State v. Forrest

• Decision Date: 30 May 2007
• Docket Number: F11363.,A126154.
• Citation: 213 Or. App. 151,159 P.3d 1286
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Justin Brent FORREST, Defendant-Appellant.
• Court: Oregon Court of Appeals

159 P.3d 1286

213 Or. App. 151

STATE of Oregon, Plaintiff-Respondent, v. Justin Brent FORREST, Defendant-Appellant.

F11363.

A126154.

Court of Appeals of Oregon.

Submitted on Record and Briefs March 30, 2007.

Decided May 30, 2007.

Peter Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Jennelle Meeks Barton, Deputy Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina,

Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE,^* Judges.

EDMONDS, P.J.

Defendant appeals from a conviction for felony driving while under the influence of intoxicants (DUII). ORS 813.010(5). The statute under which defendant was convicted affords felony status to the offense if "the defendant has been convicted of driving while under the influence of intoxicants * * * at least three times in the 10 years prior to the date of the current offense[.]" On appeal, defendant argues initially that the trial court erred when it denied his motion to exclude evidence of a prior conviction in 2003 for DUII because his plea of guilty to that charge occurred without a valid waiver of his right to counsel. Without evidence of that conviction, the requirement that defendant be convicted of DUII three times in the 10 years prior to the date of the current offense cannot be satisfied. Second, defendant argues that the trial court erred when it used prior DUII convictions to prove elements of felony DUII and then used them a second time to establish defendant's criminal history score. We affirm on both assignments of error for the reasons that follow.

The threshold issue is whether defendant was adequately informed by the court of the risks of self-representation before he entered a plea of guilty in 2003. In the 2003 case, defendant appeared at a release hearing on October 6, in which he indicated to the court that he wanted to go ahead and enter a plea of guilty to the charge. The court deferred defendant's request, stating, "Well, before I do that, I would need a waiver of attorney form filled out and signed, but I don't have time to do that right now[.]" On October 8, defendant appeared again before the court and indicated that he desired to waive his right to counsel and entered a plea of guilty. As part of that process, defendant executed a written waiver of counsel. The waiver provides,

"1. I am aware that I am charged with DUII and the possible maximum sentence I could receive is 1 YR and a fine of $5,000.

"2. I have a right to an attorney, and if I do not have enough money to hire an attorney, I have the right to a court appointed attorney at no cost to me at this time; that the Court can appoint an attorney to represent me, without charge to me at this time.

"3. I know that an attorney would be able to: investigate; obtain evidence; research the law; negotiate; subpoena witnesses; cross examine witnesses; argue on my behalf; and represent me if I took my case to trial. In other words, an attorney could present my case to a jury or judge.

"4. Even though I am aware of the pitfalls that may befall me if I try to defend myself and of the possible advantages that I may be giving up by not using an attorney in this matter, I am voluntarily choosing to give up my right to an attorney.

"5. By signature below, I INTENTIONALLY give up my right to any attorney."

(Uppercase in original.) Defendant initialed each of the statements in the "waiver" form and signed the bottom of the form.

The trial court also informed defendant of the following at the hearing on October 8:

"All right. So, let me go over your rights real quick with you. Mr. Forrest, you understand you have the right to . . . to remain silent, the right to a free attorney, right to a jury trial. The state has to prove beyond a reasonable doubt DUII. You have the right to subpoena witnesses to that trial. They have to be here, even if they didn't want to be here. You have a right to cross-examine the state's witnesses. You could testify yourself if you wanted to. Understand that? If you decided not to testify that couldn't be held against you. DUI [sic] is a Class A Misdemeanor with a maximum fine of five thousand dollars. Minimum fine for the first offense, is a thousand dollars. Maximum . . . jail, a year in the county jail. A minimum jail . . . two days in jail. If it's your first offense, you lose your license for a year. A second offense within five years, you lose your license for three years. Do you have any questions about the penalties?"

Defendant answered in the negative, told the court he was ready to enter a plea, and entered a plea of guilty.

On appeal, defendant argues that the trial court should not have admitted the evidence of the 2003 conviction because the state failed to prove that his plea was made with the knowledge and the understanding of the risks of self-representation, i.e., that "he was not advised on the record of the dangers of proceeding without counsel and that the waiver of counsel form that he signed did not specify any `pitfalls' of proceeding without counsel." In State v. Gaino, 210 Or.App. 107, 149 P.3d 1229 (2006), we considered a similar issue. The defendant, appearing pro se, filed a petition to extend the duration of her diversion agreement and, as required by law, concurrently signed and filed a petition to enter a plea of guilty to the underlying DUII charge. The plea petition acknowledged her right to hire an attorney or have one appointed to represent her, and it provided warnings of the risks and disadvantages of entering a guilty plea. However, the plea petition did not include any specific warnings about the risks of self-representation. Also, the trial court did not specifically explain the risks of proceeding without counsel to the defendant. On appeal, the defendant argued that the trial court erred in allowing her to proceed without counsel without first determining whether her waiver of counsel was made with an understanding of the risks of self-representation.

In holding that the state had not demonstrated that the defendant was aware of the risks of self-representation and in reversing her conviction, we explained,

"First, a defendant has a right under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution to be represented by counsel at critical stages of a criminal proceeding. See, e.g., State v. Sparklin, 296 Or. 85, 94-95, 672 P.2d 1182 (1983) (`Any pre-trial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state's case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel.' (Internal citation and quotation marks omitted.)). Second, a criminal defendant may waive the right to be represented by counsel in a criminal proceeding, but the waiver `must be voluntarily and intelligently made.' State v. Meyrick, 313 Or. 125, 132, 831 P.2d 666 (1992). The `voluntary' component refers to an intentional act that is not induced through coercion. Id. at 132-33 n. 8, 831 P.2d 666. The `intelligently' component `refers to a defendant's knowledge and understanding of the right to counsel.' Id. (emphasis added). A defendant is said to understand his 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.' State v. Jackson, 172 Or. App. 414, 423, 19 P.3d 925 (2001).

"* * * * *

"The next question is whether defendant intelligently and voluntarily waived her right to counsel at that phase in the criminal prosecution. Meyrick, 313 Or. at 132, 831 P.2d 666. Defendant asserts that the trial court failed to determine whether she `intelligently' waived the right to counsel — that is, that she understood the risks of proceeding without counsel — and that nothing in the record establishes that she had such knowledge.

"A record can reflect that the defendant sufficiently understands the material risks of self-representation in a number of ways. For example, in Meyrick, the court held that the defendant understood the risks of self-representation because the record established that he had discussed his case with an attorney, and the attorney had warned him `that his chances of winning his case without counsel were akin to [the attorney's] chances of handling nuclear materials with his bare hands and not being affected.' Meyrick, 313 Or. at 135, 831 P.2d 666 (internal quotation marks omitted). In addition to a defendant's prior interactions with attorneys, other relevant circumstances include the defendant's age, education, experience, and mental capacity. See id. at 132, 831 P.2d 666. The `preferred means of assuring that the defendant understands the risks of self-representation' is `[a] colloquy on the record between the court and the defendant wherein the court, in some fashion, explains the risks of self-representation.' Id. at 133, 831 P.2d 666. Although no particular catechism is required, `understanding' for Meyrick purposes means more than merely being generally aware that there may be unspecified risks but less than knowing all the potential risks. Jackson, 172 Or.App. at 423, 19 P.3d 925. As we explained in State v. Probst, 192 Or.App. 337, 349-50, 85 P.3d 313 (2004), vac'd on other grounds, 339 Or. 612, 124 P.3d 1237 (2005), if the court does not engage in a colloquy to determine whether a defendant is aware of the risks of self-representation, then `the state nevertheless can show, under the totality of the circumstances, that the defendant had the requisite understanding.' Thus, a defendant demonstrates prima facie error by showing that the trial court...