State v. Fullerton

                                   127

Submitted July 2, reversed and remanded for resentencing August 19, petition
             for review denied November 19, 2020 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               JONAH MICHAEL FULLERTON,
                     Defendant-Appellant.
                Deschutes County Circuit Court
                     12FE0583; A169177
                                

   Stephen P. Forte, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the opening brief for appellant. Jonah Fullerton filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded for resentencing.
128                                                       State v. Fullerton

           PER CURIAM
         We previously affirmed defendant’s conviction and
remanded this case for an entry of judgment merging the
verdicts on two counts of first-degree sexual abuse into one
conviction and for resentencing. State v. Fullerton, 

, 

, rev den, 

 (2018). On appeal,
defendant seeks another remand because the resentencing
court denied his request to be represented by counsel at the
resentencing hearing.
         Before the resentencing hearing, defendant moved
for appointment of substitute counsel and, at his request,
counsel moved to withdraw. The court denied counsel’s
motion to withdraw by written order. At the hearing, the
court rejected defendant’s renewed request for substitute
counsel but granted counsel’s renewed motion to withdraw. Then, the court ordered defendant’s former counsel to serve as defendant’s legal advisor and proceeded to
resentence defendant. On appeal, defendant contends that
requiring defendant to proceed to resentencing pro se violated his right to counsel under the state and federal constitutions. Further, he argues that a violation of the right to
counsel under the Sixth Amendment to the United States
Constitution is “structural error” requiring reversal. United
States v. Gonzalez-Lopez, 

, 

,

 (2006) (holding that a trial court’s erroneous deprivation of a defendant’s Sixth Amendment right to
counsel of choice is a structural error that requires reversal).
        For the following reasons, the state concedes. First,
the state agrees with defendant that a legal advisor, presumably appointed under ORS 135.045(1)(d), is not “counsel”
for purposes of the state and federal constitutional rights to
counsel.1 Cf. State v. Olson, 

, 

 (2019) (recognizing that allowing an attorney to remain
only as a legal advisor absent a valid waiver of counsel
would be a violation of right to counsel). Second, the state
agrees that the trial court violated defendant’s right to counsel when it proceeded with the hearing despite defendant
     1
       ORS 135.045(1)(d) provides that, “[i]f the court accepts a defendant’s waiver
of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and may … appoint an attorney as the defendant’s legal advisor.”
Cite as 

 (2020)                            129

being unrepresented by counsel and in the absence of his
voluntary waiver of counsel. See State v. Langley, 

, 

 (2012) (determining that the defendant’s request for new counsel coupled with refusal to be
represented by current counsel did not constitute a knowing, intelligent, and voluntary waiver of right to counsel).
Third, the state agrees that, in the absence of defendant’s
voluntary waiver of counsel, deprivation of the right to counsel constitutes structural error requiring reversal under the
federal constitution regardless of whether the state constitution requires the same disposition.
        We agree and accept the state’s concession on its
terms. We reject the arguments that were raised in the pro se
supplemental brief because, as the state argues, some are
beyond the scope of our review in this appeal, and the balance are now moot in view of our decision to reverse and
remand for resentencing.
        Reversed and remanded for resentencing.