State v. Chambers

¶1concurring.

¶2I concur for the sake of stare decisis. The majority’s result in this case is a tenable application of the Supreme Court’s decision in State v. Meyrick, 313 Or 125, 831 P2d 666 (1992), and is in accord with our interpretation of Meyrickin State v. Mendonca, 134 Or App 290, 293, 894 P2d 1247 (1995).1 I write to express my increasing discomfort with our understanding of the meaning of Meyrick, as is amplified more fully below.

¶3In Meyrick, the court repeated the oft-used general definition of a waiver. “A waiver is an intentional relinquishment or abandonment of a known right or privilege.” 313 Or at 132. The court said, “In determining whether a defendant’s waiver of counsel was the intentional relinquishment or abandonment of a known right, the trial court should focus on what the defendant knows and understands.” Id.(Emphasis in original.) The court pointedly stated that there is no prescribed litany that must be pronounced in the presence of the defendant. It concluded:

“We hold that a trial court may accept a defendant’s proffered waiver of counsel only if it finds that the defendant knows of his or her right to counsel and, if indigent, of his or her right to court-appointed counsel, and that the defendant intentionally relinquishes or abandons that right.” 313 Or at 133.

¶4Thereafter, the court said:

“A colloquy on the record between the court and the defendant wherein the court, in some fashion, explains the risks of self-representation is the preferred means of assuring that the defendant understands the risks of self-representation.” Id.(Emphasis supplied.)

¶5We have focused on the latter sentence and, thus, we have arrived at the proposition that “[b]efore a court accepts a waiver of the right to counsel, it must assure itself that the defendant understands the risks of self-representation.” 150 Or App at 340; Mendonca, 134 Or App at 293.

¶6*342I am now convinced that the above proposition does not reflect a correct understanding of what the court meant in Meyrick. As the court in Meyricksaid, “Our cases generally hold only that to be valid, a waiver must be voluntary and intelligently made.” 313 Or at 132. Here, there is no question that defendant’s waiver was voluntary and intentional.2 The only issue is whether it was made knowingly or intelligently. Again, it is without question that defendant knew that he had a right to be represented in court by an attorney. The court told him so and, for a while, he intended to hire his own attorney. The majority’s understanding of the requirement in Meyrickgoes further. It requires that a defendant be aware of the risks of self-representation before he can be held to have made a knowing waiver and that the court assure itself of that understanding before it accepts the proffered waiver.

¶7In my view, there is nothing in the Oregon Constitution or the case law before Meyrickthat requires that a court assure itself that a defendant understand the risks of self-representation. The proper focus is on whether the defendant is aware of his right to be represented by counsel and not on what advice the trial court gives or on what responses or information the defendant reveals to the court about his decision-making process in deciding whether to waive that right. After all, the right to be represented by an attorney in court is not a complicated concept. Anyone of ordinary knowledge and experience in our society understands that an attorney plays the role of advocate in a criminal proceeding. It is also apparent to anyone involved in the legal system that attorneys, who are trained and experienced in legal matters, know more about the intricacies of the system than he or she does. I arrive at that kind of understanding every time I visit my physician’s office or my auto mechanic’s garage. I am now of the opinion that for there to be a valid constitutional waiver of counsel, it need only be shown that a defendant knew that he was entitled to be represented by *343counsel and that he made a deliberate decision to forego that right. If that is the law, then the majority’s ruling on the facts of this case is incorrect because, clearly, defendant knew of his right to counsel and, over a period of time, deliberately chose not to be represented.