State v. Garrett

                                       744

        Argued and submitted March 22, 2018, affirmed October 9, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   DAVID MICHAEL GARRETT,
                       Defendant-Appellant.
                   Jackson County Circuit Court
                     15CR31135, 15CR13646;
                    A162521 (Control), A163053
                                   

    Defendant appeals judgments convicting him of first-degree theft, ORS
164.055, and supplying contraband, ORS 162.185. Defendant argues that the
trial court erred by forcing him to represent himself at trial without a knowing
and intentional waiver, thereby violating his statutory and constitutional rights
to counsel. The state argues that the record reflects that defendant knowingly
waived his right, because he had a sufficient understanding of the inherent risks
of self-representation, and that defendant’s repeated misconduct following an
appropriate warning by the court established that his waiver was intentional.
Held: The trial court did not err. In this case, the record reflects that defendant
knowingly and intentionally waived his right to counsel.
    Affirmed.



    Timothy Barnack, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Aoyagi, Judge.
    DEHOOG, J.
    Affirmed.
Cite as 

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         DEHOOG, J.
         In these consolidated cases, defendant appeals judgments convicting him of first-degree theft, ORS 164.055, and
supplying contraband, ORS 162.185.1 Defendant assigns
error to three rulings of the trial court, contending that the
court erred in (1) requiring him to represent himself at trial
without a knowing and intentional waiver of counsel, thereby
violating his rights under ORS 135.045,2 Article I, section 11,
of the Oregon Constitution,3 and the Sixth Amendment to
the United States Constitution;4 (2) rejecting his request to
waive his right to a jury trial; and (3) instructing the jury
that it could reach a nonunanimous verdict. As to the first
assignment of error, defendant argues that he did not knowingly waive his right to counsel, because he was neither
warned of the inherent risks of self-representation by the
trial court nor otherwise aware of those risks, and that any
waiver of that right was not intentional, because the trial
court did not provide an advanced warning that his conduct
could be deemed a waiver of his right to counsel. The state
responds that defendant’s repeated requests for counsel,
his observation of tasks and duties that counsel perform on
behalf of defendants, and his evident understanding of the
primary weaknesses of his case collectively demonstrate that
he understood the risks of self-representation sufficiently to
    1
      Although defendant filed notices of appeal as to both judgments, he challenges only his conviction for first-degree theft, in case number 15CR31135, and
does not assign error to any ruling in the other case.
    2
      ORS 135.045 governs the appointment and waiver of counsel in a criminal
action. It provides, in relevant part,
        “(1)(a) If the defendant in a criminal action appears without counsel at
    arraignment or thereafter, the court shall determine whether the defendant
    wishes to be represented by counsel.
        “(b) If the defendant does wish to be represented by counsel, the court,
    in accordance with ORS 135.050, shall appoint counsel to represent the
    defendant.
          “(c) If the defendant wishes to waive counsel, the court shall determine
    whether the defendant has made a knowing and voluntary waiver of counsel.
    ….”
    3
      Article I, section 11, of the Oregon Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right … to be heard by himself and
counsel[.]”
    4
      The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right … to have the
Assistance of Counsel for his defence.”
746                                                        State v. Garrett

be able to knowingly waive counsel. The state further contends that, because the trial court provided defendant with
multiple warnings that his conduct towards his attorneys
was placing him at risk of losing his right to counsel, his
ultimate waiver of that right was intentional. We conclude
that the record reflects that defendant understood the material risks of self-representation associated with his case and
that the trial court provided adequate advance warning
that his conduct could result in a loss of the right to counsel.
Therefore, writing only to address the first assignment of
error, we affirm.5
         “If 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.” State v. Langley, 

, 

 (2012). In addressing that legal
question, however, we review the validity of the waiver of
counsel “in light of the circumstances of [a defendant’s] particular case.” State v. Borba, 

, 

 (2018) (internal quotation marks omitted). In this case,
a full understanding of the relevant circumstances requires
us to review in some detail the procedural history leading up
to the denial of defendant’s ultimate request for appointed
counsel.
         The relevant facts are largely undisputed, with one
exception that we note below. Defendant was charged with
first-degree theft for stealing a chainsaw from a neighborhood store and selling it to a nearby pawn shop. When a
detective investigating the theft spoke to defendant about
it, defendant immediately volunteered that he had stolen
the chainsaw from the store and sold it to the pawn shop.
Defendant was later arrested and taken to jail, where he
remained pending trial. At defendant’s request, the trial
court appointed counsel to represent him. However, at
a hearing held on August 25, 2015, defendant sought in
    5
      We decline to consider defendant’s insufficiently preserved argument that
the trial court erred in denying his request to waive jury and try his case to the
court, and we reject on the merits without further discussion his assertion that
the trial court plainly erred in instructing the jury that its verdict need not be
unanimous.
Cite as 

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open court to fire the attorney appointed to represent him,
Collins, which led to the following exchange:
      “[DEFENDANT]: I want a new attorney and if I see
   this bitch and she come back tomorrow, I’m gonna end up
   sockin’ her.
      “…
      “COURT: Alright. [Defendant]? I’m deeply offended by
   what you just said. I would consider that a direct threat
   toward Ms. Collins. I want you to know you’re gonna get
   one attorney and that’s it ….”
         The trial court released Collins and subsequently
appointed a new attorney, Scales, to represent defendant.
At a hearing held on September 11, 2015, however, the court
also released Scales from the case. The parties dispute
whether the court’s decision to release Scales was due, at
least in part, to threats defendant had made against him.
During the September 11 hearing, Scales informed the trial
court that defendant had expressed a desire for a new attorney. Scales also reported that, before he and defendant first
met, Scales had been told by jail staff that defendant was
prepared to “beat [his] ass.” Scales then met with defendant through a glass partition, during which time defendant cursed at Scales and refused to cooperate with him. At
the hearing, the trial court permitted defendant to tell his
side of the story, and defendant claimed that Scales was the
one who had initiated the profanity and that defendant had
never threatened to punch him.
      “COURT: Did you tell somebody you were going to
   punch somebody? If you lie to me, you’re going to be held in
   contempt.
      “…
      “[DEFENDANT]: No, I didn’t!
      “COURT: Okay. If I find out otherwise, you’re gonna
   be held in contempt of court and you’re gonna be doing a lot
   more time ….
      …
      “COURT: If that’s your final answer, then I’m going
   to accept it. But if I find out otherwise, I’m holding you in
   contempt of court.”
748                                              State v. Garrett

         Although the trial court purported to accept defendant’s version of what had happened with Scales, the court
also made it clear to defendant that, in its view, he was
causing the conflicts with his attorneys and that it believed
“Mr. Scales when he tells [the court] that … these problems were made.” Scales clarified for the court that he had
only heard potential threats from jail deputies and that
defendant had not made any threats to him when they met
in person. Nonetheless, the trial court released Scales without specifically explaining its decision to do so. However,
the court did tell defendant that “we’re not going to continue putting people in front of you just so you can get upset
and want to fight.” Accordingly, the trial court refused to
appoint another attorney for defendant and told him that
he would have to hire his own attorney or represent himself
at subsequent hearings. Consistent with that ruling, defendant indicated at a hearing held before a different judge on
September 21, 2015, that he was representing himself, and
the parties proceeded to select trial dates. On October 1,
2015, however, the trial court reversed its earlier decision
and appointed a third attorney to represent defendant. The
trial court placed certain conditions on its decision to assign
defendant yet another attorney:
      “COURT: Alright. I want to make it very clear, [defendant], ‘cause you’ve got a lot of cases and you threatened
   to punch one [attorney] on the record with me. Don’t even
   deny it, because it’s recorded.
      “…
      “COURT: And then it’s my understanding with
   Mr. Scales, you refused to meet with him. So, I’m just putting these things on the record because you have caused the
   delay of your case. So, you have no speedy trial issues. So,
   I’m just making a record for this. Alright? So, both of those
   people were fired because of your actions. I will appoint
   another attorney to represent you, but if any of those shenanigans go on and they are forced to withdraw, you’re not
   getting another court-appointed attorney. Is that clear?
      “[DEFENDANT]: Yes.”
         Ultimately, defendant’s third attorney, Murphy, was
forced to withdraw from the case on January 13, 2016, due to
Cite as 

 (2019)                                      749

personal reasons, and the court appointed a fourth attorney,
Claar, to represent defendant. At a pretrial hearing held the
day before trial, however, defendant again expressed dissatisfaction with his appointed counsel and asked the court to
replace Claar. Defendant was concerned by Claar’s statement that he was only representing defendant because a
judge had forced him to and that he would not otherwise represent defendant “for anything in the world.” Claar clarified
that he had told defendant that he would not take the case
privately for any reason but was representing defendant as
a court-appointed attorney. Claar further explained:
       “Well, Your Honor, I was just going to point out that the
   difficulty you’re having with him right now is essentially
   what I’m experiencing, only on a level ten times more and
   with very much more colorful language and vague threats.
   So, … it’s to the point where I believe that there is a possible conflict, even with me going forward on it; [defendant]
   has informed me he’s filed a bar complaint against me and
   that he … said, … he better not see me in court, I better
   not come ‘F-ing’ near him. He’s not making specific threats,
   but at the same time, I don’t want to be the next person to
   walk down that back hallway behind the courtroom with a
   pen to my throat. You know? So, you know, and sitting at
   the table there with someone who’s saying these types of
   things and being so confrontational with me.”
         Claar later added:
      “[Defendant] has told me that …, in very colorful
   words, that he better not ‘F-ing’ see me at trial, [I] better
   not ‘F-ing’ come near [him] or else. And just ranting and
   raving, and cussing me out.”
          After specifically noting Claar’s reference to a potential bar complaint, the trial court decided to release him
from any further obligations to defendant and told defendant that he needed to either prepare to represent himself
at trial the next day or hire his own attorney. As further justification for not appointing another attorney or a legal advisor for defendant, the court added during pretrial discussions the next day that “it’s reasonable to believe that you’re
going to threaten your next attorney physically. And … I
cannot order attorneys to advise you, if I believe, and I do,
that you’re going to physically threaten them … so … it’s
750                                             State v. Garrett

really impossible … to give you an attorney … because
you will threaten them.” Later in that discussion, the trial
court referenced defendant’s threat to Collins, noted that
defendant may have also threatened Scales, and indicated
that Claar’s explanation of events had suggested similarly
threatening behavior by defendant. Ultimately, the trial
court summarized for defendant, “so you’ve had three attorneys, actually four, but you’ve had three that you’ve threatened.” And, in response to defendant’s continued requests
that it appoint substitute counsel, the court warned defendant that he was not to claim to the jury that he was being
forced to represent himself, or the court would tell the jury
that defendant had previously released three attorneys. The
court assured defendant, however, that to prevent the jury
from developing a bias against him, it would not tell the jury
that he had threatened his attorneys with physical violence.
         Before calling in the prospective jurors, the trial court
attempted to address defendant’s concerns regarding the
voir dire process. Defendant explained how he understood
his case and asked how he might question potential jurors
appropriately in light of that understanding.
      “COURT: No, but I’m just asking, what is something
   you’d be concerned about—a jury?
      “[DEFENDANT]: Well, the whole argument is my
   lawyer is supposed to discredit [the detective and] the way
   he interviewed me.
      “COURT: So will you be concerned that maybe …
   they would just believe a police officer because they’re a
   police officer? Is that something you’re concerned about?
      “[DEFENDANT]: Nah, I’m not even—I never would
   have represented myself.”
         Defendant, acting pro se, proceeded to try his case
to the jury and was ultimately found guilty. Defendant now
appeals the resulting conviction and argues that the trial
court erred in forcing him to represent himself at trial.
        In accordance with our typical practice, we begin by
addressing questions of state law. See State v. Clardy, 

, 

, adh’d to as modified on recons,

, 

 (2017), rev den, 

Cite as 

 (2019)                                                 751

(2019) (analyzing right to counsel under state constitution
before turning to defendant’s Sixth Amendment argument).
We therefore first consider defendant’s argument that the
trial court violated his right to counsel under Article I, section 11, of the Oregon Constitution by requiring him to represent himself when he had not knowingly and intentionally
waived that right.6
         As the Supreme Court has explained, “[a] criminal
defendant … may waive the right to counsel protected by
Article I, section 11, of the Oregon Constitution, if the
defendant waives that right knowingly and intentionally.”
Langley, 

. The “knowingly” component refers
to a defendant’s understanding of the right to counsel and
focuses particularly on whether the defendant is aware of
the risks of self-representation. State v. Meyrick, 

,
132 n 8, 

 (1992); State v. Guerrero, 

, 

 (2016). The “intentional” component, on the other hand, refers to whether a defendant has
intentionally—either expressly or through continued misconduct following a sufficient court warning—chosen to proceed without counsel. Clardy, 

; see also
Guerrero, 

 (noting that Oregon courts use
the term “intentionally” interchangeably with “voluntarily”
and the term “knowingly” interchangeably with “intelligently,” with the latter two terms both referring to “a defendant’s knowledge and understanding of the right to counsel”
(emphasis in original; internal quotation marks and citation
omitted)).
        On appeal, defendant argues that his purported
waiver of his right to counsel did not satisfy either of the
required components of a valid waiver. Defendant first argues

    6
       Generally, we decide statutory or other subconstitutional matters before
turning to arguments under either the state or federal constitution. State v.
Barrett, 

, 

 (2011). However, even though defendant
cites ORS 135.045 in his brief, the arguments of both parties focus on the state
and federal constitutional rights to counsel. Thus, in line with our previous decisions on this issue, we begin our analysis with the Article I, section 11, right to
counsel rather than the right provided by ORS 135.045. See, e.g., State v. Erb, 

, 420 n 4, 

 (2013) (noting that “the current text of that statute … appears to impose on the trial court obligations similar to those imposed
under the state and federal constitutions when a defendant wishes to waive the
right to counsel”).
752                                          State v. Garrett

that he did not knowingly waive his right because the trial
court never informed him of the risks of self-representation.
The state concedes that the trial court did not inform defendant of the risks of self-representation but asserts that the
record indicates that he understood those risks. Second,
defendant argues that he did not intentionally waive his
right to counsel through misconduct because he did not
engage in misconduct after having been warned by the
court that his conduct could result in a loss of that right. As
to the intentional component, defendant concedes that his
threats towards Collins were misconduct but argues that,
because he did not engage in comparable conduct towards
Scales or Claar, the trial court’s previous warning against
direct threats did not apply. The state responds that, notwithstanding defendant’s contention that the trial court
expressly found that he had not threatened Scales and
defendant’s argument that his threats to Claar were at
most “vague,” his behavior did contravene the warning he
had received; thus, the state argues, the trial court properly
determined that defendant had both knowingly and intentionally waived his right to counsel.
         Consistent with our previous decisions, we first
examine whether the more expansive knowledge component
of a valid waiver was satisfied. See Clardy, 

 (analyzing the knowledge component first). As noted, a
defendant must be both generally aware of his or her right
to counsel and understand that right. 

. Because
defendant does not dispute a general awareness of his right
to counsel, we focus our analysis on his understanding of
that right. 

 Specifically, a defendant must “understand
the risks inherent in self-representation.” Borba, 

 (internal quotation marks omitted). Because a
fundamental constitutional right is at issue, we are hesitant to find that a defendant has waived his or her right
to counsel. 

 Accordingly, “ ‘a valid waiver will not be presumed from a silent record.’ ” 

 (quoting Meyrick, 

). Further evaluating whether the record supports the
determination that defendant sufficiently understood the
risks of self-representation, we bear in mind that “[a]n intelligent waiver of the right to counsel requires more than a
general awareness that a lawyer might be helpful but less
Cite as 

 (2019)                              753

than knowing all the potential risks of self-representation.”
Guerrero, 

.
         The Supreme Court has long considered an on-therecord colloquy between the court and a defendant explaining the risks of self-representation to be the preferred
method of verifying that the defendant sufficiently understands the right to counsel. See Clardy, 

(citing Meyrick, 

); Guerrero, 

 (same). “[H]owever, ‘Article I, section 11, does not require
a catechism by the trial court’ ” and the “ ‘failure of a trial
court to impart a particular piece of information to a defendant will not, of itself, require reversal of a conviction.’ ”
Clardy, 

 (quoting Meyrick, 

-
34) (internal brackets omitted). What matters is whether
“the record reflects that the defendant … understood the
risks of self-representation.” State v. Easter, 

, 

 (2011). In making that assessment,
we begin with the premise that “[a] defendant demonstrates
prima facie error by showing that the trial court allowed
him or her to proceed at a critical stage without an attorney
and did not determine that … he or she was aware of the
risks of self-representation.” State v. Erb, 

, 

 (2013) (internal quotation marks omitted);
see also State v. Haines, 

, 

(2017) (explaining that a prima facie error exists when the
trial court did not mention the risks of self-representation
or put any facts on the record indicating the defendant understood the risks). Thus, because neither party in
this case suggests that the trial court engaged in such a
colloquy with defendant, he has established a prima facie
error.
        “The state may overcome that prima facie showing
by establishing that, in the totality of the circumstances,
the defendant was nonetheless aware of the risks of self-representation.” Erb, 

. For example,
a waiver may be valid if “under the totality of the circumstances, the record reflects that the defendant understood
the risks of proceeding without counsel—that is, a defendant substantially appreciates the material risks of self-representation of his or her case.” Borba, 

754                                          State v. Garrett

(internal quotations marks omitted; emphasis added). Importantly, “it is not required that a defendant know and completely appreciate every potential risk of self-representation
in his or her case, but a defendant’s abstract knowledge that
there may be risks or disadvantages of self-representation,
without any appreciation of what those risks might be, is
insufficient.” Erb, 

 (internal quotation
marks omitted).

         Here, we conclude that defendant’s specific understanding of the risk of proceeding without an attorney in his
case is sufficient to satisfy the knowledge component of the
waiver. During the investigation that gave rise to the theft
charge in this case, a detective interviewed defendant about
the case; defendant immediately told him that he had stolen
the chainsaw and sold it to a pawn shop. On the day of the
trial, defendant (acting pro se) stated that “the whole argument is my lawyer is supposed to discredit [the detective and]
the way he interviewed me.” That articulation of what defendant believed his lawyer was “supposed to” do reflects more
than an abstract awareness that counsel could be helpful
to defendant and that there were risks to proceeding without one; based upon defendant’s recognition that his case
hinged on the validity of his confession and that an attorney would be necessary to adequately challenge both the
detective who interviewed him and the interview process,
it is apparent that he understood at least one of the specific
ways in which he would be at a disadvantage if he did not
have counsel. Furthermore, defendant’s subsequent assertion that he would never have represented himself demonstrates that he substantially appreciated that he needed an
attorney and that he understood the material risk of being
unable to challenge his confession without counsel.

          Defendant’s specific understanding of that material
risk differentiates this case from others in which a mere general awareness of risks associated with self-representation
was insufficient to satisfy the knowledge component of the
waiver. In previous cases without sufficient warnings or
“ ‘specific information about the benefits of counsel, we have
consistently rejected the argument that a generalized understanding of a lawyer’s services demonstrates knowledge of
Cite as 

 (2019)                             755

the risks of self-representation.’ ” Borba, 

(quoting State v. Todd, 

, 

,
rev den, 

 (2014)). As we have repeatedly held,
general waivers or warnings from a court are not sufficient
to establish that a defendant understands the risks of self-representation. See, e.g., Erb, 

 (written
waiver stating that defendant was “aware of the help a lawyer might be to me” was insufficient); State v. Culver, 

, 

 (2005) (trial court asking
the defendant whether he understood that he would be “at
a disadvantage” if he represented himself was insufficient);
State v. Richardson, 

, 

, rev den, 

 (1999) (trial court’s statement that
“a lawyer may be able to assist you in challenging the indictment” was insufficient); State v. Meyer, 

,

 (1992) (trial court’s warning that jury trials
are “kinda tricky” was insufficient).

          Relatedly, this also is not a case where it is evident that a defendant has underestimated the risks of self-representation. In Borba, our most recent decision addressing that issue, the defendant told the court that he was
“not worried about it; I’m perfectly capable of representing
myself.” 

. The defendant further justified
his competence by stating that he was “perfectly intelligent”
and had built roofs, houses, and cars. 

. We concluded that the defendant had not sufficiently understood
the risks of self-representation, in part, because he had
underestimated those risks. 

. Here, defendant’s insistence that the trial court appoint substitute
counsel for him and his description of the specific tasks that
he believed his attorney would perform reflected his recognition of the importance of having counsel and the correspondingly high risk of representing himself. And, under at least
some circumstances, repeated requests for counsel, such as
defendant made in this case, can indicate an understanding of the risks of self-representation. Easter, 

. Cf. Borba, 

 (determining that the
defendant’s expressed desire to hire a private attorney was
more indicative of his frustration with his appointed counsel
rather than his preference between self-representation and
having counsel). That is, defendant’s repeated requests, in
756                                            State v. Garrett

conjunction with his awareness that an attorney could challenge his confession in a way that he, acting pro se, could
not, further suggests that he understood that representing
himself would put his case at risk. Thus, the trial court did
not err in determining that the knowingly component of the
waiver had been satisfied.
         We turn next to the question whether the trial court
correctly determined that defendant had intentionally
waived his right to counsel. Significantly, a waiver need not
be express, and “[a] defendant’s conduct may serve as a valid
waiver so long as the conduct adequately conveys the defendant’s knowing and intentional choice to proceed in court
without counsel.” Langley, 

. Here, because there
is no contention that defendant “intentionally expressed his
waiver by words, … we consider only whether defendant’s
conduct adequately conveyed defendant’s intentional choice
to proceed without counsel.” Clardy, 

. In
Clardy, we summarized the Supreme Court’s approach to
determining whether there has been a valid waiver by conduct, noting that it has three prerequisites:
   “(1) engag[ement] in repeated misconduct in the attorney-client relationship that defeats the ability of counsel to
   carry out the representation function; (2) an advance warning to the defendant that continuation of [his or her] abusive behavior would result in being forced to proceed pro
   se and; (3) a reasonable opportunity for the defendant to
   present his or her position on the facts in a manner that
   permits, if appropriate, the safeguarding of confidential
   communications and trial strategy from public disclosure.”

 at 761 (citing Langley, 

) (internal quotation marks and ellipses omitted; first brackets added, second brackets in Clardy; emphasis added). We address each
prerequisite in turn.
         As to the first prerequisite, repeated misconduct,
we conclude that the trial court did not err in determining
that defendant’s multiple threats to multiple attorneys constituted repeated misconduct that defeated counsel’s ability
to represent defendant. We are cognizant that, as defendant
correctly asserts, merely refusing to cooperate with counsel does not constitute misconduct. Langley, 

.
Cite as 

 (2019)                              757

Thus, when evaluating the implications of an attorney’s
motion to withdraw on a defendant’s right to counsel, a trial
court “must distinguish between problems in the attorney-client relationship engendered by the defendant’s permissible (but usually foolish) decision to decline to cooperate
and other problems, such as a bona fide conflict of interest,
that prevent counsel from participating effectively in the
attorney-client relationship.” 

. Here, there is no
dispute that defendant’s misconduct led to the removal of
his first counsel, Collins. Defendant, in an open hearing,
demanded a new attorney and threatened to hit Collins if
she appeared in court with him the next day. The parties
dispute, however, whether there were any further instances
of misconduct following Collins’s removal from the case.

         In defendant’s view, his behavior towards his second
attorney, Scales, cannot be deemed misconduct, because the
trial court expressly found that he had not threatened Scales.
To be sure, it is less than clear why, exactly, the trial court
relieved Scales from further representing defendant. After
Scales told the trial court that he had heard from jail staff
that defendant had threatened to “beat [his] ass,” defendant
denied having threatened to hit Scales. And, as defendant
notes, the trial court appears to have accepted defendant’s
denial when it stated, “If that’s your final answer, then
I’m going to accept it.” Additionally, before being released,
Scales clarified for the court that he had only heard about
defendant’s alleged threats secondhand and that defendant
had not threatened him in person. Nonetheless, the court
opted to replace Scales, stating that it believed his account
of events. In light of those arguably ambiguous pronouncements by the trial court, we do not share defendant’s view
that the trial court expressly found that he had not threatened Scales. However, given that Scales had also reported
to the court that defendant had refused to cooperate with
him when the two met at the jail, we agree that it is at least
unclear why the trial court released Scales, and whether
it was substantially due to defendant’s refusal to cooperate
with him.

         Even assuming, however, that defendant is correct
that the trial court found that he had not threatened Scales—
758                                                         State v. Garrett

and recognizing that his direct conduct towards Scales,
specifically, his refusal to cooperate with him, cannot be
viewed as misconduct—the record reflects repeated misconduct following the removal of Collins as his attorney.
That is, we reject defendant’s characterization of his conduct with respect to his fourth attorney, Claar, as immaterial “vague threats.” Much as he had with Collins, whom
he had threatened to “sock” if she returned to court with
him, defendant made it clear to Claar that “he better not
‘F-ing’ see [Claar] at trial, [Claar] better not ‘F-ing’ come
near [defendant] or else.” Although Claar himself characterized defendant’s threats as “vague,” we do not see a meaningful distinction between the threat to Collins and those
directed towards Claar. Both were responses to defendant’s
dissatisfaction with his counsel, and both reflected genuine hostility towards his attorneys that extended beyond a
mere expression of disagreement with their handling of his
case. Based upon defendant’s demeanor towards him, Claar
feared being “the next person to walk down that back hallway behind the courtroom with a pen to [his] throat.” Given
those circumstances, we conclude that the trial court reasonably viewed defendant’s behavior towards Claar both as
threatening and as misconduct under Langley.7 Accordingly,
the record reflects that defendant engaged in repeated misconduct, first by threatening Collins, and then, at a minimum, also by threatening Claar.
         Turning to the second Langley prerequisite, that a
defendant receive a warning that further misconduct may
be deemed a waiver of the right to counsel, we also conclude
that the record satisfies that requirement. Although the
trial court could perhaps have been more explicit with its
advance warning to defendant, the court adequately warned
defendant that continued misconduct could have that consequence. “An advanced warning … is necessary to alert
the defendant to the fact that a repetition of demonstrated
misconduct may result in a waiver of the right to counsel,
     7
       Defendant asserts that Claar was removed inappropriately due to defendant’s threat to file a bar complaint. Because the record reflects that defendant threatened Claar and that supported the trial court’s decision to dismiss
Claar, we need not address whether defendant’s bar complaint, or threat thereof,
amounted to a bona fide conflict of interest that might have justified the removal
of counsel but would not have constituted a waiver of defendant’s right to counsel.
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rather than some other consequence.” Langley, 

. When a trial court determines that a defendant has
waived the right to counsel through repeated misconduct,
it must “refer to or otherwise base its decision on any prior
warning to defendant that repetition of defendant’s manipulative behavior to unreasonably delay court proceedings
would (or even could) result in the court requiring [the
defendant] to proceed pro se.” 

. We have previously
emphasized that an advance warning requires more than
just “a mere showing that the defendant has engaged in past
or present misconduct.” Guerrero, 

 (internal quotation marks omitted). Therefore, we look to whether
the trial court properly alerted defendant to the potential
consequences if he repeated his misconduct.
         The parties identify two potential instances in which
the trial court provided a warning to defendant: (1) after
threatening his first attorney, and (2) before the trial court
agreed to appoint a third attorney. First, after defendant
threatened to “sock” Collins, the trial court characterized
his comments as a “direct threat” and immediately followed that with “I want you to know you’re going to get one
[more] attorney, and that’s it.” Under those circumstances,
even though defendant got what he wanted—a different
attorney—he reasonably would have understood that further threats directed toward counsel would not result in the
appointment of a new attorney but would instead result in
the loss of his right to counsel.
         Later interactions between the trial court and defendant, even before the second, explicit warning, further support our conclusion that defendant would have understood
that misconduct would have that consequence. When the
trial court removed Scales, it initially told defendant that
he would have to hire his own attorney or represent himself moving forward. That decision would have impressed
upon defendant the seriousness of the court’s warning that
he was only “going to get one [more] attorney,” because he in
fact had to represent himself for at least one hearing before
the trial court appointed another attorney to represent him.
       The trial court was even more explicit in its second
warning to defendant, which it gave upon ultimately agreeing
760                                            State v. Garrett

to grant defendant’s request for a third attorney. The trial
court reminded defendant that both Collins and Scales had
been released “because of [his] actions.” Although the court
referenced defendant’s refusal to cooperate with Scales as
the basis for releasing him, it also recounted that defendant
had “threatened to punch [Collins] on the record.” And, in
that context, the trial court stated that if any further such
“shenanigans” forced his new attorney to withdraw, defendant was “not getting another court-appointed attorney.”
The court emphasized that point, asking defendant, “Is that
clear?” It evidently was, as defendant simply replied, “Yes.”
Thus, the trial court made it abundantly clear to defendant
that his actions had led to the dismissal of his previous two
attorneys and any further such misconduct—any further
shenanigans—would result in his loss of the right to counsel. Thus, we conclude that, under those circumstances, the
trial court gave defendant adequate advance warning that
his conduct could result in a forfeiture of his right to counsel.

         Finally, the third Langley prerequisite was satisfied because defendant was given a reasonable opportunity to present his position on the facts. Although it is
true that defendant was not given a confidential means to
present his position, this was not an instance where such
safeguards were necessary. This case differs starkly from
Langley, where the trial court considered complaints about
the defendant’s conduct from his attorneys in sealed affidavits but forced the defendant to disclose his position on the
facts in open court. 

. Here, defendant’s threat
towards Collins occurred during a hearing, on the record.
Additionally, both Scales and Claar raised the issue of
threats in open court and the trial court gave defendant an
opportunity to present his side of the story. Indeed, defendant asserts that the trial court accepted his side of the
story with respect to Scales. Thus, the third prerequisite
for an intentional waiver, like the first two, is also satisfied
in this case; accordingly, we conclude that defendant knowingly and intentionally waived his right to counsel under
Article I, section 11, of the Oregon Constitution.

       Having rejected defendant’s argument under the
Oregon Constitution, we briefly turn to defendant’s argument
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that he did not waive his right to counsel under the Sixth
Amendment. On appeal, defendant has made the same
arguments under the state and federal constitutions. In
fact, neither party has argued for application of a different
analysis between the state and federal rights to counsel. In
Clardy, we similarly affirmed a waiver of the right to counsel under the Oregon Constitution, and the defendant did
not “identify any other circumstances that would lead us to
reach a different result under the Sixth Amendment.” 

. Accordingly, we concluded that the defendant
had waived his Sixth Amendment right to counsel as well.
Faced with the same circumstances here, we reach the same
conclusion.
         Under the particular circumstances of this case,
we conclude that, following one or more acts of misconduct
towards court-appointed counsel, defendant was warned
that similar conduct would result in the loss of his right to
counsel, and that he, in fact, engaged in similar conduct.
As a result, defendant, through his conduct, knowingly
waived his right to counsel under Article I, section 11, of the
Oregon Constitution. Defendant advances no argument as
to why we should reach a different result under either the
Sixth Amendment to the United States Constitution or ORS
135.045. We therefore conclude that the trial court did not
err in requiring defendant to proceed to trial without court-appointed counsel.
        Affirmed.