State v. Lingren , 1986 Ore. App. LEXIS 2764 ( 1986 )

719 P.2d 61 (1986) 79 Or.App. 324

STATE of Oregon, Respondent,
v.
Richard Stanley LINGREN, Appellant.

84-3318-C-1; CA A35916.

Court of Appeals of Oregon.

Argued and Submitted November 27, 1985. Decided May 14, 1986.

Helen I. Bloch, Deputy Public Defender, Salem, argued the cause for appellant. With her on brief was Gary D. Babcock, Public Defender, Salem.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Defendant was convicted of theft in the first degree after a jury trial in which he appeared pro se. In this direct appeal, he asserts that the trial court's failure to appoint counsel prevented his having a fair trial and resulted in a denial of his right to counsel as guaranteed by the Oregon and federal constitutions.

When defendant was arraigned on November 13, 1984, he was advised of his right to court-appointed counsel. He did not request it at that time. He appeared without counsel at proceedings on November 27, 1984, January 29, 1985, and February 5, 1985. Each time, the court asked defendant if he intended to retain counsel and advised him to do so immediately. Each time, defendant indicated his intention to arrange for an attorney on his own. On the day of trial, defendant again appeared without counsel and explained that the attorney whom he had retained had withdrawn, because payment arrangements had fallen through. The court refused to delay the proceedings:

"THE COURT: * * * It appears to me that it would be pointless to delay this matter any further, because it appears that we would have the same practice go right on. So unless you show me some real reason to the contrary, we will proceed to trial at this time and you will just have to represent yourself. Is that acceptable with you?

"[DEFENDANT]: Well, I don't have much choice in the matter.

"THE COURT: No, really I don't believe you do, because I'm convinced that you've not attended to these matters, and it seems that really your approach has been one of if you can just kind of stall things off maybe they'll go away, and now its the day of trial and they didn't go away. So we will proceed. * * *"

The judge then advised defendant about the jury selection process, opening statements, the order of proof, closing arguments, jury instructions and his right to remain silent. He did not advise defendant again of his right to court-appointed counsel. After trial and before sentencing, defendant asked for court-appointed counsel for the first time. He was found to be indigent, and counsel was appointed to represent him at sentencing.

Defendant's argument focuses on the judge's failure to determine whether his choice to proceed without counsel was made with full knowledge of his rights. State v. Verna, 9 Or.App. 620, 498 P.2d 793 (1972). This is not a case, however, where the defendant has waived his rights. See State ex rel. Juv. Dept. v. Afanasiev, 66 Or.App. 531, 674 P.2d 1199 (1984). Rather, the question is whether the trial court abused its discretion in forcing defendant to proceed without counsel and in refusing to allow another delay so that defendant could continue his efforts to secure counsel. We conclude that it did not. As we said in State v. Schmick, 62 Or.App. 227, 660 P.2d 693, rev. den. 295 Or. 122, 666 P.2d 1344 (1983), the right to counsel must be balanced against the state's need to conclude the case in a timely manner. We held in Schmick that a defendant who is not indigent may be compelled to go to trial without counsel if he has failed to obtain counsel at the time of trial after a reasonable opportunity to do so. 62 Or. App. at 232, 660 P.2d 693. We see no basis for a distinction here. Defendant, who was advised at his arraignment of his right to court-appointed counsel, did not seek court-appointed counsel or obtain counsel of any type despite a reasonable opportunity to do so. His failure to retain his own counsel or to apply for court-appointed counsel within the reasonable time given was his own doing. Our assessment, from reviewing the record, is that defendant was "stroking" the system. He, alone, orchestrated the situation on which he now relies for a new trial.^[1]See State v. Hickey, 79 Or.App. 200, 717 P.2d 1287 (1986).

A trial court is vested with broad discretion in determining whether a setover is appropriate. State v. Page, 18 Or.App. 109, 523 P.2d 1291 (1974). The court did not abuse its discretion in proceeding to trial without allowing defendant additional time to secure counsel and did not err in denying his motion for a new trial.

Affirmed.

NOTES

[1] This case is different from State v. Towle, 79 Or.App. 328, 719 P.2d 68 (1986), where the defendant requested appointed counsel at his first arraignment proceeding and was determined to be ineligible.