State v. Aguilar

• Decision Date: 12 November 2020
• Docket Number: A164497
• Citation: 307 Or.App. 457,478 P.3d 558
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Alicia Lee Ann AGUILAR, Defendant-Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 457

478 P.3d 558

STATE of Oregon, Plaintiff-Respondent,

v.Alicia Lee Ann AGUILAR, Defendant-Appellant.

A164497

Court of Appeals of Oregon, En Banc.

Submitted October 31, 2018

Resubmitted en banc August 19, 2020

November 12, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, 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 Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

SHORR, J.

Defendant appeals from a judgment of conviction for possession of methamphetamine, a felony. She raises two assignments of error. First, she makes the unpreserved argument that her conviction is void under Article VII (Amended), section 5, of the Oregon Constitution¹ because she was not indicted, there was no preliminary hearing, and she did not knowingly waive indictment or preliminary hearing. She argues that, in view of that failure, the trial court lacked subject matter jurisdiction and committed plain error in entering a conviction. Second, defendant assigns error to the denial of her motion to suppress evidence derived from a consent search of her purse following a noncriminal traffic stop. We reject defendant's constitutional challenge to the trial court's jurisdiction but conclude that the court erred in denying the suppression motion. Accordingly, we reverse defendant's conviction and remand for further proceedings.

We first address defendant's constitutional argument because defendant correctly contends that the question pertains to the trial court's jurisdiction to try her and enter a judgment. See State v. Keys , 302 Or. App. 514, 523-24, 460 P.3d 1020, rev. allowed , 366 Or. 760, 468 P.3d 948 (2020) ("[I]n the absence of indictment, preliminary hearing, or waiver, the circuit court lacks jurisdiction to try the defendant [for a felony,] and any judgment rendered in the case is void."). The facts relating to defendant's constitutional argument are all procedural. We discuss those facts now and discuss additional facts relevant to defendant's second assignment later when we address that issue.

Defendant was initially charged by complainant's information with unlawful possession of methamphetamine, and a preliminary hearing was set. At the date set for the preliminary hearing, the state asked for a waiver of the preliminary hearing. Defendant was present with substitute counsel because her counsel was unavailable. Defendant's substitute counsel told the court that she had been informed that defendant had agreed to waive the preliminary hearing:

"I have been told that [defendant's counsel] and [defendant] have spoken and that [defendant] was waiving the prelim if an indictment wasn't ready. And I see [defendant] is nodding—nodding that that is the case."

The court entered an order that defendant had waived indictment. Defendant was subsequently arraigned on a district attorney's information and convicted after a trial to the court.

Defendant contends that her conviction must be set aside as void because the record does not show that she knowingly waived her right to an indictment or a preliminary hearing. Specifically, defendant contends that the record does not show that the court provided her information about her right to a preliminary hearing, nor did the court confirm that defendant understood what she was relinquishing.

The state does not dispute that the record does not affirmatively show that the trial court informed defendant about her right to a preliminary hearing. Rather, the state contends that defendant has not established that the record shows the absence of a knowing waiver. See Keys , 302 Or. App. at 524, 460 P.3d 1020 (court lacks jurisdiction "in the absence" of an indictment, preliminary hearing, or knowing waiver).

We recently held in State v. Foss-Vigil , 304 Or. App. 267, 273-74, 467 P.3d 38 (2020), that a conviction will be set aside based on a failure to provide an indictment or preliminary hearing if the record establishes the absence of a knowing waiver. In Foss-Vigil , we noted that the record in Keys affirmatively established that the lawyer had not discussed the waiver with his client before making the purported waiver in court. Id . By contrast, we observed that the record in Foss-Vigil suggested that counsel had communicated with the defendant about waiving the preliminary hearing and then communicated the defendant's own waiver to the court. Id . at 274, 467 P.3d 38.

Here, the record is similar to Foss-Vigil and the same conclusion applies. Defendant's substitute counsel indicated on the record that she understood that defendant had spoken with her regular counsel about "waiving the prelim," i.e. , preliminary hearing, if the indictment was not ready. Substitute counsel further noted for the record that defendant was affirmatively nodding in agreement with that statement. As in Foss-Vigil , the record does not affirmatively show that defendant did not knowingly waive her right to indictment or a preliminary hearing. Rather, it demonstrates that counsel and defendant had discussed the issue of waiver prior to court and that counsel then communicated defendant's waiver in court. See also State v. Granberg , 306 Or. App. 86, 92, 473 P.3d 560 (2020) (concluding that, where the defendant previously had requested a preliminary hearing, the record reflected the absence of a knowing waiver because there was no evidence allowing for the inference that the defendant ever changed his mind about his request).

Defendant, citing Huffman v. Alexander , 197 Or. 283, 331, 251 P.2d 87 (1952), reh'g den. , 197 Or. 283, 331, 253 P.2d 289 (1953), contends that the trial court nonetheless had an obligation to ensure that defendant's waiver was knowing by informing defendant on the record about the meaning of the right that she was relinquishing and confirming that defendant understood the nature of that right. In Huffman , the court held, based on then-existing principles of habeas corpus, that the petitioner should have had an opportunity to establish in a habeas corpus proceeding that his waiver of indictment in the underlying criminal case was invalid. Id . at 301, 251 P.2d 87. In summarizing its holding, the court described the court's role in receiving waivers of constitutional rights generally:

"Extreme care must be exercised in each case to see to it that the accused understands the nature of the charge against him, the consequences of possible conviction, the rights which are his under the Constitution, and the nature and the effect of the waiver of any such rights, particularly when he appears without counsel. This duty should normally be performed in open court and the judicial record should accurately recite what was done, supported wherever possible by an official stenographic transcript of the proceedings on arraignment and at the time of any waiver or plea."

Id . at 331, 251 P.2d 87.

The record here does not show that the court conducted the inquiry that the Supreme Court described in Huffman . But we have not interpreted Huffman to require such a colloquy for a waiver of constitutional rights to be valid. See State v. Jackson , 172 Or. App. 414, 422-25, 19 P.3d 925 (2001) (although a colloquy on the record is the preferred method of establishing that a waiver of the right to counsel was made knowingly, we will affirm a trial court's acceptance of a defendant's waiver where, under the totality of the circumstances, the record reflects that the defendant knew of the right to counsel and understood the risks of self-representation). We decline to hold that the court was constitutionally required to advise defendant on the record, and we reject defendant's contention that her conviction was void. See Foss-Vigil , 304 Or. App. at 275, 467 P.3d 38 (rejecting the defendant's undeveloped argument that the trial court "itself" was required to inform the defendant about the meaning of the right to a preliminary hearing before that right could be waived and observing that the record did "not demonstrate definitively that defendant's waiver was unknowing").

We turn to defendant's second assignment of error. Defendant contends that the trial court erred in denying her motion to suppress evidence that an officer found after defendant consented to the officer's request to search her purse. Defendant argued to the trial court that the officer lacked probable cause to stop and investigate her for the traffic violation of failing to wear a safety belt. Defendant contended that her consent to a search of her purse was the product of an unlawful stop and that any evidence found in her purse following that stop must be suppressed. The court rejected defendant's suppression motion, concluding that the officer had probable cause to stop defendant for the traffic violation of failure to wear a safety belt.

We review the trial court's ruling denying defendant's motion to suppress for legal error, in light of the evidence that was before the court when it made its ruling. State v. Quigley , 270 Or. App. 319, 320, 348 P.3d 250 (2015) (reviewing for legal error whether an officer unlawfully extended a traffic stop and whether evidence obtained after an unlawful extension of a traffic stop must be suppressed for legal error); State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012) (as a general rule, a reviewing court evaluates a trial court's ruling on a pretrial motion "in light of the record made before the trial court when it issued the order, not the trial record as it may have developed at some later point"). We are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017)....