State v. Dunn , 318 Or. App. 744 ( 2022 )

744
Submitted April 6, 2021, reversed and remanded April 6, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
DOUGLAS WAYNE DUNN,
Defendant-Appellant.
Clackamas County Circuit Court
18CR52115; A170736
508 P3d 586
Defendant appeals from a judgment of conviction for first-degree robbery
(ORS 164.415), second-degree robbery (ORS 164.405), fourth-degree assault (ORS
163.160) as a lesser-included offense of second-degree assault (ORS 163.175),
unlawful use of a weapon (ORS 166.220), first-degree theft (ORS 164.055), and
menacing (ORS 163.190). The Court of Appeals addresses defendant’s first and
second assignments of error, in which he argues that the trial court erred by
failing to conduct a colloquy to determine if he could knowingly and intelligently
waive his right to self-representation and then denying his motion to waive coun-
sel and represent himself. Held: The trial court erred by not engaging defendant
in a colloquy to assess his ability to knowingly and intelligently waive his right
to counsel, and then denying defendant’s motion to waive counsel and represent
himself at trial. A trial court may not summarily deny a defendant’s request to
represent himself without a colloquy.
Reversed and remanded.
Heather Karabeika, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the opening brief for
appellant. Douglas Dunn filed the reply 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 Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
MOONEY, P. J.
Reversed and remanded.
Cite as 318 Or App 744 (2022) 745
MOONEY, P. J.
Defendant appeals from a judgment of conviction
after trial to the court for first-degree robbery (ORS 164.415),
second-degree robbery (ORS 164.405), fourth-degree assault
(ORS 163.160) as a lesser-included offense of second-degree
assault (ORS 163.175), unlawful use of a weapon (ORS
166.220), first-degree theft (ORS 164.055), and menacing
(ORS 163.190), raising three assignments of error. He first
assigns error to the trial court’s failure to conduct a colloquy
“to determine whether defendant could knowingly and intel-
ligently waive his right to self-representation.” Defendant
next assigns error to the trial court’s denial of his motion
to waive counsel and represent himself. Finally, defendant
assigns error to the trial court’s denial of his motion for
judgment of acquittal on the second-degree robbery count;
we reject that assignment without discussion. We agree that
the trial court erred when it did not engage defendant in
a colloquy designed to assess his ability to knowingly and
intelligently waive his right counsel and to proceed to trial
representing himself. In the absence of that required col-
loquy, the trial court also erred when it denied defendant’s
motion to waive counsel and proceed pro se. We therefore
reverse and remand the judgment of conviction.
Whether the trial court violated defendant’s state
and federal constitutional right to self-representation is a
question of law. State v. Hightower, 361 Or 412, 421, 393
P3d 224 (2017). To determine whether the court erred, “the
record must include some indication of how the trial court
actually weighed the relevant competing interests involved.”
Id.Defendant was arrested and taken into custody on
August 3, 2018, after taking two guitars from a guitar store,
running, and eventually being caught and cornered by the
store clerk and a few others. Defendant was arraigned
and appointed counsel. His original trial date was set for
September 28, 2018. The court-appointed attorney advised
defendant to waive his right to have a trial within 60 days.
Defendant signed the 60-day waiver, and his trial was
rescheduled for December 6, 2018. His first court-appointed
attorney then withdrew due to a conflict. Defendant was
746 State v. Dunn
assigned a new attorney who was ill on December 6, 2018,
and unable to proceed to trial at that time. Defendant per-
sonally objected to a continuance and stated that he would
not be waiving his speedy trial rights after all. But the court
found good cause for a 14-day set over to December 20, 2018.
As it turned out, defendant’s attorney was still ill on that
date and again unable to proceed with trial.
At that point, defendant had been in jail awaiting
trial for over four months. The court was prepared for trial
and informed defendant that he had the option of proceeding
that day without an attorney or that another attorney would
be appointed, requiring another continuance to allow that
attorney time to prepare for trial. The court and defendant
then had a discussion regarding defendant’s desire not to
waive his 60-day speedy trial rights and whether he desired
a new attorney moving forward:
“COURT: * * * But what I need to decide first is whether
or not I’m going to continue this case and that depends on
whether or not you want a new lawyer.
“DEFENDANT: So that’s—I think I’m having trou-
ble making that decision * * * because under the advice I
received from [counsel], she said there’s no way * * * you’re
going to release me from custody if I ask for an attorney.
“* * * * *
“DEFENDANT: So I’m ready to go to trial. I’ve been
in jail * * * for nearly five months on this. I’m ready to go to
trial. I would prefer to have an attorney who is prepared.
“* * * * *
“DEFENDANT: But if it’s a choice between sitting in
jail and waiting for that attorney or going to trial today
without that, I would choose to go to trial.”
Defendant declared that he would “waive that right” (to
counsel) but the court interjected stating, “No, that means
you get one” (an attorney). Defendant was appointed counsel
and, after trial to the court, was convicted of all the charges.
A defendant has a right to counsel under Article I,
section 11, of the Oregon Constitution and under the Sixth
Amendment to the United States Constitution. Those con-
stitutional provisions also provide a defendant with the
Cite as 318 Or App 744 (2022) 747
corollary right to self-representation.1 The right to self-
representation is not absolute and it requires the court to
determine whether the defendant’s decision to waive repre-
sentation is “an intelligent and understanding one.” State
v. Davis, 110 Or App 358, 360, 822 P2d 736 (1991). Oregon
statutory law provides that: “[i]f the defendant wishes to
waive counsel, the court shall determine whether the defen-
dant has made a knowing and voluntary waiver of counsel.”
ORS 135.045(1)(c). A colloquy on the record is the “preferred
means of assuring that the defendant understand[s] the
risks of self-representation.” State v. Meyrick, 313 Or 125,
133, 831 P2d 666 (1992). A court has discretion to deny a
defendant’s right to self-representation under “certain cir-
cumstances.” State v. Ashbaugh, 317 Or App 767, 772, 505
P3d 1015 (2022). In particular, the court may exercise that
discretion if defendant’s exercise of the right conflicts with
the trial court’s “obligation to ensure the fairness and integ-
rity of the trial and its inherent authority to conduct pro-
ceedings in an orderly and expeditious manner,” Hightower,
361 Or at 417-18, or if “a person’s mental illness renders the
person incapable of conducting the basic tasks of presenting
a defense,” State v. Hayne, 293 Or App 351, 364, 427 P3d 201
(2018), rev den, 364 Or 294 (2019).
Here, the trial court failed to conduct a colloquy to
determine if defendant’s waiver of trial counsel and request
to represent himself was knowing and intelligent. When
defendant asserted that he would waive that right in order
to proceed to trial pro se, the court summarily rejected his
request. A trial court may not summarily deny a defendant’s
request to represent himself, even if it is the court’s opinion
that it is in the defendant’s best interest to be represented
by counsel. State v. Miller, 254 Or App 514, 524, 295 P3d 158
(2013). Once defendant made his request, the court should
1
Article I, section 11, provides, in part: “In all criminal prosecutions, the
accused shall have the right * * * to be heard by himself and counsel[.]” The Sixth
Amendment, provides, in part, that: “In all criminal prosecutions, the accused
shall enjoy the right * * * to have the Assistance of Counsel for his defence.”
See Hightower, 361 Or at 416, (“The right to self-representation is the counter-
part to the right to be represented by counsel at trial.”); State v. Blanchard,
236 Or App 472, 475, 236 P3d 845 (2010) (reiterating that, under both the state
and federal constitutions, “[a] defendant’s right to counsel includes a right to
self-representation”).
748 State v. Dunn
have conducted a colloquy to determine whether defendant
was making a knowing and intelligent waiver of his right to
counsel to proceed to trial representing himself. The trial
court erred by failing to conduct a meaningful colloquy, and
then by denying defendant’s motion to waive counsel, having
not conducted a proper inquiry. That error requires reversal
as to all counts.
Reversed and remanded.