State Of Or. v. Phillips, 070241586

• Decision Date: 16 June 2010
• Docket Number: 070241586,A136876.
• Parties: STATE of Oregon, Plaintiff-Respondent,v.RRL Kent PHILLIPS, Defendant-Appellant.
• Court: Oregon Court of Appeals

235 Or.App. 646
234 P.3d 1030

STATE of Oregon, Plaintiff-Respondent,
v.
RRL Kent PHILLIPS, Defendant-Appellant.

070241586; A136876.

Court of Appeals of Oregon.

Argued and Submitted Sept. 29, 2009.
Decided June 16, 2010.

234 P.3d 1031

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234 P.3d 1032

Elizabeth Ann Corbridge, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellant Division, Office of Public Defense Services.

Robin Rojas McIntyre, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.^*

SERCOMBE, P.J.

Defendant appeals a judgment of conviction on one count of disorderly conduct in the second degree, ORS 166.025, one count of criminal mischief in the second degree, ORS 164.354, and one count of reckless driving, ORS 811.140, and a supplemental judgment ordering payment of restitution in the amount of $2,728.88. In his first assignment of error, defendant argues that the trial court erred in admitting certain hearsay statements into evidence over his objection. In his second assignment of error, defendant contends that the trial court erred in conducting a restitution hearing, at which defendant represented himself, without first ensuring that defendant had validly waived his right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.¹ We write only to address defendant's second assignment of error and reject without discussion his first assignment of error. For the reasons that follow, we vacate the supplemental judgment awarding restitution of $2,728.88 and remand for resentencing.

The relevant facts are undisputed. Defendant, a professional truck driver, was charged with the crimes of which he was ultimately convicted as a result of a collision between defendant's pickup truck and the victim's truck, in which the victim's truck was damaged. Defendant appeared without counsel at arraignment, at which time the trial court engaged in the following exchange with defendant:

“THE COURT: [Defendant], I understand you want to hire an attorney; is that correct?

“[DEFENDANT]: Yes, Your Honor.

“THE COURT: Okay. We'll certainly give you sufficient time to do that. In the meantime, as a courtesy, I can have Mr. Betz, who's a lawyer, assist you with the arraignment, get that completed and then talk about a date for you

to come back with a lawyer. Would that be all right with you?

234 P.3d 1033

“[DEFENDANT]: Sure.”

Defendant, through counsel, then acknowledged receipt of the charging instrument, waived further reading of the advice and rights, reserved all rights on the record, entered a plea of not guilty, and requested the appearance of counsel. Thereafter, the trial court set over defendant's case for two weeks to allow defendant time to hire an attorney.

At that next hearing, defendant again appeared without counsel. The trial court inquired whether defendant had made progress in hiring an attorney. Defendant responded that his attorney, who had represented defendant in the past, had been out of town and that defendant had an appointment with him when he returned. The trial court then set over defendant's case for another two-week period. At that next hearing, defendant again appeared without counsel, but indicated that he had successfully retained private counsel, who was unable to be present that day. Defendant requested a jury trial, as his counsel had advised him to do, and the trial court set a date for a pretrial hearing. Defendant was represented by his private counsel throughout the trial and the sentencing hearing.

During the sentencing hearing, because defendant had no prior convictions and the reckless driving conviction would affect defendant's employment, the state did not recommend any imprisonment, but instead recommended other sanctions, including restitution. The trial court agreed with the state's recommendation and, along with other sanctions, ordered defendant to pay restitution for the damage to the victim's truck. The only evidence before the trial court at the sentencing hearing as to the amount of damage sustained by the victim's truck was a repair estimate of $2,471. Because the victim had testified that the truck was traveling at approximately one mile per hour when the collision occurred, the trial court was both surprised at that estimate and uncomfortable ordering restitution in that amount. In order to consider a second estimate of the damage sustained by the truck, the trial court ordered a later restitution hearing to determine the amount of restitution.²

Before the restitution hearing, defendant's counsel moved to withdraw from the case, stating in his supporting affidavit that, “I have spoken to [defendant] and he has advised me that he does not wish to have me represent him at the restitution hearing and that he will represent himself.” The trial court permitted defendant's counsel to withdraw from the case, and defendant subsequently appeared at the restitution hearing without counsel. The trial court briefly addressed defendant's appearance without counsel at that hearing as follows:

“THE COURT: I understand you no longer have an attorney, [defendant]?

“THE DEFENDANT: No, I didn't see much reason to bring him here.

“THE COURT: Okay.

“THE DEFENDANT: I'm currently unemployed now and couldn't afford him.

“THE COURT: Who was your attorney?

“THE DEFENDANT: Ben Falk.

“THE COURT: Okay.”

Following that exchange, the trial court proceeded to conduct the restitution hearing. The state presented two new repair estimates for the damage to the victim's truck: one for $2,728.88 and the other for $3,202.41. No argument was made by either party concerning the original estimate of $2,471. Ultimately, the trial court ordered $2,728.88 in restitution, but deferred payment until defendant's appeal was completed.

On appeal, defendant argues that the trial court erred at the restitution hearing by failing to engage in the “required colloquy” to determine whether defendant's waiver of

234 P.3d 1034

counsel was knowing, intelligent, and voluntary under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Defendant also argues that the trial court erred by failing to ensure that he knew of his constitutional right to court-appointed counsel, if indigent. Those failures, defendant contends, were not harmless. The state responds that the trial court did not err because, under the totality of the circumstances, defendant had the requisite understanding of the risks of self-representation at the restitution hearing and knowingly and voluntarily waived counsel.

Although the parties focus their arguments on whether the trial court erred under the state and federal constitutions, we ordinarily begin our analysis by determining whether a case may be disposed of on subconstitutional grounds. See Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) (stating that “[t]his court decides cases upon sub-constitutional grounds, where available, even though litigants argue only constitutional errors”). Here, ORS 135.045, which defendant cites in his brief, governs the appointment and waiver of counsel in a criminal action.³ Neither the Oregon Supreme Court nor this court have previously interpreted the current text of that statute, which appears to impose on the trial court obligations congruent to those imposed under the state and federal constitutions when a defendant wishes to waive the...