State v. Bargas-Perez, BARGAS-PERE
| Decision Date | 30 December 1992 |
| Docket Number | A,BARGAS-PERE |
| Citation | 844 P.2d 931,117 Or.App. 510 |
| Parties | STATE of Oregon, Respondent, v. Alfredoppellant. 91C20289; CA A69548. |
| Court | Oregon Court of Appeals |
Steven H. Gorham, Salem, argued the cause and filed the brief for appellant.
Mary H. Williams, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
Defendant was convicted for delivering cocaine. ORS 475.992(1)(b). The issues on appeal concern the court's denial of defendant's request for substituted counsel and his liability as an accomplice for delivery of cocaine. We reverse.
On March 2, 1991, undercover Officer Schmaltz approached defendant and Garcia in front of a store in Salem. He asked Garcia for cocaine. In Spanish, Garcia requested that defendant translate the statement. Schmaltz then asked defendant for cocaine. According to Schmaltz, defendant told him to "see that guy," indicating Garcia. Schmaltz again asked Garcia for cocaine. Garcia removed a container of cocaine from his mouth and sold some to Schmaltz. The state prosecuted defendant on a theory of accomplice liability. ORS 161.155(2)(b).
On the day of trial, defendant's court-appointed lawyer informed the court that defendant wanted to make a motion:
Defendant contends that the trial court erred by denying his request for substitute counsel. The state argues that the court properly exercised its discretion in denying the motion, because it was untimely and because defendant merely desired more time for preparation of his case and did not voice dissatisfaction with his attorney's performance.
The motion, fairly read, was not merely a request for more preparation time. Defendant coupled his request for another attorney with a claim that a new attorney could discover more information about the case. The motion expressed concern that defendant was not receiving adequate representation. As we said in State v. Davis, 110 Or.App. 358, 360, 822 P.2d 736 (1991):
The court did not make that determination but summarily denied the motion. Although the court may take into account the timing of the motion, it must also consider the basis for the motion developed on the record:
"A defendant must be permitted to state the reasons why he believes that appointed counsel should be discharged and new counsel appointed." State v. Heaps, 87 Or.App. 489, 493, 742 P.2d 1188 (1987).
The court's failure to inquire into the nature of the conflict and evaluate the merits of the request for a different attorney was reversible error, because the court had "no basis on which to determine whether [defendant's] constitutional right to effective counsel was being honored." State v. Heaps, supra, 87 Or.App. at 494, 742 P.2d 1188. The error requires a new trial. State v. Davis, supra, 110 Or.App. at 361, 822 P.2d 736; State v. McCabe, 103 Or.App. 426, 430, 797 P.2d 406 (1990); State v. Heaps, supra, 87 Or.App. at 494, 742 P.2d 1188.
Defendant also assigns error to the trial court's denial of his motion for judgment of acquittal based on his contention that the state failed to show that he had aided or abetted Garcia's delivery of cocaine. We address the issue, because, if defendant is correct, he is entitled to a judgment of acquittal, not a new trial. However, defendant is wrong. ORS 161.155 provides:
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...on which to determine whether [defendant's] constitutional right to effective counsel was being honored.'" State v. Bargas-Perez, 117 Or.App. 510, 513, 844 P.2d 931, 932 (1992). Further, when a statement of reasons for dissatisfaction with the attorney is required, the defendant's statement......
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