State v. Smith

• Decision Date: 19 November 2003
• Citation: 80 P.3d 145,190 Or. App. 576
• Parties: STATE of Oregon, Respondent, v. Rocky Devon SMITH, Appellant.
• Court: Oregon Court of Appeals

80 P.3d 145

190 Or. App. 576

STATE of Oregon, Respondent, v. Rocky Devon SMITH, Appellant.

C991426CR; A110289.

Court of Appeals of Oregon.

Petition for Reconsideration June 12, 2003.

Petition for Reconsideration September 19, 2003.

Resubmitted November 5, 2003.

Decided November 19, 2003.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Robert M. Atkinson, Assistant Attorney General, for petition.

Ingrid A. MacFarlane, Senior Deputy Public Defender, and Office of Public Defense Services, contra.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, BREWER, and ORTEGA, Judges.

On Respondent's Petition for Reconsideration June 12, 2003.

Appellant's Response to Petition for Reconsideration September 19, 2003.

Resubmitted en banc November 5, 2003.

EDMONDS, J.

The state petitions for reconsideration of our decision in this case. State v. Smith, 187 Or.App. 562, 69 P.3d 787 (2003). We grant the petition and remand to the trial court for a hearing on whether substitute counsel should have been appointed to represent defendant at trial.

Defendant appealed his convictions for robbery in the first degree, assault in the second degree and third degrees, and related firearm charges. On appeal, he argued that, when he asked the trial court to appoint different counsel, the trial court erred by not inquiring into those complaints. In our previous opinion, we agreed with defendant's argument. On reconsideration, we adhere to our holding that the trial court's inquiry was inadequate under the applicable case law. The only question on reconsideration is whether the appropriate scope of remand is for the trial court to make an inquiry into defendant's complaints to determine whether he should have had a different attorney at trial, as the state contends, or for a new trial on the charges as defendant argues.

The state relies on Article VII (Amended), section 3, of the Oregon Constitution in support of its argument that remand for a new trial under the circumstances of this case is improper. Section 3 provides, in pertinent part:

"If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, not withstanding any error committed during the trial[.]"

According to the state, a review for prejudice is mandatory under section 3, and this court must affirm in the absence of prejudice. It contends that defendant has shown at most a procedural error and, thus, that the proper remedy is to remand so the trial court can inquire into defendant's complaints about his counsel and determine whether anything that his counsel did or did not do prejudiced his case. If the trial court finds that defendant's complaints are valid, it should order a new trial. Otherwise, according to the state, it should reinstate defendant's convictions.

Defendant counters that the trial court's failure to inquire into the nature of a defendant's complaints about a court-appointed attorney is not a mere procedural error but rather is itself a violation of the constitutional right to adequate assistance of counsel. In State v. Grcich, 148 Or.App. 337, 939 P.2d 649 (1997), we held that such a complaint, when based on proper grounds, "implies an abridgement of the constitutional right to assistance of counsel." We also stated that the trial court has an affirmative duty to determine on the record the merits of a defendant's request for a new court-appointed attorney; "it may not presume that the request is meritless." Id. at 342, 939 P.2d 649. According to defendant, that holding means that only a new trial can cure such an error because of the pervasive nature of the error. Additionally, defendant points to practical considerations arising from the scope of remand suggested by the state. Defendant explains:

"For example, if a case is remanded for a new pre-trial hearing only, it would fall to a defendant to have significant personal recall of events that may have happened over three years ago (as in this case). In addition, the interests of defense counsel and the defendant will likely be adverse, especially where the facts of the case have already been decided. So too will the trial judge have a conflict, having already heard the evidence."

Finally, under similar circumstances, we have previously remanded for a new trial. See, e.g., State v. Coffey, 158 Or.App. 112, 972 P.2d 1219 (1999); Grcich, 148 Or.App. at 343, 939 P.2d 649; State v. Heaps, 87 Or.App. 489, 742 P.2d 1188 (1987).

The language of section 3 is mandatory. If we conclude that the judgment was one that should have been entered, "such judgment shall be affirmed, notwithstanding any error committed during trial." (Emphasis added.) "No discretion is permitted by the mandate of the amendment." State v. Van Hooser, 266 Or. 19, 24, 511 P.2d 359 (1973). As the court said in State v. Davis, 336 Or. 19, 25, 77 P.3d 1111 (2003), "[T]his court must affirm a judgment, despite any error committed at trial, if, after considering all the matters submitted, the court is of the opinion that the judgment `was such as should have been rendered in the case.'" (Quoting section 3).

As defendant suggests, and as we have held, the failure of the trial court to make an adequate inquiry implies a deprivation of adequate assistance of counsel that is of...