State v. Easton, 76-6124

• Decision Date: 02 August 1978
• Docket Number: No. 76-6124,76-6124
• Citation: 582 P.2d 37,35 Or.App. 603
• Parties: The STATE of Oregon, Respondent, v. Thomas Dewey EASTON, Appellant. ; CA 9821.
• Court: Oregon Court of Appeals

Page 37

582 P.2d 37

35 Or.App. 603

The STATE of Oregon, Respondent, v. Thomas Dewey EASTON, Appellant.

No. 76-6124; CA 9821.

Court of Appeals of Oregon.

Submitted on Record and Briefs May 30, 1978.

Decided Aug. 2, 1978.

Thomas Dewey Easton, filed the brief pro se for appellant.

James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen., and Gregory A. Parker, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

Defendant was charged with custodial interference in the first degree, ORS 163.257, ¹ tried by a jury, and convicted. The court suspended imposition of sentence and placed defendant on probation for five years. Defendant appeals. We affirm.

Defendant's first assignment of error is the trial court's refusal to grant defendant's motion, made on the day of trial, to appoint co-counsel to appear with defendant. Defendant had earlier been granted counsel, but had then sought and been granted the right to proceed Pro se. Defendant was indicted on November 20, 1976, on the present charge. Some negotiations over the possible extradition of defendant from the State of California followed, but he finally appeared voluntarily for arraignment on January 26, 1977. Shortly before arraignment, and without consultation with the defendant, his attorney had filed a notice of intent to rely upon mental disease or defect as a defense.

Trial was originally set for March 30, 1977, but was ordered reset after May 31, 1977, after the trial court granted the motion of defendant's attorney to withdraw and appointed other counsel for defendant despite defendant's oral motion to proceed Pro se. Apparently, the court was unwilling to permit the defendant to proceed Pro se because of the pending defense of mental disease or defect. Concerns about defendant's mental condition were later resolved so that on August 15, 1977, defendant made a motion, granted that same day, to appear Pro se. Meanwhile, the case had again been postponed, this time until August 30, 1977.

On the morning set for trial, the defendant orally moved for appointment of co-counsel. The trial court denied it.

An informed decision by a defendant to appear Pro se involves a waiver of defendant's constitutional right to counsel. State v. Verna, 9 Or.App. 620, 626, 498 P.2d 793 (1972). There is no contention here that defendant did not make his original waiver of right to appear by counsel knowingly. Rather, the defendant appears to argue that he has a constitutional right to the appointment of co-counsel, even when he chooses to appear Pro se.

Defendant is mistaken. He does have a constitutional right to represent himself without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1972). He also has a right to counsel in any criminal proceeding. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Both constitutional rights, however, cannot be simultaneously exercised. The choice to exercise the Faretta right is a waiver of the Gideon right. The decision of a trial court to grant or deny appointed co-counsel lies within the court's discretion; it is not a matter of constitutional right. See State v. LeMay, 27 Or.App. 447, 449 at n. 2, 556 P.2d 688 (1976); State v. Whitlow, 13 Or.App. 607, 611, 510 P.2d 1354 (1973).

When viewed as a matter of discretion, we find no abuse in the exercise of that discretion in this case. The motion was denied when it was made on the very morning of trial after the case had been delayed for an extremely long period of time. The trial judge quite properly recognized that the appointment of co-counsel was virtually certain to require additional time for counsel to prepare, which the court at that late stage of the proceedings was not required to countenance. ² We think the trial judge's apprehension about a further continuance was well-founded, and his decision not to appoint co-counsel was well within his discretion. There was no error.

Defendant also argues that the statute under which he was charged, ORS 163.257, is unconstitutional.

Defendant has failed to comply with Rule 7.19 of this court in that he has failed to set out that portion of the record which demonstrates that he made his challenge to the constitutionality of the statute at trial. Because of this omission, we would be free to disregard the assignment. In any event, we decline to search the record for such a challenge to the statute. A challenge to a statute's constitutionality may not be raised for the first time on appeal. State v. Zusman, 1 Or.App. 268, 460 P.2d 872 (1969).

Even if we were to reach the merits, defendant would fare no better. He appears to attack the statute on the ground that, as the statute is now drawn, there is no opportunity for a defendant to demonstrate that his taking of a child in apparent violation of the statute was based upon a good-faith belief that taking or...