State v. Reynolds

• Decision Date: 10 December 2008
• Docket Number: A130813 (Control).,A130936.,05CR1097.,05CR1096.
• Citation: 198 P.3d 432,224 Or. App. 411
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Steven Carlos REYNOLDS, Defendant-Appellant.
• Court: Oregon Court of Appeals

198 P.3d 432

224 Or. App. 411

STATE of Oregon, Plaintiff-Respondent, v. Steven Carlos REYNOLDS, Defendant-Appellant.

05CR1096.

05CR1097.

A130813 (Control).

A130936.

Court of Appeals of Oregon.

Submitted February 27, 2008.

Decided December 10, 2008.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, and Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

ORTEGA, J.

Defendant appeals judgments imposing punitive sanctions for 11 counts of contempt of court, ORS 33.045, and conviction for one count of telephonic harassment, ORS 166.090. He contends that his waiver of counsel was invalid because the trial court did not adequately inform him of the risks of self-representation and that, as a result, his waiver was not made "knowingly." We conclude that the trial court's colloquy with defendant, together with a signed waiver form, demonstrate that he knowingly waived counsel. Accordingly, we affirm the judgments imposing punitive sanctions of conviction.

Defendant was charged with contempt for willfully disobeying a restraining order by telephoning his former spouse (10 counts) and by attempting to intimidate her (one count). A second information charged defendant with four counts of telephonic harassment for causing his former spouse's telephone to ring, knowing that he had been forbidden from doing so.

At his arraignment, the court summarized the contents of each information and explained the maximum penalty as to each count. After summarizing the charges and penalties, the court informed defendant that he had the right to remain silent and "the right to an attorney, court appointed if necessary." The court asked defendant if he had any questions, and the following discussion took place:

"[DEFENDANT]: I do understand my rights, sir, and I'd like to explain some things here, too.

"THE COURT: Well, first, [defendant], we have to determine do you want an attorney to help you with these matters?

"[DEFENDANT]: Not at this moment, sir. I think maybe you can clear this up in a-in a second.

"THE COURT: Well, [defendant], you may be under a misconception. The only thing the judge does at arraignment is tell you what the charges are, advise you of your right to remain silent, and your right to counsel. I don't do any negotiations. Any explanation to me is not going to help you at all because [your former spouse] would certainly have the right to be here to have her side of the story heard. That's called a trial. That trial doesn't take place this morning.

"[DEFENDANT]: Okay.

"THE COURT: So these are some fairly serious matters since there's so many charges, so do you want an attorney to help you with this case?

"[DEFENDANT]: I do. I do, Your Honor."

At a hearing a few days later, defendant appeared with an attorney who advocated for defendant's conditional release, pending trial, which the court denied. Defendant's next appearance was scheduled for two and one-half weeks later.

At the pretrial conference, which was accelerated at the request of defense counsel, defendant informed the court that he wanted to file some motions and represent himself:

"[DEFENSE COUNSEL]: Your Honor, I ask that [defendant] be brought over. He would like a new attorney appointed or [to] defend himself. I'm not sure exactly which he is preferring.

"DEFENDANT: May I speak, Your Honor?

"THE COURT: Yes.

"DEFENDANT: First off, I'd like to file some motions if possible. And, second off, I would like to defend myself in this matter.

"THE COURT: Okay, wait, wait.

"Mr. Spicer is your attorney. And, you're telling me at this point that you want to represent yourself?

"DEFENDANT: Correct, Your Honor.

"THE COURT: You understand the services-if you have an attorney they're going to-obviously, Mr. Spicer has met with you. He's going to file papers, paperwork that's necessary, motions and so forth and appear with you in court, negotiate on your behalf if that was appropriate and appear with you at all steps in the proceeding, whether it be a plea or whether it's a trial and so forth.

"So, you understand that?

"DEFENDANT: Correct, Your Honor. This won't go to trial.

"THE COURT: Wait.

"And, if you are not an attorney and you're representing yourself, you are at a disadvantage.

"Do you understand that?

"DEFENDANT: Correct, Your Honor.

"THE COURT: And, so is it your own free and voluntary decision at this time that you want to proceed on this matter representing yourself?

"DEFENDANT: Correct, Your Honor.

"THE COURT: Okay.

"I'm going to ask you to sign a piece of paper that—

"DEFENDANT: (Interposing) Can I file some motions at this time, Your Honor?

"THE COURT: Sign the paper first. Read it and sign it if that's what you want to do.

"Now, you have some motions you want to file?

"DEFENDANT: Yes, Your Honor."

The "paper" was a "Waiver of Counsel" form. Defendant signed the form, which included this statement:

"I, the Defendant in the above entitled criminal proceedings, having been fully informed of my constitutional rights, including my right to be represented by counsel, and [sic] am aware of the help a lawyer might be to me. I hereby knowingly waive (give up) my right to be represented by counsel and I do so freely and voluntarily without any threat, promise or other form of coercion."

The court set a date to hear defendant's motions, most of which were denied at the hearing. At trial on the contempt charges, the court found defendant guilty on all counts and imposed fines, probation, and jail time, although most of the jail time was suspended provided that defendant complied with the restraining order.

Defendant later agreed to plead guilty to one telephonic harassment charge in exchange for the state's agreement to drop the remaining harassment charges. Before accepting the plea, the trial court explained to defendant the maximum penalty for telephonic harassment and told him that, by pleading guilty, he was waiving his rights to remain silent and to have a jury trial. Upon defendant's acknowledgement that he understood, the court accepted his plea and sentenced him on that one count.

On appeal, defendant contends that the trial court erroneously allowed him to proceed to trial on the contempt charges and to plead guilty on the harassment charge without the assistance of counsel and without adequately advising him of the risks of self-representation. Defendant asserts that, for a waiver of counsel to be valid under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution,¹ the waiver must be made with knowledge and an understanding of the risks of proceeding without counsel. Defendant contends that, in its colloquy with him, the court made no mention of the risks of self-representation and, at best, only cursory reference to the ways that an attorney might help him. Moreover, defendant maintains that the record, though "devoid of any direct evidence about his education or mental capacity," suggests that he is unsophisticated in legal matters. Ultimately, he asserts, the record fails to demonstrate that his waiver was knowing and, therefore, valid.

Our analysis of defendant's argument follows the Supreme Court's opinion in State v. Meyrick, 313 Or. 125, 831 P.2d 666 (1992). In Meyrick, this court had reversed the defendant's conviction on the ground that the record failed to establish that the defendant's waiver of counsel "was the product of an intelligent and competent choice," as required by Article I, section 11, because the trial court had not determined that the defendant understood the elements of the offense. State v. Meyrick, 106 Or.App. 682, 686, 809 P.2d 710 (1991). The Supreme Court reversed, holding that Article I, section 11, does not require the trial court to impart a particular piece of information. 313 Or. at 134, 831 P.2d 666. Rather, the record as a whole must show that the defendant knew of his right to counsel—and, if indigent, of his right to court-appointed counsel—and that he intentionally relinquished or abandoned that right. Id. at 133-34, 831 P.2d 666.

The "intentional" component of a waiver encompasses "the requirement that the choice must be `voluntary'" and is separate from the "known right" component. Id. at 132 n. 8, 831 P.2d 666. The latter component

"refers to a defendant's knowledge and understanding of the right to counsel. It encompasses `intelligent and competent,' `intelligently,' and `knowingly and intelligently.' This is the more expansive of the two components, because a defendant's knowledge and understanding of the right to counsel and of the dangers and disadvantages of self-representation may turn on things other than on what the court tells the defendant, such as the defendant's age, education, and experience and the complexity of the charges and possible defenses."

Id. A colloquy on the record between the trial judge and the defendant is the preferred method to assure that the defendant is intentionally waiving a known right; the more relevant information provided "about the right to counsel and about the dangers and disadvantages of self-representation, the more likely it will be that a defendant's decision to waive counsel is an intentional relinquishment or abandonment of a known right or privilege and that the record will so demonstrate." Id. at 133, 831 P.2d 666 (omitted). Applying those principles, the Meyrick court determined that the record established that the defendant there "knew that he had a right to be represented by counsel at trial and that he intentionally relinquished that right." Id. at 136, 831 P.2d 666. The court similarly concluded that the Sixth Amendment requires a "knowing and...