Argued and Submitted September 30, 2013
Multnomah County Circuit Court. 100545057. Christopher J. Marshall, Judge.
Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney in Charge, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[264 Or.App. 371] DUNCAN, P. J.
In this criminal case, defendant represented herself at trial and was convicted of several prostitution-related crimes. On appeal, she argues that her convictions should be reversed because she did not knowingly and voluntarily waive her right to counsel. We review for errors of law, State v. Langley, 351 Or. 652, 666, 273 P.3d 901 (2012), and we reverse and remand.
The procedural facts of this case are as follows. Defendant was charged by information with six counts of attempted prostitution under ORS 167.007 and ORS 161.405, and six counts of unlawful prostitution procurement activity under Portland City Code 14A.40.050. She was represented by a series of six court-appointed attorneys. All of the attorneys had difficulty working with defendant; four of them moved to withdraw as counsel because of a breakdown in the attorney-client relationship. Due to concerns about defendant's mental health, one of the attorneys had defendant evaluated to determine whether she was able to aid and assist in her own defense. On May 3, 2011, the date set for trial, defendant appeared in court with her sixth attorney, Crow, who had filed a motion to withdraw as defendant's attorney. The prosecutor explained to the court that defendant was " represented by Mr. Crow, and we have just been up to [the Criminal Procedure Court]" and " were sent back down here, and a substitution of attorney, or a release of attorney, was denied, Your Honor." Crow then informed the court that he was " prepared to proceed with trial" but that defendant " may have something she wants to say to Your Honor." Defendant then stated:
" [Crow] hasn't subpoenaed my main witness. He said the Court wouldn't allow him to. He didn't know my criminal record when I came to talk to him yesterday. * * *
[264 Or.App. 372] " I am facing consecutive charges, and I don't feel that he has done anything to help me in this matter. I mean he didn't even know my criminal record the day before trial, and I don't want him to represent me."
At that point, the trial court explained to defendant that " what my job is, is to do trials for this month in misdemeanor cases," and that " procedural issues that lead up to those trials" are " resolved by the criminal procedure courts * * * so that when a case comes
here they're ready for trial." The court explained that it had not seen Crow's motion to withdraw, because the motion had already been decided by a different judge. A colloquy ensued, which we quote at length:
" THE DEFENDANT: I didn't request for [Crow] to get off my case. He requested to get off.
" THE COURT: Okay.
" THE DEFENDANT: And he told me that I wasn't going to be going to court today, that first thing in the morning he was going to get --he was dropping the case.
" THE COURT: All right.
" THE DEFENDANT: So I came ill prepared. I'm not dressed for court, I'm not ready for court, and --
" THE COURT: Okay. So this is the time that we have set for trial. Your lawyer did a motion to no longer serve as your lawyer. The Court denied that motion so we are ready to proceed for trial.
" THE DEFENDANT: So my other options -- Do I have another option?
" THE COURT: Well, you keep talking, and I'm trying to talk and so --
" THE DEFENDANT: I'm sorry, Your Honor.
" THE COURT: -- only one of us can speak and the other one can listen, and that's the way we need to communicate.
" * * * *
" THE COURT: * * * So here's our situation. We are set for trial. You have a lawyer that's been appointed for you and so that's the current setup. If you are wishing to [264 Or.App. 373] proceed in a different manner, then you need to let me know that now.
" THE DEFENDANT: Yes, please.
" THE COURT: Okay. So go ahead. What is it that you're asking for?
" THE DEFENDANT: To -- If you're forcing me to rep -- in order for me to get ...