State v. Ashbaugh ( 2022 )

767
Argued and submitted September 24, 2020, reversed and remanded
February 24, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN CODY ASHBAUGH,
Defendant-Appellant.
Marion County Circuit Court
18CR08083; A168108
505 P3d 1015
In this criminal case, defendant appeals from a judgment of conviction for
harassment, ORS 166.065, challenging the trial court’s failure to conduct a col-
loquy to determine whether he could waive his right to counsel and the court’s
denial of his motion for self-representation. Held: The Court of Appeals concluded
that it could not determine the basis on which the trial court denied defendant’s
request to represent himself. To the extent that the trial court denied defendant’s
request to represent himself based on its conclusion that defendant could not
knowingly and voluntarily waive that right, the trial court erred because the
record developed did not support that conclusion. To the extent that the court
was exercising its discretion to deny defendant’s request, the court exceeded the
range of permissible discretion when it denied defendant’s motion to represent
himself.
Reversed and remanded.
Claudia M. Burton, Judge.
Erin J. Snyder Severe, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services, filed the brief for appellant.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief was Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Reversed and remanded.
768 State v. Ashbaugh
POWERS, J.
In this criminal case, defendant appeals from a
judgment of conviction for harassment, ORS 166.065, rais-
ing eight assignments of error. We reject defendant’s first
six assignments of error without discussion and write to
address only the last two assignments of error. In his sev-
enth and eighth assignments of error, defendant challenges
the trial court’s failure to conduct a colloquy to determine
whether defendant could waive his right to counsel and the
court’s denial of defendant’s motion for self-representation.
We conclude that, to the extent that the trial court denied
defendant’s request to represent himself based on its con-
clusion that defendant could not knowingly and voluntarily
waive that right, the trial court erred because the record
developed does not support that conclusion. To the extent
that the court was exercising its discretion to deny defen-
dant’s request, the court exceeded the range of permissible
discretion when it denied defendant’s motion to represent
himself. Accordingly, we reverse and remand.
The facts relevant to the issues on appeal are pro-
cedural in nature and undisputed. Defendant was charged
with menacing constituting domestic violence and harass-
ment. At defendant’s bail hearing, the trial court expressed
concerns about whether defendant had some mental health
issues “based on [defendant’s] appearance the last time that
he was in court” and because defendant struggled with anx-
iety. The trial court informed defendant’s counsel that it
believed that defendant “would not be receptive to the idea
of an aid and assist evaluation” but asked defendant’s coun-
sel for his opinion:
“But I guess sort of two-prong question; one is have you
spoken with the jail staff about having a nurse visit with
[defendant] with regard to his anxiety symptoms to make
sure that if he needs some medication for that, that he has
access to that? And second, are you comfortable based on
your own observations and interactions with him that he’s
adequately able to aid and assist?”
Defense counsel responded that he was not aware of what
occurred before his appointment as counsel, that he had not
Cite as 317 Or App 767 (2022) 769
spoken to the jail staff, and then he elaborated on his per-
ception of defendant since his appointment:
“I have spent quite a bit of time with [defendant]. And when
he does get anxious it’s apparent in his demeanor. But no,
I think that [defendant is] actually quite intelligent and is
able to assist—aid and assist me in preparation more than
the average crime.”
The trial court accepted defense counsel’s assessment and
continued with the bail hearing.
Approximately seven weeks later, the trial court
held a hearing to address several issues defendant had
raised in a letter to the court. The court began by inform-
ing defendant that it was not going to revisit defendant’s
previously denied motions concerning his bail, release,
and speedy trial rights. The court then told defendant that
trial was set to begin in three days and asked him several
times whether he wanted to represent himself or continue to
have his counsel represent him. Defendant did not directly
respond to the court’s questions and instead continued to
raise his concerns. When it became clear that defendant was
not going to answer the court’s questions, the court ended
the hearing.
Three days later on the morning of trial, defendant
made a motion to represent himself. The trial court immedi-
ately denied defendant’s motion and explained its reasoning:
“[DEFENDANT]: Your Honor, I’d like [to] represent
myself.
“THE COURT: That will be denied and I’ll tell you
why. In order for me to—first of all, you do have a right to
represent yourself. But secondly, in order for me to allow
you to represent yourself I am required to make a find-
ing that you’re waiving counsel knowingly and voluntarily.
I’ve had a couple of opportunities to observe you in the
courtroom.
“And it’s clear to me that you are not competent to rep-
resent yourself. When we were in court on Monday we
were in court because you had written to me with concerns
about your lawyer. I repeatedly asked you to explain what
those concerns were. And you repeatedly returned to your
request to be released, which I repeatedly denied.
770 State v. Ashbaugh
“It was clear to me from that appearance that you were
unable to focus on the issue that was at hand and you were
unable to use the opportunity that you had to address your
concerns. And therefore, if I were to permit you to represent
yourself in this trial if you were convicted you would imme-
diately file for post-conviction on the basis that I shouldn’t
have let you represent yourself because you weren’t compe-
tent to do so. And you would be correct.
“[DEFENDANT]: Your Honor, first of all we were
addressing disqualification of judge issues, which takes
precedence over any other issues. * * *
“* * * * *
“[DEFENDANT]: * * * I’d like to represent myself.
“* * * * *
“THE COURT: * * * And I’ve already told you that I’m
not going to permit you to represent yourself in this trial
because it’s obvious to me that you are not competent to do
that. And should I let you do that and should you be con-
victed, your conviction won’t be reversed on appeal[.]”
After the trial court denied defendant’s motion, defendant
proceeded with the trial, and a jury found him guilty of
harassment and not guilty of menacing constituting domes-
tic violence. Defendant subsequently filed this timely appeal.
On appeal, defendant asserts that the trial court
erred under Article I, section 11, of the Oregon Constitution,
and the Sixth Amendment to the United States Constitution,
in denying his request to represent himself without engag-
ing in any colloquy, and in ruling that defendant was not
competent to represent himself.1 Defendant argues that the
record is insufficient to support a conclusion that defendant
could not knowingly and intentionally waive his right to
counsel. That is so, according to defendant, because the court
failed to conduct an appropriate colloquy with defendant.
Defendant also asserts that the trial court’s findings that he
was “unable to focus on the issue that was at hand” and was
“unable to use the opportunity that [he] had to address [his]
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: “In all criminal prosecutions, the accused shall
enjoy the right * * * to have the Assistance of Counsel for his defence.”
Cite as 317 Or App 767 (2022) 771
concerns” appear to be “based on the trial court’s conclu-
sion that defendant lacked the legal skill necessary to rep-
resent himself.” (Emphasis omitted.) That basis, defendant
asserts, constitutes error. Defendant further contends that,
to the extent that the trial court’s ruling was predicated on
a concern that defendant’s mental health issues prevented
him from competently conducting trial proceedings without
the assistance of counsel, the trial court’s finding was not
supported by evidence in the record. Defendant argues that,
although there was evidence that defendant had severe anx-
iety, his anxiety was not “the sort of ‘severe mental illness’
that would predicate a court’s exercise of discretion” under
our case law. See State v. Hayne, 293 Or App 351, 427 P3d
201 (2018), rev den, 364 Or 294 (2019) (discussing when,
under Article I, section 11, a court may deny a request to
proceed without counsel when a person’s mental illness ren-
ders the person incapable of conducting the functions of the
defense without the assistance of counsel).
In response, the state contends, among other argu-
ments, that any deficiency in the colloquy was harmless
because the trial court properly exercised its discretion in
denying defendant’s request. The state contends that, even
assuming that defendant could knowingly and intention-
ally waive his right to counsel, under Hayne, the trial court
was “obligated” to determine whether it should neverthe-
less prohibit the waiver on account that defendant could
not competently represent himself without the assistance
of counsel. According to the state, “the record supports the
court’s finding that defendant was not competent to rep-
resent himself (i.e., that due to defendant’s mental health
status, defendant lacked the ability to carry out the basic
tasks needed to present one’s own defense without the help
of counsel).” (Internal quotation marks and brackets omit-
ted.) In particular, the state points out that the trial court
raised concerns about defendant’s mental health status in a
preliminary hearing and voiced concerns about defendant’s
presentation in court. In the alternative, the state argues
that the trial court did not abuse its discretion because
the record supports an “implicit finding that permitting
defendant to represent himself would disrupt the trial
process.”
772 State v. Ashbaugh
We review the denial of the right to self-
representation, as well as any underlying legal conclusions
related to the scope of the right of self-representation, for
legal error. State v. Hightower, 361 Or 412, 421, 393 P3d 224
(2017) (Hightower I). In so doing, however, we review the
denial of the right to self-representation based on consider-
ations such as disruption or delay for an abuse of discretion.
State v. Williams, 288 Or App 712, 714, 407 P3d 898 (2017)
(citing Hightower I, 361 Or at 418). To determine whether
the trial court exceeded the range of permissible discretion
in ruling on the request, “the record must include some indi-
cation of how the trial court actually weighed the relevant
competing interests involved.” Hightower I, 361 Or at 421.
Both Article I, section 11, and the Sixth Amendment
afford a criminal defendant the right of self-representation.
Hayne, 293 Or App at 354. That right, however, is “not abso-
lute and unqualified.” Hightower I, 361 Or at 417. A waiver
of the right to counsel “must be knowing and voluntary.” Id.In determining whether a defendant’s waiver of counsel is
knowing and voluntary, a colloquy on the record is the “pre-
ferred means of assuring that the defendant understand[s]
the risks of self-representation.” State v. Meyrick, 313 Or
125, 133, 831 P2d 666 (1992).
We have observed that a trial court has the discre-
tion to deny a defendant’s request to exercise the right of
self-representation under certain circumstances. Generally
stated, “[a] court may, consonant with Article I, section 11,
decline to permit a criminal defendant to proceed with-
out counsel if the defendant’s exercise of the right of self-
representation conflicts with the trial court’s ‘overriding
obligation to ensure the fairness and integrity of the trial
and its inherent authority to conduct proceedings in an
orderly and expeditious manner.’ ” Hayne, 293 Or App at 354(quoting Hightower I, 361 Or at 417-18). For example, a trial
court has discretion to deny a motion for self-representation
“if it has reason to conclude that granting the motion would
result in disruption of proceedings,” Hightower I, 361 Or
at 418, or if it deems that a defendant’s request would “be
disruptive because it would delay the progress of the trial.”
State v. Fredinburg, 257 Or App 473, 484, 308 P3d 208,
rev den, 354 Or 490 (2013).
Cite as 317 Or App 767 (2022) 773
In Hayne, we outlined another circumstance in
which a trial court has discretion to deny a defendant’s
request to proceed without counsel: “when a person’s mental
illness renders the person incapable of conducting the basic
tasks of presenting a defense.” 293 Or App at 364 (noting
that “permitting a person whose mental illness renders the
person incapable of conducting the functions of the defense
without the assistance of counsel undermines the fairness
of the proceeding in a way that calls into question the reli-
ability of our legal system”). Citing the Supreme Court’s
decision in Indiana v. Edwards, 554 US 164, 178, 128 S Ct
2379, 171 L Ed 2d 345 (2008), we held that, “Article I, sec-
tion 11, like the Sixth Amendment, allows the denial of a
criminal defendant’s request to proceed without counsel
where the defendant is in the class of defendants identified
in Edwards: ‘those competent enough to stand trial with the
assistance of counsel but who still suffer from severe mental
illness to the point where they are not competent to conduct
trial proceedings by themselves.’ ” Hayne, 293 Or App at 364(brackets and ellipsis omitted). In determining what stan-
dard should govern a trial court’s assessment of whether a
criminal defendant’s mental illness renders the defendant
incompetent to conduct a trial without the assistance of
counsel, we adopted the approach taken by the California
Supreme Court:
“A trial court need not routinely inquire into the men-
tal competence of a defendant seeking self-representation.
It needs to do so only if it is considering denying self-
representation due to doubts about the defendant’s mental
competence. When a court doubts a defendant’s competence
to stand trial, it shall appoint a psychiatrist or licensed psy-
chologist, and any other expert the court may deem appro-
priate, to examine the defendant. Similarly, when it doubts
the defendant’s mental competence for self-representation,
it may order a psychological or psychiatric examination to
inquire into that question. To minimize the risk of improp-
erly denying self-representation to a competent defendant,
trial courts should be cautious about making an incomplete
finding without the benefit of an expert evaluation, though
the judge’s own observations of the defendant’s in-court
behavior will also provide key support for an incompetence
finding and should be expressly placed on the record.”
774 State v. Ashbaugh
People v. Johnson, 53 Cal 4th 519, 530-31, 267 P3d 1125
(2012) (emphasis omitted; internal citations and quota-
tion marks omitted). We further explained that, in exer-
cising its discretion to deny a defendant’s request for self-
representation, a trial court should “balance the significant
autonomy interests protected by the state and federal con-
stitutional rights to self-representation, against the funda-
mental need to ensure that our state’s criminal proceedings
are reliable and fair ones in which the public can have con-
fidence.” Hayne, 293 Or App at 366.
In this case, we cannot determine from the record
the basis on which the trial court denied defendant’s request
to represent himself. On the one hand, it appears that the
trial court denied defendant’s request to represent himself
because the court could not determine that he was waiving
counsel knowingly and voluntarily. On the other hand, it
appears that the trial court was exercising its discretion to
deny defendant’s request to proceed without counsel based
on defendant not being competent to represent himself. We
conclude that neither basis is supported by the record.
Although the trial court recognized that it had to
determine that defendant’s attempted waiver was knowing
and voluntary to grant defendant’s request, the court did
not conduct a colloquy to make that determination. Instead,
the trial court concluded that defendant was not competent
because, based on the court’s observations, defendant had
difficulty “focus[ing] on the issue that was at hand” and
was “unable to use the opportunity that [he] had to address
[his] concerns.” Those concerns, however, do not adequately
explain why defendant would be unable to make a knowing
and voluntary waiver. To be sure, the trial court’s concerns
may support a determination that defendant did not have
the “knowledge and understanding of the right to counsel,”
Meyrick, 313 Or at 132-33 n 8, but, there is no indication in
the record that the trial court balanced its concerns against
defendant’s right to self-representation, including the fact
that defendant had previously represented himself in a
trial. Moreover, there is insufficient evidence that defendant
could not voluntarily waive the right to counsel. Therefore,
to the extent that the trial court denied defendant’s request
for self-representation because it could not conclude that
Cite as 317 Or App 767 (2022) 775
defendant was making a knowing and voluntary waiver, the
record is insufficient to support such a determination.
To the extent that the trial court was exercising its
discretionary authority to deny defendant’s request to pro-
ceed without counsel, it is not clear from the record whether
the court denied defendant’s request because he was not
“legally competent” as defendant argues or because defen-
dant’s mental health issues made it so that he could “not
competently conduct the trial proceedings without the assis-
tance of counsel” as the state argues. Any concerns that the
trial court had before trial about defendant’s mental health,
particularly his anxiety, were not sufficiently explained when
the court denied defendant’s request to proceed pro se, nor
can we conclude that the trial court made an implicit find-
ing regarding defendant’s mental health. See Hightower I,
361 Or at 422 (noting that “the test is not whether the court
‘reasonably could have’ made that determination. The test is
whether the record reflects that the trial court’s actual deci-
sion amounted to a reasonable exercise of its discretion.”).
Here, there is no indication that the court’s concerns with
defendant’s inability to “focus on the issue” at hand or take
advantage of the “opportunities” to address his concerns,
stemmed from defendant’s mental health issues.2
Accordingly, because it is not clear that the trial
court exercised its discretion to deny defendant’s request on
the basis of mental illness, or any other permissible basis,
we conclude that to the extent the trial court was exer-
cising its discretion to deny defendant’s request, the trial
court exceeded the range of permissible discretion in deny-
ing defendant’s request for self-representation.3 When pre-
sented with defendant’s request on the morning of trial that
he wanted to represent himself, the trial court should have
either conducted a colloquy to determine whether defendant
2
We recognize that the trial court in this case did not have the benefit of our
decision in Hayne when it made its ruling.
3
We reject the state’s alternative argument that the record supports an
implicit finding that the trial court denied defendant’s request to represent him-
self because it would disrupt the trial process. Although the trial court had pre-
viously cautioned defendant that it would remove him from the proceedings if he
continued to interrupt the court, the trial court made no mention of the potential
for disruption when it denied his request on the morning of trial.
776 State v. Ashbaugh
was knowingly and voluntarily waving his right to counsel
or made clear that it was exercising its discretion to deny
the request on a permissible basis such as a disruption of
the proceedings, including delaying the progress of trial, or
if mental health issues rendered defendant incapable of con-
ducting trial proceedings by himself.
Because the trial court’s error was not harmless, we
reverse and remand for a new trial. See State v. Hightower,
368 Or 378, 393, 491 P3d 769 (2021) (Hightower II) (revers-
ing and remanding for a new trial after concluding that
“the trial court’s failure to recognize its discretion in the
first instance was an error that could not be corrected with-
out a new trial”); Hayne, 293 Or App at 367-68 (declining
to exercise discretion to order a more limited remand for a
retroactive assessment of competency to stand trial without
the assistance of counsel and to consider whether the trial
court would have permitted the defendant to proceed with-
out counsel in view of that assessment).
Reversed and remanded.