and submitted December 21, 2016
Clatsop County Circuit Court 137167 Philip L. Nelson, Judge.
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
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.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
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.
Or.App. 88] EGAN, C. J.
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. 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.
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
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."
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. Defendant was released after
posting bail and signing the two aforementioned documents.
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.
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 ...