State v. Glasby

479
Argued and submitted April 30, 2018, reversed and remanded
December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
SKYLER IAN GLASBY,
Defendant-Appellant.
Umatilla County Circuit Court
CF150679; A161506
456 P3d 305
In this criminal case, defendant argues that the trial court violated his right
to self-representation under Article I, section 11, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution when it denied his
request to represent himself during a pretrial hearing. The state asserts that the
court properly understood defendant’s statements to be requests for new counsel,
not an invocation of his right to self-representation. Held: The trial court erred in
summarily denying defendant’s request for self-representation. When faced with
a request for self-representation, the record must include some indication of how
the trial court actually weighed the relevant competing interests involved.
Reversed and remanded.
Lynn W. Hampton, Judge.
Mary M. Reese, 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.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
POWERS, J.
Reversed and remanded.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
480 State v. Glasby
POWERS, J.
In this criminal case, defendant appeals a judg-
ment convicting him of multiple offenses,1 arguing that the
trial court violated his right to self-representation under
Article I, section 11, of the Oregon Constitution and the
Sixth Amendment to the United States Constitution when
it denied defendant’s request to represent himself during
a pretrial hearing. In response, the state argues that the
trial court properly understood defendant’s statements to
be requests for new counsel, not an invocation of his right
to self-representation. As explained below, we agree with
defendant’s position and, accordingly, reverse and remand
for a new trial.2
A trial court’s ruling on a defendant’s request to
represent him or herself “is subject to appellate review for
an abuse of discretion, in light of all other relevant inter-
ests that come into play at the commencement of trial.” State
v. Hightower, 361 Or 412, 418, 393 P3d 224 (2017). “[T]he
record must include some indication of how the trial court
actually weighed the relevant competing interests involved
for an appellate court to be able to determine whether the
trial court abused its discretion in ruling on a request to
waive the right to counsel and proceed pro se.” Id. at 421. If,
however, “the trial court’s decision is predicated on a sub-
sidiary conclusion of law—for example, a legal conclusion
about the scope of the right—we review that determination
for legal error.” State v. Nyquist, 293 Or App 502, 503, 427
P3d 1137 (2018).
The relevant facts are undisputed. Defendant
raised concerns about his defense counsel during a pretrial
hearing on October 15, 2015. Defendant expressed frustra-
tion with being unable to communicate with his counsel and
asked, “Is there any way I can have another representation,
1
A jury found defendant guilty of first-degree kidnapping, second-degree
kidnapping, second-degree robbery, second-degree assault, unlawful possession
of hydrocodone, third-degree escape, and second-degree theft. The jury found
defendant not guilty of first-degree robbery, second-degree robbery, and unlawful
use of a weapon.
2
Given our disposition on his assignments of error related to his request to
represent himself, we do not address the remaining assignments of error in his
opening brief or the arguments raised in defendant’s supplemental opening brief.
Cite as 301 Or App 479 (2019) 481
with all due respect?” After listening to defendant’s com-
plaints about the lack of communication from his defense
counsel, the court then assured defendant that, as his case
came closer to trial, it would likely assume “higher priority.”
The court asked defendant to give his counsel an opportu-
nity, and to bring the matter to the court’s attention if defen-
dant still had concerns.
On October 28, 2015, during defendant’s second pre-
trial hearing, defendant once again raised frustrations with
his defense counsel. Specifically, defendant complained that
his counsel was not filing defendant’s requested motions or
subpoenaing his requested witnesses. Defendant made a
request to be represented by new counsel:
“[DEFENDANT]: And if I can—if I can, what we
talked about last time, I’ve called every day, all due respect
to the Counsel, I’m trying to be respectful here, I’ve called
every day, he will not come see me. * * * I’m not saying any-
thing bad about him, maybe he has a big caseload, but I—
please can I be represented by a—and I will sign a waiver.
I need to—I need to be represented by someone that will
come see me and take this, my case, a little more serious.
Because every day I—he hasn’t told me whether he’s going
to file my motions or anything.”
In response, the court questioned defendant’s counsel
regarding the allegations. Defendant’s counsel admitted to
not having had time to thoroughly explain to defendant his
reasons for believing defendant’s motions had no merit, but
ultimately promised to see defendant soon to discuss his
legal opinions. The court accepted defense counsel’s prom-
ise, but defendant did not.
“[DEFENDANT]: Your Honor, the honest truth is I’ve
seen him once for five minutes, before the court—the pre-
trial court date. * * * I call—every single day I call, and I
cannot hear from him. He won’t tell me anything. At this
point, I feel like I need to represent myself because I do not
feel comfortable. And this is very important to me, and I
would rather represent myself in court, which I know it’s
going to be harder to do, but I have—at this point, that’s all
I feel I can do, because I need to be represented by someone
else. I’m sorry.”
482 State v. Glasby
At that point, the court requested a sidebar with the attor-
neys and attempted to gain clarity as to the types of motions
defendant wanted to bring. After hearing from defendant’s
counsel, the court explained to defendant that his requested
motions were “not well-founded in law” and that his coun-
sel would see defendant soon to explain his reasoning. The
court then denied defendant’s request for new counsel.3
The trial court proceeded with the hearing, intend-
ing to arraign defendant on new charges. Before the court
could begin the arraignment, however, defendant inter-
rupted and again expressed a desire to represent himself.
The following exchange took place between defendant and
the court:
“[DEFENDANT]: * * * And, Your Honor, before we go
any [further], I need at this point, because I have many
witnesses to call, and I have not been able to talk to them
about this, I have to represent myself at this point. I’m
sorry for the—
“[THE COURT]: You’re not representing yourself,
[defendant]. You are [ ] represented by Counsel. You can
bring matters—
“[DEFENDANT]: Okay.
“[THE COURT]: —to my attention, if you wish. What
is it that you wish to bring to my attention?
“[DEFENDANT]: Okay, I would like to bring this to
your attention. I’m sorry, this is really important to me.
When we go over discovery, and I say—I said to Counsel,
you see right here where they ask for a search warrant and
they asked three times for affidavits and they ask for your
signature on there, there’s no signature. There’s no signa-
ture on any of these documents. That, to me, is merit to file
for an illegal search. * * *
“* * * I need—I’m sorry, but I—I don’t want to represent
myself, but I need to be.
3
If this had been the final exchange between defendant and the trial court—
with defendant effectively accepting the court’s deferral of its consideration of
his request for self-representation—the facts would more closely resemble those
in State v. Brooks, 301 Or App 419, 456 P3d 665 (2019). In this case, however,
the colloquy between defendant and the court continued in which, as explained
below, defendant made a further, unambiguous request for self-representation.
Cite as 301 Or App 479 (2019) 483
“[THE COURT]: Was this a warrant, perhaps it was
obtained by Judge Hill and signed electronically?”
The court addressed defendant’s concerns regarding an
unsigned warrant but did not otherwise address defendant’s
request to represent himself. Defendant proceeded to trial
and was convicted by a jury on seven of the ten charges.
On appeal, defendant argues that the court erred in
summarily denying defendant’s request to represent himself
during the pretrial hearing on October 28, 2015.4 Defendant
contends that, rather than addressing his request to rep-
resent himself, the court responded instead by trying to
“resolve defendant’s underlying problem[s] with counsel.”
The state argues that, in the totality of the circumstances,
the trial court did not err in concluding that defendant
was not seeking to represent himself. The state points to
defendant’s contrary statements made in conjunction with
requesting to represent himself, e.g., “I don’t want to rep-
resent myself, but I need to be.” The state further argues
that, when defendant’s statements are viewed in context,
his statements do not demonstrate that he was asking to
represent himself, but rather asking for substitute counsel.
As explained below, we conclude that the colloquy between
defendant and the court triggered the court’s obligation
to engage in an on-the-record assessment of defendant’s
request for self-representation.
Under Article I, section 11, of the Oregon
Constitution, “[a] defendant in a criminal case has the con-
stitutional right not only to be represented by counsel, but
also, if he so elects, to represent himself.”5 State v. Verna,
9 Or App 620, 624, 498 P2d 793 (1972). However, “the two
rights are mutually exclusive,” and a defendant must choose
either to be represented by counsel or proceed without
counsel. Hightower, 361 Or at 417 (“It necessarily follows
that, by asserting the right to counsel, a defendant waives
4
Defendant also assigns error to the court’s denial of the request to repre-
sent himself during defendant’s pretrial hearing to address his motion for substi-
tute counsel on November 23, 2015. However, our resolution of defendant’s first
assignment of error obviates any need to address defendant’s remaining assign-
ments of error or his contention under the Sixth Amendment.
5
Article I, section 11, provides in part, “In all criminal prosecutions, the
accused shall have the right * * * to be heard by himself and counsel * * *.”
484 State v. Glasby
the right to self-representation. And, by waiving the right
to counsel, a defendant necessarily asserts the right to
self-representation.”).
The right to represent oneself is not absolute; the trial
court must deny a request of the right to self-representation
if such request is not knowing or voluntary. Id. Additionally,
“[a] request for self-representation and waiver of legal rep-
resentation may be denied under Article I, section 11, * * *
if the request is unclear or equivocal or if it would result in
the disruption of the orderly conduct of the trial.” State v.
Fredinburg, 257 Or App 473, 481, 308 P3d 208, rev den, 354
Or 490 (2013); see also State v. Williams, 288 Or App 712,
713-14, 407 P3d 898 (2017) (noting that “the court may deny
such a request if it determines that the defendant’s right to
self-representation is outweighed by the 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’ ” (quoting Hightower, 361
Or at 417-18) (emphasis omitted)).
In order for the court to deny a request for self-
representation, however, “the record must include some indi-
cation of how the trial court actually weighed the relevant
competing interests involved.” Hightower, 361 Or at 421.
That is, the record must demonstrate, either “expressly or
implicitly, that the trial court engaged in the required bal-
ancing of defendant’s right to self-representation against”
the court’s potential basis for denying the request. Williams,
288 Or App at 718. Thus, regardless of a trial court’s
reasoning—whether it be that the request was unknowing,
equivocal, or would be disruptive to the proceeding—the
trial court’s record should “reflect an appropriate exercise
of discretion.” See Nyquist, 293 Or App at 507 (accepting the
state’s concession that “the trial court abused its discretion
because it failed to make a record of how it weighed the
competing interests and because it appears to have denied
defendant’s request for self-representation solely because
it believed that trial counsel’s performance had been ade-
quate”); see also State v. Noorzai, 299 Or App 828, 829, 452
P3d 1071 (2019) (accepting the state’s concession “that, on
the record here, the court failed to determine whether defen-
dant’s decision was an intelligent and understanding one,
Cite as 301 Or App 479 (2019) 485
and it denied defendant’s request based solely on impermis-
sible reasons”); State v. Chambery, 260 Or App 687, 688, 320
P3d 640 (2014) (accepting the state’s concession that the trial
court erred by summarily denying defendant’s request and
“fail[ing] to make a record as to whether defendant’s deci-
sion was an intelligent and understanding one, and whether
granting defendant’s request would disrupt the judicial pro-
cess” (internal quotation marks and citation omitted)).
Here, the trial court failed to engage in an on-the-
record assessment weighing the court’s interests against
defendant’s request for self-representation. At two separate
points during the October 28 pretrial proceeding, defendant
made known his desire to represent himself. Although we
acknowledge that defendant’s first set of statements express-
ing a desire to represent himself, in which defendant stated,
“I feel like I need to represent myself” and “I would rather
represent myself in court,” may be considered equivocal, we
need not decide that question because defendant’s second
set of statements were unambiguous.6 It is clear from the
record that the trial court understood defendant’s second set
of statements to be a request to represent himself.
After defendant had already raised a desire to rep-
resent himself, defendant interrupted the proceeding and
stated, “And, Your Honor, before we go any [further], I need
at this point, because I have many witnesses to call, and I
have not been able to talk to them about this, I have to repre-
sent myself at this point. I’m sorry for the—.” The trial court
cut defendant off and responded to his statement by stat-
ing, “You’re not representing yourself, [defendant]. You are
[ ] represented by Counsel.” Contrary to the state’s assertion
that the trial court understood defendant’s statements as
expressions of frustration with his counsel, that exchange
demonstrates that the trial court understood that defendant
sought to invoke his right of self-representation. And, rather
than weighing the request and determining on the record
6
We recognize that our cases have yet to address what types of statements—
because of their ambiguous or equivocal nature—fail to adequately invoke the
right to self-representation. However, with a trial court’s difficulty in making
that determination in mind, we conclude that, in this case, defendant’s state-
ments when viewed in context sufficiently invoked a desire to represent himself,
despite the fact that he also made repeated requests for new counsel.
486 State v. Glasby
whether defendant’s decision was an intelligent and under-
standing one, the trial court erred by summarily denying
his request without giving a reason. If the trial court had
a valid reason for denying defendant’s request, that reason
was not substantiated in the record. By summarily denying
and ignoring defendant’s statements to represent himself,
the trial court effectively precluded defendant from waiving
counsel and representing himself. Accordingly, we reverse
and remand for a new trial on the seven counts on which
defendant was convicted.
Reversed and remanded.