Argued and Submitted: June 26, 2013.
Lane County Circuit Court. 211101054. Bryan T. Hodges, Senior Judge.
Alice Newlin-Cushing, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
[271 Or.App. 604] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for third-degree theft after a stipulated-facts trial to the court. Defendant's sole assignment of error is that she was denied the right to counsel when the trial court did not obtain a valid waiver of counsel from her before proceeding with her arraignment without the benefit of counsel. The state does not argue that the trial court did not err in how it proceeded; instead the state argues that any error is not reversible because defendant did not suffer prejudice and because she is not entitled to the remedy that she seeks. We conclude that the trial court's failure to obtain a valid waiver of counsel from defendant was not harmless and reverse and remand for a new arraignment.
The relevant facts are procedural and undisputed. The state charged defendant with third-degree theft. At her arraignment, the state offered defendant the opportunity to participate in Lane County's Recognizing Early Accountability Program (REAP). Under that program, defendant could plead not guilty and, if she completed 16 hours of community service at one or more of six specified agencies in Lane County and provided proof of completion of service at her 35-day call court appearance, then the state would dismiss the charge. The REAP paperwork set out all the terms of the offer and provided that, if all the terms were not met, then defendant's case would not be dismissed. Those terms included, the following:
" Bring all completed REAP timesheets to your 35-Day Call Court appearance. All community service hours must be completed by this date. There will be no extensions to complete service, no postponement of your 35-Day Call appearance, and no exceptions will be made. If you or your attorney ask the court to postpone your 35-Day Call appearance and that request is granted, this offer is revoked."
(Underscore in original.) During her arraignment, the following exchange occurred between the court, two unnamed attorneys, and defendant regarding the REAP program and defendant's right to counsel:
" ATTORNEY: I believe the Court is meant to have a colloquy with [defendant] about whether or not she wants [271 Or.App. 605] Court-appointed Counsel. If she does want Court-appointed Counsel, there is a $90 fee. In any event, if she accepts the REAP Program, she has things she needs to do before 35-day call.
" ATTORNEY 2: If she gets the 35-day call and she hasn't had an attorney appointed, essentially that puts her back at square one, so she hasn't lost anything and she'd save $90 if the Court didn't appoint today, but it's, of course, her decision on whether or not she'd like to have an attorney.
" THE COURT: The REAP Program, apparently is, if you do some community service work, ...