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State v. Thomas

Court of Appeals of Oregon

October 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
BRENDA THOMAS, Defendant-Appellant

Submitted March 21, 2014

Josephine County Circuit Court. 09CR0732. Pat Wolke, Judge.

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.

OPINION

Page 763

[266 Or.App. 643] EGAN, J.

Defendant appeals a judgment of conviction for unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana for consideration, ORS 475.860(2)(a), and unlawful possession of marijuana, ORS 475.864. She assigns error to the trial court's denial of her motion for continuance. We reverse and remand.

We review a trial court's denial of a motion for continuance for abuse of discretion. State v. Wolfer, 241 Or. 15, 17, 403 P.2d 715 (1965). If the trial court's decision " is within the range of legally correct choices and produces a permissible, legally correct outcome, then the trial court did not abuse its discretion." State v. Martinez, 224 Or.App. 588, 592, 198 P.3d 957 (2008). However, in this context, " [t]o exercise its discretion properly, the trial court must inquire into the nature and evaluate the merits of defendant's complaints." State v. Ringler, 264 Or.App. 551, 556, 333 P.3d 1080 (2014) (citing State v. Keerins, 145 Or.App. 491, 494, 932 P.2d 65 (1996)). Additionally, we will not overturn a denial of a defendant's motion for continuance unless the defendant demonstrates prejudice. State v. Ferraro, 264 Or.App. 271, 281, 331 P.3d 1086 (2014).

The relevant facts, which are procedural and undisputed, relate to events that began five days before trial when defendant's attorney told the court that she was ready for trial. Three days before trial, defendant's attorney received an e-mail from the prosecutor stating that he would ask the court to advise several of defendant's witnesses of their constitutional right against self-incrimination. Two days before trial, defendant's attorney reassessed the case, and now recommended that defendant plead guilty. One day before trial, defendant obtained new counsel, who filed a motion for continuance that same day. That denial of that motion for continuance is at issue on appeal.

On the day of trial, the court held a hearing on the motion for continuance. Defendant noted that the state had moved for, and was granted, five continuances but that defendant had moved for, and was granted, only one. Yet, the hearing centered on the prosecutor's e-mail and its effect on defendant's original attorney. The record lacks sworn [266 Or.App. 644] testimony, but discloses that defendant's original attorney lost confidence in her ability to go to trial following the e-mail. At that hearing, defendant's new attorney described the position in which defendant found herself:

" This was the message from the attorney to the client and that put her in a position I'm--I'll put my client on who will testify that that caused her to be put into [a position] where the attorney said she did not feel confident going to trial, she didn't know what was going to happen and the

Page 764

client asked her do you think that you can uh, represent me properly and she says I would ...

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