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State v. Lubbers

Court of Appeals of Oregon

July 17, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL DAVID LUBBERS, Defendant-Appellant.

Submitted on May 16, 2013.

Lane County Circuit Court 211116406 Charles D. Carlson, Judge.

Peter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Defendant appeals his conviction, following a bench trial, for resisting arrest. Defendant contends that the trial court violated his state and federal constitutional rights to counsel by allowing him to represent himself "when the record did not demonstrate that he understood the nature of the charges and the disadvantages of self-representation." Defendant also challenges the trial court's denial of his motion for a continuance. We reject the latter argument without further discussion. For the reasons set forth below, we also reject defendant's argument that the trial court improperly allowed him to represent himself at trial without first ensuring that he understood his constitutional right to counsel. Accordingly, we affirm.

The pertinent facts are procedural and undisputed. After defendant was charged by information, he was arraigned and counsel was appointed for him. That attorney later moved to withdraw, and the trial court granted the motion. A second attorney was appointed to represent defendant, and that lawyer subsequently gave notice that defendant intended to rely on a defense of "physical force in defense of 'person.'"

On the day set for trial, defendant's counsel informed the court that defendant wished to proceed pro se with the lawyer "staying in the courtroom to give him advice on technical matters * * *." The trial court then engaged in a colloquy with defendant, who told the court that he had "studied the law quite a bit over the years[, ]" had worked as a legal assistant and private investigator, and was a licensed attorney, although not a member of the Oregon State Bar. Defendant asserted that he specialized

"in business contracts, " not in criminal defense. Focusing on defendant's acknowledged lack of experience with criminal procedure, the trial court explained that defendant would be better served by retaining his appointed counsel than by proceeding pro se:

"THE COURT: All right. Well, [defendant's then-appointed attorney] has been appointed. [That attorney] has practiced law in this community a long time. He's a very good lawyer. He understands the rules of evidence. He understands court procedures. He is duly admitted in this--and licensed in this state.
"[DEFENDANT]: I would be the first one to admit, your Honor, that I am not, you know, like up to date on the procedural issues in the courtroom for criminal defense especially.
"THE COURT: Well--
"[DEFENDANT]: I would like to ...

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