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State v. Jacobson

Court of Appeals of Oregon

February 13, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES EVERETTE JACOBSON, JR., Defendant-Appellant. 296 Or.App. 87

          Argued and submitted December 21, 2016

          Clatsop County Circuit Court 137167 Philip L. Nelson, Judge.

          Rond Chananudech, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Nathan K. Riemersma, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, A ssistant Attorney General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for driving under the influence of intoxicants, contending that the trial court erred in allowing a jury trial to proceed in his absence. Held: The trial court erred in determining that defendant had waived his appearance at trial by signing a form for his waiver of appearance for trial if he failed to appear.

         Reversed and remanded.

         [296 Or.App. 88] EGAN, C. J.

         In this criminal case, defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140, contending that the trial court erred in allowing a jury trial to proceed in his absence and without counsel.[1] We conclude that the trial court erred in allowing the trial to proceed in defendant's absence. We therefore reverse defendant's convictions and remand for a new trial.

         The relevant facts are largely procedural and, for purposes of this appeal, are undisputed. Defendant was arrested and charged with the above-described misdemeanor offenses. At the time of his arraignment on July 23, 2013, defendant was appointed counsel and entered pleas of not guilty. On the state's request, the court required security for defendant's release. Noting the possibility that defendant might be released without security "because of jail crowding issues," the court explained that it would require defendant to execute a waiver of appearance: "In any event, you do-if you are released in spite of our efforts to hang onto you, I will order that you sign a waiver of appearance, which means that if you do not come back here to finish this case the prosecution will go on without you."

         Following the arraignment hearing, defendant posted the required security and executed a "Security Release Agreement." As part of that agreement, defendant acknowledged that he would appear for all required court appearances and that, if he did not, "a warrant may be ordered for my arrest, a judgment for the entire security amount may be levied against me, I will forfeit the security deposit or security amount; and I may be prosecuted for Contempt of Court and/or for Failure to Appear."

         Despite posting security, defendant also executed a "Waiver of Appearance for Trial and Jury Waiver." That form stated that defendant was required to appear in court for all scheduled hearings and trial, and warned defendant that if he failed to appear, the trial might proceed in [296 Or.App. 89] his absence. The form also stated twice that the failure to appear would constitute an authorization to proceed to trial in defendant's absence.[2] Defendant was released after posting bail and signing the two aforementioned documents.

         Defendant appeared with his attorney at a status conference on January 15, 2014, and again at a hearing on a motion to suppress on March 18, 2014. Two weeks before the scheduled trial date of September 30, 2014, defendant's court appointed-attorney asked to withdraw, citing an irreconcilable breakdown in the attorney-client relationship. The court granted the request and appointed new counsel.

         Defendant's new counsel appeared without defendant at a pretrial hearing on September 25, 2014, and explained that defendant was absent because he had undergone oral surgery the day before. He requested the court to reschedule the trial to a later date. Defendant's counsel appeared at a pretrial hearing on December 11, 2014, again without defendant, and reported that he had not had contact with defendant and that investigators had been unable to find him. The court noted that the file contained a waiver-of-appearance form and that, on that form, defendant had not waived the right to a jury trial. The court scheduled the ...


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