State v. Foss-Vigil

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Gabriel Miguel FOSS-VIGIL, Defendant-Appellant.
• Citation: 467 P.3d 38,304 Or.App. 267
• Docket Number: A163098
• Court: Oregon Court of Appeals
• Decision Date: 13 May 2020

304 Or.App. 267

467 P.3d 38

STATE of Oregon, Plaintiff-Respondent,

v.Gabriel Miguel FOSS-VIGIL, Defendant-Appellant.

A163098

Court of Appeals of Oregon.

Argued and submitted July 30, 2018.

May 13, 2020

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

Following a stipulated-facts trial, the trial court entered a judgment finding defendant guilty except for insanity of three counts of third-degree robbery, placing him under the jurisdiction of the Oregon Health Authority (OHA) for a maximum of five years. On appeal, defendant argues that the judgment must be reversed because he was charged by information without a preliminary hearing, and he did not knowingly waive his right to such a hearing. We reject that argument for the reasons set out below. On appeal, defendant also points out that the judgment document includes inconsistent provisions, stating both that defendant "can be adequately controlled with supervision and treatment if * * * released" and that defendant is committed to the state hospital. The state acknowledges the inconsistency. The parties agree, and so do we, that the correct remedy is to vacate the judgment and remand for further proceedings.

The pertinent facts are undisputed except as noted below. Defendant was charged by information on December 31, 2015, with three counts of third-degree robbery. He was arraigned the same day and was appointed counsel at the beginning of the hearing.¹ The transcript reflects that, immediately following appointment of counsel, there was a pause in the proceedings. Following that pause, defense counsel acknowledged receipt of the information, acknowledged that defendant was truly named, and requested "standard bail," which the court set. The court then asked, "What's the State's plan vis-à-vis grand jury or [preliminary hearing]?" The prosecutor outlined some case-specific circumstances and asserted that the state "would be asking for a waiver if [defendant] will consider that at this juncture." Defense counsel asked to "check with [defendant]," the proceedings paused again, and counsel then stated that defendant was "comfortable waiving preliminary hearing" at that time.

At a January 13, 2016, hearing, defense counsel acknowledged that defendant had been "charged by way of information" and asserted that "[w]e're currently waiving preliminary hearing." Counsel went on to describe "some concerns" he had that had prompted him to request funding "for a certain kind of evaluation." At a hearing later in January, counsel asserted that he had "pretty serious concerns about this client's capacity to proceed," although "[t]here's just not quite enough for [counsel] to affidavit [defendant] to the hospital." Some discussion was had about how long defendant had been held in custody because counsel did not "think it would be ethical at this point to have [defendant] try to make a decision" about whether to waive his right to be tried within 60 days.

On February 1, defendant's attorney moved for an evaluation because, based on late-January meetings with defendant, the attorney believed that defendant had a mental disease or defect that made him unable to understand the criminal proceedings and assist in his defense. Counsel averred that he had learned that defendant suffered from schizophrenia and had been receiving treatment prior to going into custody. Later that month, counsel moved for an order finding defendant unable to aid and assist, asserting that defendant had "only the vaguest understanding of the court process and his rights, even after several meetings to discuss these things."

A February 25 psychological evaluation submitted to the trial court concluded that defendant was unfit to proceed at the time of the evaluation but that, with hospitalization, there was a substantial probability that he would be restored to competency within one to three months. The psychologist, who had interviewed defendant on February 1 and 10, described defendant's long history of arrests, substance abuse, and mental-health problems. In addition, the psychologist reported that, when admitted to jail on December 30, 2015, defendant had said that "he was not compliant with his prescribed psychiatric medications" and that "he recently had ‘shot up acid and heroin.’ " In evaluating defendant's ability to proceed, the psychologist noted that defendant had "some factual understanding of legal procedure and case-specific information," including "the essential procedures of a formal criminal trial," but could not "consistently and fluidly process and relay this information." The psychologist further reported that defendant's understanding was "impaired by his disjointed, illogical, and concrete thinking," leaving him unable to "rationally participate in the decision-making process in order to make a knowing and intelligent decision about how to resolve his case." The trial court ruled on February 26, 2016, that defendant was unable to aid and assist in his own defense, and it committed defendant to the state hospital for treatment.

In May 2016, a hearing was held at which defense counsel asserted that defendant was "currently able to aid and assist." Defendant subsequently waived his right to jury trial, and trial was set in August 2016. At the beginning of the August proceedings, the trial court characterized the psychological evaluation as "apparently conclud[ing] * * * that at an early point in time [defendant] was unable to aid" and "that he [had] lacked the capacity to conform his conduct to the requirements of law, due to a mental disease or defect." The court noted that the state had stipulated that the psychological report reflected that defendant "qualifies for a finding of * * * guilty but insane"; defense counsel then stated that defendant was asking the court to find him "guilty except insane in this case and to sign a judgment committing him to the custody of the state hospital until such time as they see fit to release him to the community." Based on stipulated facts, the court then found defendant guilty except for insanity of the three counts of robbery and committed him to the state hospital. The court explained to defendant that he was "going to be at the state hospital for a period of time," noting that defendant had already "been there for a while" and that being at the hospital was "probably what's best for [him]."

The court signed a judgment reflecting its verdict, which was based in part on the court's finding that, "as a result of mental disease or defect at the time of engaging in criminal conduct, the defendant lacked substantial capacity either to appreciate the criminality of the conduct or to conform [his] conduct to the requirements of law." The judgment also included this provision: "That although the defendant is affected by a mental disease or defect which, when active, renders him a substantial danger to others, he can be adequately controlled with supervision and treatment if [he] were released, and such supervision and treatment are available[.]" Notwithstanding that provision—and in keeping with its oral statements about returning defendant to the state hospital—the court ordered that defendant be placed under OHA jurisdiction for a maximum of five years and that he be committed to the state hospital.

On appeal, defendant argues that the judgment must be reversed because he "did not knowingly or intentionally waive indictment or preliminary hearing." Defendant contends that "the absence of an indictment, preliminary hearing, or valid waiver renders a judgment void." Defendant acknowledges that a criminal defendant may waive the right to indictment or preliminary hearing, but asserts that, in this case, "[t]he record does not establish" a knowing and intelligent waiver. Acknowledging that defense counsel twice told the court that defendant was waiving his right to preliminary hearing, defendant argues that those waivers were defective because, at the time they were made, "defendant was unable to understand the nature of the proceedings, unable to assist and cooperate with his counsel, and unable to participate in his defense." He also asserts that "the record does not reflect whether defendant knew what the right to a preliminary hearing entailed" because the court did not explain that right to him. Accordingly, defendant asserts, "the trial court lacked jurisdiction to enter a judgment finding him guilty except for insanity of three felonies," and the judgment that the court did enter is void. Alternatively, defendant asks us to address his argument as establishing that the trial court plainly erred by entering the judgment, even if the lack of a waiver does not constitute a jurisdictional defect.

In response, the state first asserts that the record does not establish that the waivers of the right to preliminary hearing (made through counsel) were invalid at the time they were made, even though the court later found defendant unable to aid and assist. The state also argues that the law does not support defendant's contention that, in the absence of a criminal defendant's valid waiver of indictment or preliminary hearing, a trial court plainly errs by proceeding to trial or entering a judgment of conviction.

Both parties’ arguments reflect those made by the parties in State v. Keys , 302 Or. App. 514, 460 P.3d 1020 (2020), which we decided after the parties filed their briefs in this case. In Keys , the defendant had been "charged by information in the absence of a preliminary hearing and did not knowingly waive his right to...