State v. Morales

1

325 Or.App. 454

STATE OF OREGON, Plaintiff-Respondent, v. MIGUEL ANGEL MARTINEZ MORALES, aka Bianney Perez Rojas, Defendant-Appellant.

A175290

Court of Appeals of Oregon

April 19, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted November 21, 2022

Umatilla County Circuit Court 18CR15984; Daniel J. Hill Judge.

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge, and Jacquot, Judge.

JACQUOT, J.

Defendant was convicted of one count of third-degree rape, ORS 163.355 (Count 1), and two counts of second-degree sexual abuse, ORS 163.425 (Counts 3 and 4), after engaging in a sexual relationship with a minor, T, and fathering her child. During trial, defendant requested to substitute appointed counsel and defense counsel moved to withdraw, defense counsel informed the court that defendant had directed her not to speak on his behalf if the court were to deny those requests and defendant (who is Spanish speaking but also speaks English) requested an alternative interpreter. Also, prior to and during trial, the defense moved to continue trial several times. The trial court denied each request to substitute counsel and to continue trial, explicitly ruled that defense counsel was still representing defendant, and denied defendant's request for a substitute interpreter. The jury found defendant guilty on Counts 1, 3, and 4,^[1] and the court imposed a $5,000 compensatory fine payable to T connected to the conduct underlying Count 1 as part of defendant's sentence.

Defendant now appeals, raising seven assignments of error. We reject defendant's fifth assignment of error- that the trial court erred by denying his request for the trial to proceed in his absence-without discussion because it is unpreserved and does not constitute "plain error." See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *."); see also State v. Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013) (describing plain error requirements). There is no right to trial in absentia. We affirm the judgment of the trial court on the remaining assignments for the reasons explained below.

First and second assignments of error. Defendant contends that, because he demonstrated a breakdown in the attorney/client relationship when he stated that he did not understand the proceedings and refused to permit counsel to speak for him, the trial court abused its discretion by declining to substitute counsel.^[2] We disagree.

A criminal defendant "has no right to have another court-appointed counsel in the absence of a legitimate complaint concerning the one already appointed for him." State v. Langley, 314 Or. 247, 257, 839 P.2d 692 (1992), adh'd to on recons, 318 Or. 28 (1993) (Langley I) (quoting State v. Davidson, 252 Or. 617, 620, 451 P.2d 481 (1969)). The court found here, and we agree, that defendant never articulated a legitimate complaint concerning the performance of his appointed counsel that would require substitution. Defendant's complaints were primarily focused on not wanting the trial to proceed and did not identify any concrete concerns about counsel's representation of him. See State v. Olson, 298 Or.App. 469, 472-73, 447 P.3d 57 (2019) (no error in denial of motion to substitute where defendant did not show "concrete concerns about the present performance of counsel"). His assertion that he would not let counsel speak for him, made only while reiterating that he did not want to go to trial and asking for more time, is not a basis to substitute counsel in the absence of any legitimate complaints about the performance of counsel. See State v. Langley, 351 Or. 652, 668-69, 273 P.3d 901 (2012) (Langley II) (distinguishing between a defendant's mere failure to cooperate with counsel against his best interest and a legitimate complaint about the performance of counsel). Further, the court expressly found that counsel was adequately representing him despite counsel acknowledging a breakdown in the attorney/client relationship. See State v. Davis, 345 Or. 551, 582, 201 P.3d 185 (2008), cert den, 558 U.S. 873 (2009) (no error in denial of motion to substitute where court found counsel "fully adequate in their representation of defendant, despite the strain that defendant's hostility toward them created"). And, based on the totality of its observations, the trial court explicitly found defendant's complaints about not understanding the proceedings not credible.^[3] Under those circumstances, it was well within the trial court's discretion to deny the motions to substitute counsel. See State v. Daley, 318 Or.App. 211, 212, 506 P.3d 502, rev den, 370 Or. 212 (2022) (reviewing trial court's decision whether to grant substitution of counsel for abuse of discretion).

Third assignment of error. Defendant next challenges the court's denial of his motion for a continuance. A trial court may postpone trial for a reasonable period of time "upon sufficient cause" shown by the defendant. ORS 136.070. "We review such rulings for abuse of discretion, which compels affirmance so long as the trial court's determination is within the range of legally correct choices and produces a permissible, legally correct outcome." State v. Kindler, 277 Or.App. 242, 250, 370 P.3d 909 (2016) (internal quotation marks omitted). As described above, defendant made several requests to continue trial before and during trial. On appeal, he does not identify which particular motion he is challenging. In any event, on the record before us, we cannot say that the court abused its discretion by denying any of defendant's requests to postpone trial.

Fourth assignment of error. In his next assignment, defendant contends that the trial court erred by "effectively" depriving him of his right to counsel without ensuring that he knowingly and intentionally waived that right, after ruling that it would not substitute appointed counsel. As we understand it, defendant argues that the court's ruling permitted counsel to proceed as "advisory" and therefore required the court to obtain a valid waiver of his right to counsel.

Defendant's argument is premised on Olson, 298 Or.App. at 469, and is misplaced. Importantly, our discussion in Olson, which suggested that a valid waiver of the right to counsel is necessary if the "effect" of the trial court's ruling on a motion to substitute counsel was to have defense counsel proceed as advisory, was, in fact, dicta. See id. at 474 (taking no official position on the matter because the issue was not raised on appeal). Furthermore, unlike in Olson where it was unclear from the record whether the defendant, defense counsel, or trial court knew what role defense counsel was to play after the court denied the motion to substitute counsel, here, the trial court made it abundantly clear that defendant was not proceeding pro se and that defense counsel still represented defendant. In other words, there was no "uncertainty" as to what role defense counsel was to play that could have led defendant to believe that he "represented himself." That is so despite the fact that he directed counsel not to speak for him. See Langley II, 351 Or at 668-70 (distinguishing between ending representation of counsel or waiving right to counsel and declining to cooperate with counsel against best interest). Thus, nothing on this record suggests that the trial court permitted counsel to proceed as "advisory" nor that it accepted a waiver of counsel. As such, the court was not obligated to determine if defendant knowingly and intentionally waived his right to counsel.

Sixth assignment of error. Turning to his sixth assignment, defendant contends that the court erred in denying his request for an alternative interpreter under ORS 45.275 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, he argues that alerting the court that he could not understand one of the interpreters, and that he would not be able to understand the remainder of the proceedings without a substitute interpreter, was sufficient to establish "good cause" to delay the proceedings under ORS 45.275(4). In defendant's view, the court erred in denying that request and violated his right to an "adequate interpreter" under ORS 45.275 and the Due Process Clause.

Under ORS 45.275(1)(a), the court shall appoint a qualified interpreter whenever necessary. If a party, victim, or witness is "dissatisfied" with the interpreter appointed by the court, that person may request the appointment of a substitute interpreter under ORS 45.275(4). However, "[i]f the substitution of another interpreter will delay the proceeding, the person making the request must show good cause for the substitution." Id. (emphasis added). Here, the trial court concluded that, in requesting that the court substitute interpreters, defendant had not established "good cause" to delay the proceedings under ORS 45.275(4). In doing so, the court explicitly and implicitly found that Adams, the interpreter who defendant wanted replaced, was qualified and accurately interpreting the proceedings. Defendant does not address those factual findings or provide us with a factual standard of review. Accordingly, for purposes of deciding this assignment-and we emphasize, in the absence of any argument that a different standard should...