State v. Fiala

• Decision Date: 15 May 1991
• Citation: 810 P.2d 1344,107 Or.App. 193
• Parties: STATE of Oregon, Respondent, v. Richard Wayne FIALA, Appellant. 10-89-08865; CA A65251 (Control), CA A65252.
• Court: Oregon Court of Appeals

Page 1344

810 P.2d 1344

107 Or.App. 193

STATE of Oregon, Respondent, v. Richard Wayne FIALA, Appellant.

10-89-08865; CA A65251 (Control), CA A65252.

Court of Appeals of Oregon.

Argued and Submitted Feb. 13, 1991.

Decided May 15, 1991.

Dorothy J. Morey, Eugene, argued the cause and filed the brief for appellant.

Yuanxing Chen, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Defendant appeals from convictions for sexual abuse in the first degree. ORS 163.425. He argues that the trial court erred in denying his request for court-appointed counsel and in not advising him of the consequences of proceeding to trial without counsel. We reverse.

After the arraignment, defendant's retained attorney was allowed to withdraw, and the court granted defendant's request for a court-appointed attorney. Thereafter, the court withdrew the appointment. Defendant argues that the court abused its discretion, because its decision was based on the credit limit available to defendant on his credit cards. The determination as to whether defendant qualifies for court-appointed counsel is a question for the trial court, and we review only for an abuse of discretion. State v. Freeman, 96 Or.App. 70, 73, 771 P.2d 304 (1989). The affidavit of indigency ¹ shows that, when the court withdrew the appointment of the attorney, defendant was a student and was unemployed. Previously, he had been employed in the Lane County Sheriff's Office with a net pay of $1,700 per month. Defendant had $300 in bank accounts and owned an unencumbered vehicle valued at $4,000. His monthly expenses were $376. Of that amount, $145 was applied to credit card balances. In the light of the value of defendant's vehicle, his employment history and his living expenses, the court did not abuse its discretion in denying his request for a court-appointed attorney.

Defendant argues that the court erred in not advising him of the consequences of proceeding without counsel. Before trial started, this exchange occurred:

"THE COURT: I notice you're representing yourself on these matters.

"[Defendant]: Yes, sir.

"THE COURT: I assume you've been apprised of your rights to an attorney?

"[Defendant]: Yes, sir.

"THE COURT: I take it you've decided you will try this case by yourself?

"[Defendant]: Actually, your Honor, that was one of the motions I had for pretrial is I'm not here by my own willingness to be here without an attorney. I've been denied an attorney. I was at one point appointed a court-appointed attorney. I was found to have had a credit card. Because of that credit card, that court-appointed attorney was taken away.

"I do not have means, other than a credit card, to hire an attorney. The limit on that credit card did not reach the limit that the attorney I consulted [said] would be the fees for this case.

"THE COURT: There were attorneys, I'm sure, you might have consulted with that might have accepted it.

"[Defendant]: I contacted five attorneys. Four of them could not take the case because of prior commitments. But that is as far as I went. I am prepared to continue today."

In State v. Verna, 9 Or.App. 620, 626, 498 P.2d 793 (1972), we said:

"Because the election to defend pro se necessarily involves a waiver of the right to counsel, it is incumbent upon the court to determine, by recorded colloquy, that the election or waiver is intelligent and competent. * * * At minimum, the court should determine whether defendant understands the nature of the charge, the elements of the offense and the punishments which may be exacted. Further informing him of some of the pitfalls of defending himself, the possible advantage that an attorney would provide, and the responsibility he incurs by undertaking his own defense will also serve to insure defendant's decision is made intelligently." (Citations omitted.)

Defendant argues that, because he was not advised of the consequences of proceeding to trial without counsel, his election to represent himself was invalid. Relying on State v. Lingren, 79 Or.App. 324, 719 P.2d 61 (1986), and State v. Schmick, 62 Or.App. 227, 660 P.2d 693, rev. den. 295 Or. 122, 666 P.2d 1344 (1983), the state argues that Verna is inapplicable, because defendant was able to hire his own attorney but failed to do so and, even if he did not have enough time to hire an attorney, he failed to request a continuance. In Schmick and Lingren, the question was whether the court had abused its discretion by forcing the defendants to proceed to trial without ...