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State v. Fredinburg

Court of Appeals of Oregon

July 10, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
DOUGLAS WAYNE FREDINBURG, Defendant-Appellant.

Argued and submitted on March 28, 2012.

Lane County Circuit Court 211001655 Charles D. Carlson, Judge.

Bronson D. James argued the cause for appellant. With him on the brief was Bronson James, LLC.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.

SERCOMBE, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He contends that the trial court erred in denying his motion, made two days before the start of trial and again on the morning of trial, to substitute counsel and postpone the trial. Defendant further argues that the court erred in denying his motion, made during the trial, to represent himself pro se for the remainder of the proceeding. We conclude that the trial court did not abuse its discretion in denying those motions and, accordingly, affirm.

After defendant's truck was stopped by a sheriff's deputy for a traffic violation, defendant was arrested for DUII. A breath test administered with an Intoxilyzer 8000 machine after defendant's arrest measured his blood alcohol content to be 0.18 percent. Defendant was charged by information with DUII.

Trial was set for April 28, 2010, and defendant retained attorney Bons to represent him. Later, the court granted defendant's motion to continue the time of trial, and the trial date was reset to June 3. A second motion to postpone the trial was denied on June 2 by the presiding judge.

Ultimately, the trial began on June 4, and, that morning, Bons filed a motion for an order allowing him to withdraw as counsel for defendant and for a trial continuance to allow defendant's new attorney, Romano, time to prepare. In a supporting affidavit, Bons asserted that a breakdown in the attorney-client relationship had occurred on June 3 for a reason that could not be disclosed "without a violation of the confidentiality of certain communications from [defendant] to [Bons]" and that defendant was retaining different counsel. At the hearing on the motion, Bons argued that he could not comply with defendant's directions because of Oregon Rule of Professional Conduct 1.2(c). That rule mandates that a lawyer "not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent[.]" Bons reiterated that his client relationship with defendant was broken. However, the presiding judge denied the motion:

"What this looks like is, you wanted to postpone. You didn't get it, so you figured out another way to get the case postponed by claiming that your client wants to perpetuate a fraud upon the Court, so, [defendant], I don't want you to say anything about this because basically what he's saying is that you want to perpetuate a fraud upon the Court.
"I don't want you to respond, but I actually don't believe it, so that's my problem. I don't find any credibility in this. This is the most unbelievable situation possible. I found your Motion incomprehensible."

Later that morning, the trial judge allowed the state's motion in limine to exclude the testimony of defendant's expert, Daniels, on the functioning of the Intoxilyzer 8000 machine. Defendant's motion to dismiss the information was denied.

Bons immediately filed a motion to reconsider the June 2 motion to postpone and the June 4 motion to withdraw and postpone. He argued that Romano was retained and needed more time to prepare for trial. The motion to reconsider was allowed by the presiding judge. However, the court adhered to its earlier rulings, commenting that Bons's record requests regarding the Intoxilyzer machine were "fishing expedition[s]" and that the motion to withdraw was a "subterfuge":

"So, then at the very last moment--on the morning of trial, this morning--a Motion to Withdraw is filed literally at 9:30 in the morning at the time for trial. A Motion to Withdraw is filed and, as I stated earlier, that Motion was denied because I didn't find the Affidavit to be factually true, and I still don't.

"I have a good understanding of what the Case Law is on the Defendant having the right to have Counsel of his own choosing and I certainly would review those cases. 9:30 a.m. on the morning of trial, which is exactly the moment set for the beginning of trial, is not an appropriate time to file a Motion that is not based in fact in order to change lawyers.
"My finding was that it is basically subterfuge, to try and achieve the purpose that was thwarted on the 2nd of June of trying to get the trial postponed, so I'm treating these Motions today, at this time, as Motions to Reconsider. ...

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