State v. Greeley

• Decision Date: 23 March 2022
• Docket Number: A169128
• Citation: 318 Or.App. 435,508 P.3d 33
• Parties: STATE of Oregon, Plaintiff-Respondent, v. James Edmund GREELEY, Defendant-Appellant.
• Court: Oregon Court of Appeals

318 Or.App. 435

508 P.3d 33

STATE of Oregon, Plaintiff-Respondent,

v.James Edmund GREELEY, Defendant-Appellant.

A169128

Court of Appeals of Oregon.

Argued and submitted August 5, 2020.

March 23, 2022

Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants and reckless driving. Defendant asserts two assignments of error. In the first, he argues that the trial court erred in refusing to appoint a fourth substitute counsel for defendant without first obtaining a knowing and intelligent waiver of counsel from him. In the second, defendant asserts that the trial court plainly erred, under State v. Banks , 364 Or. 332, 434 P.3d 361 (2019), in admitting at trial defendant's refusal to submit to a breath test. We reject defendant's second assignment without discussion, because it does not constitute plain error. State v. Smith , 302 Or. App. 787, 792, 462 P.3d 310, rev. den. , 366 Or. 731, 468 P.3d 478 (2020). As explained below, we also reject defendant's first assignment on the basis that any error did not rise to the level of constitutional error and was otherwise harmless, because defendant was represented by retained counsel at his trial.

The facts relevant to our discussion are procedural and undisputed. At his arraignment, in September 2016, defendant requested court-appointed counsel and the court determined that he was eligible and appointed counsel. Defendant was represented by that attorney at a hearing on defendant's motion to suppress. In September 2017, defendant's first appointed counsel moved to withdraw from representing defendant at defendant's request. The court granted that request and appointed new counsel for defendant. In May 2018, defendant's second appointed counsel moved to withdraw from representing defendant, again at defendant's request. The court granted that request and again appointed new counsel, who worked with the same public defense group as the second appointed attorney. Within a few weeks of that appointment, defendant's third counsel moved to withdraw based on an ethical conflict and informed the court that there were no other attorneys in the public defense group who could represent defendant. At the hearing on that motion to withdraw, the court allowed counsel to withdraw and engaged in a colloquy with defendant. The court informed defendant that "[y]ou've run out of eligible court-appointed attorneys" and asked whether defendant intended to hire an attorney or proceed with representing himself. Defendant ultimately responded that, "[i]f you don't have any remaining attorneys, I'm left with hiring my own attorney." The court set an appearance date to give defendant an opportunity to review the file that counsel provided to him and so that he could inform the court whether he was going to hire an attorney.

At the next appearance, defendant represented himself, asserted his right to counsel, and requested that the court appoint him a new attorney. After a discussion, the court told defendant that his request for another appointed attorney had already been denied and that the hearing was to set a trial date. Defendant informed the court that he was going to meet with an attorney the next week. The court set the matter over for another status hearing. At that hearing, defendant informed the court that his meeting with the attorney had been rescheduled. The court then set the trial date for one month out from the date defendant had scheduled to meet with his attorney. Defendant informed the court that that would give him enough time to contact his witnesses. At the pretrial readiness hearing, defendant's retained counsel advised the court that he was ready for trial. At trial, defendant's attorney cross-examined the state's two witness but did not call any defense witnesses.

On appeal, defendant argues that the trial court violated Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution when it failed to appoint substitute counsel without first obtaining a knowing and intelligent waiver from defendant of his right to counsel. Defendant further argues that the state constitutional error was not harmless because the record does not demonstrate whether defendant's compelled choice of retained counsel affected the verdict. Defendant argues that, here, defense counsel did not present witnesses or a defense expert, and we cannot determine whether that was from a lack of funds, which defendant may have had access to with appointed counsel. Similarly, defendant argues that the federal constitutional error was structural error because it is impossible to evaluate the effect of the error on the case, requiring reversal for a new trial.

The state responds that there was no error or, if there was any error, it was harmless because the record reflects only that defendant was represented by counsel at every critical stage of the proceedings and that nothing in the record suggests that any of those lawyers were unqualified, unprepared, or representing defendant over his objection. As a result, the state argues that defendant was not denied his right to counsel. In addition, even if any error occurred, the state argues that it was harmless and not structural error, because defendant cannot show that he suffered prejudice by being represented by counsel of his own choosing.

We first emphasize that the error that defendant claims on appeal is that the trial court's failure to obtain a waiver from defendant of his right to counsel was necessarily a violation of Article I, section 11, and the Sixth Amendment. However, defendant was represented by either appointed or retained counsel at all critical stages of the proceedings; that is, his constitutional right to be represented by counsel ultimately was not violated. See, e.g. , State v. Erb , 256 Or. App. 416, 421, 300 P.3d 270 (2013) (the right to counsel under Article I, section 11, includes the right to be represented by counsel during all critical stages of a criminal proceeding, unless the defendant voluntarily and intelligently waives that right); see also Montejo v. Louisiana , 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) (same principle applies under the Sixth Amendment). Thus, to the extent that the trial court here erred in not obtaining a waiver from defendant, it did not rise to the level of a constitutional violation under the circumstances of this case. In addition, even assuming that the trial court erred in failing to appoint a fourth attorney to represent defendant, any such error was harmless under both the state and federal constitutions.

We begin our discussion with the Oregon Constitution. Error is harmless if there is "little likelihood that the particular error affected the verdict." State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). Here, defendant argues that the alleged error in not appointing another attorney is not harmless because we cannot tell whether the scope of his hired representation was deficient in some respects as compared to the scope of representation defendant would have received from a court-appointed...