State v. Stanton

369 Or. 707

511 P.3d 1

STATE of Oregon, Respondent on Review,

v.Lamar Lee STANTON, Petitioner on Review.

CC 17CR17894 (SC S067829)

Supreme Court of Oregon.

Argued and submitted June 22, 2021

Resubmitted January 25, 2022

May 26, 2022

Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.^**

DUNCAN, J.

In this criminal case, the trial court entered a judgment of conviction and sentence, and defendant appealed, arguing that the trial court had erred by proceeding as if defendant had waived his right to court-appointed counsel. The Court of Appeals affirmed without opinion. State v. Stanton , 303 Or. App. 814, 462 P.3d 790 (2020). For the reasons explained below, we reverse and remand.

I. BACKGROUND

Defendant was charged with three counts of first-degree sexual abuse and two counts of first-degree sodomy. Because defendant is indigent, the trial court appointed counsel to represent him. Over the course of the trial court proceedings, defendant was represented by several different court-appointed lawyers. Defendant's final lawyer was Lee-Mandlin.

Lee-Mandlin filed a motion to have defendant evaluated to determine whether he was able to aid and assist in his defense. The trial court granted the motion, and defendant, who was being held in jail pending trial, was sent to the state hospital for an evaluation.

Defendant expressed frustration with Lee-Mandlin's representation and asked her to move to withdraw. Lee-Mandlin filed two motions to withdraw but told the trial court that she was prepared to represent defendant. The court denied the motions, and—after defendant was evaluated at the state hospital and the trial court determined that he was able to aid and assist in his defense—the case proceeded to a bench trial.

The charges against defendant were based on allegations that he had sexually abused a young girl, L, who was the daughter of a woman he had been dating, C. On the second day of trial, after L and C testified, the state called the final witness in its case-in-chief, Satterwhite, a forensic interviewer who had interviewed L. During the state's direct examination of Satterwhite, defendant told the trial court that he needed a new attorney:

"[DEFENDANT]: I need new counsel, Your Honor. I'm not comfortable with my attorney. She is not—she's not helping me at all. She's not bringing no evidence to help me.

"She's not bringing none of the—the psych evaluations to show that I'm not a crazy evil person. I took sexual psych evaluation show[ing] that I'm (indiscernible). She's not helping me. She's not asking the right questions. She's not—"

At that point, Lee-Mandlin asked the court for a break. Defendant kept speaking, and Lee-Mandlin kept asking for a break. Ultimately, the court took a recess.

After the recess, the prosecutor spoke first and said that defendant had been disruptive throughout the trial and that, if defendant continued to be disruptive, he should be removed from the courtroom and Lee-Mandlin could continue in his absence.

Lee-Mandlin spoke next and asked the court to allow her to withdraw. She told the court that her motion was based not on defendant's disruptiveness, which the prosecutor had just mentioned, but instead was based on her belief that, under the Rules of Professional Conduct, she could not continue to represent defendant:

"[LEE-MANDLIN]: *** Your Honor, I would respectfully ask that the Court allow me to withdraw at this point.

"I believe under *** the Oregon Rules of Professional Conduct, 1.8, I should be allowed to withdraw.

"In addition, I believe that I should be able to withdraw under *** 1.2. At this point, Your Honor, I cannot—I cannot continue representing Mr. Stanton under the current circumstances, that are completely different than what [the prosecutor] has told the Court about."¹

After Lee-Mandlin finished, the prosecutor told the court that he believed defendant was waiving his right to an attorney:

"[THE PROSECUTOR]: At this point, Your Honor, *** I believe [defendant is] waiving his right to an attorney *** in this trial. Because he is ultimately making it impossible for Ms. Lee-Mandlin to continue her representation.

"So I believe that the defendant should be forced to continue on his own if ultimately the court grants [Lee-Mandlin's motion to withdraw]. But that's because of the choices he's made, not because of choices any of us *** have foisted upon him during *** the [pendency] of this trial."

The court then asked Lee-Mandlin about the basis for her motion to withdraw:

"THE COURT: Ms. Lee-Mandlin, I don't want to stomp all over your ethical considerations, but, quite frankly, I'm mystified as to your motion. I—I cannot imagine what is going on that would allow me to grant the motion at this late date.

"We're right in the middle of trial. I mean, I know *** you say you've got ethical considerations. And, *** I can't stomp all over those. But *** I'm at a loss to understand the nature of your reason to withdraw."

Lee-Mandlin responded, "Your Honor, Mr. Stanton has made it clear that if I do not do things his way, there will be consequences." She then told the court that, under the Rules of Professional Conduct, she did not believe that she could say anything further. The court asked Lee-Mandlin if she was "talking about an attorney-client confidentiality," and Lee-Mandlin said that she was.

At that point, the court asked defendant whether he wanted Lee-Mandlin to withdraw, and, when defendant answered that he did, the court asked defendant whether he was prepared to represent himself:

"THE COURT: Mr. Stanton, I have some specific questions for you. Please answer them directly.

"[DEFENDANT]: Yes, sir.

"THE COURT: Do you want your lawyer to withdraw?

"[DEFENDANT]: Yes, sir.

"THE COURT: Did—did you say, yes?

"[DEFENDANT]: Yes, sir.

"THE COURT: Are you prepared to represent yourself?

"[DEFENDANT]: If I'm given a day or two, maybe, or I can pay for a lawyer, give me maybe 24 hours. I need a lawyer to come from Portland. Your Honor, I'm not *** a troublemaker, Your Honor. I don't know what's going on.

"Your Honor, I'm only asking these questions because I'm not getting business, okay? I'm in jail, so I'm assuming for a trial lawyer to come see me. To come and go over strategies. I took, as relevant, polygraphs and—

"THE COURT: I'm going to ask that—I said to ask—I'm going to ask you questions, specifically.

"[DEFENDANT]: Yeah.

"THE COURT: Are you ready to represent yourself?

"[DEFENDANT]: At this moment, with what I have today, no. But I have things—I have things—I just—I think I can represent myself if I can cross-examine my alleged victim and my witnesses, myself. Yes, I will be ready to represent myself. But I also need an attorney or you can provide me with one. But I'm ready."

Defendant then returned to his complaints about Lee-Mandlin:

"[DEFENDANT]: I'm not giving [Lee-Mandlin] a hard time. I—I just don't know what's going on. That's why I'm asking her while I'm here. If she would come see me and visit me, I wouldn't have to ask, Your Honor.

"I'm just curious of what's going on. I didn't do a crime. I asked her could she provide[ ] a psych evaluation. She didn't give those to the Court. I'm, like, why are you not bringing those—

"THE COURT: You're running off, again. Why do you need a half a day or a day to do what?

"[DEFENDANT]: Because I need to call me my lawyer from Portland, that I wanted to call if I need one to appeal. But I can call her now or I have the evidence to myself that I can come.

"And, like I said, if I can cross-examine the alleged victim and the witness, myself, and call my witnesses that I've been asking for her to subpoena, that she didn't do."

Defendant continued to assert that he was innocent and to complain that Lee-Mandlin was "not helping" him, was "not doing exculpatory evidence," and was "not bringing no rebuttal evidence." In response, the court asked, "Are you telling me you think you could have another lawyer here tomorrow?" Defendant answered:

"[DEFENDANT]: I can call. She can drive down from Portland. Yes, I can. If she'll take my retainer, she can. If she don't, then I have to juggle myself, Your Honor and then—come on my appeal, if you decide, what I hope that you don't do.

"But, like I said, I'm just not knowing what's going on. That's why I've been asking these questions. I'm not threatening her. I just don't know what's going on. That's normal, correct? No one gives me. My lawyer can't see me. I don't know what—what evidence we're presenting to the courtroom."

The court asked the prosecutor for his position on taking a recess until the next day. The prosecutor opposed the recess, stating that defendant had been "talking about raising money to get an attorney for months" and had been "trying to get [Lee-Mandlin] off for some period of time." The prosecutor also pointed out that defendant was talking about cross-examining witnesses who had finished testifying and that "no new lawyer is going to be able to help him with that." The prosecutor suggested that defendant was "having trouble accepting the fact that Ms. Lee-Mandlin is doing what she's supposed to be doing under the law."

The court asked defendant additional questions about the lawyer he wanted to call and whether he was ready to represent himself if he could not get another lawyer. Defendant answered that Lee-Mandlin had not properly cross-examined C. The court then repeated its question:

"THE COURT: You're not answering my questions. If you can't get another lawyer, are you ready to represent yourself?

"[DEFENDANT]: If I can cross-examine my alleged victim and

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