State v. Blanchard
| Docket Number | 070532384,A138909. |
| Decision Date | 23 November 2009 |
| Citation | 236 Or.App. 472,236 P.3d 845 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. David Paul BLANCHARD, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Appellant's Response to Motion
Ryan T. O'Connor, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.
Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
Defendant appeals a judgment revoking his probation on a conviction for possession of cocaine. He assigns error to the trial court's failure to allow him to proceed pro se, contending that the trial court's determination that he must proceed with court-appointed counsel violated his right to represent himself under Article I, section 11, of the Oregon Constitution,1 and the Sixth and Fourteenth Amendments to the United States Constitution.2 The state moves to dismiss the appeal on the ground that, defendant having served the sanction imposed for his probation violation, the case is now moot. We deny the motion to dismiss, agree with defendant that the trial court erred in failing to allow him to proceed pro se, and therefore reverse.
The relevant facts are not in dispute. In defendant's original criminal prosecution, he pleaded guilty to possession of cocaine and was sentenced to 18 months' probation. He was later arrested for violating his probation, based on his failure to report to his probation officer. Two weeks later, he appeared at a probation revocation hearing with his court-appointed attorney. Defendant told the court that he was not comfortable with his attorney and asked to proceed without counsel. Defendant said, "I honestly really feel, if it be allowed, I would assume to proceed with this hearing today without an attorney." The trial court asked whether defendant was requesting to represent himself, and defendant replied, "Represent myself, just explain what circumstances I feel exist and leave it upon the court to make a decision." The court denied the request. The court told defendant that time was limited and that defendant's self-representation would delay the proceeding. Further, the court explained, defendant had an experienced attorney who could represent him, and, because of the potential for a jail sanction, it was a "very, very bad idea" for defendant to represent himself. Defendant responded, "Yes, sir." The court then revoked defendant's probation, based on defendant's admission that he had failed to report to his probation officer, and imposed a six-month jail sentence with 12 months of post-prison supervision. On appeal, as we have noted, defendant challenges the trial court's denial of his request to proceed pro se.
We begin with the state's motion to dismiss. In Brumnett v. PSRB, 315 Or. 402, 405–06, 848 P.2d 1194 (1993), the Supreme Court explained that a case is not moot when the interests of the parties are adverse and the court's decision will have some practical effect on the rights of the parties. The record in this case shows that there are outstanding supervision charges that the state continues to assess against defendant for the period of post-prison supervision imposed as a result of the revocation of defendant's probation. That potential economic liability demonstrates that the parties continue to be adverse and that a decision on the merits will have some practical effect on the rights of the parties. Accordingly, we conclude that the case is not moot. See Roberts v. Board of Parole, 221 Or.App. 278, 281, 190 P.3d 397 (2008) ().
Turning to the merits, we agree with defendant that, under Article I, section 11, and under the Sixth Amendment, defendant's right to counsel includes a right to self-representation. State v. Verna, 9 Or.App. 620, 624, 498 P.2d 793 (1972) (); Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (). Whether that right has been violated presents a question of law. See State v. Davis, 110 Or.App. 358, 360–61, 822 P.2d 736 (1991) (); Faretta, 422 U.S. at 819, 95 S.Ct. 2525 (same).
The right to representation by counsel may be waived, so long as the defendant's decision to waive "is an intelligent and understanding one."
Davis, 110 Or.App. at 360, 822 P.2d 736; Faretta, 422 U.S. at 807, 95 S.Ct. 2525 (). In this case, there is no contention that defendant's waiver was not an intelligent and understanding one.
The right to waive counsel is subject to the condition that self-representation not result in the disruption of the orderly conduct of the trial. Verna, 9 Or.App. at 627, 498 P.2d 793. Again, however, there is no suggestion in this case that defendant representing himself would have disrupted the proceedings.
The state nevertheless argues that the trial court did not err in declining to permit defendant to represent himself for two reasons, neither of which we...
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