State v. Chambers , 150 Or. App. 336 ( 1997 )

ARMSTRONG, J.

Defendant appeals his convictions for assault in the fourth degree and resisting arrest. ORS 163.160; ORS 162.315. He contends that he did not validly waive his right to counsel. We reverse and remand.

At arraignment, the court advised defendant of the charges against him and discussed with him his right to counsel:

“[THE COURT]: You are entitled to your court appointed attorney if you can’t afford one, I don’t see the paperwork on that, are you waiving the court appointed?

“[DEFENDANT]: Yes, I am going to see one this afternoon. * * *

“[THE COURT]: You’ll talk to your own attorney, alright.

“[DEFENDANT]: Yes.”

The court then ordered defendant to attend a pretrial conference and asked him to notify the court when he hired an attorney so that the attorney could reschedule the conference.

Defendant appeared at the scheduled pretrial conference without an attorney:

“[THE COURT]: Have you had a chance to talk to an attorney about this matter?

“ [DEFENDANT]: I really haven’t, your honor, because moneas been tight lately, but I’m gonna have enough money in the next couple of weeks to get one. I was just going to plead not guilty today * * * .If you could reschedule, sir.

“[COURT]: Okay. * * * I’m willing to do that if you’re saying that your reason is you want to talk to a lawyer about these matters. The court tries to be real careful if the person wants to get legal help, we try to be careful to let you do that. So, I’m going to do it again. * * * Since we’re giving you all that extra time we’re going to be kinda pushy at the next one about having you make a decision, alright? And you’ve sat through enough of these today to figure out what we’re going to be asking you, if you want a trial, a jury trial or a non-jury trial, and that kind of thing.

“ [DEFENDANT]: Yes, sir.”

The court then scheduled another pretrial conference for defendant.

Defendant appeared at the next pretrial conference without an attorney:

“[THE COURT]: You don’t have an attorney, still?

“[DEFENDANT]: No, sir, I am not going to have an attorney.

“[THE COURT]: You just want to represent yourself, still?

“ [DEFENDANT]: Yes, sir.

“[THE COURT]: Okay. And are you ready to make a decision on that, are you ready to go to trial, or what do you want to do on that?

“ [DEFENDANT]: I am going to make a decision, sir.

“[THE COURT]: Okay. What is your decision?

“[DEFENDANT]: I’d like to go to court.

“[THE COURT]: Alright, you want a trial, and you want jury or non-jury?

“[DEFENDANT]: Non-jury, sir.”

The court scheduled the trial and suggested to defendant that he might need assistance in subpoenaing his witnesses:

“[THE COURT]: If you’re going to be subpoenaing some witnesses, you might want to get some help on that right away, instead of waiting until the last minute. It’s kinda tricky, but it’s not really that difficult once you get the right forms. It’s not really that hard, but I strongly advise you to get some help from an attorney or somebody on how to make sure you get that done because if you show up for trial and say ‘Geez, my witnesses aren’t here’, I’ll say, Well, you know you’re acting as your own attorney, how come you didn’t make sure they were subpoenaed?’

“[DEFENDANT]: Okay.”

After the state’s opening statement at trial, defendant moved to dismiss the case on the ground that his witnesses were not available. The court denied defendant’s motion because, inter alia, defendant had not subpoenaed them. The court convicted defendant at trial of fourth-degree assault and resisting arrest.

The state contends that the court properly accepted defendant’s waiver of his right to counsel because the record establishes that defendant knew of his right to counsel and that he intentionally relinquished that right. We disagree.

Before a court accepts a waiver of the right to counsel, it must assure itself that the defendant understands the risks of self-representation. “The preferred means of doing [that] is a colloquy on the record between the court and the defendant ‘about the dangers and disadvantages of self-representation.’ ” State v. Mendonca, 134 Or App 290, 293, 894 P2d 1247 (1995) (quoting State v. Meyrick, 313 Or 125, 133, 831 P2d 666 (1992)). The court failed to assure itself in this case that defendant had the necessary understanding.

The court did explain to defendant, after it had accepted his waiver, the importance of subpoenaing witnesses, but that advice has no bearing on the validity of the waiver. The court’s purpose in offering the advice was not to assure itself that defendant knew the risks of self-representation. Rather, it was to help defendant fulfill the task on which he already had embarked. Furthermore, even if the advice had been given in order to convey to defendant the “dangers and disadvantages of self-representation,” it was inadequate to do that.¹ The court erred in accepting defendant’s waiver of counsel.

Reversed and remanded.

1 We note that a court is not required to tell every defendant about the risks and dangers of self-representation in order for the court to assure itself that the defendants are aware of those risks. The court may conclude that a defendant has the necessary knowledge without the need to conduct such a colloquy. Here, there is nothing in the record to show that the court assured itself that defendant had that knowledge. If the court had considered the issue and decided that it was necessary to discuss the risks of self-representation with defendant in order to assure itself that he was aware of those risks, the court’s statement about the need to subpoena witnesses would not have been adequate to accomplish that.