State v. Estacio

• Decision Date: 13 April 2005
• Citation: 199 Or. App. 16,110 P.3d 624
• Parties: STATE of Oregon, Respondent, v. Federico Dejesus ESTACIO, Jr., Appellant.
• Court: Oregon Court of Appeals

110 P.3d 624

199 Or. App. 16

STATE of Oregon, Respondent, v. Federico Dejesus ESTACIO, Jr., Appellant.

0108-36054; A118666.

Court of Appeals of Oregon.

Submitted on Record and Briefs August 4, 2004.

Decided April 13, 2005.

James N. Varner filed the brief for appellant. Federico Dejesus Estacio, Jr., filed the supplement brief pro se.

Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

EDMONDS, P.J.

Defendant appeals from multiple convictions for robbery, ORS 164.405; and ORS 164.395; and makes numerous assignments of error. We reject defendant's assignments without discussion except for what follows in this opinion. We review for errors of law, ORS 138.220, and remand for a hearing on whether different counsel should have been appointed to represent defendant at trial. State v. Smith, 190 Or.App. 576, 80 P.3d 145 (2003), rev. allowed, 337 Or. 160, 94 P.3d 876 (2004).

The incidents resulting in defendant's arrest and trial occurred on August 29, 2001. After appointment of counsel and arraignment on October 18, 2001, in late February 2002, defendant's trial counsel requested a hearing to determine defendant's ability to aid and assist counsel, and in early March defendant requested an order for substitution of attorney.¹ The trial court ultimately found that defendant was able to aid and assist his counsel and denied his motion for substitution of counsel, finding no basis for his request.²

At the hearing on the motion for substitution of counsel, defendant explained that he believed that "[counsel's] not really looking for my best interest and she's not helping me as far as any legal work[.]" In response, the trial court pointed out that, because the evaluation had just been made about whether he was able to aid and assist in his own defense, it "would not judge [counsel's] attention to your case on the fact that up until last week she hadn't done much. Because, as I said, everything is kind of in limbo until a determination is made if you're able to aid and assist." After hearing from counsel, the trial court made its decision: "Mr. Estacio, your attorney has done everything and more than the court would expect at this point. She has been working very hard on your behalf. The motion is denied. No basis." Defendant responded:

"Can I say something? It's just the fact that, you know, I've had her since August. I just feel like she aint' — you know, I just feel like she got a heavy case load. I know she's doing a lot of work. That's what I'm trying to say is maybe she's too busy."

After a further exchange between the trial court and defendant, defendant explained, "I just feel she ain't looking for my best interest." The court responded that "there is absolutely no basis and no reason you would lead me to believe that."

On March 29, 2002, the trial court heard pretrial motions before selecting a jury and beginning trial. Both the prosecutor and defendant's counsel stated that they were ready for trial. Defense counsel then told the court that defendant wished to address the court before the beginning of argument on the pretrial motions. Defendant stated to the court:

"First of all, I do not want to proceed — go along with my attorney * * * and I also do not want to negotiate a plea for a crime that I didn't commit. Over the past seven months she has been deceiving me to taking a plea bargain and she has not submitted any motion or legal help to me. Every time I would ask her to do something, I'm being ignored or denied, or I'm not, you know, and I don't know if she's prejudiced against my case or if she's doing it intentionally. It seems that she's more interested in my personal life rather than trying to help me with my case, or focusing on what's important. * * * With all due respect, Your Honor, I could fix a lot of time because I didn't know what was happening here and there, and I should be able to know at least what I'm dealing with and what I'm going up against, and I really think that [counsel] is not looking out for my best interests. I think her caseload is too [heavy], too much stuff in her hands, but not enough time, and it seems like she's doing everything at the last minute, and I feel like I'm being forced to go to trial today and instead I file complaint to the Bar section, but I'm still waiting for their response. Right now, I'm going to trial today, and so there's some time limit. I just wish to be appointed to another counsel so that my constitutional rights will be protected. * * * [S]ometimes there was trouble in communicating with her, whether my attorney's lying to me about everything we discussed, or what she puts in front of me."

(Emphasis added.)

The trial court asked if counsel had any statement that she wanted to make. She replied, "I guess, for the record, this is the first I knew that Mr. Estacio had filed a Bar complaint. He did ask for a substitution of counsel, and we had a hearing on that matter." The trial court reviewed the order from that hearing and asked defendant if "anything happened that's different between March 13 and today." Defendant asserted that he was given everything at the last minute and did not have time to consider matters before having to make a decision. Counsel then made an additional statement to the court:

"I wonder if Mr. Estacio's maintaining a Bar complaint against me puts me in actual conflict with his interests. Having not seen any correspondence from the Bar, nor yet been in a position to respond to it, I don't know to what extent I would need to divulge client confidences or secrets in order to defend myself in a Bar complaint. I know that that could become an issue, but as yet, I've got no notice yet from the Bar. * * * [H]is statements that he doesn't understand what's going on and he doesn't understand what he's up against baffle me because we've been discussing * * * all the evidence that the state can bring against Mr. Estacio. We've been discussing that for months. And, Your Honor, I think that's sort of part and parcel of my concerns that Mr. Estacio can't assist and cooperate. I think it's clear that he distrusts me and I'm not really sure why that is."

(Emphasis added.)

After some discussion about other matters, the trial court returned to the issue of the Bar complaint:

"JUDGE: Now, [counsel], getting back to your comments about the Bar complaint, you indicated that you were concerned that, because of what you've just learned today, * * * for you to defend yourself from the Bar complaint, you would need to divulge client confidences. I'm interested in the time frame. This has been estimated as a two-day trial and, if you had not even known of a Bar complaint, there would not be any defense or any divulging any client confidences that would occur during the course of this trial, would there?

"DEFENSE [COUNSEL]: Right. I don't think so. I don't think so, Your Honor. I mean, I know — I'm aware — I've never been in this situation before. This will be my first Bar complaint. But, I know that a lawyer may, if necessary, divulge confidences to the extent necessary to defend against such a thing, so I don't know what the allegations are so I don't know what I would or could divulge, and maybe it might come around in a month or more. It might happen before a certain thing. It might not. I just don't know if that might change —

"JUDGE: Well, if it would happen, say, a month from now, let's say, in connection with sentencing, then a motion for substitution may be appropriate at that time if a conflict comes up. Right?

"* * * * *

"JUDGE: But nothing has been put in front of me right now to indicate a real conflict right now, unless I'm missing something, based on what you've said. [Referring to counsel.]"

The trial court then inquired of defendant further and ultimately ruled

"that the defendant has not made a sufficient showing of any specific reason why a substitution of counsel should occur and I don't find any reason for criticism of [defense counsel] at this time based on what has been presented to me, and therefore, I do not believe it would be appropriate under Oregon law for me to grant this motion and therefore, I am denying — respectfully denying Mr. Estacio's motion for substitution of counsel."

Based on counsel's prior request, the court then conducted a competency hearing under ORS 161.360 and found that defendant was able to understand the nature of the proceedings, aid and assist counsel, and participate in his own defense. After a recess, the court made its rulings on other pretrial matters and prepared for voir dire. Counsel then spoke up: "I think that I need to move to withdraw * * * based upon Mr. Estacio's Bar complaint. I think that puts us in conflict. That is a conflict of interest." (Emphasis added.) The trial court asked for any authorities and for evidence of what specifically the Bar complaint entailed. Counsel referred the court generally to the Oregon State Bar Disciplinary Rules regarding when representation of the client is in conflict with a lawyer's personal interests. She returned to the possibility that she might be required to disclose confidences or otherwise privileged material in response to the complaint and observed that "[t]his may have a chilling effect on his communication with me throughout the duration of the trial." She concluded, "I certainly, Your Honor, it's not going to affect my performance, that I am ready, willing, and able to try this case, and it won't affect me at all, the fact that he filed a Bar complaint."

The trial court denied the motion to withdraw, incorporating the statements made in its ruling on the substitution of counsel, and adding:

"[W]hat I see is before the court in this question is an unspecified Bar complaint. There's no detail at all regarding it except the

...