State v. Guerrero

277 Or.App. 837

373 P.3d 1127

STATE of Oregon, Plaintiff–Respondent

v.Anibor Beaver GUERRERO, Defendant–Appellant.

CR1000873

A150999.

Court of Appeals of Oregon.

Argued and Submitted May 28, 2014.

Decided April 27, 2016.

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

ORTEGA, P.J.

Defendant appeals his convictions for first-degree assault, ORS 163.185, and unlawful use of a weapon, ORS 166.220. He assigns error to the trial court's decision to require him to proceed to trial without counsel and to the court's failure to appoint substitute counsel in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.¹ Because we conclude that the record is insufficient to support a finding that defendant made a knowing implicit waiver of his right to counsel through misconduct, we reverse and remand for a new trial.

Generally, we review a trial court's decision to grant a motion for withdrawal of counsel for abuse of discretion. State v. Langley, 351 Or. 652, 666, 273 P.3d 901 (2012). However, “[i]f a trial court grants a motion to withdraw and does not appoint substitute counsel, thus requiring the criminal defendant to proceed pro se, we review for error of law whether the defendant has knowingly and intentionally waived his or her right to counsel.” Id.

The pertinent procedural facts are as follows. Defendant's original trial date was set for February 3, 2011. On January 31, defendant's counsel, Kovac, filed a motion to withdraw. On February 2, at the motion hearing, Kovac explained that defendant objected to Kovac's plans to request a postponement of the trial date to further investigate and prepare. Defendant stated, “I have nothing against Mr. Kovac. He's presented himself very well. My—my fear is that he is so slammed that I'm not going to get, you know, adequate counsel from him.” After explaining the nature of trial preparation to defendant and pointing out that he was facing 100 months' imprisonment, the trial court denied the motion to withdraw. The case was set over to May 4.

On May 4, Kovac moved once more to continue the case to allow further investigation. The court granted that motion and reset the trial date for July 6. The court also scheduled a settlement conference for June 22. At the settlement conference, Kovac moved to withdraw as counsel a second time, citing a breakdown of the attorney-client relationship. The trial court granted Kovac's motion to withdraw and allowed defendant to request a new attorney. The court told defendant, “[W]hen we give you a new lawyer, which I'm happy to do, that is going to require a new trial date undoubtedly.”

The trial court appointed Lyons as defendant's second attorney and set the trial over to September 15, with another settlement conference scheduled for September 7. On September 2, however, Lyons moved to withdraw as defendant's counsel. In his affidavit in support of the motion to withdraw, Lyons stated, “[M]y client no longer wants my representation and desires a new attorney. Currently, I believe that our communication and ability to work with one another has irremediably broken down.” At the hearing on the motion, defendant added that he wanted a new attorney because Lyons had not kept him updated on the case and stated, “This is not a stall tactic. I need a defense and there's record—there's medical records that have not been given.” The trial court noted that it was “pretty unusual for somebody to get sideways with two attorneys” and indicated that defendant might have been “the source of the problem.” The court and defendant then had the following exchange:

“THE COURT: * * * [I]f you may recall, we had a conversation when I allowed you to fire Mr. Kovac that suggested that if this happened again you were very possibly going to be trying this case on your own.

“[DEFENDANT]: Well, I'm not—I don't have legal backing to—to—to fight a case myself. With Mr. Kovac, he violated my fast and speedy rights by waiting until 13 days before trial and that's the reason that I tried to fire him, at which time I was denied.”

The court denied Lyons's motion to withdraw and instead set over the case to November 1 to allow Lyons more time to prepare for trial. The court then told defendant:

“You know, we're just not going to let you keep shopping for a lawyer to get one that you—that's going to agree with you. We're required under the law to provide you with a competent attorney. Mr. Lyons absolutely fits the bill 100 percent.”

In response, defendant suggested that he was dissatisfied with Lyons's attempt to “plead [him] out.” The court explained to defendant that his attorney was ethically required to identify the flaws in his case and was allowed to advise him to accept a plea deal; however, the court also made it clear to defendant that he had a constitutional right to disregard his attorney's advice.

Nevertheless, on October 12, Lyons again moved to withdraw as defendant's counsel. In his supporting affidavit, Lyons stated, “My client has instigated bar proceedings against me, regarding my representation of him in this matter,” and “My client will not talk with my investigator or myself.” After the hearing on the motion, the court allowed Lyons to withdraw, telling defendant:

“This is the tipping point. At this point I've made a notation on here. This is your last court-appointed attorney.”

The court then asked defendant whether he understood that appointing a new attorney would cause additional delay; defendant acknowledged that he understood.

The trial court appointed Bernstein as defendant's third attorney and then granted defendant's motion to set over the November 1 trial date, resetting the trial for January 24, 2012. On January 23, Bernstein moved to withdraw. In his supporting affidavit, Bernstein averred that defendant had told his investigator that he believed a “conflict of interest had arisen” and that he wanted Bernstein to withdraw. According to Bernstein, defendant's request “came with the implied threat of [d]efendant filing a bar complaint against [him] if [he] did not agree to withdraw.” On the day of trial, Bernstein filed a supplemental motion to withdraw and attached a second affidavit, in which he stated that defendant wished to testify on his own behalf and that an “ethical issue” would prohibit him from allowing defendant to take the stand. At the hearing, the court inquired as to the ethical issue:

“THE COURT: * * * And so I—I guess I have some—some additional questions as to * * * where things are at with Mr. Bernstein and [defendant]. And if this is a situation where there's an actual ethical conflict or if this is just a—a situation where the testimony may be such that it may, you know, be contrary to what Mr. Bernstein thinks * * * could be accepted by any rational * * * jury.

“ * * * * *

“[DEFENDANT]: I've come to the realization that there's no way Mr. Bernstein can represent me just by our conversation. There's—he has no confidence in my case as far as being able to represent it with any type of—I don't even know what the exact word I'm—I'm looking for.

“With any gusto, I guess, because the way he sees it he can't ethically challenge a witness, and, you know, try to make them, you know, tell the truth if they are lying because he doesn't believe that they're lying.

“THE COURT: Anything else you wanted to tell me?

“[DEFENDANT]: No. I—I will represent myself, sir, but I—I do need time to—to prepare. I'm not prepared to go to trial today if I do have to represent myself.

“THE COURT: Now, Mr. Bernstein, the—I'm trying to get a little bit of a better understanding as to the bind that you're in having the defendant testify—

“[BERNSTEIN]: The—the statement that was made to my investigator goes well beyond what Your Honor was asking for the second part of your question. It was—

“ * * * * *

“ * * * I don't know exactly what I'm allowed to say or not say, but it was—it was unequivocal.

“ * * * * *

“THE COURT:—the—what I need clarification on is whether we're in a situation where if the client testifies and you believe his testimony just—just hypothetically, is just absurd and contrary to all facts and you don't want to have to— “[BERNSTEIN]: That is not the issue.

“THE COURT: Okay.

“[BERNSTEIN]: We're not close to that. That is not even close.

“ * * * * *

“ * * * It's far more substantial.

“THE COURT: Okay. And then the other thing is whether we're in the situation where the client would be taking the stand and you—you might personally not believe his testimony given the other evidence—

“[BERNSTEIN]: That is not—

“THE COURT:—in the case.

“[BERNSTEIN]:—the issue either, Your Honor.”

The trial court declared that an ethical conflict would arise if Bernstein represented defendant and defendant testified. The court noted its earlier warning that defendant's third appointed attorney (Bernstein) would be his last. The court also expressed concern that any future attorneys appointed to represent defendant would be confronted with the same ethical conflict if defendant insisted on testifying. The court then presented defendant with the choice of either (1) proceeding with Bernstein as counsel and not testifying or (2) representing himself and retaining the ability to testify.

In doing so, the court explained to defendant the various aspects of trial proceedings, including voir dire, opening statements, direct and cross-examination, evidence, closing arguments, jury instructions, and deliberation. The record reflects that that was the first time in the course of defendant's court appearances that the trial court provided any explicit information about what def...