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State v. Borba

Court of Appeals of Oregon

March 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
BRANDON ANTHONY BORBA, Defendant-Appellant.

          Argued and submitted April 26, 2016

          Jackson County Circuit Court 131100FE Timothy Barnack, Judge.

          Shawn 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 Services.

          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.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         Case 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.

         Held: 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 counsel.

         Reversed and remanded.

          [290 Or. 788] EGAN, C. J.

         Defendant 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 remand.

         The 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?"

         The 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.

         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.

         The 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.

         The 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 one.
"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 yourself.
"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."

         The 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.

         At that 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 ...


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