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State v. Olson

Court of Appeals of Oregon

July 10, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SKYLER LEE OLSON, Defendant-Appellant.

          Submitted February 13, 2019

          Deschutes County Circuit Court 17CR04214 Walter Randolph Miller, Jr., Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Skyler Lee Olson filed the supplemental brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for one count of third-degree robbery, ORS 164.395. On appeal he assigns error to the trial court's denial of his request for substitution of counsel, arguing that the trial court erred in failing to make a record showing that it sufficiently "heard and considered" defendant's argument. Defendant also argues that the complaints he raised required, as a matter of law, substitution of counsel.

         Held: The trial court did not err. The trial court provided defendant an opportunity to elaborate on his concerns about his counsel. His statements did not obligate the trial court to inquire further, and the trial court did not abuse its discretion by not doing so. Further, the concerns defendant expressed did not state a legitimate complaint concerning appointed counsel that would rise to the level of requiring substitution.

         [298 Or.App. 470] JAMES, J.

         Defendant appeals from a judgment of conviction for one count of third-degree robbery, ORS 164.395. On appeal he assigns error to the trial court's denial of his request for substitution of counsel. As we explain, while there may be some uncertainty around the effect of the trial court's response in relation to defendant's request to fire his court-appointed lawyer, it did not err in the manner in which defendant has raised on appeal. Accordingly, we affirm.

         The facts underlying defendant's conviction are not relevant to the issue on appeal. Instead, for our purposes, the relevant facts are entirely procedural, and undisputed. Following his conviction, defendant proceeded to sentencing represented by the same attorney who handled his trial. At sentencing, defendant's court-appointed counsel informed the court that defendant wanted to ask the court for a new attorney. Defendant said that he wanted to fire his attorney because, in part, "[appointed counsel] has misrepresented me and lied to me on certain occasions about certain information and evidence that has been presented at trial."

         The trial court provided an opportunity for defendant to elaborate on that concern. Defendant then stated that he was innocent, that he had had an unfair trial, that he should have proceeded with a jury trial, that he requested a lineup identification, that he should have obtained a polygraph test, and that he hoped they apprehended the true perpetrator.

         The court denied defendant's request, stating:

"[THE COURT]: So I'm just trying to process what your requests are. I think I've heard them.

"I'm not going to fire [appointed counsel], but you don't have to use him. He's going to stand there and sit with you. And he's at your disposal. You can not use him or use him."

         Following that ruling by the court, defendant proceeded to sentencing. A review of the sentencing proceeding shows that counsel had essentially no participation. The prosecutor made a statement and sentence recommendation, [298 Or.App. 471] and the victim made a statement. Defense counsel offered no evidence, called no witnesses, and made no argument. In fact, the only response on the record ...


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