State v. Jackson

• Decision Date: 14 February 2001
• Citation: 19 P.3d 925,172 Or. App. 414
• Parties: STATE of Oregon, Appellant, v. David Allen JACKSON, Jr., Respondent.
• Court: Oregon Court of Appeals

19 P.3d 925

172 Or. App. 414

STATE of Oregon, Appellant, v. David Allen JACKSON, Jr., Respondent.

(20-98-13446; CA A106513)

Court of Appeals of Oregon.

Argued and Submitted October 31, 2000.

Decided February 14, 2001.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Monica L. Finch, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, State Public Defender.

Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and CENICEROS, Senior Judge.

HASELTON, P.J.

The state appeals from an order of suppression in a prosecution for felony driving while suspended (DWS), ORS 811.182, and misdemeanor hit-and-run, ORS 811.700. The trial court suppressed evidence of defendant's prior conviction for driving under the influence of intoxicants (DUII), which underlies the suspension of his driving privileges, on the ground that defendant had not knowingly and voluntarily waived counsel before pleading guilty to DUII. The state challenges, particularly, the trial court's determination that an "Acknowledgment of Rights" form defendant executed in the prior DUII proceeding was insufficient to establish a valid waiver of counsel because that form did not adequately describe the risks associated with self-representation. We affirm.

On August 18, 1997, defendant was arraigned and pleaded guilty to DUII in Florence Justice Court. When he appeared before the court to enter his plea, defendant signed a form "Acknowledgment of Rights at Arraignment and Entry of a Plea." That form stated, in pertinent part:

"I am now appearing without counsel. I affirm my rights have been reviewed with me and I understand my rights as follows. I understand if I plead guilty or no contest I give up these rights.

"* * * * *

"2. My right to have an attorney present to represent me at such trial, and the right to receive Court-appointed counsel if I cannot afford to retain an attorney.

"* * * * *

"I understand there may be advantages to being counseled by an attorney and disadvantages by self-representation. I understand there may be defenses available to me of which an attorney could advise me."

On August 28, 1997, defendant appeared for sentencing and, at that time, executed an identical "Acknowledgment of Rights" form. As a result of his DUII conviction, defendant's driving privileges was suspended for one year.¹ In June 1998, while his driving privileges were still suspended, defendant was charged in Lane County Circuit Court with felony DWS and misdemeanor hit-and-run. Defendant filed a motion in limine to exclude evidence of his DUII conviction, asserting that he had not knowingly and voluntarily waived his constitutional right to counsel² before entering his guilty plea. See State v. Hardt, 81 Or.App. 607, 611-12, 726 P.2d 953 (1986),adhered to on recons. 83 Or.App. 221, 730 P.2d 1278 (1986), rev. den. 303 Or. 74, 734 P.2d 354 (1987) (allowing collateral attack on two DWS convictions that were based on a void DUII conviction).³

At the hearing on that motion, defendant testified that the written form constituted the only information he received from the court regarding the right to counsel. In particular, the Florence Justice Court never engaged in any oral colloquy regarding the written waiver of counsel:

"After they talked [mainly] about my payments and what I should do * * * I just agreed to pay, you know a certain amount every month and go through another program. Pretty much after that was done and over with it was sign here, sign that and we'll be on our way."

Defendant acknowledged, under cross-examination, that he usually reads things before he signs them; that he knows what an "advantage" and "disadvantage" are; and that he knows the term "self-representation" means "without an attorney." However, when he was asked whether, when he signed the "Acknowledgment of Rights" form, he had any idea what the language regarding disadvantages of appearing without counsel meant, he replied, "I didn't know that I was even there. It was like I said before, we just, you abbreviate your name here and sign here."

The trial court granted defendant's motion in limine to exclude evidence of the DUII conviction. In its letter opinion, the court first emphasized the limited record of the circumstances of defendant's waiver:

"Here there's no record of any verbal exchange, other than what was testified to, between the [Florence Justice Court] and the defendant on the record, because the proceedings were not before a court of record, and so that means that the record and the written record, and any added testimony that the court heard here today, needs to demonstrate that this was a knowing waiver, as far as the voluntariness."⁴

The court then concluded that the record failed to establish that defendant understood the risks of self-representation at the time he waived counsel in the DUII proceeding and, as a result, evidence of defendant's DUII guilty plea and consequent conviction must be excluded:

"What the cases appear to say is that the defendant must understand what the risks are of self-representation. It's not enough for the court to say in a conclusionary manner that there are risks, but the court must at least set forth what some of those risks are; and must warn the defendant of what the dangers are of self-representation, not just that there generally are dangers of self-representation. * * * However, the court here finds that what was given, on the record, to this Defendant was not sufficient, that there was not an adequate understanding, that could be set out on the record, of the potential pitfalls of self-representation. There is nothing about such things as: what an attorney could give as advantages to the defendant; could investigate, could obtain witnesses, could obtain evidence, could plea bargain with the district attorney's office or the, whoever the enforcing government agency was, or that the attorney knows courtroom procedure, could explain that to the defendant, or that the attorney could argue the case in a way that would be beneficial to the defendant, or that the attorney would know how to handle a sentencing, as well, and that because of their legal experience and training, an attorney would be able to assist the defendant in many ways, other than those just explained. None of those things were set out. There is no record that sets out what specific pitfalls, if any, and disadvantages there would be to the defendant to represent himself." (Emphasis added.)

On appeal, the state challenges the trial court's determination that the totality of the circumstances of the DUII proceeding-and specifically defendant's execution of the "Acknowledgment of Rights" form-was inadequate to establish a knowing waiver of counsel. The state argues, particularly, that the written waiver form sufficiently alerted defendant to the risks of self-representation:

"The court set the standard for a knowing and intelligent waiver of counsel too high. A waiver need not be preceded by recitation of a list of the specific advantages of being represented by an attorney and the disadvantages of not being; it is enough if the defendant is informed that there are advantages and disadvantages. So long as the defendant is aware that he has the right to counsel, is aware that having counsel could be helpful, is aware that waiving counsel could be disadvantageous, and voluntarily waives that right-as was the case here-the waiver is valid."

Defendant counters that, under State v. Meyrick, 313 Or. 125, 831 P.2d 666 (1992), and related cases, the dispositive consideration is whether the defendant sufficiently understood the risks of self-representation and that here, particularly without the assurance of a colloquy between the DUII court and defendant, the trial court was entitled to find that defendant's execution of the written form did not, by itself, establish the requisite understanding.

Since the Supreme Court decided Meyrick in 1992, we have issued 16 published opinions addressing the validity of waivers of counsel.⁵ That profuse precedent notwithstanding, this case is remarkable in two respects. First, in no other case was a written form the only evidence on the record of waiver of counsel.⁶Second, with one exception, those cases are all direct appeals from criminal convictions, where the validity of the waiver of counsel was raised for the first time on appeal.⁷ Here, in contrast, we are reviewing a trial court's express determination of the validity of a waiver of counsel in a collateral proceeding.

In that collateral attack context, the state bore the burden of proving that defendant had validly waived counsel in the DUII prosecution. State v. Luttrell, 80 Or.App. 771, 775, 723 P.2d 1071 (1986) ("[O]nce a defendant shows that he was not represented at the time of a prior conviction, and the state intends to rely on that conviction * * * [the state] must establish that there was a waiver of counsel. Here, defendant presented evidence that he had been without counsel in the prior case, and it became the state's burden to show a valid waiver."). See also State v. Manfredonia, 105 Or.App. 537, 540, 805 P.2d 738 (1991); State v. Winkler, 80 Or.App. 455, 456, 722 P.2d 59 (1986). Here, the trial court determined that the state had not met that burden.

The trial court's inquiry was, ultimately, subjective, not objective. That is, the issue before the trial court was not whether, in the totality of the circumstances, an objectively reasonable defendant should have, or would have, sufficiently appreciated the risks of self-representation. Rather the matter to be decided was whether this defendant possessed the requisite understanding at the time he waived counsel. Meyrick, 313 Or. at 132, 831 P.2d 666 ("The trial court should focus on what the defendant knows and understands.") ...