State v. Kinney, 070733501

• Decision Date: 13 August 2014
• Docket Number: A146976 (Control); A146977,070733501,A146909.,100532040
• Parties: STATE of Oregon, Plaintiff–Respondent, v. William KINNEY; aka William Kenney; aka William Kinney, III, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 612

333 P.3d 1129

STATE of Oregon, Plaintiff–Respondent,

v.William KINNEY; aka William Kenney; aka William Kinney, III, Defendant–Appellant.

070733501, 100532040; A146976 (Control); A146977; A146909.

Court of Appeals of Oregon.

Argued and Submitted March 20, 2013.

Decided Aug. 13, 2014.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. William Kinney III filed the supplemental brief pro se.

Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and WOLLHEIM, Judge, and SCHUMAN, Senior Judge.

WOLLHEIM, J.

Defendant appeals his judgments of conviction in two cases that were consolidated for trial. In Multnomah County Case Number 070733501 (Case 1), he was convicted of one count of unlawful possession of cocaine, ORS 475.884, and one count of driving while suspended or revoked, ORS 811.182(3), and in Multnomah County Case Number 100532040 (Case 2), he was convicted of one count of driving while suspended or revoked, ORS 811.182(3). He raises four assignments of error. In his first two assignments of error, he argues that the trial court erred when it failed to allow the jury to determine whether the two counts for driving while suspended or revoked were Class B felonies under ORS 811.182.¹ In his third assignment of error, he argues that the court erred in denying his request to represent himself at trial,² and in his fourth assignment of error, he argues that the court erred in doubling his sanctions for summary contempt. We reverse and remand on the fourth assignment of error, and otherwise affirm.

Defendant's convictions in these cases arose from two separate incidents. The incident in Case 1 occurred in 2007. A police officer, in the course of investigating a noise complaint, found defendant asleep in the driver's seat of a van with the engine running and the keys in the ignition. The incident in Case 2 occurred in 2010 while defendant was driving a vehicle with two passengers. While defendant was stopped at an intersection, a police officer, sitting at a bus shelter at the intersection, recognized one of defendant's passengers as someone with multiple outstanding arrest warrants. After observing defendant turn at the intersection without using his turn signal, the officer contacted other officers to stop defendant for the traffic violation. In both the 2007 and 2010 incidents, officers determined that defendant was driving while his license was revoked.

In his first two assignments of error, defendant argues that the court erred in entering two felony convictions for driving while suspended, pursuant to ORS 811.182(3). ORS 811.182(3) makes driving while suspended or revoked a felony if the suspension or revocation resulted from certain circumstances, one of which is “any degree of * * * assault from the operation of a motor vehicle.” At trial, the court admitted two certified copies (one for each case) of defendant's driving record from Driver and Motor Vehicle Services Division of the Oregon Department of Transportation, which indicated that defendant, on November 8, 2002, had been convicted for assault with a motor vehicle and failure to perform the duties of a driver. The record also included evidence that defendant's license was already suspended for previous traffic violations, that his license was “still suspended” in connection with the November 8, 2002, assault conviction, and that his license was also revoked in connection with the November 8, 2002, failure to perform duties of a driver conviction. Prior to instructing the jury, the trial court had the following colloquy with the prosecutor and defense counsel:

“THE COURT: * * * I had a question, this is on the driving while suspended—this is driving while suspended on a felony level, what should the jury be asked to find?

“[THE PROSECUTOR]: [Defense counsel] and I discussed that, we both came to the conclusion that the felony is an issue for the Court to decide, so it doesn't really matter to me one way or the other. The title of the crime, it has already been announced, but they don't need to be asking additional questions about it.

“[DEFENSE COUNSEL]: I agree with [the prosecutor], I believe it's an issue of law, not of fact.

“THE COURT: Okay.”

Consequently, the jury was not asked to make findings in either case about whether defendant's suspension or revocation constituted a Class B felony under ORS 811.182(3).

Defendant assigns error in both cases to the trial court's failure to have the jury make the findings regarding his suspension or revocation. He acknowledges that this argument was not preserved below and that defendant contributed to the ruling it now assigns as error. However, defendant argues that we must review this error. His argument is as follows: Because the basis of his revocation or suspension is an element of the crime for which he was convicted and he was, therefore, entitled to have a jury determine that element, under Article I, section 11, of the Oregon Constitution,³ and the court's holding in State v. Barber, 343 Or. 525, 530, 173 P.3d 827 (2007), his waiver of a jury trial on that element must be by written waiver, and we have no discretion to ignore that waiver requirement. The state counters that, regardless of whether the basis for the suspension or revocation should have been tried to a jury, this case is distinguishable from Barber, because, unlike the defendant in Barber, defendant did receive a jury trial; thus, the concerns that underlie the court's holding in Barber do not apply to this case.

We agree with the state that Barber does not require us to consider the alleged error. In Barber, the defendant was tried by the court on stipulated facts, and the Oregon Supreme Court held that the trial, without a written waiver by defendant, violated the Article I, section 11, right to a jury trial. Id. at 530, 173 P.3d 827. This case is distinguishable. Here, defendant had received a jury trial for both cases. His argument on appeal is that, despite there being “sufficient evidence in the record” regarding the basis for his suspension, and despite defendant's express oral agreement to have the trial court decide that element, because defendant did not sign a written waiver of the right to have a jury determine that fact, we have no choice but to reverse and remand these cases in order for a jury to make that determination. We do not read Barber to require such a result. See also State v. Engerseth, 255 Or.App. 765, 770 n. 6, 299 P.3d 567, rev. den.,353 Or. 868, 306 P.3d 640 (2013) (rejecting the defendant's argument that the holding in Barber required the court to correct the trial court's error in accepting the defendant's stipulation to a sentence enhancement fact without first obtaining a written waiver of the right to a jury trial as required by ORS 136.773(1)).

Having determined that we are not required to consider those errors in the two consolidated cases, we decline to review them, because defendant invited the errors. Where an appellant is “ ‘actively instrumental in bringing about’ the error, * * * the appellant ‘cannot be heard to complain, and the case ought not to be reversed because of it.’ ” State v. Ferguson, 201 Or.App. 261, 269, 119 P.3d 794 (2005), rev. den.,340 Or. 34, 129 P.3d 183 (2006) (quoting Anderson v. Oregon Railroad Co., 45 Or. 211, 217, 77 P. 119 (1904)). The doctrine of invited error “usually is invoked when a party has invited the trial court to rule in a particular way, under circumstances that suggest that the party will be bound by the ruling or at least will not later seek a reversal on the basis of it.” Ferguson, 201 Or.App. at 270, 119 P.3d 794. In State v. Gaynor, 130 Or.App. 99, 880 P.2d 947 (1994), rev. den.,320 Or. 508, 888 P.2d 569 (1995), and State v. McEahern, 126 Or.App. 201, 867 P.2d 568 (1994), we declined to exercise our discretion where the party asserting error “had affirmatively misstated the law, and the trial courts had relied on those misstatements to take the actions that they did.” State v. Calvert, 214 Or.App. 227, 235, 164 P.3d 1169 (2007). This case is controlled by our holdings in Gaynor and McEahern. In this case, the trial court specifically asked defendant whether the basis of the revocation or suspension was a question of law for the court or a question of fact for the jury. Defendant answered, “I agree with [the prosecutor], I believe it's an issue of law, not of fact.” Having specifically told the trial court that the issue was a question of law, defendant cannot now argue that the trial court's ruling was error.⁴

Defendant's third assignment of error pertains to the trial court's ruling that denied defendant's request to represent himself. The trial court made its ruling on the day of trial, but before the trial had begun. Prior to its ruling, the trial court had informed defendant multiple times that he needed to stop disrupting the proceedings. Those warnings occurred, among other instances, during a pretrial hearing on the day prior to trial, in which defendant had continually interrupted the proceedings and the trial court had warned defense counsel that if defendant did not stop the disruptions, defendant would not be able to be present in the courtroom at trial. Another instance occurred on the day of trial and prior to its commencement, in which defendant again interrupted the proceedings, telling the court, inter alia, that he did not want his attorney to represent him. The court, after a conversation with defendant about his disruptiveness and whether he wanted to proceed pro se, concluded that defendant was making a motion to proceed pro se, and denied that motion, making the following findings:

“[THE COURT]: You have the right to ...