State v. Straub ( 2022 )

393
Submitted September 27, affirmed October 19, 2022, petition for review denied
March 30, 2023 (370 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN SCOTT STRAUB,
aka Brian Straub,
Defendant-Appellant.
Umatilla County Circuit Court
17CR74305; A175267
520 P3d 915
Defendant appeals from an order revoking probation and imposing a sen-
tence, raising two assignments of error, one of which the Court of Appeals dis-
cusses. Defendant argues that the trial court plainly erred in accepting defense
counsel’s representations that defendant was willing to admit to three of the four
allegations that he violated the conditions of probation. Defendant raises a plain-
error argument that a trial court is required, in the context of a probation revoca-
tion hearing, to engage in formal colloquy with defendant about the opportunity
to contest the allegations and the rights he would be giving up by admitting the
allegations. Defendant’s reasoning comes largely from the federal due process
requirement that the waiver of a probation violation hearing must be knowingly
and intelligently made. Held: The court agrees with the Ninth Circuit’s reason-
ing in United States v. Segal, 549 F2d 1293 (9th Cir), cert den, 431 US 919 (1977),
that federal due process does not require a formal colloquy to ensure a knowing
and intelligent waiver of the right to contest a violation allegation in the context
of a probation revocation hearing.
Affirmed.
Christopher R. Brauer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JAMES, P. J.
Affirmed.
394 State v. Straub
JAMES, P. J.
Defendant appeals from an order revoking proba-
tion and imposing a sentence, raising two assignments of
error. We reject his second without discussion and write only
to address his first. There, he argues that the trial court
erred in accepting defense counsel’s representations that
defendant was willing to admit to three of the four allega-
tions that he violated the conditions of probation. On appeal,
defendant raises a plain-error argument that a trial court is
required, in the context of a probation revocation hearing, to
engage in a colloquy with defendant about the opportunity
to contest the allegations and the rights he would be giving
up by admitting the allegations. According to defendant, a
failure to engage in such a colloquy is reversible error. We
affirm.
Defendant is not entirely precise as to the source
of law that underlies his argument. He references a 2005
Oregon Criminal Law Bench Book, which states that the
court “should” make three determinations on the record:
that the defendant knowingly is admitting the violation,
that the admission is voluntary, and that the defendant
understands the consequences of his or her admission.
Defendant does not claim, quite properly, that bench books
are authority. That portion of the bench book references fed-
eral caselaw, and as such, we understand defendant to be
reasoning largely from federal due process.1
Defendant notes that probation violation hearings
carry many of the procedural safeguards of trials—such as
a right to counsel and confrontation. Defendant argues that
“[t]he requirement of a knowing and voluntary waiver of a
probation violation hearing makes sense given that a waiver
of the right to a jury trial must be knowing, voluntary, and
in writing.” We agree, and no party appears to dispute, that
the waiver of a probation violation hearing must be know-
ingly and intelligently made. The question here, however,
is whether a formal colloquy is required as evidence of that
1
Defendant cites Article I, section 11, of the Oregon Constitution in support
of his argument that a formal colloquy is required but develops no independent
argument from that source.
Cite as 322 Or App 393 (2022) 395
knowing waiver, or whether the representations of counsel
are sufficient.
Defendant’s argument that due process requires
a formal colloquy has been rejected by the Ninth Circuit,
which has held that a colloquy to ensure a knowing and
intelligent waiver in the context of a probation revocation
hearing is not required:
“Segal would have us extend the Boykin protections so that
the record would show a voluntary and intelligent waiver
of the rights she forfeited by admitting violation of the
terms of her probation. But the Boykin rule is tailored to
the defendant’s entering a plea of guilty. It will not fit on
a different mannequin. The Court in Boykin required an
affirmative showing on the record that a plea of guilty was
knowing and voluntary because the plea is itself a convic-
tion, ending the controversy. But admissions of probation
violations do not end the controversy. The judge must still
decide the more difficult issue whether the violations war-
rant revocation of probation. This involves predictive and
discretionary considerations in addition to factual inqui-
ries. Moreover, the probationer is allowed to present evi-
dence in mitigation of the violations. Thus, admissions of
probation violations, unlike guilty pleas, do not automat-
ically trigger sentencing. To the extent that admissions
are viewed as immediately preceding sentencing, it is only
because a prior guilty plea has led to suspending the impo-
sition of sentence.”
United States v. Segal, 549 F2d 1293, 1298 (9th Cir), cert
den, 431 US 919 (1977) (citations omitted). Although we are
not bound by the Ninth Circuit on this issue, here we find its
reasoning persuasive and reach the same conclusion. Any
error was not plain.
Affirmed.