State v. Clardy

286 Or.App. 745

401 P.3d 1188

STATE of Oregon, Plaintiff-Respondent,

v.Sirgiorgio Sanford CLARDY, III, aka Sirgiorgio Sanford Clardy, Defendant-Appellant.

A154794 (Control)

A154795

A154068

Court of Appeals of Oregon.

Argued and submitted September 28, 2015.

July 19, 2017

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With him on the supplemental briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section. Sirgiorgio Sanford Clardy filed the supplemental brief pro se.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe, Senior Judge.^*

TOOKEY, P. J.

Following two jury trials, on three different cases, defendant was convicted of multiple crimes. In case number 12-06-32917, defendant was convicted of two counts of promoting prostitution, ORS 167.012, and one count each of compelling prostitution, ORS 167.017, second-degree assault, ORS 163.175, first degree robbery, ORS 164.415, fourth-degree assault, ORS 163.160, and tampering with a witness, ORS 162.285. In case number 12-07-33213, defendant was convicted of one count of compelling prostitution, ORS 167.017, and two counts of promoting prostitution, ORS 167.012. In case number 12-08-33617, defendant was convicted of three counts of tampering with a witness, ORS 162.285, and one count of tampering with physical evidence, ORS 162.295.¹

In this consolidated criminal appeal, defendant appeals three judgments of conviction, raising multiple assignments of error.² We write only to address defendant's fifth and eighth assignments of error.³ In his fifth assignment of error, defendant argues that, under Article I, section 11, of the Oregon Constitution,⁴ and the Sixth Amendment to the United States Constitution,⁵ the trial court erred when it concluded that he waived his right to counsel, and by denying defendant's request for appointment of counsel following the withdrawal of his final attorney in case numbers 12-06-32917 and 12-07-33213. In defendant's eighth assignment of error, he argues that "[t]he trial court erred when it denied defendant's demurrer to the indictment in case number 12-06-32917." For the reasons that follow, we reject defendant's arguments relating to his fifth assignment of error, but we agree with his arguments relating to his eighth assignment of error. Therefore, in case number 12-06-32917 we reverse and remand for entry of judgment allowing demurrer; in case number 12-07-33213 we remand for resentencing and otherwise affirm; and in case number 12-08-33617 we affirm.

I. WAIVER OF DEFENDANT'S RIGHT TO COUNSEL

We begin with defendant's fifth assignment of error. Ultimately, defendant's challenges relate only to the Measure 11 and prostitution cases; however, because the procedural history is intertwined with the tampering case, we describe the history of all three cases. After defendant was indicted for multiple crimes relating to prostitution and arrested, the trial court appointed Wollam to represent defendant. On September 18, 2012, Wollam withdrew from representation due to a conflict of interest. After Wollam's withdrawal, the court appointed James. Because of Wollam's conflict, the court extended the time for all three cases to be tried to December 20, so James would have time to prepare. On November 1, James had to withdraw due to an ethical conflict, but emphasized that "this in no way has—represents any sort of conflict that I have with [defendant]." The court then appointed two attorneys, Pagan and Herivel, and extended the trial date to January 22, 2013.

On January 16, a week before the trial was set to begin, Pagan and Herivel requested to withdraw from the cases due to a "total breakdown of the attorney/client relationship." Before Pagan and Herivel withdrew, Pagan voiced his concern that no attorney would be prepared to try such a complex case by the date scheduled for trial, January 22. Defendant agreed to terminate the representation and requested to represent himself. The court refused to further delay the trial unless defendant waived his statutory speedy trial rights, which defendant refused to do. Defendant proposed that he might be able to retain private counsel, but once again invoked his right to represent himself. The court allowed Pagan and Herivel to withdraw as defendant's attorneys, but ordered Pagan to stay on as defendant's legal advisor until a new attorney was appointed. Later that day, Dials was appointed as defendant's attorney.

On January 24, the court determined that defendant's 180-day statutory speedy trial right would not compel his release until February 2, and defendant continued to refuse to waive his speedy trial rights to allow Dials more time to prepare for trial. On January 25, Dials requested to withdraw because he would be unable to prepare for trial which was now scheduled for January 28. After being warned about the consequences by the court, defendant again refused to waive his speedy trial right so Dials would have more time to prepare for trial. As a result, the trial court granted Dials's request to withdraw as defense counsel because he would be unable to render defendant effective assistance, but the court required him to stay on as defendant's legal advisor.

On January 28, the court severed defendant's tampering case from defendant's Measure 11 and prostitution cases, and decided to try the tampering case first. The court explained:

"[I]n this case what has occurred which brought—what brought [defendant] into court today for trial without counsel is a sequence of events in which * * * [t]he Court has appointed counsel on numerous occasions for [defendant]. A number of those * * * attorneys had to withdraw because of conflicts. * * * Shortly before trial, [defendant] asked for his last attorney, Mr. Pagan, to be removed from the case. The Court granted that request. * * * But—but explained * * * to [defendant] that—that getting a new lawyer up to speed at this late date would be difficult, if not impossible. [Defendant] understood that, decided he wanted a new lawyer in any event and the Court granted that request. Then [defendant] asked for a delay in this—in his trial so that his new lawyer could be brought up to speed and be prepared to try the case. As I understand from Presiding Court, the request for a delay was denied after the Court explained to [defendant] that the Court would grant his request for additional time to allow Mr. Dials, at that time his court-appointed counsel, to be prepared to try this case if [defendant] would agree to remain in custody notwithstanding the statute that requires him to be brought to trial no later than 180 days after being taken into custody on the charges. * * * And [defendant] declined to waive, he wanted to be released, and he made that clear both to Presiding Court and to this Court. He wanted to be released, and given the choice of waiving his—his 180 days so that his counsel could be prepared to try the case, [defendant] declined to waive that * * * which the Court has concluded amounts to a waiver of his right to * * * counsel at the time of trial and that's—that's what [defendant] has done through his conduct."

That afternoon, the jury was selected in the tampering case and the trial court gave defendant another opportunity to waive his speedy trial rights so it could appoint an attorney for him. Defendant refused that invitation once again.

On January 29, following the withdrawal of Dials as defendant's attorney the previous day, the court ordered Pagan and Dials to appear in court. Following a confidential hearing outside of the presence of the district attorney, in which Pagan described defendant's threatening behavior, the court reversed its decision from the previous day that found defendant to have waived his right to counsel, but decided to not reappoint Pagan as defendant's attorney. Accordingly, the court reappointed Dials, and found good cause to continue the tampering trial until February 25, so Dials would have time to prepare for trial.

On February 27, defendant's trial on the tampering charges began. During the tampering trial, both Dials and defendant requested multiple times that Dials be allowed to withdraw as defendant's attorney because of a bad attorney-client relationship and defendant's threatening behavior, but those requests were denied. The court noted that, on the first day of the tampering trial, when defendant was in jail shackles, defendant "attempted to grab Mr. Dial's necktie in what was an apparent attempt to injure his own lawyer." The court ordered that defendant be restrained to a chair because "he may very well attempt to head-butt Mr. Dials, his lawyer, or a witness or a juror * * * and possibly cause a basis for a mistrial through his behavior." On March 1, the jury found defendant guilty of three counts of tampering with a witness and one count of tampering with physical evidence.

On March 20, Dials requested to withdraw as counsel for defendant's Measure 11 and prostitution cases, which had not yet gone to trial. Defendant stated that he wanted Dials removed from all of the cases, including the tampering case, in which he had not yet been sentenced. The court decided to handle the motion to withdraw on the Measure 11 and prostitution cases separately from the motion to withdraw on the tampering case. After hearing Dials's concerns about defendant's threatening behavior in another confidential hearing, the court allowed Dials to withdraw from the Measure 11 and prostitution cases, but Dials was ordered to continue to represent defendant for sentencing in the tampering case.

The next day, March 21, Menchaca was appointed as defendant's counsel in the Measure 11 and prostitution cases. After...