State v. Cable

1

335 Or.App. 711

STATE OF OREGON, Plaintiff-Respondent, v. DUSTIN RILEY CABLE, Defendant-Appellant.

A179118

Court of Appeals of Oregon

October 30, 2024

Submitted July 25, 2024.

Crook County Circuit Court 21CR40975; Daina A. Vitolins, Judge.

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kyleigh Gray, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán Judge.

MOONEY, J.

Defendant appeals a judgment convicting him of first-degree burglary ORS 164.225, and second-degree criminal mischief, ORS 164.354. He assigns error to the trial court's decision to grant his request to proceed pro se. He contends that the trial court accepted his waiver of his constitutional right to counsel without ensuring that the waiver was knowing and voluntary because it failed to engage him in a colloquy during which it explained the risks of self-representation. The record does not, however, reflect that the trial court erred. In fact, the trial court conducted thorough colloquies with defendant on multiple occasions, ensuring that he understood his right to be represented by legal counsel as well as the significant risks to him in waiving that right. Because we conclude that defendant validly waived his right to counsel, we do not reach the questions of harmless error under state law or structural error under federal law, and we affirm.

STANDARD OF REVIEW

We review for legal error when assessing whether the trial court has violated defendant's right to counsel. State v Abbott, 319 Or.App. 578, 579, 510 P.3d 935 (2022). "We view a waiver of the right to counsel in light of the circumstances particular to each case." Id.

FACTS

Defendant's convictions arise from an early morning break-in of a parole officer's home. On appeal, the relevant facts are entirely procedural and somewhat complex.

On August 24, 2021, in Crook County Circuit Court Case No 21CR40975, defendant was arraigned on a district attorney's information and was appointed counsel. He was subsequently indicted by a grand jury and arraigned in that same case on charges of first-degree burglary, ORS 164.225; first-degree criminal trespass, ORS 164.255; second-degree criminal mischief, ORS 164.354; and second-degree criminal trespass, ORS 164.245.

On October 7, 2021, a grand jury indicted defendant in a new case, Crook County Circuit Court Case No 21CR48824, for manufacture of methamphetamine, ORS 475.886, and attempt to commit a class B felony, ORS 161.405(2)(c). Those new charges were related to evidence of drugs that had been discovered in the investigation of Case No. 21CR40975. Defendant was arraigned and appointed counsel in the new case. Ultimately, a superseding indictment was issued that effectively combined the charges of both cases under Case No. 21CR40975. Case No. 21CR48824 was then dismissed. The trial court engaged in discussions with defendant on numerous occasions both before and after the charges from the two cases were combined. We turn to those discussions now.

On November 12, 2021, defense counsel advised the court that defendant wished "to proceed pro se with [defense counsel] as an advisor."^[1] The visiting judge responded that he would not "go through the colloquy with [defendant] today," because he "want[ed] to set it in front a * * * judge that's here all the time to go over it."

On November 19, 2021, a regularly sitting judge of the trial court conducted a colloquy with defendant concerning his request to represent himself in both cases:

"THE COURT: So, [defendant], you wish to go forward to represent yourself in each of these matters?

"[DEFENDANT]: Yes ma'am.

"THE COURT: And do you understand-so the case is set for trial on December 6th, there's one count of Unlawful (inaudible) of Methamphetamine and one Attempted Unlawful Delivery of Methamphetamine.

"The first one is a Class B felony with a maximum penalty of up to ten years in prison. The Class C felony maximum penalty is up to five years in-in custody of the Oregon Department of Corrections. Do you understand-do you understand that the-that the cases are significantly serious and carry a heavy potential penalty?

"[DEFENDANT]: Yes ma'am. I have-I've filed two motions to dismiss on all the cases, one being to challenge the search warrant, that it did not have the narcotics on it as items to be seized.

"THE COURT: And so-and so I took a look at that, [defendant], and what I would tell you is that a motion to dismiss is not the appropriate motion to file when you want to essentially exclude evidence, but that's probably something that you do not know because you're not an attorney. Do you understand that?

"[DEFENDANT]: Yeah. We were going forward as [legal advisor] as my advisor. * * *

"THE COURT: -you would-you would like to represent yourself, but you would like [legal advisor] to stay in a capacity to be able to give you legal advice?

"[DEFENDANT]: Yes ma'am.

"THE COURT: And do you understand that the Deputy DA, or district attorney who will be prosecuting this case, has a law degree?

"[DEFENDANT]: Yes ma'am.

"THE COURT: And so they have an advantage to you in terms of process, procedure, and knowing the law. Do you understand that?

"[DEFENDANT]: Yes ma'am.

"THE COURT: And do you understand that [legal advisor] as-not as just your advisor, but as your attorney, can call witnesses, object to evidence, make legal arguments that you might not be able to do. Do you understand that?

"[DEFENDANT]: Yes ma'am.

"THE COURT: And-and in light of all that, do you still wish to go forward representing yourself with [legal advisor] attending as a legal advisor?

"[DEFENDANT]: Yes, ma'am.

"THE COURT: All right. And then do you want to do that in both cases?^[2]

"[DEFENDANT]: Yes, please.

"THE COURT: And so once again let me-I believe the-the other case, again, the Burglary in the First Degree is a Class A felony, that's a-the maximum penalty is up to 20 years in the custody of the Oregon Department of Corrections.

"The Criminal Trespass in the First Degree is a Class A misdemeanor as well as the Criminal Mischief in the Second Degree. Those could be both up to 364 days in the Crook County Jail. And, finally, the Criminal Trespass in the Second Degree is a Class C misdemeanor with up to 30 days in the Crook County Jail.

"And once again, the State is represented by an attorney who has legal training, and-and you are at a disadvantage if you go forward representing yourself versus having [legal advisor] represent you. Do you understand that?

"[DEFENDANT]: Yes, ma'am.

"THE COURT: And you still wish to proceed with representing yourself with [legal advisor] as your legal representative? Or legal advisor?

"[DEFENDANT]: Yes, please.

"THE COURT: All right.

"So then I-I will find that your waiver of your right to attorney is freely, knowingly, voluntarily, intelligently made and that I will allow-authorize you to proceed pro se with [legal advisor]. You will remain as legal advisor."

The state asked the trial court to clarify its understanding of the pro se and legal advisor concepts. The trial court clarified that while it would prefer that defendant not proceed pro se, it was confident that defendant understood what he was doing and that the trial court would not limit defendant's legal advisor from speaking to the trial court because he would be helpful to ensure scheduling and to clarify defendant's motions.

On November 23, 2021, defendant appeared pro se for the first time. Over the course of that hearing, the trial court told defendant nine separate times that he should get an attorney and it gave him reasons for doing so.

"THE COURT: * * * [W]hy are you representing yourself, sir?

"[DEFENDANT]: Because I felt that was a better way to go.

"THE COURT: -I think it's a mistake, that's all I can say.

"THE COURT: And I'll tell you more about a little bit why, but I think it's a mistake. I mean-I mean even-this guy's a-we have rules-I don't know how often you've been in court-and there's a way they do things, and motions are filed, and there's a way they're supported, and attorneys go to law school, and they-some become defense attorneys in districts and they learn those rules and they're better prepared to handle these things, and I don't think that you are. And that's all I can say. And I want you to be successful.

"Don't get me wrong, I want the attorney to do what you want, but I don't think you're going to be successful if you represent [yourself]. You are at a huge disadvantage. You're at a huge disadvantage at this being not, you know, not having a legal background, and not doing it. And I don't want you to be at a disadvantage, so...

"[DEFENDANT]: That's why I was going forward with [legal advisor] as my advisor."

When the trial court denied defendant's motion to suppress, it told defendant that he was

"identifying some issues, *** and you're doing okay, but you're going to trial in two weeks and there's rules, and I think you saw them today, * * * you get here [to the hearing], you don't have the warrant, * * * you don't have the evidence ***. You need an attorney to issue subpoenas ***."

The trial court continued its warnings throughout that hearing:

"THE COURT: *** But I'm telling you right now, you're at an incredible disadvantage ***.

"You need to get an attorney, and I'll leave it up to you. I know you've gone over it with a judge, but either that, or you're going to have to get a lot of advice from [legal advisor], and you know, and he's not co-counsel, he's not making the call, he is to advise you.

...