State v. Noorzai

                                              828
453 v. Noorzai
State                                                                              299 Or
                                                                                October     App
                                                                                        9, 2019




                    Submitted August 2, reversed and remanded October 9, 2019


                                STATE OF OREGON,
                                 Plaintiff-Respondent,
                                           v.
                                  BASIR NOORZAI,
                                Defendant-Appellant.
                           Washington County Circuit Court
                                17CR69822; A167594
                                          

                 Andrew R. Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
                 PER CURIAM
                 Reversed and remanded.
Cite as 

 (2019)                                                   829

           PER CURIAM
         Defendant appeals a judgment of conviction for one
count of fourth-degree assault constituting domestic violence, ORS 163.160(3), and two counts of harassment, ORS
166.065(3), raising three assignments of error. In his first
assignment, he contends that the trial court erred when it
denied his request to represent himself at trial in violation
of his right to self-representation provided under Article I,
section 11, of the Oregon Constitution.1 Defendant argues
that the court did not base its denial on a legally permissible
basis and that a denial is not supported by the record. He
seeks a new trial.
        We have previously explained that the right of self-representation is not absolute:
    “ ‘When a defendant asks to represent himself, the court
    must determine, on the record, whether his decision is an
    intelligent and understanding one.’ State v. Davis, 

, 

 (1991). Further, the court must
    ‘determine whether granting the defendant’s request would
    disrupt the judicial process.’ 

 (citing [State v.] Verna, 9 Or
    App [620, 627, 

 (1972)].”
State v. Miller, 

, 

 (2013).
Here, defendant argues that the trial court did not assess
whether his decision was an intelligent and understanding
one and did not consider whether he was likely to disrupt the
proceedings if he represented himself. Rather, he contends,
the court impermissibly refused to let him represent himself
based on the court’s assessment that defendant had a good
lawyer, he lacked legal training, and self-representation
would not be in his best interest.
        The state agrees with defendant that, on the record
here, the court failed to determine whether defendant’s
decision was an intelligent and understanding one, and it
denied defendant’s request based solely on impermissible
reasons. The state concedes that we should reverse the judgment and remand. See Miller, 

 (erroneous
    1
      Article I, section 11, of the Oregon Constitution states, in part, “In all criminal prosecutions, the accused shall have the right … to be heard by himself and
counsel.”
830                                          State v. Noorzai

denial of request for self-representation required reversal and
remand).
         We agree that, based on the record here, the trial
court erred in denying defendant’s request to represent himself. We therefore accept the state’s concession and reverse
and remand. Our disposition of defendant’s first assignment
of error obviates the need to address his remaining assignments of error.
        Reversed and remanded.