S. at 835. As his own letters to the

district court show, Mingo understood that he was not trained in the law, that he had limited 

access to legal materials, and that the State would be represented by trained attorneys. The 
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record is clear; Mingo voluntarily chose to represent himself with a basic understanding of the 

risks that it entailed. Accordingly, although it might have been more prudent for the postconviction court to give warnings, the court did not commit reversible error by foregoing that 

process.

III.

CONCLUSION

Mingo has provided an insufficient record on appeal for the Court to review the denial of 

his request for substitute counsel. Therefore, the district court’s order is affirmed. We conclude 

that the post-conviction court did not err by omitting to give Faretta-style warnings where the 

record shows that Mingo’s decision to proceed pro se was knowing, intelligent, and voluntary. 

Therefore, the judgment dismissing Mingo’s petition for post-conviction relief is affirmed. No 

costs to either party on appeal. 

Chief Judge MELANSON and Judge GUTIERREZ CONCUR.