State v. Hug

• Decision Date: 06 March 2003
• Citation: 64 P.3d 1173,186 Or. App. 569
• Parties: STATE of Oregon, Respondent, v. Pamela Joan HUG, Appellant.
• Court: Oregon Court of Appeals

64 P.3d 1173

186 Or. App. 569

STATE of Oregon, Respondent, v. Pamela Joan HUG, Appellant.

0006648C; A114040

Court of Appeals of Oregon.

Argued and Submitted June 6, 2002.

Decided March 6, 2003.

Lawrence Matasar argued the cause and filed the briefs for appellant.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

DEITS, C.J.

Defendant appeals a judgment of conviction for contempt. ORS 33.065. She raises four assignments of error, only one of which requires discussion. We affirm.

Defendant was charged with contempt for disobeying an order of the Malheur County Circuit Court that directed her to cooperate with the Oregon Youth Authority concerning the treatment of her son. She was charged by information in June 2000. By the time of her arraignment in August 2000, defendant had hired attorney Douglas Rock. In September, the trial court set a "primary" trial date of December 14, with an "alternate" date of October 30. On October 10, the state filed a motion to continue the trial date because a material witness was on medical leave. The trial court granted the motion as to the "alternate" date but retained the "primary" date of December 14. In early December, defendant informed Rock that she had hired a new attorney, Anne Morrison. Rock moved for permission to withdraw, which the trial court granted by an order signed on December 13.

On December 14, the parties appeared for trial. The state moved orally for a continuance because a subpoenaed witness had not appeared. The trial court, over defendant's objection, granted a continuance and set February 16, 2001, as the new trial date. On January 24, defendant moved to dismiss. The trial court heard the motion to dismiss on February 12 and signed an order denying that motion the same day. On February 13, defendant moved to continue the trial date, and on February 14 Morrison moved to withdraw as defendant's attorney on the ground that she had been discharged.² Morrison cited Disciplinary Rule (DR) 2-110(B) in support of her motion.³ On February 14, two days before the date set for trial, the trial court heard both motions. The court granted Morrison's motion to withdraw but denied defendant's motion for a continuance.

On February 16, the parties appeared for trial. Defendant, appearing pro se, renewed her request for a continuance. After questioning both defendant and the district attorney, the trial court initially decided to reverse its ruling and grant a continuance, but, after the state argued that one of its witnesses had gone to great expense and inconvenience to travel to court that day, the trial court denied the continuance and proceeded to trial. Defendant was convicted and now appeals.

In her second assignment of error, defendant argues that the trial court erred in denying her a continuance. According to defendant, she had little opportunity to hire substitute counsel and her pro se status on the date of her trial was not her fault. Defendant acknowledges that she and Morrison "had a disagreement over the handling of the case," but she contends, in essence, that she did not discharge Morrison. Rather, defendant alleges that she and Morrison mutually decided that Morrison should not continue to represent her. She also points to her statement at the February 14 hearing that she would rather have Morrison than no counsel at all and her statement on the first day of trial that she was representing herself "against my wishes." Defendant contends that, under those circumstances, Morrison should not have sought, nor should the trial court have granted, permission to withdraw; in any event, according to defendant, the trial court abused its discretion in refusing her a continuance.

We review rulings on motions for continuance for abuse of discretion. State v. Wolfer, 241 Or. 15, 17, 403 P.2d 715 (1965); State v. Dupree, 164 Or.App. 413, 418-19, 992 P.2d 472 (1999),rev. den., 330 Or. 361, 6 P.3d 1102 (2000). "Discretion" refers to the authority of a trial court to choose among several legally correct outcomes. State v. Rogers, 330 Or. 282, 312, 4 P.3d 1261 (2000). "If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion." Id.

When assessing a request for continuance to obtain new counsel, a trial court must balance a defendant's right to choice of counsel against the need of the public and of all defendants for expedition in the court system. State v. Pflieger, 15 Or.App. 383, 387, 515 P.2d 1348 (1973), rev. den. (1974); see also State v. Lingren, 79 Or.App. 324, 327, 719 P.2d 61 (1986)

(right to counsel must be balanced against the state's need to conclude the case in a timely manner). As the United States Supreme Court has stated, "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

We have generally affirmed denials of last-minute requests for continuances to seek new counsel where it appeared that the defendants were in need of new counsel at a late hour due to their own action or inaction. E.g., State v. Makinson, 174 Or.App. 544, 548, 27 P.3d 1046,

rev. den., 332 Or. 559, 34 P.3d 1177 (2001); State v. Spry, 166 Or.App. 26, 30, 999 P.2d 485,

rev. den., 331 Or. 244, 18 P.3d 1100 (2000); State v. Brenner, 151 Or. App. 159, 167, 947 P.2d 1139 (1997); State v. Keerins, 145 Or.App. 491, 495, 932 P.2d 65 (1996).

In this case, contrary to defendant's assertion, the trial court found that defendant had discharged her second attorney. That finding is supported by the record and is binding on this court. See Ball v. Gladden, 250 Or. 485, 486-87, 443 P.2d 621 (1968)

. As the trial court found, defendant discharged her second attorney three days before trial after having been advised by her attorney that, if defendant did discharge her, defendant might nonetheless be required to go to trial as scheduled. Consequently, her appearance at trial without counsel was of her own doing and supported the trial court's denial of a continuance.

The transcript of the hearing on Morrison's motion to withdraw and defendant's motion for a continuance includes the following:

"MS. MORRISON: I just wanted to make it clear for the record that I had a long speaker phone conference and my [employer] had a long speaker phone conference with [defendant] yesterday. We explained to her the possible consequences of my leaving the case at such a late date. We specifically said that she might be forced to proceed on Friday, and that she might be forced to proceed without counsel. And [defendant] is saying now that after that conversation I withdrew. The reality is that after that * * * discussion with [defendant] she told me that she wanted me off the case anyhow and that she wanted me to go ahead and file the motion to withdraw, which I proceeded to do. And my position at this point is that I have already been discharged by [defendant]. Under the circumstances, I would object to being put back on to the case if we're required to go forward.

"[DEFENDANT]: If I might speak, too. In that same conversation Ms. Morrison's employer read a note or spoke to me about a note that Ms. Morrison passed to him during the telephone conference saying that she wasn't comfortable representing me on Friday either. And so my interpretation of the meeting was that it was a combination of the two. It wasn't just one or the other, it was both. That she didn't feel comfortable representing me either.

"THE COURT: Well let me just ask you: Do you want Ms. Morrison to represent you?

"[DEFENDANT]: Well, I don't want to have no counsel and I suppose if I'm given the choice of no counsel at all or Ms. Morrison, since I'm not a legal expert I would have to have somebody here because I don't have the legal expertise with which to represent myself, and I am not able to do that. So I guess if it's a choice of nothing or Ms. Morrison, then I have no choice but to have Ms. Morrison represent me (INAUDIBLE).

"THE COURT: Did you discharge her yesterday?

"[DEFENDANT]: Uh ...

"THE COURT: Did you tell her to file the motion to withdraw?

"[DEFENDANT]: I told her to go ahead after our conversation—after our conversation in which she indicated that she wasn't comfortable representing me either. Then at that point—after—at that point the conversation—that's—that's basically what happened.

"THE COURT: So when you say she wasn't comfortable representing you * * * by that point you had already told her you didn't want her to represent you any more?

"[DEFENDANT]: I had talked to her ...

"THE COURT: But you said she didn't feel comfortable either, is that what I understand?

"[DEFENDANT]: What I had said in the conversation (INAUDIBLE) when I started out the conversation I just explained that I was very uncomfortable with having her represent me, that I had huge questions about how my case was being handled and that I was very concerned; and I outlined those concerns and it's—I spoke both with Ms. Morrison and her employer last Thursday as well and expressed my concerns. At that point I said that I'd really—I tried (INAUDIBLE) I don't remember exactly what I said but I didn't discharge her, but I was extremely uncomfortable at that point. And I expressed those concerns and we had talked about the possibility of discharging her but I didn't at that time.

"THE COURT: Ms. Morrison, were you discharged?

"MS. MORRISON: I was discharged. She was very straightforward that she wanted me off the case

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