State v. Omar , 321 Or. App. 403 ( 2022 )

403
Submitted on remand from the Oregon Supreme Court June 22, reversed and
remanded August 24, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
HASSAN OMAR,
aka Hassan Ali Omar,
Defendant-Appellant.
Multnomah County Circuit Court
15CR53774; A164869
516 P3d 747
This case is before the Court of Appeals on remand from the Oregon Supreme
Court in light of State v. Hightower, 368 Or 378, 491 P3d 769 (2021). Specifically,
the court is directed to reconsider appropriate instructions to the trial court on
remand. Held: The absence of a substantive colloquy between the trial court and
defendant about defendant’s request for substitute counsel required that the case
be remanded for a new trial. That is because the record could have developed dif-
ferently had the court not erred, and because it was not possible for the trial court
to engage defendant after-the-fact in a real-time interchange that could lead to a
different exercise of discretion.
Reversed and remanded.
On remand from the Oregon Supreme Court, State v.
Omar, 369 Or 675, 508 P3d 501 (2022).
Jerry B. Hodson, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the briefs for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Reversed and remanded.
404 State v. Omar
MOONEY, J.
This case is before us on remand from the Supreme
Court. State v. Omar, 369 Or 675, 508 P3d 501 (2022). In
the underlying appeal, defendant raised four assignments
of error, three of which we rejected without discussion. We
wrote to address defendant’s argument that the trial court
erred when it denied his oral motion for substitute counsel
made on the morning of trial. The state conceded that the
court erred when it failed to conduct an adequate inquiry
into defendant’s complaints about his lawyer. We agreed
and accepted the state’s concession, which left the sole
remaining question being that of disposition. State v. Omar,
303 Or App 448, 450, 464 P3d 501 (2020) (Omar I), vac’d
in part and rem’d, 369 Or 675 (2022) (Omar II). After some
discussion about the right-to-counsel and the right to self-
representation, both of which are rooted in Article I, sec-
tion 11, of the Oregon Constitution,1 we noted that this is
a right-to-counsel case. Relying on State v. Smith, 190 Or
App 576, 80 P3d 145 (2003), rev’d on other grounds, 339 Or
515, 123 P3d 261 (2005), we vacated the convictions and
remanded the case to the trial court with “instructions to
inquire into defendant’s motion for substitute counsel” and
to order a new trial if it determined that defendant was enti-
tled to new counsel or to reinstate the previous judgment if
it determined that he was not so entitled. Omar I, 303 Or
App at 455.
The Supreme Court vacated our decision as to
the issue of “appropriate instructions to [the] trial court
on remand following reversal based on [the] trial court’s
error in denying petitioner’s motion for substitute coun-
sel” and remanded the matter to us “for reconsideration in
light of State v. Hightower, 368 Or 378, 491 P3d 769 (2021)
[(Hightower II)].” Omar II, 369 Or 675. Hightower II addresses
the “specific question” presented by the parties to that case
“about how a trial court should proceed after an appellate
court remands a case to that court for further proceedings.”
368 Or at 384. Acknowledging that each appellate opinion
1
Article I, section 11, of the Oregon Constitution provides:
“In all criminal prosecutions, the accused shall have the right * * * to be
heard by himself and counsel[.]”
Cite as 321 Or App 403 (2022) 405
“that results in remand” has “its own explicit and implicit
determinations about” the trial court record and the error,
Hightower II directs trial courts interpreting such remand
decisions to “focus not only on the explicit and implicit
instructions provided in the appellate court’s opinion, but
also on the entirety of the record as it relates to the identified
error.” Id. at 385. The trial court is further instructed that
in addition to evaluating our explicit and implicit directives,
it must “consider the impact of the error on the record. If [a]
trial court determines that the record could have developed
in a materially different way if the error had not occurred,
then a defendant is entitled to a new trial.” Id. at 387.
We understand that our limited task on remand
is to reconsider our disposition of this appeal through the
lens of Hightower II, to ensure substantive consistency with
Hightower II and logical symmetry between the identified
legal error, the record, and our instructions to the trial court.
Here, the legal error—failing to inquire about defen-
dant’s reasons for requesting substitute counsel—was not
disputed. But as we noted in our original opinion, under
Smith, “ ‘inadequate inquiry does not conclusively demon-
strate that there was a deprivation’ ” of the right to coun-
sel. Omar I, 303 Or App at 455 (quoting Smith, 190 Or App
at 580). Also, we were not asked to disavow Smith and,
therefore, we concluded that defendant was not automati-
cally entitled to a new trial. Further, we determined that
the appropriate disposition was to vacate the convictions
and remand with “instructions to inquire into defendant’s
motion for substitute counsel” and to order a new trial if the
trial court determined that substitute counsel was required.
Omar I, 303 Or App at 455. As we explain below, we now
conclude, as the court did in Hightower II, that defendant is
entitled to a new trial.
Even though Hightower is a right to self-representation
case and not a right-to-counsel case, the legal error is simi-
lar. The trial court in Hightower did not understand that it
had the authority to grant the defendant’s request to repre-
sent himself. State v. Hightower, 361 Or 412, 422, 393 P3d
224 (2017) (Hightower I). It, therefore, did not make any
inquiries of the defendant, and it did not explain why it
406 State v. Omar
would not grant such a request even if it had the authority
to do so. That discussion did not occur. Therefore, the case
was remanded for the trial court to reconsider whether to
grant the defendant’s request. Id. On remand, the trial court
did not order a new trial. Rather, “the trial court decided
that, if it would have understood the extent of its authority
and discretion, it would have denied defendant’s motion for
self-representation, based on its evaluation of defendant’s
trial disruptions.” Hightower II, 368 Or at 392. In revers-
ing the trial court’s decision on remand, the Supreme Court
explained that “it was necessary for the trial court to pro-
vide defendant with an opportunity to explain and respond
to the trial court’s concerns about his disruptive behav-
ior in the context of his requests for self-representation.”
Id. at 393. Further, the court concluded that a new trial was
required because “the trial court did not do that in the first
instance, and because the record could have developed dif-
ferently if it had.” Id.
Like the trial court in Hightower II, here, the court
did not engage in a substantive colloquy before denying
defendant’s request. Even though the trial court understood
that it had the discretion to grant defendant’s request for
substitute counsel, it did not ask defendant why he was mak-
ing the request, and it did not discuss with defendant the
factors that the court might consider in deciding whether to
grant the request.
That discussion—the colloquy between court and
defendant concerning the pending request—did not happen
in this case or in Hightower II. The error in each case nec-
essarily resulted in the absence of a critical colloquy and,
therefore, a significant gap in the record. There is no practi-
cal difference between the Hightower II court’s failure to pro-
vide defendant with a chance to explain his request and to
respond to the court’s questions and the same failure in this
case. The record here was just as likely to have developed
in a materially different way had there been no error as it
was in Hightower II had the trial court not committed error
there. Reconsidering disposition in light of Hightower II
requires that we remand this case for a new trial. That is
because the record could have developed differently, and also
because the trial is now over, and it is not possible for the
Cite as 321 Or App 403 (2022) 407
trial court to “recreate [in retrospect] the opportunity for a
real-time interchange with the defendant that could [lead]
the trial court to exercise its discretion differently.” State v.
Black, 317 Or App 181, 186, 504 P3d 691 (2022) (Kistler, S. J.,
concurring).
Reversed and remanded.