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State v. Ortega

Court of Appeals of Oregon

July 6, 2017

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

          Argued and submitted March 16, 2016.

         Washington County Circuit Court C140476CR; Thomas W. Kohl, Judge.

          David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Keith L. Kutler, Assistant Attorney General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Haselton, Senior Judge. [*]

         Case Summary: Defendant appeals from a judgment of conviction for multiple offenses arising from an altercation. He argues that the trial court violated his rights to selfrepresentation under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution by failing to allow his pretrial request to represent himself, rather than proceeding with previously appointed counsel. Held: The trial court failed to engage in the inquiry prescribed for the assessment of a request for selfrepresentation. Accordingly, the trial court erred, and that error requires reversal and remand as to the counts on which defendant was convicted.

         Convictions on Counts 1, 3, 5, 6, and 7 reversed and remanded; otherwise affirmed.

         [286 Or.App. 674]

          HASELTON, S. J.

         Defendant, who was convicted of multiple offenses arising from an altercation, [1] appeals, contending that the trial court erroneously failed to allow his pretrial request to represent himself, rather than proceeding with previously appointed counsel. We agree and, consequently, reverse and remand as to all counts on which defendant was convicted. State v. Hishtower. 361 Or. 412, 393 P.3d 224 (2017); State v. Miller. 254 Or.App. 514, 522-23, 295 P.3d 158 (2013).

         Defendant asserts that the trial court, in the circumstances briefly summarized below, violated his rights to self-representation under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.[2] The state's sole response to that challenge is that it is unpreserved, in that (in the state's view) the trial court never ruled on defendant's request. Based on our review of the totality of the record, we conclude that the matter was adequately preserved for our review.

         Specifically, the record of the operative pretrial hearing discloses that, notwithstanding defendant's initial, unambiguous request ("I don't want the services of the lawyer. I want to represent myself") and his ultimate, and equally explicit, reiterated request ("I am waiving the services of my lawyer."), the trial court failed to engage in the inquiry prescribed for the assessment of such requests.[3] See, [286 Or.App. 675] e.g., Miller, 254 Or.App. at 523 ("'When a defendant asks to represent himself, the court must determine, on the record, whether his decision is an intelligent and understanding one.' Further the court must 'determine whether granting the defendant's request would disrupt the judicial process.'" (Quoting State v. Davis, 110 Or.App. 358, 360, 822 P.2d 736 (1991).)). Instead, by way of that disregard in the face of defendant's explicit repeated requests, coupled with its consistently expressed assumption that defendant would be represented by counsel at trial, the trial court necessarily and effectively precluded defendant from waiving counsel and representing himself.[4]

         In sum, the trial court never assessed whether defendant's putative waiver of appointed counsel was intelligent and understanding. Nor does the record disclose, much less substantiate, any discretionary determination by the trial court that allowing defendant to represent himself "would be disruptive of the orderly conduct of the trial in a way that would be unreasonable under the circumstances, " including "delay[ing] the progress of the trial." State v. Fredinburg,257 Or.App. 473, 482, 484, 308 P.3d 208, rev den,354 Or. 490 (2013); accord Hightower, 361 Or at 422 (denial of mid-trial request for self-representation was erroneous where, inter alia, the trial court's "statements [did] not reflect an exercise of discretion or any finding that granting the motion would significantly delay or disrupt the trial"). Accordingly, the trial court erred, ...


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