and submitted April 26, 2016
Jackson County Circuit Court 131100FE Timothy Barnack, Judge.
E. Wiley, 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
Jennifer Lloyd, Assistant Attorney General, argued the cause
for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Paul L. Smith, Deputy Solicitor General,
and Jona J. Maukonen, Assistant Attorney General.
Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for
attempted murder, first-degree assault, and second-degree
assault, arguing that the trial court erred in concluding
that he knowingly waived his right to counsel.
The totality of the circumstances did not demonstrate that
defendant understood the risks inherent in
self-representation at his jury trial. The trial court erred
in concluding that defendant knowingly waived his right to
Or. 788] EGAN, C. J.
appeals a judgment of conviction for attempted murder, ORS
163.115 and ORS 161.405, first-degree assault, ORS 163.185,
and second-degree assault, ORS 163.175. He asserts that the
trial court erred in concluding that he validly waived his
right to counsel. We agree, and, therefore, we reverse and
relevant facts are procedural and are not in dispute. We
recount them in some detail because they are important for
our analysis. Defendant was indicted in March 2013. He
subsequently had three court-appointed attorneys. His first
attorney withdrew after she was appointed to be a circuit
court judge. Defendant's second attorney worked in the
same office as the first. Defendant believed that his first
attorney had lied to him and waived his speedy trial rights
without his knowledge and consent, and, because he did not
trust the attorneys in that office, he requested a different
attorney. At a hearing in October 2013, the trial court
agreed to appoint another attorney to represent defendant,
stating, in part:
"* * * [ w]e're going to appoint a new attorney to
represent you, Mr. Borba.
"* * *
"* * * And I only give one. Okay?
"* * *
"*** So if you want another attorney after this one,
you're going to have to hire your own, absent some
exceptional circumstance. So there may be a legitimate
conflict with your next attorney, and if there is, we'll
appoint you an additional one. But if there's not a
legitimate conflict, then you're going to have to hire
your own if you want another one. Okay?"
trial court canceled the trial date that was scheduled for
February 2014; trial was rescheduled to take place in late
April 2014, and a third attorney was appointed for defendant.
who remained in custody while awaiting trial, sent to the
court an Inmate Request Form dated [290 Or. 789] April 2,
2014, which stated, "My Attorney Zach Light is
fired." As a result of that communication, the court
held a hearing on April 4. Defendant told the trial court
that "counsel has been ineffective and I have a private
lawyer going to be coming in. So for now, I'm going to
represent myself until the private lawyer is working on the
case. Defendant expressed concern regarding a violation of
his speedy trial rights and "waiver" of trial
dates, and also stated that he did not have all of his
discovery and court records.
trial court asked who defendant's private lawyer was and
defendant responded that his name was Kolkey. The prosecutor
explained to the court that it was her understanding that
Kolkey is a federal defense attorney, that Kolkey was not yet
retained, and that he was waiting to be paid a retainer. The
state asked the trial court not to release defendant's
appointed counsel from the case until there was proof that
defendant had retained another attorney, and informed the
court that trial was scheduled to begin in two weeks. Defense
counsel told the court that his investigator had completed
her investigation and that he was ready to go to trial.
Defendant himself told the court that he was not sure that he
was ready for trial.
trial court denied defendant's pro se motion to
remove his attorney from the case. The court stated:
"You're going to trial. You certainly, you're
not going to get another public defender. You've gone
through three of them now; you're not getting another
"You're not getting any other defense counsel
from-on the state's end of it, because you've had
more than enough. I usually only give two. Some judges
don't give more than one. But you've now had three.
That's it. I don't care what the nature of the
charges are; you can't just keep going from one to the
other to the other.
“* * * *
"*** You have your motion [to dismiss] on 4-9, but we
are leaving that trial date on and I'm not releasing Mr.
Light from this case. He will be sitting with you in trial.
You certainly can represent yourself, but he will be sitting
with you in trial advising you.
“* * * *
"* * * [290 Or. 790] [Y] ou don't have to
communicate with him if you don't want to, but he will be
there to assert any kind of what-he will be advising you on
trial strategy, trial techniques, things like that, or any
kind of legal issues or matters you may have.
"So right now, I'm going to deny-I'm not going
to let Mr. Light off the case, so I'm going to deny your
request to fire him. I'm not going to let you represent
yourself unless you really-you have to waive that, you have
to know what you're doing. I mean these are serious
charges, so I guess you can represent yourself if you'd
like, but I don't think you do want to represent
"Your only options are you hire this new guy[.]
“* * * *
"* * * Kolkey. You get Kolkey on board and Kolkey will
have a certain period of time in which to put his case
together. But I am not going to keep continuing this thing
out and out and out and out.
“* * * *
"* * * [Y] ou're going to trial on that day. Unless
* * * you come up with the money to hire this Kolkey guy,
you're going to trial."
trial court then acknowledged that defendant's pro
se motion to dismiss on his "constitutional
matters" and issues would be heard at a hearing
scheduled for the following week, on April 9.
next hearing, the trial court heard argument on
defendant's pro se motion to dismiss, and then
denied it. After the court ruled on the motion, defendant ...