419
Argued and submitted August 16, affirmed December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
DELONTE ANTONIO BROOKS,
Defendant-Appellant.
Lane County Circuit Court
17CR10554; A165569
456 P3d 665
Defendant appeals from a judgment of conviction for three counts of robbery
in the first degree with a firearm, one count of theft in the first degree with a
firearm, one count of kidnapping in the second degree with a firearm, and one
count of burglary in the first degree with a firearm. Defendant raises two assignments of error on appeal. The Court of Appeals addresses only defendant’s second
assignment of error—that the trial court erred in denying his request for self-representation guaranteed under Article I, section 11, of the Oregon Constitution,
and the Sixth and Fourteenth Amendments to the United States Constitution.
The state responds that when defendant requested to represent himself, his right
to counsel had not yet attached, and, alternatively, on this record, there was not
a denial of self-representation, but rather a deferral of a decision on that issue.
Held: The right to counsel attached, and the preliminary hearing fell within the
scope of the right to counsel. However, defendant’s request for self-representation
was equivocal. At that early stage proceeding, the trial court’s deferral of consideration of an equivocal request for a short period, thus affording defendant time
to meet with counsel and be informed of the risks and benefits of representation,
did not amount to a denial of defendant’s rights to self-representation.
Affirmed.
Suzanne B. Chanti, Judge.
Anne Fujita Munsey, 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.
Hannah K. Hoffman, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
420 State v. Brooks
JAMES, J.
Affirmed.
Cite as 301 Or App 419 (2019) 421
JAMES, J.
Defendant appeals from a judgment of conviction on
three counts of robbery in the first degree with a firearm,
ORS 164.415, and one count each of theft in the first degree
with a firearm, ORS 164.055, kidnapping in the second
degree with a firearm, ORS 163.225, and burglary in the
first degree with a firearm, ORS 164.225. Defendant raises
two assignment of error on appeal. We reject his second
assignment without discussion and write to address only
the first, in which he argues that the trial court erred in
denying his request for self-representation. We affirm.
The facts underlying defendant’s charges are not
relevant to the issue on appeal and we do not discuss them.
For our purposes, the most relevant facts are derived from
the pretrial hearing that occurred on February 17, 2017. At
that first court appearance defendant stated that he wanted
to be represented by an attorney. However, after his attorney
chose not to request a preliminary hearing, defendant asked
to represent himself. The following exchange occurred:
“[DEFENDANT]: I would—I would like to just represent myself for right now, because I want to set a preliminary hearing date. I want to get through this as quick as
possible, sir. I would like to set my prelim date as soon as
possible.
“[COURT]: Well here’s the thing, he hasn’t waived the
right to request your preliminary hearing. He just said he’s
not requesting right now, so—
“[DEFENDANT]: I just—
“[COURT]: —hang on—
“[DEFENDANT]: —I just—that’s why I would like
the—
“[COURT]: —[Defendant], let me just finish.
“[DEFENDANT]: Yes, sir.
“[COURT]: So there might be a good reason to do
what he’s suggesting. Perhaps you could take the time, just
talk to him. If you don’t want to have that happen then on
Tuesday you can come in here, say I want a preliminary
hearing deadline and we’ll set one for you, so he’s not giving
422 State v. Brooks
up the right forever. You’re just not doing—invoking it right
now. There might be reasons to do that, and I can’t explain
them to you because I can’t give you advice, alright. You—
“[DEFENDANT]: I mean I just don’t know no information on the case, and the only way—
“[DEFENSE COUNSEL]: Either do we.
“[DEFENDANT]: —I can get information is—is to
have a prelim.
“[COURT]: Well here’s the thing is you—you’re certainly free to represent yourself if you don’t want a lawyer but I would urge you to. These charges you’re looking
at a mandatory minimum prison sentences that could be
extremely long. They’re Robbery in the First Degree. If I
can remember right, each one of those counts carries with
it a mandatory minimum sentence of 90 months in prison
without the opportunity for any kind of early release, so
having a lawyer is probably in your best bet, and you can
talk to them on Tuesday and give them direction. They’re—
your lawyer, not the other way around.”
The transcript indicates there were some off-therecord discussions with defendant and counsel, then counsel
went back on the record:
“[DEFENSE COUNSEL]: Okay, is the Court willing
to—to let him talk to me or do you—I mean we could just
put it back on the docket for Tuesday.
“[COURT]: I—I’m happier to just put it on the docket
for Tuesday and you can talk—have time to talk to him
this afternoon and then you can be back on Tuesday and
tell us how you want to proceed.
“[DEFENSE COUNSEL]: Okay.
“[COURT]: Alright, so we’ll set that for 1:30 in the
afternoon this coming Tuesday and come back in here.
That will give you chance and this gentleman’s going to
talk to you right now after we get done with court, right?
“[COURT]: Alright, so it’s the 20—it’s Tuesday,
February 21st at—we’ll have him sign for it. Sir, at that
time we’ll bring you back before the Court if you want to
ask for a preliminary if you had time, you’d certainly be
free to do that. You should talk with the lawyer briefly the
pros and cons of doing that.”
Cite as 301 Or App 419 (2019) 423
At the Tuesday, February 21, 2017, court appearance, defendant appeared through different counsel. The
court set a preliminary hearing deadline of February 28,
2017. Ultimately, defendant was indicted on February 27,
2017, and arraigned on that indictment on March 1, 2017,
represented by his original counsel. Except for the exchange
at the initial appearance, defendant made no other requests
to represent himself. Ultimately, defendant proceeded to
trial where a jury convicted him of all nondismissed counts,
and this appeal followed.
On appeal, defendant argues that the trial court
unlawfully impeded his right to self-representation guaranteed under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the
United States Constitution. The state responds, first, that
defendant’s right to counsel had not yet attached at the
February 17, 2017, hearing, and, accordingly, no right to
self-representation had attached. Thus, argues the state, at
a hearing in which the right to counsel has not attached, the
state can compel an individual to accept representation by
counsel. Alternatively, the state argues that, on this record,
there was not a denial of self-representation, but rather a
deferral of a decision on that issue.
Whether a trial court has denied a defendant’s right
to counsel, or the according right to self-representation, is a
question of law that we review for errors of law. See State v.
Miller, 254 Or App 514, 522-24,
295 P3d 158 (2013) (applying
standard); Faretta v. California,
422 US 806, 835-36,
95 S Ct
2525,
45 L Ed 2d 562 (1975) (same). We now turn to the
merits.
A criminal defendant’s right to counsel includes the
right to self-representation under both the state and federal
constitutions. Miller, 254 Or App at 523. A defendant has
the constitutional right either to be represented by counsel
or, if he so elects, to represent himself. State v. Hightower,
361 Or 412, 416-17,
393 P3d 224 (2017); State v. Verna,
9 Or
App 620, 624,
498 P2d 793 (1972). Absent special circumstances, a court cannot force counsel upon a defendant
who seeks to represent him or herself. Verna,
9 Or App at
625.
424 State v. Brooks
Under both the state and federal constitutions an
individual’s right to counsel attaches at the time of criminal
charging:
“[A]s the nature of law enforcement and criminal prosecution changed, both state and federal courts expanded their
views of the ‘criminal prosecution’ that triggered the right
to counsel, so that the constitutional guarantee applied
as early as the commencement of criminal proceedings
by indictment or other formal charge. … The rationale
for that doctrinal shift was the recognition that a defendant’s ‘assistance’ of counsel would be less than meaningful if it were limited to the trial itself. As the United
States Supreme Court explained in United States v. Ash,
413 US 300, 310,
93 S Ct 2568,
37 L Ed 2d 619 (1973), ‘[t]his
extension of the right to counsel to events before trial has
resulted from changing patterns of criminal procedure and
investigation that have tended to generate pretrial events
that might appropriately be considered to be parts of the
trial itself.’ ”
State v. Prieto-Rubio,
359 Or 16, 24,
376 P3d 255 (2016)
(internal citations omitted).
However, case law recognizes a distinction between
when the right to counsel attaches, versus the scope of that
right. The scope of the right to counsel is limited to certain
“critical stages” of the criminal prosecution. In Ash, the
Supreme Court held that the Sixth Amendment entitles a
defendant to the assistance of counsel in pretrial confrontations “presenting the same dangers that gave birth to
the right itself.” 413 US at 311 (internal citation omitted).
A pretrial event is considered a “critical stage” for Sixth
Amendment purposes if counsel’s absence from that event
“could derogate from the defendant’s right to a fair trial.”
Id.
(citing United States v. Wade,
388 US 218, 226,
87 S Ct 1926,
18 L Ed 2d 1149 (1967)).
Similarly, under the Oregon Constitution, the scope
of the right to counsel encompasses stages in criminal proceedings in which counsel’s presence could prevent prejudice to a defendant. Prieto-Rubio, 359 Or at 24-25. In State
v. Miller,
254 Or 244,
458 P2d 1017 (1969), the Oregon
Supreme Court held that the scope of the right to counsel
Cite as
301 Or App 419 (2019) 425
encompassed those stages of a criminal proceeding “when
[a defendant] must take steps or make a choice which is
likely to have a substantial effect on the prosecution against
him.” Id. at 249.
The hearing at issue in this case proceeded much as
one would expect any arraignment to proceed. Such a hearing is governed by statute. ORS 135.020 sets forth events
that should occur at an arraignment:
“The arraignment shall be made by the court, or by the
clerk or the district attorney under its direction, as provided in ORS 135.030 The arraignment consists of reading
the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and indorsements
thereon, including the list of witnesses indorsed on it or
appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to
the charge.”
At the February 17, 2017, hearing, all of those steps
occurred except for an entry of plea. The trial court explicitly
refused an opportunity for defendant to enter a plea, stating
“no plea will be entered at this time.” According to the state,
that lack of a plea renders the hearing here not a critical
stage to which the scope of the right to counsel applies. As
the state argues, “Defendant did not enter a plea, did not
answer questions, did not give testimony, and did not legally
bind himself in any way. He was also not ‘heard’ by the court
in any formal way.” We disagree.
First, the state has offered no persuasive authority, and we are aware of none, supporting the proposition
that the scope of the right to counsel can be cut off based on
what actually happened at a hearing, versus what the law
provides should have happened at a hearing. Said another
way, the Oregon legislature has required that an arraignment “shall be made by the court” and then defined what
constitutes an arraignment. The arraignment contemplated
by statute clearly is a critical stage of a criminal proceeding, and no party disputes that on appeal. A trial court’s
refusal to accept a plea during a proceeding that, by all
other appearances has all the hallmarks of an arraignment,
does not render it less of a critical stage.
426 State v. Brooks
But even if that were not the case, here, defendant
was called to answer the court on a critical fact: his name.
Upon receiving the charging instrument defense counsel
told the court:
“[DEFENSE COUNSEL]: So we’re in receipt of the
information, waive further reading, further advice of
rights, correctly named.
“(Counsel discusses with defendant)
“[DEFENSE COUNSEL]: Name and date of birth
appear to be correct.”
The acknowledgement of whether the charging
instrument has “truly named” a defendant carries with it
serious consequences in Oregon. ORS 135.060 provides that:
“When the defendant is arraigned, the defendant shall be
informed that:
“(a) If the name by which the defendant is charged
in the accusatory instrument is not the true name of the
defendant the defendant must then declare the true name;
and
“(b) If the defendant does not declare the true name as
required by paragraph (a) of this subsection, the defendant
is ineligible for any form of release other than a security
release under ORS 135.265.”
Thus, acknowledging that one is truly named in a charging
instrument is a point in the criminal proceeding where a
defendant “must take steps or make a choice which is likely
to have a substantial effect on the prosecution against him.”
Miller, 254 Or at 249. It is, therefore, a critical stage of the
proceeding to which the scope of the right to counsel applies,
regardless if it is accompanied by an opportunity to enter a
plea.
Having determined that the right to counsel
attached and that the February 17 hearing in this case fell
within the scope of the right to counsel, we now turn to the
court’s response to defendant’s request. We have repeatedly
held that “[w]hen a defendant asks to represent himself, the
court must determine, on the record, whether his decision is
an intelligent and understanding one.” Miller, 254 Or App at
Cite as 301 Or App 419 (2019) 427
523 (citing State v. Davis,
110 Or App 358, 360,
822 P2d 736
(1991)). Further, the court must “determine whether granting the defendant’s request would disrupt the judicial process.” Davis,
110 Or App at 360 (1991).
We have found reversable error when a trial court
failed to engage in the inquiry called for in Miller. In State
v. Ortega, we held:
“Specifically, the record of the operative pretrial hearing
discloses that, notwithstanding defendant’s initial, unambiguous request (‘I don’t want the services of the lawyer. I
want to represent myself.’) and his ultimate, and equally
explicit, reiterated request (‘I am waiving the services of
my lawyer.’), the trial court failed to engage in the inquiry
prescribed for the assessment of such requests.”
286 Or App 673, 674,
399 P3d 470 (2017).
Here, defendant made an initially unequivocal
request for self-representation when he said, “I would like
to just represent myself for right now.” In response, however,
the trial court suggested to defendant that “[p]erhaps you
could take the time, just talk to him.” The trial court then
said “you’re certainly free to represent yourself if you don’t
want a lawyer but I would urge you to. … [H]aving a lawyer is probably in your best bet, and you can talk to them on
Tuesday and give them direction. They’re—your lawyer, not
the other way around.”
If that were the end of the inquiry, this case would
be difficult to distinguish from Ortega.1 However, unlike
in Ortega, after that exchange between defendant and the
court, the transcript evidences that defendant and defense
counsel talked. Following that off-the-record conversation,
defense counsel stated:
“[DEFENSE COUNSEL]: Okay, is the Court willing
to–to let him talk to me or do you—I mean we could just
put it back on the docket for Tuesday.
“[COURT]: I—I’m happier to just put it on the docket
for Tuesday and you can talk—have time to talk to him
1
See also State v. Glasby, 301 Or App 479,
456 P3d 305 (2019), decided this
day.
428 State v. Brooks
this afternoon and then you can be back on Tuesday and
tell us how you want to proceed.
“[DEFENSE COUNSEL]: Okay.”
In light of that portion of the record, defendant’s initial unequivocal invocation of his right to self-representation
became an equivocal invocation. Faced with that factual
development, defendant analogizes the situation to a suspect’s equivocal invocation of counsel during interrogation—
governed by Article I, section 12, of the Oregon Constitution
and the Fifth and Fourteenth Amendments to the United
States Constitution. In that situation we have held,
“[w]hen the invocation is equivocal, assuming the police do
not choose to cease interrogation entirely, again, there is
only one permissible response: the police are required to
ask follow-up questions to clarify the equivocal nature of the
suspect’s statement. As we recently reiterated in Schrepfer,
‘[a]ny questioning not reasonably designed to clarify the
equivocal nature of the statement is impermissible.’ ”
State v. Hickman, 289 Or App 602, 606,
410 P3d 1102 (2017)
(quoting State v. Schrepfer,
288 Or App 429, 436,
406 P3d
1098 (2017) (some internal quotation marks and citation
omitted). Defendant asks us to impart a similar requirement to trial courts. We decline to do so in this scenario.
This case presents an unusual factual situation.
The vast majority of our decisions in this area have occurred
when a trial court was presented with (1) an unequivocal invocation of the right to self-representation, that
(2) occurred either the morning of trial, or mid-trial. In such
a situation a trial court would have no practical option but
to attempt to clarify the nature of the equivocal request.
Here, by contrast, defendant made an equivocal
invocation at his first appearance. The first appearance
on a criminal matter often occurs quickly, and en masse
with many other cases. Often, a criminal defendant who
has been appointed counsel will have met his or her lawyer mere moments before. In many instances the lawyer
actually appointed isn’t even present. As a practical matter,
first appearances are an imperfect forum to thoughtfully
Cite as 301 Or App 419 (2019) 429
communicate the intricacies of the costs and benefits of representation by counsel.
In this case, there was no trial imminent, nor even
any significant preliminary dispositive hearing upcoming.
The record shows that the court set a hearing a few days out
and explicitly noted “at that time we’ll bring you back before
the Court if you want to ask for a preliminary [hearing] if
you had time, you’d certainly be free to do that.” Defendant
has presented us no persuasive authority that—at this early
stage—a trial court cannot temporarily defer its Miller
inquiry and employ appointed counsel to both help clarify a
defendant’s equivocal request and to ensure that any eventual unequivocal request is knowing, intelligent, and voluntary. Accordingly, we conclude that the trial court’s deferral
of its consideration of defendant’s equivocal request for self-representation for a minimal period of time did not amount
to a denial of defendant’s rights to self-representation under
either Article I, section 11, or the Sixth or Fourteenth
Amendments.
Affirmed.
