Submitted February 13, 2019
Deschutes County Circuit Court 17CR04214 Walter Randolph
Miller, Jr., Judge.
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.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Patrick M. Ebbett, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
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
Or.App. 470] JAMES, J.
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.
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 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
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."
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 ...