STATE v. DAHLEN

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Appellant Jim Dahlen challenges his conviction for violating an order for protection (OFP) pursuant to Minn. Stat. § 518B.01, subd. 14(a) (1996). Dahlen argues that (1) the right to counsel should be extended to civil domestic abuse hearings; (2) a collateral attack of an OFP is warranted, even after the time for appeal has expired, where an issuing judge fails to make required findings and a party responding to an OFP petition is pro se; and (3) a constitutional challenge of an order is allowed in the context of a criminal proceeding charging a defendant with a statutory violation, even after the time for appealing the order has expired. Because (1) we decline to expand the right to counsel; (2) voidable orders are enforceable until they are found erroneous; and (3) the constitutionality of an OFP may not be challenged in a criminal proceeding charging a defendant with a statutory violation after the time for appealing such order has expired, we affirm.

DECISION

The issues raised in this appeal are questions of law subject to de novo review. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984) (reviewing court need not give deference to trial court's legal determinations).

I.

Dahlen contends that the trial court erred in refusing him the opportunity to collaterally attack the OFP issued against him in January 1995, and extended in January 1997, in a criminal proceeding charging him with violating the order. He argues that: (1) the right to counsel should be extended to domestic abuse determinations; and (2) because he was not represented by counsel at either the initial domestic abuse hearing or the hearing extending the OFP, and both orders lacked required findings, his conviction should be reversed and remanded to allow him to collaterally challenge the order for insufficient findings.

A. Right to counsel

Both the United States and Minnesota Constitutions guarantee the right to counsel to an accused in criminal prosecutions U.S. Const. amend. VI; Minn. Const. art. I, § 6, and when the deprivation of "life, liberty, or property without due process of law" could result for want of counsel, U.S. Const. amends. V, XIV, § 1; Minn. Const. art. I, § 7. In general, the right does not attach in non-criminal proceedings, that is, proceedings that do not threaten incarceration. See State v. Host , 350 N.W.2d 479, 481-82 (Minn.App. 1984) (holding that uncounseled petty misdemeanor pleas may be used to enhance a subsequent offense because a petty 0misdemeanor is not a crime and thus, there is no right to counsel).

Dahlen cites several notable exceptions to this general rule in support of his argument for the expansion of the right to counsel to civil domestic abuse proceedings. Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 832 (Minn. 1991) (holding that right to counsel attaches at chemical testing stage of a driving while intoxicated (DWI) investigation); Cox v. Slama , 355 N.W.2d 401, 403 (Minn. 1984) (extending right to counsel in civil contempt determinations for failure to pay child support); Hepfel v. Bashaw , 279 N.W.2d 342 (Minn. 1979) (holding right to counsel extends to paternity adjudications).

The right to counsel was extended in Friedman because the point at which suspects must decide whether to submit to chemical testing is so "`inextricably intertwined with an undeniably criminal proceeding'" that they are at a "critical stage" in DWI proceedings. 473 N.W.2d at 833 (quoting Prideaux v. State, Dep't of Pub. Safety , 310 Minn. 405, 409, 247 N.W.2d 385, 388 (1976)). Under Cox, the right to counsel only attaches in a child support enforcement proceeding at "a point in the proceedings * * * that incarceration is a real possibility." 355 N.W.2d at 403. Similarly, in Hepfel , the court's reason for attaching the right was in part because the alleged father could be threatened with incarceration for criminal non-support. 279 N.W.2d at 345. Dahlen argues that OFP proceedings are essentially a hybrid of civil and criminal processes and pose a sufficient threat of incarceration to warrant the extension of the right to counsel.

The issuance of an OFP is a civil proceeding and a respondent is not at a "critical stage" of a criminal proceeding. An OFP prospectively prohibits certain conduct and imposes no risk of criminal sanctions. An individual is subject to prosecution in a separate, criminal proceeding only if their later behavior violates the order, at which time the right to counsel attaches. We find no basis for extending the right to counsel to domestic abuse proceedings.

We need not address Dahlen's argument that he did not knowingly and intelligently waive his right to counsel in the civil domestic abuse proceedings because Dahlen had no right to counsel.

B. Collateral attack

Courts have traditionally distinguished between void and voidable orders. State v. Andrasko , 454 N.W.2d 648, 649 (Minn.App. 1990), review denied (Minn. June 25, 1990). An order is void if the court lacks jurisdiction over the parties or subject matter of the case. Id. at 650. When the court's jurisdiction to issue a protection order is not in question but the order lacks required findings, the order is voidable. Id.; Andrasko v. Andrasko, 443 N.W.2d 228, 230-31 (Minn.App. 1989). Courts "may enforce a voidable judgment until such judgment is found erroneous." State v. Andrasko , 454 N.W.2d at 650 (affirming conviction for violation of an OFP even though order was issued without required findings).

In this case, neither the initial OFP nor the subsequent order extending it made required findings. See Andrasko v. Andrasko, 443 N.W.2d at 230-31 (requiring courts to make findings concerning the existence of domestic abuse before issuing an OFP). But, Dahlen failed to appeal either order within the allotted time for appealing such orders. Because the order Dahlen was convicted of violating was voidable, not void, it is enforceable. Since Dahlen had no right to counsel in the domestic abuse proceedings, we see no reason to reconsider our decision in State v. Andrasko on the grounds that Dahlen was pro se.

II.

Dahlen argues that the prohibition against his being "at or near" the petitioner's residence fails to comply with statutory and constitutional requirements of specificity because it was ambiguous whether the prohibition included parking on the street in front of the residence. Dahlen notes that in a domestic abuse proceeding a court may exclude the abusing party from a reasonable area surrounding the residence of the petitioner, "which area shall be described specifically in the order." Minn. Stat. § 518B.01, subd. 6(3) (1998) (emphasis added).

Even if the order failed to comply with statutory standards of specificity, the order would only be voidable under State v. Andrasko and thus, enforceable. With regard to Dahlen's constitutional challenge, this court has held that where the charge is for a statutory violation, one may not challenge constitutionality after the time for appeal has expired. State v. Harrington , 504 N.W.2d 500, 502 (Minn.App. 1993) (holding that because case involved a statutory violation, not contempt of court, appellant was precluded from challenging the underlying order for vagueness after the time for appeal had expired), review denied (Minn. Sept. 30, 1993).

Because Dahlen was criminally charged for violating Minn. Stat. § 518B.01, subd. 14(a) (1996), and the time to appeal the civil order has expired, we decline to consider his constitutional challenge to that order.

Affirmed.