State v. Williams, A158853

• Decision Date: 08 November 2017
• Docket Number: A158853
• Citation: 407 P.3d 898,288 Or.App. 712
• Parties: STATE of Oregon, Plaintiff-respondent, v. Nathaniel Michael WILLIAMS, Jr., Defendant-appellant.
• Court: Oregon Court of Appeals

288 Or.App. 712
407 P.3d 898

STATE of Oregon, Plaintiff-respondent,
v.
Nathaniel Michael WILLIAMS, Jr., Defendant-appellant.

A158853

Court of Appeals of Oregon.

Submitted September 6, 2016.
November 8, 2017

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.

DEHOOG, P. J.

288 Or.App. 713

Defendant appeals his judgment of conviction for second-degree criminal trespass, ORS 164.245, and interfering with a peace officer, ORS 162.247, contending that the trial court erred in denying his request to represent himself at trial. Following a full day of trial in which defendant was represented by court-appointed counsel, defendant sought to discharge his attorney and proceed pro se. The court denied defendant's request, and a jury convicted defendant the next day. In defendant's view, the trial court's ruling erroneously denied him his right to self-representation under

407 P.3d 900

Article I, section 11, of the Oregon Constitution.¹ The state responds that the trial court was permitted to deny defendant's request, because "evidence of defendant's interruptive and argumentative behavior before and during trial supports the court's implicit conclusion that defendant's self-representation would disrupt the proceedings." We conclude that the trial court erroneously deprived defendant of his right to represent himself. Accordingly, we reverse and remand.

We begin with the applicable law. Article I, section 11, guarantees criminal defendants both the right to counsel and the right to self-representation. State v. Hightower , 361 Or. 412, 416, 393 P.3d 224 (2017). A defendant is not entitled to exercise both rights concurrently. See State v. Stevens, 311 Or. 119, 124-25, 806 P.2d 92 (1991) ( Article I, section 11, does not guarantee the right to "hybrid" representation.). A defendant may, however, seek midtrial to waive his or her previously invoked right to counsel and proceed without representation for the remainder of the trial. Hightower, 361 Or. at 418, 393 P.3d 224. At that stage, the right to self-representation is qualified, and the denial of a defendant's midtrial request to proceed pro se is appropriate if either of two circumstances is present. First, a trial court must deny the request if the defendant's attempt to waive counsel is not knowing and voluntary. State v. Meyrick, 313 Or. 125, 133, 831 P.2d 666 (1992). Second, the court may deny such a request if it determines that the defendant's right to self-representation is outweighed by the court's

288 Or.App. 714

"overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to conduct proceedings in an orderly and expeditious manner." Hightower, 361 Or. at 417-18, 393 P.3d 224 (citing ORS 1.010(3) ). "For example, a trial court may exercise its discretion to deny a motion for self-representation that is conditioned on the grant of a continuance. Or it may reasonably deny the motion if it has reason to conclude that granting that motion would result in disruption of proceedings." Id. at 418, 393 P.3d 224.

We review for abuse of discretion a denial of self-representation based on considerations of disruption or delay, Hightower, 361 Or. at 418, 393 P.3d 224, but review any underlying legal conclusions, such as the scope of the right to self-representation, for errors of law, id. at 421, 393 P.3d 224. On review for abuse of discretion, the record must indicate that "the trial court actually weighed the relevant competing interests involved," i.e., the right to self-representation and the need for an orderly and expeditious trial. Id. A court's findings and reasoning need not be express, "so long as the record reveals the reasons for the trial court's actions." However, it is "not sufficient that an appellate court may be able to speculate about what might have been the trial court's rationale for its decision." Id. (emphasis in original); see State v. Guzek , 358 Or. 251, 269, 363 P.3d 480 (2015), cert. den., ––– U.S. ––––, 137 S.Ct. 1070, 197 L.Ed.2d 188 (2017) (describing a "functional" standard for determining whether a court's findings and reasoning are sufficiently clear in the record to support the exercise of discretion).

Here, defendant moved to represent himself at the end of the first day of trial, stating that he was dissatisfied with his attorney's preparation for trial and cross-examination of witnesses. Although defendant indicated that he would prefer to have his counsel act as a legal advisor, he explained that, if having an attorney would prevent him from personally questioning witnesses, then he was "going to have to go pro se." Defendant assured the court that he had no objection with trial continuing the next day as scheduled.

The trial court denied defendant's motion and cited a number of concerns during an informal colloquy with

288 Or.App. 715

defendant. The court observed that defense counsel was providing "excellent representation"...