Submitted November 10, 2014.
211223260. Lane County Circuit Court. Charles M. Zennaché , Judge.
Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[271 Or.App. 197] TOOKEY, J.
Defendant appeals a judgment of conviction for various crimes described below, assigning error to the trial court's acceptance of his waiver of his right to counsel. Defendant argues that he did not " knowingly" waive his right to counsel under Article I, section 11, of the Oregon Constitution, because the court did not inform him of the material risks of proceeding without an attorney or determine whether he understood those risks. We conclude that the record does not support a finding that, in the totality of the circumstances, defendant understood his right to counsel; therefore, defendant's waiver of his right to counsel was not " voluntarily and intelligently made." State v. Meyrick, 313 Or. 125, 132, 831 P.2d 666 (1992). The trial court erred in accepting defendant's waiver of his right to counsel and, because that error was not harmless, we reverse and remand.
The relevant facts are undisputed. Defendant was charged with assault in the fourth degree, ORS 163.160, strangulation, ORS 163.187, stalking, ORS 163.732, violating a court's stalking protective order, ORS 163.750, and contempt of court, arising from incidents involving a female acquaintance. At the time of those incidents, defendant was 25 years old and a student at the University of Oregon. Defendant, who is from Korea, does not speak English as his native language; however, the record shows that he is capable of understanding written and spoken English and that he often addressed the trial court in English. In addition, a Korean-speaking interpreter provided interpretation services at all court proceedings.
On November 9, 2012, defendant, at his request, was assigned a court-appointed public defender. However, on December 11, the public defender moved to withdraw as counsel, because defendant had informed him that defendant " no longer wished [him] to be his attorney" and " would not speak with [him] further about the issue or about [defendant's] case." During a hearing on the motion, the trial court granted the public defender's motion to withdraw and appointed another attorney, Johnson, to represent defendant. Also during that hearing, defendant told Johnson, off the [271 Or.App. 198] record, that he wanted to represent himself. On the record, defendant told the court, " I pretty sure I am not guilty," to which the court responded, " so if you think that you're not guilty *** you think that a good plan, then, would be to represent yourself?" Defendant then stated, " I am lawyer by myself. I can be attorney for me." The court told defendant, " I need you to talk with [Johnson] about what your options are." The court decided to " leave things set as they [were]," informing defendant that they would all talk again at the next scheduled court date two days later. After the hearing, Johnson spoke further with defendant, off the record and in the presence of an interpreter.
Two days later, on December 13, Johnson moved to withdraw as counsel. In an accompanying affidavit, Johnson stated that, after the previous hearing, he had spoken with defendant and " explained the role of an attorney and the types of things an attorney could do to assist him." According to Johnson's affidavit, defendant " continued to take the position that he desired to represent himself" and had declined Johnson's subsequent attempts to meet with him.
At a court appearance that same day, Johnson told the court that he had not requested new counsel to be appointed for defendant because defendant wanted to represent himself. The court then asked defendant about the statements that defendant had made at the previous hearing, in which he had told the court, " I am lawyer by myself. I can be attorney for me." When the court asked defendant whether he was an attorney in Oregon or in his home country, defendant stated that he was not. The court asked why he had told the court that he was an attorney, and defendant stated that he had wanted a chance to speak to the court and that it was his " personal belief" that he was an attorney. The colloquy continued:
" THE COURT: So you'd like to represent yourself?
" [DEFENDANT]: (In English.) Yes, I want.
" THE COURT: And the trial is scheduled for next Tuesday. You understand that?
" [DEFENDANT]: (In English.) Yes, I really want to (indiscernible.)
[271 Or.App. 199] " THE COURT: And you want to represent yourself at trial?
" [DEFENDANT]: (In English.) Yes. I'm begging.
" THE COURT: And do you want a jury trial?
" [DEFENDANT]: (In English.) Yes, I want.
" THE COURT: Do you know how to pick a jury?
" [DEFENDANT]: (In English.) I think it's just random.
" THE COURT: Do you know how it's done?
" [DEFENDANT]: (In English.) Just I need to (indiscernible) prosecutor. I want a chance to--I will not--I don't have anything hide.
" THE COURT: You're way ahead of me. Do you know how to pick a jury?
" [DEFENDANT]: (Inaudible.)
" THE COURT: Do you know how evidence is placed into ...