13
Argued and submitted December 20, 2019, reversed and remanded
June 24, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN GEORGE MUSIC,
Defendant-Appellant.
Lane County Circuit Court
17CR46368, 17CR66767, 17CR69236;
A166473 (Control), A166475, A166482
467 P3d 812
In this consolidated criminal appeal, defendant appeals from judgments of
conviction in three separate cases consolidated for appeal, assigning error to
the trial court’s denial of his request for self-representation. Specifically, defendant argues that the trial court erred in failing to engage in a colloquy and
provide a ruling on defendant’s request as required by State v. Miller, 254 Or
App 514, 522-24,
295 P3d 158 (2013). The state argues that no Miller colloquy
was required, because, under State v. Brooks,
301 Or App 419, 421,
456 P3d 665
(2019), the trial court was within its discretion to delay ruling on defendant’s self-representation request. Held: Previous uncertainty about invoking one’s right to
self-representation does not preclude one from invoking that right unequivocally
at a later time. Here, the trial court was faced with an unambiguous invocation
of defendant’s right to self-representation. In response, the trial court made no
Miller inquiry at the time, then allowed a settlement conference to occur without
addressing the pending request for self-representation.
Reversed and remanded.
Mustafa T. Kasubhai, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. John Music filed the supplemental brief
pro se.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
14 State v. Music
JAMES, J.
Reversed and remanded.
Cite as 305 Or App 13 (2020) 15
JAMES, J.
Defendant appeals from judgments of conviction
in three separate cases consolidated for appeal: Case Nos.
17CR46368, 17CR66767, and 17CR69236. In each of the
three consolidated cases, defendant assigns error to the
trial court’s denial of his request for self-representation.
Specifically, defendant argues that the trial court erred
in failing to engage in a colloquy and provide a ruling on
defendant’s request as required by State v. Miller, 254 Or
App 514, 522-24,
295 P3d 158 (2013). The state argues that
no Miller colloquy was required, because, under our recent
decision in State v. Brooks,
301 Or App 419, 421,
456 P3d
665 (2019), the trial court was within its discretion to delay
ruling on defendant’s self-representation request. We agree
with defendant and reverse.
The relevant facts are procedural and somewhat
convoluted. On June 5, 2017, the trial court arraigned defendant in Case No. 17CR36325. On July 14, 2017, the trial
court arraigned defendant in Case No. 17CR46368. The trial
court found defendant indigent and appointed him counsel
in both cases. On August 9, 2017, his counsel withdrew due
to a conflict, and the trial court assigned him new counsel
for both cases. A week later, defendant’s second appointed
counsel successfully moved to set over his trial. Ten days
after that, defendant’s second appointed counsel withdrew
based on a conflict of interest, and the trial court appointed
a third attorney for both cases. Three days later, that attorney successfully moved to set over defendant’s trial.
On September 13, 2017, defendant’s third appointed
counsel withdrew at defendant’s request, and the trial court
appointed a fourth attorney for both cases. Two weeks later,
the trial court set new trial dates, and defendant independently objected, citing speedy trial concerns. Two weeks
later, defendant’s fourth appointed counsel withdrew based
on the breakdown of the attorney-client relationship. The
trial court appointed a fifth attorney for both cases.
The next day, the trial court dismissed Case No.
17CR36325. A week later, on October 9, 2017, the state
indicted defendant in Case No. 17CR46368, splitting the
16 State v. Music
charges listed in the original information on that case into
two cases—Case No. 17CR46368 and Case No. 17CR66767.
Defendant asked to represent himself in both cases, citing
speedy trial concerns and his perception of the inadequacies
of past, and current, appointed counsel. The court asked
some questions about defendant’s college education and
competency, then defendant retracted his request, consenting to representation by his fifth appointed attorney, stating
he “understood.”
On October 18, 2017, the state indicted defendant
in Case No. 17CR69236, which mirrored/charged anew the
dismissed charges from Case No. 17CR36325. Defendant
renewed his request to represent himself, now in all three
cases, again citing speedy trial concerns and inadequate
representation of his wishes regarding his preliminary
hearing:
“THE COURT: Do—in this new indictment do you
want to be represented by an attorney?
“DEFENDANT: No, no, no.
“THE COURT: [Defendant’s fifth appointed counsel] represents you in the other two cases. I’m prepared
to appoint him so that you can deal with all three cases
together. Do you want to do that?
“DEFENDANT: No, I never consented to that to begin
with. I never waived my preliminary hearing and I never
waived indictment.
“I’ve been held on this for 100 days. I know the numbers
changed but—yeah.”
The court interpreted defendant’s discussion about
waiving his preliminary hearing as a refusal to answer
the court’s questions about representation. Subsequently,
the court entered pleas of not guilty to all the counts and
appointed defendant’s fifth appointed counsel to represent
defendant in the third case, without addressing defendant’s
request to represent himself, and without asking defendant
or his counsel for defendant’s plea:
“THE COURT: At this point in time what I’m going to
do—
Cite as 305 Or App 13 (2020) 17
“DEFENDANT: Mmm-huh.
“THE COURT: —because [defendant] doesn’t really
seem to be answering my question; talking about something else.
“I’m going to enter not guilty pleas on your behalf on the
new case.
“And at this point in time I am going to appoint [defendant’s fifth appointed counsel] because the cases should be
dealt with together.”
Responding the court’s decision to appoint counsel,
defendant continued to request to represent himself:
“DEFENDANT: I don’t need an attorney. I need—I’ve
done 100 days, five attorneys have gotten me right here.
“…
“DEFENDANT: I’ll represent myself. Thank you.”
The trial court again diverted the discussion without addressing defendant’s requests, stating “At this point
in time we’ll just note that [defendant] doesn’t want to sign
for his date. And we’re just going to give him a copy.”
On the morning of October 27, 2017, defendant’s
fifth attorney informed the trial court of the breakdown
in the attorney-client relationship and his intent to withdraw. The court responded that it would address the motion
after defendant attended a settlement conference with a
different judge that afternoon. Defendant’s counsel then
offered to represent defendant at the settlement conference.
Defendant’s withdrawing attorney then represented to the
court that he had “been served Aggravating Circumstances
for Arraignment purposes,” and the attorney “waive[d] reading further Advice of Rights” on the aggravating factors.
Defendant appeared for the settlement conference,
apparently still represented by counsel. The settlement conference resulted in a stipulated facts trial, conviction, and
sentence in each case, and these appeals followed.
On appeal, defendant raises the same argument as
to each of his three cases, namely, that the trial court unlawfully impeded his right to self-representation guaranteed
18 State v. Music
under Article I, section 11, of the Oregon Constitution, and
the Sixth and Fourteenth Amendments to the United States
Constitution.1 The state responds that the trial court never
denied defendant’s request; rather, it deferred any decision,
and that deferral was necessary, in part, because defendant
was disruptive during the proceedings.
Whether a trial court has denied a defendant’s right
to counsel, or the concomitant right to self-representation,
is a question of law that we review for errors of law. See
Miller, 254 Or App at 522-24 (applying standard); see also
Faretta v. California,
422 US 806, 835-36,
95 S Ct 2525,
45
L Ed 2d 562 (1975) (same under the Sixth and Fourteenth
Amendments).
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.
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 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.
We have found reversible 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,
1
In defendant’s pro se supplemental brief, defendant raises similar issues
concerning self-representation and also argues that he was denied his right to
a speedy trial under ORS 136.290 (60 days for in-custody defendant) because he
never agreed to the various set-overs that occurred. We reject that assignment
without discussion.
Cite as 305 Or App 13 (2020) 19
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’s invocation of his right to self-representation was unambiguous:
“THE COURT: [Defendant’s fifth appointed counsel]
represents you in the other two cases. I’m prepared to
appoint him so that you can deal with all three cases
together. Do you want to do that?
“DEFENDANT: No, I never consented to that to begin
with.”
(Emphasis added.)
Then, again a few moments later, after the court
appointed counsel, defendant adamantly rejected the
appointment, telling the court “I don’t need an attorney.
I need—I’ve done 100 days, five attorneys have gotten me
right here. … I’ll represent myself. Thank you.” Such an
invocation triggers the obligation to inquire under Miller.
The state does not argue that the trial court engaged
in a Miller inquiry with defendant. Rather, the state offers
two other arguments. First, the state argues that defendant
was refusing to answer the court’s questions, thus preventing a Miller inquiry. We do not read the record as the state
suggests. The record certainly evidences defendant’s frustration with the trial court. But that frustration appears
primarily based on the trial court’s insistence on appointing counsel. Defendant’s frustration at the court refusing
to acknowledge his request for self-representation cannot
be a justification for the court’s failure to acknowledge the
request in the first instance.
Alternatively, relying on our decision in Brooks, the
state argues that the court was within its discretion to delay
the Miller inquiry. The state misreads Brooks. In Brooks,
we held that a trial court was within its discretion to delay
the Miller inquiry when the defendant made an equivocal request for self-representation at his first appearance.
20 State v. Music
Brooks, 301 Or App at 429. Two facts were critical to our
decision. First, the invocation in Brooks was equivocal.
Id.
That is not the case here. There can be no doubt that defendant wished to proceed representing himself. Second, we
noted in Brooks that “there was no trial imminent, nor even
any significant preliminary dispositive hearing upcoming.”
Id. Here, by contrast, two of the three consolidated cases
were well past the point of initial appearance, and defendant
had an upcoming settlement conference. Finally, in Brooks,
the trial court scheduled a hearing a few days distant where
defendant was expressly afforded the opportunity to renew
his request for self-representation if he still desired to do so.
Here, by contrast, no such hearing was set, and in fact, at
the next hearing, on October 27, no Miller inquiry occurred.
We acknowledge that in the history of defendant’s
three cases, defendant had made, then withdrawn, several
requests for self-representation. However, previous uncertainty about invoking one’s right to self-representation
does not preclude one from invoking that right unequivocally. Here, the trial court was faced with an unambiguous
invocation of defendant’s right to self-representation. In
response, the trial court made no Miller inquiry at the time,
then allowed a settlement conference to occur without ever
addressing the pending request for self-representation. That
was error.
Reversed and remanded.
