State v. Granberg
| Decision Date | 19 August 2020 |
| Docket Number | A164940 (Control), A164941 |
| Citation | 306 Or.App. 86,473 P.3d 560 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Joseph Angelo GRANBERG, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Powers, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.
In this consolidated criminal case, defendant appeals from a judgment convicting him of unlawful possession of methamphetamine (case number 17CR01419) and from a judgment finding that he violated a condition of his probation (case number C160541CR). Defendant argues that the trial court lacked jurisdiction to enter the felony conviction for unlawful possession of methamphetamine because he was charged by information and was not indicted, did not have a preliminary hearing, and did not knowingly waive his right to indictment or a preliminary hearing.1 For the reasons explained below, we agree with defendant's position and, therefore, reverse the judgment of conviction and reverse and remand the probation violation.
The relevant facts are undisputed. Defendant was arrested for possession of methamphetamine in violation of ORS 475.894, which is a Class C felony, and the state filed an information charging defendant with that crime. At defendant's arraignment, his attorney requested a preliminary hearing. On the date scheduled for the preliminary hearing, the state informed the court that it was not ready to proceed and inquired as to whether defendant would waive the preliminary hearing. Defendant's counsel stated that, "at this point," defendant was not going to waive a preliminary hearing. The trial court then rescheduled the hearing and released defendant.
On the date of the rescheduled preliminary hearing, defendant was present, but his counsel was not. Instead, defendant was represented by another lawyer who was standing in for defendant's attorney of record.2 At the start of the hearing, the state informed the court that it believed defendant was waiving his right to a preliminary hearing, defendant's stand-in counsel confirmed the state's belief, and the trial court accepted defendant's waiver:
The state then filed a district attorney's information, defendant was arraigned on that information, and the case proceeded to trial. Defendant waived his right to a jury trial, and, after a trial to the court, the trial court found him guilty of unlawful possession of methamphetamine and further found that the new conviction constituted a violation of defendant's probation.
On appeal, defendant argues that the trial court lacked jurisdiction to convict him of a felony without an indictment, a preliminary hearing, or his waiver of the right to an indictment or preliminary hearing as described by Article VII (Amended), section 5, of the Oregon Constitution. Defendant acknowledges that he did not raise this argument before the trial court but argues that he may raise this argument for the first time on appeal because it is jurisdictional. Specifically, defendant contends that the trial court lacked jurisdiction to convict him, because his waiver of the right to a preliminary hearing was not valid; defendant's waiver was made by his stand-in counsel and defendant did not knowingly waive the right to a preliminary hearing. According to defendant, the record reflects that, "[n]either defendant's attorney nor the court gave defendant any information about his right to a preliminary hearing, nor did they confirm that defendant understood what he was relinquishing." (Emphasis omitted.)
In response, the state argues that State v. Sheppard , 35 Or. App. 69, 581 P.2d 549 (1978), rev. den. , 285 Or. 1 (1979), rejected the argument that the failure to comply with Article VII (Amended), section 5, constitutes a jurisdictional defect. As such, the state asserts that defendant's argument is not preserved and is subject to plain-error review. Further, the state argues that, even if the right to a preliminary hearing is "personal" to a defendant, it is not obvious that a defendant must communicate the waiver directly, rather than through his counsel. According to the state, defendant validly waived his right to a preliminary hearing, because defendant was present at the hearing, was represented by counsel, and "said nothing to dispute the attorneys’ representations or to suggest that he had not decided to waive his preliminary hearing right." (Emphasis omitted.) Therefore, the state argues that "the trial court committed no error, plain or otherwise, by proceeding to trial without a preliminary hearing."
Under the Oregon Constitution, circuit courts enjoy subject matter jurisdiction over all actions unless "a statute or rule of law" divests the courts of jurisdiction. State v. Terry , 333 Or. 163, 186, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). In State v. Keys , 302 Or. App. 514, 460 P.3d 1020, rev. allowed , 366 Or. 760, 468 P.3d 948 (2020), a case decided after this case was submitted on the parties’ briefs, we interpreted Article VII (Amended), section 5, to be a "rule of law" that can divest a circuit court of jurisdiction in criminal proceedings. Article VII (Amended), section 5, provides, in part:
In concluding that Article VII (Amended), section 5, can divest a court of jurisdiction, we analyzed and reconciled the pertinent case law discussing a court's jurisdiction to enter a judgment of conviction: Huffman v. Alexander , 197 Or. 283, 251 P.2d 87 (1952), reh'g den. , 197 Or. 283, 253 P.2d 289 (1953) ; Sheppard ; Terry ; and State v. Young , 188 Or. App. 247, 71 P.3d 119, rev. den. , 336 Or. 125, 79 P.3d 882 (2003). Keys , 302 Or. App. at 520-27, 460 P.3d 1020. Relying primarily on Huffman , we held:
Keys , 302 Or. App. at 523-24, 460 P.3d 1020 (emphasis in original). In other words, "in the absence of indictment, preliminary hearing, or waiver, the circuit court lacks jurisdiction to try the defendant and any judgment rendered in that case is void." Id . at 524, 460 P.3d 1020. Accordingly, we held that an argument challenging the court's jurisdiction under Article VII (Amended), section 5, can be raised for the first time on appeal. See id. .
Given our decision in Keys , we reach the merits of the parties’ arguments—whether defendant validly waived the right to a preliminary hearing—for the first time on appeal. Like defendant, the defendant in Keys was arrested for possession of methamphetamine and an information was filed charging him with that crime. Id . at 515, 460 P.3d 1020. At the defendant's arraignment, the trial court appointed counsel to assist the defendant with the arraignment. Id . After counsel introduced herself to the defendant, counsel proceeded to waive the defendant's right to a preliminary hearing. Id . On appeal, the defendant argued "that the transcript show[ed] that neither the court nor defense counsel explained the purpose or benefits of a preliminary hearing to defendant."
Id . at 516, 460 P.3d 1020. Although the state did not contest the argument that the defendant's purported waiver made by his counsel was invalid, we noted that an argument to the contrary "would be a challenging argument to make, given that counsel purported to waive her client's constitutional right without having advised or consulted [the defendant] on the point." Id . at 517, 460 P.3d 1020. We further rejected the argument that the defendant had several other hearings, which, although they were not transcribed, could have theoretically suggested that the defendant "might have waived his right to a preliminary hearing during one of those untranscribed hearings." See id . at 526 n. 9, 460 P.3d 1020 (...
To continue reading
Request your trial
-
State v. Aguilar
...the issue of waiver prior to court and that counsel then communicated defendant's waiver in court. See also State v. Granberg , 306 Or. App. 86, 92, 473 P.3d 560 (2020) (concluding that, where the defendant previously had requested a preliminary hearing, the record reflected the absence of ......
- State v. Krieger
-
State v. Granberg
...to the trial court's denial of his motion to suppress evidence, which we did not reach given our earlier disposition. See Granberg, 306 Or.App. at 87 n 1. After reviewing the parties' arguments on appeal and record, we conclude that, because the seizure was justified by reasonable suspicion......
-
State v. Granberg
...to us for reconsideration in light of its decision in State v. Keys , 368 Or. 171, 489 P.3d 83 (2021) ( Keys II ). State v. Granberg , 306 Or. App. 86, 473 P.3d 560 (2020), vac'd and rem'd for recons , 368 Or. 513, 493 P.3d 503 (2021). In Keys II , the court concluded that a defective waive......