This opinion will be unpublished and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

A15-1179

State of Minnesota, 

Respondent, 

vs. 

William John Cross, 

Appellant.

Filed July 5, 2016

Affirmed

Bjorkman, Judge

Scott County District Court

File No. 70-CR-13-5241

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, 

Shakopee, Minnesota (for respondent) 

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, 

Assistant Public Defender, St. Paul, Minnesota (for appellant) 

Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and 

Rodenberg, Judge. 

U N P U B L I S H E D O P I N I O N

BJORKMAN, Judge

Appellant argues that the district court abused its discretion by denying a trial 

continuance so that he could obtain private counsel. We affirm. 
2

FACTS

On March 11, 2013, respondent State of Minnesota charged appellant William John 

Cross with one count of aiding and abetting theft. The state later amended the complaint 

to add a second aiding-and-abetting-theft count. Cross applied for and received a public 

defender. In April 2014, the district court discharged the public defender’s office based on 

inconsistencies in Cross’s financial affidavit. The district court granted Cross’s request to 

continue the trial so he could retain private counsel. 

On June 27, Cross reapplied for a public defender. The district court denied the 

application. On July 9, the parties appeared for a settlement conference. Cross again 

requested that a public defender be reappointed. He stated that his mother had been 

planning on paying for a private attorney, but that accident-related expenses prevented her 

from doing so. The district court again denied the request, stating it would not appoint a 

public defender because Cross owned a home and had the financial resources to post $4,000 

cash bail. The district court also asked Cross’s mother if she was willing to pay Cross’s

legal expenses; she indicated she was not. 

On October 20, Cross filed a letter with the district court, stating that he wished to 

address the issue of legal representation and explaining that family members purchased his 

home. He also indicated that he had spoken with his former public defender, who had 

transitioned to private practice, and learned he would need a $3,000 retainer. During a 

hearing the next day, the district court asked Cross under oath about his financial situation, 

and reappointed the public defender’s office to represent Cross. 
3

On February 18, 2015, the parties appeared for trial. Cross’s public defender 

requested a trial continuance for two reasons. First, Cross wished to obtain private counsel 

because he “lost faith” in his public defender’s ability to represent him. Cross indicated 

that he had spoken with a private attorney—the same person he referenced in his October 

20, 2014 letter to the court—but had not actually retained him. Second, the state just 

provided his public defender with an additional 225 pages of discovery that counsel needed 

to review before trial. 

The district court denied the request and the public defender represented Cross at 

trial. A jury found Cross guilty of one count of aiding and abetting theft. The district court 

stayed imposition of a sentence and placed Cross on probation for ten years with 

conditions. Cross appeals.

D E C I S I O N

Whether to continue a trial so a defendant may obtain private counsel to replace a 

court-appointed attorney is within the discretion of the district court, “based on all facts 

and circumstances surrounding the request.” State v. Worthy, 583 N.W.2d 270, 278 (Minn. 

1998).

1

 “A defendant may not demand a continuance to delay the proceedings or by 

arbitrarily attempting to substitute another attorney.” Id. And a continuance request is 

properly denied when “the defendant has not been diligent in procuring counsel or in 

 

1 Cross frames the issue as the denial of his request for substitute counsel. But Cross did 

not request appointment of a new public defender; he requested a trial continuance to obtain 

private counsel. These are separate issues with distinct analyses. Worthy, 583 N.W.2d at 

278. A request for a continuance to obtain private counsel is evaluated by the district court 

based on all relevant circumstances, while a request for substitute counsel requires a 

showing of exceptional circumstances and must be timely and reasonably made. Id. 
4

preparing for trial.” State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005). A defendant 

must show he was prejudiced by the denial of the continuance to warrant appellate relief. 

Id. at 81. 

Cross argues that the district court abused its discretion by denying his continuance 

request because he had lost confidence in his public defender and she was not prepared for 

trial due to the state’s late discovery disclosure. We disagree. 

First, we are not persuaded that Cross’s disagreement with his public defender 

warranted a continuance to retain private counsel. Upon questioning by the district court, 

Cross explained that his attorney said he was “foolish” to decline the state’s plea offer that 

would have resolved six of Cross’s pending files. Cross disagreed with this assessment 

because, in his opinion, “[a]nything less than a dropped charge . . . is absolutely crazy.” 

The district court noted that if Cross was going to go through attorneys simply because he 

disagreed with them, then the case would never be tried. The court further observed that 

Cross’s public defender had an ethical obligation to present any plea offers and provide her 

assessment of the deal based on her training and expertise. We agree with the district court 

that Cross did not have a reasonable basis for dissatisfaction. See State v. Vance, 254 

N.W.2d 353, 359 (Minn. 1977) (noting a defendant was not entitled to a continuance where 

“he had no cause to be dissatisfied with his assigned counsel”). 

Second, Cross was not diligent in retaining private counsel. In denying Cross’s 

request, the district court emphasized the lengthy procedural history of this case. During 

the nearly two years during which the case had been pending, there had been four omnibus 

settings, five settlement conferences dates, and five trial dates. Cross initially asked for 
5

and received a trial continuance to obtain private counsel in April 2014. He subsequently 

requested that the public defender’s office be reappointed on three separate occasions. And 

counsel Cross identified on the morning of trial was the same person he referenced in his 

October 2014 letter to the district court. It was undisputed he had not retained the attorney 

at the time of trial, and had no money. He stated his family would put up the money, but 

his mother had previously told the district court that she was not willing to do so. On this 

record, it is clear Cross was not diligent in procuring counsel. 

Finally, Cross has not demonstrated that he was prejudiced by the denial of his trialcontinuance request. He contends that his public defender was not prepared to go to trial. 

We disagree. The 225 pages of discovery his attorney received on the morning of trial

consisted primarily of transcribed statements. Cross’s public defender explained that she 

needed to review the transcripts to ensure they were accurate. The district court declined 

to continue the trial, but agreed to recess after jury selection that morning and resume the 

trial the following morning. Cross’s public defender never indicated she needed more time 

to review the transcripts, and Cross offers no evidence suggesting that his counsel did not 

have adequate time to review them. Cross has not shown that his public defender was not 

prepared to go to trial and cannot establish that he was prejudiced by the denial of the 

continuance. See Courtney, 696 N.W.2d at 81 (requiring a defendant to establish prejudice 

to justify reversal). 

In sum, the district court did not abuse its discretion by denying Cross’s request for 

a trial continuance to obtain private counsel. 

Affirmed.