State v. Erb, 10CR0131

• Decision Date: 24 April 2013
• Docket Number: A146224.,10CR0131
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Nancy Alice ERB, Defendant–Appellant.
• Court: Oregon Court of Appeals

256 Or.App. 416

300 P.3d 270

STATE of Oregon, Plaintiff–Respondent,

v.Nancy Alice ERB, Defendant–Appellant.

10CR0131; A146224.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2012.

Decided April 24, 2013.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services.

Christina M. Hutchins, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

DUNCAN, J.

A jury convicted defendant of pointing a firearm at another, ORS 166.190, and menacing, ORS 163.190. Defendant argues that the trial court committed reversible error by allowing her to proceed without counsel. ¹ We agree, and, therefore, we reverse and remand.

The relevant facts are procedural and undisputed. On February 19, 2010, defendant was charged with pointing a firearm at another, ORS 166.190; menacing, ORS 163.190; and disorderly conduct in the second degree, ORS 166.025. On February 22, 2010, the trial court ordered appointment of counsel, subject to verification of financial eligibility. By order entered March 1, 2010, the court denied appointment of counsel, checking a box that stated, “Defendant was determined to be financially ineligible for appointed counsel and counsel was not appointed.” On March 24, 2010, defendant made her first appearance before the court with retained counsel. On April 20, 2010, defendant entered a plea of not guilty on all charges, again with retained counsel. Defense counsel filed a notice of withdrawal as attorney of record on May 12, 2010.

On June 28, 2010, defendant signed and filed a document entitled “Waiver of Counsel,” which stated:

“I, the Defendant in the above entitled criminal proceedings, having been fully informed of my constitutional rights, including my right to be represented by counsel, and [ sic ] am aware of the help a lawyer might be to me. I hereby knowingly waive (give up) my right to be represented by counsel and I do so freely and voluntarily without any threat, promise or other form of coercion.”

Defendant filed a pro se motion to compel discovery on June 28, 2010, and argued the motion to the trial court on July 7, 2010. At that hearing, the first at which defendant appeared pro se after the withdrawal of her attorney, the court did not question her on her waiver of counsel. The court explained to defendant that she had not properly served her motion to compel discovery on the state. The following exchange then occurred between defendant and the trial court regarding defendant's lack of counsel:

“[DEFENDANT]: Did anyone let you know that I was going without an attorney?

“THE COURT: It's quite clear to me that you are going without an attorney. Also you had indicated the same in your affidavit in support of your motion, or—or maybe it was in the motion itself.

“[DEFENDANT]: I just wasn't aware of—

“THE COURT: You may be at a disadvantage without a lawyer.

“[DEFENDANT]: I may be.

“THE COURT: That's unfortunate.

“[DEFENDANT]: I've been studying on it very hard, and I do have a friend that's a paralegal.”

The trial court granted defendant's motion to compel but denied her oral requests for additional discovery.

Defendant represented herself at a brief case management hearing on July 12, 2010. On July 14, 2010, defendant appeared for trial without counsel. Before trial began, the trial court denied several outstanding motions from the state, defendant, and the victim. At the conclusion of the trial, the jury found defendant guilty of menacing and pointing a firearm at another. The court found defendant not guilty of disorderly conduct in the second degree.

Now represented by appellate counsel, defendant argues that she did not validly waive her right to counsel under either Article I, section 11, of the Oregon Constitution² or the Sixth Amendment to the United States Constitution,³ and that the trial court erred in allowing her to proceed without having done so. Defendant asserts that the “boilerplate” waiver that she signed did not specify the extent of her knowledge of her constitutional rights; the source of her knowledge of those rights; or her particular background, experience, or conduct before the court. Thus, according to defendant, the trial court could not conclude, from that document alone, that defendant had validly waived her right to counsel.

The state counters that the record shows that defendant knew of her right to counsel and intentionally and knowingly relinquished that right. The state concedes that the trial court's brief colloquy with defendant is not sufficient to establish that defendant understood the risks of self-representation. However, the state emphasizes that, although a colloquy on the record is the preferred method of assuring that a defendant understands the risks of self-representation, it is not required. State v. Meyrick, 313 Or. 125, 133, 831 P.2d 666 (1992). The state characterizes defendant as a 53–year–old, articulate, highly educated nurse practitioner who runs her own business. Thus, according to the state, there is no reason to believe that she did not understand the written waiver of counsel that she signed. Moreover, because defendant was represented by retained counsel at two pretrial hearings, the state argues that she understood the services provided by an attorney. Finally, the state argues that the discussion between defendant and the trial court during the pretrial hearing on defendant's motion to compel on July 7, 2010, served to illustrate to defendant the disadvantages of self-representation. In the totality of the circumstances, argues the state, the trial court did not err in concluding that defendant had voluntarily and intelligently waived her right to counsel.

Whether a defendant validly waived the right to counsel is a question of law that we review in light of the circumstances particular to each case. State v. Culver, 198 Or.App. 267, 269, 108 P.3d 104 (2005) (citing Meyrick, 313 Or. at 132, 831 P.2d 666). Because it is dispositive, we address defendant's argument under Article I, section 11, of the Oregon Constitution first.⁴

Under Article I, section 11, a criminal defendant has the right to be represented by counsel at all critical stages of a criminal proceeding. Or. Const., Art. I, § 11; State v. Sparklin, 296 Or. 85, 94–95, 672 P.2d 1182 (1983) (quoting State v. Newton, 291 Or. 788, 802–03, 636 P.2d 393 (1981)). Any stage of a prosecution at which a defendant has a constitutional right to be “heard” constitutes a critical stage of the prosecution. State v. Phillips, 235 Or.App. at 652, 234 P.3d 1030. In this case, defendant was not represented by counsel at pretrial hearings on the admissibility of evidence, trial, and sentencing, all of which are critical stages of a prosecution. See State ex rel. Russell v. Jones, 293 Or. 312, 315, 647 P.2d 904 (1982) (Under Article I, section 11, “counsel cannot be excluded from any stage of the criminal prosecution at which a defendant is to be ‘heard,’ including the sentencing stage, whether this is wholly performed by the judge or shared with non-judicial persons.”). A defendant may waive the right to be represented by counsel in a criminal proceeding, but the waiver “must be voluntarily and intelligently made.” Meyrick, 313 Or. at 132, 831 P.2d 666. “Voluntarily” refers to the fact that the waiver is an intentional act that is not coerced. Id. at 132 n. 8, 831 P.2d 666. “Intelligently” “refers to a defendant's knowledge and understanding of the right to counsel.” Id. (emphasis added).

Defendant does not argue that her waiver was coerced, and there is no evidence to suggest that it was involuntary. Therefore, we address only whether the record establishes that defendant's waiver was intelligently made. More specifically, because there is no dispute that defendant knew, at least in a general sense, of her right to counsel, we address whether the record establishes that defendant understood that right.

A defendant is said to understand his or her right to counsel if, considering the “totality of the circumstances,” the record reflects that he or she “substantially appreciates the material risks of self-representation in his or her case.” State v. Jackson, 172 Or.App. 414, 423, 19 P.3d 925 (2001). A defendant's understanding of the right to counsel “means more than merely being generally aware that there may be unspecified risks [to self-representation] but less than knowing all the potential risks.” State v. Gaino, 210 Or.App. 107, 114, 149 P.3d 1229 (2006). In other words, it is not required that a defendant “know and completely appreciate every potential risk of self-representation in his or her case,” but “a defendant's abstract knowledge that there may be risks or disadvantages of self-representation, without any appreciation of what those risks might be, is insufficient.” Jackson, 172 Or.App. at 423, 19 P.3d 925.

“A colloquy on the record between the court and the defendant wherein the court, in some fashion, explains the risks of self-representation is the preferred means of assuring that the defendant understand the risks of self-representation. The more relevant information that a trial court provides to a defendant about the right to counsel and about the dangers and disadvantages of self-representation, the more likely it will be that a defendant's decision to waive counsel is an intentional relinquishment or abandonment of a known right or privilege and that the record will so demonstrate.”

Meyrick, 313 Or. at 133, 831 P.2d 666. However, Article I, section 11, “does not require a catechism by the trial court * * * before the right to counsel may be validly waived by a defendant.” Id. at 134, 831 P.2d 666.

“[A] defendant demonstr...