State v. Groff

                                       40

 Argued and submitted May 5, affirmed August 19, petition for review denied
                     December 24, 2020 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    CALEB DANIEL GROFF,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR01015; A168405
                                   

     Defendant appeals from a judgment of conviction for resisting arrest, assigning error to the trial court’s purported denial of his request to represent himself at trial in violation of Article I, section 11, of the Oregon Constitution and
the Sixth Amendment to the United States Constitution. Held: The trial court
did not, in fact, deny defendant’s request for self-representation. Before the
court ruled on defendant’s motion, defendant elected to proceed with counsel.
Therefore, the court did not err.
    Affirmed.



    Ricardo J. Menchaca, Judge.
   Brett J. Allin, 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.
   Timothy A. Sylwester, 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
Powers, Judge.
    SHORR, J.
    Affirmed.
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          SHORR, J.
          Defendant appeals from a judgment of conviction
for resisting arrest, ORS 162.315, raising two assignments
of error. In defendant’s first assignment of error, he contends
that the trial court erred by relying on a fact not in evidence
in rendering its verdict. In his second, defendant assigns
error to the court’s purported denial of his request to represent himself at trial. We write only to address defendant’s
second assignment of error and reject defendant’s first
assignment of error without further written discussion. As
we explain in greater detail below, we conclude that defendant elected to proceed with counsel before the court issued
a ruling and that, as a result, the court did not deny or make
any ruling with respect to defendant’s request. Accordingly,
the court did not err and we affirm defendant’s conviction.
          The facts underlying defendant’s arrest are not
relevant to the issue on appeal. Defendant was charged
with second-degree criminal trespass and resisting arrest.
Counsel was appointed for defendant, and the case was set for
trial. At multiple pretrial hearings, defendant indicated that
he wished to represent himself. In response, the trial court
directed defendant’s counsel to file a motion to withdraw.
At the resulting hearing on that motion, the court granted
defendant’s request to represent himself, but appointed new
legal counsel to “assist [defendant] in an advisory capacity.”
At a later hearing, set shortly before trial, another judge
reconsidered and denied defendant’s request to represent
himself.1 Thereafter, the attorney initially serving in an
advisory role then acted as defendant’s regular counsel.
        The morning of trial, defendant, through counsel,
renewed his motion to waive counsel and represent himself,
again before a different judge who had not previously considered defendant’s motion for self-representation. We summarize the resulting conversation and include excerpts from
the record where pertinent to our analysis.
        The trial court began by giving defendant an opportunity to state his position. Defendant did not address the

   1
     It is unclear from the record what prompted the court to reconsider the
motion.
42                                                      State v. Groff

motion to proceed pro se. Instead, he expressed his frustration with the court and trial proceedings in an earlier case,
explaining that, in that case, he had written a lengthy explanation of the underlying facts and that, instead of reading
that document, the court “made a judgment based on how
the trial went, and the trial went very biasedly.” Defendant
began to discuss his perception of the facts underlying the
current case before defense counsel interjected. The court
and defendant then had the following exchange:
       “THE COURT: So … I’m just—what are you asking
     me to do?
        “[DEFENDANT]: Just hear me out. …
        “…
        “… You know, I think that we have enough evidence
     to prove my innocence concerning this case, so I—I mean,
     that’s just what I think.
         “You know, this is all from the first case. But I think we
     have enough evidence to prove my innocence on this initial case here, and I—we can just go ahead and proceed.
     I don’t think that we need a jury. I don’t think it would be
     fair for a jury to make a judgment based on—based on the
     little snippet of the story or part of the story that they’ll be
     hearing.
       “And—because I know that you can consult with
     Ms. Roberts and Mr. Butterfield—
        “[DEFENSE COUNSEL]:           Judge. Judge.
        “[DEFENDANT]: Judge Roberts and Judge Butterfield
     based on what they know about me and what they know
     concerning this case.
        “…
         “THE COURT: Okay. So … my understanding, then,
     is there was a motion filed by your attorney ….
        “I have looked at the motion and the affidavit that you
     have requested that she withdraw so that you can represent yourself.
        “[DEFENDANT]:        Correct.
        “THE COURT: My understanding is that Judge
     Roberts, some time ago, ruled on that issue [in] another
     case, and my understanding is that Judge Butterfield, at
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   one of the pretrial conferences in this case, also reviewed
   the motion to withdraw, motion to represent yourself, and
   denied that.
     “So it’s my understanding that you’re renewing that
   motion today to represent yourself.
      “Am I correct?
      “[DEFENDANT]:       Yeah.”
         At that point, without prompting from the court,
defendant started to explain his religious beliefs and his
business ideas. Defense counsel again intervened to ask the
court to go through the waiver of counsel with defendant.
      “[DEFENSE COUNSEL]: But I think, probably, it
   would help provide structure if … Your Honor went over
   the waiver of counsel with [defendant] so he has a better
   idea of what direction to take this conversation.
      “[DEFENDANT]: I think it would be easy and most
   comfortable for you just to hear out the case because I think
   we have enough evidence to be like I would testify—
      “[DEFENSE COUNSEL]: So he has to decide if you
   can represent yourself.
      “…
      “[DEFENDANT]: You know, if he feels more comfortable with [defense counsel] presenting the evidence—you
   can ask any questions you want to ask me. You can ask me
   whatever questions. I’ll answer.”
         The court inquired about defendant’s background,
asking a series of questions about where defendant was
raised, his age, education, work experience, and living situation. Defendant’s answers were lengthy and often strayed
from the topic at hand, describing, among other things,
defendant’s business ideas, his mother’s health issues,
defendant’s religious beliefs, defendant’s view of the case,
and defendant’s mental health.
        The court then asked about defendant’s legal
training:
        “THE COURT: So, I guess, the thing I haven’t heard,
   … is you don’t appear to have any legal training.
44                                                     State v. Groff

         “[DEFENDANT]: I do a little bit. I mean, from what
     I learned [as a juvenile counselor] at Harkins House. You
     know? And I’m kind of representing them, too. You know,
     I—yeah.
        “…
        “THE COURT: … I just had this conversation with
     my staff when I was getting ready for work this morning. I
     think even a lawyer representing himself would be foolish.
        “[DEFENDANT]: I’m willing to, like, present the evidence and just go from there.
        “I don’t think it’d be fair to the jury. I know that you
     can consult with the other judges if you need to. Like, I
     gave this whole entire thing to [another judge] and was like
     ‘Look. Look at all of it if you need to.’ Like, I gathered up,
     you know, all the evidence. …
        “…
        “THE COURT: Well, I guess, what I did hear out of
     you, if I can, is that you’re willing to have [defense counsel]
     present the evidence.
        “[DEFENDANT]: Yes.
        “THE COURT: All right. And I will tell you this.
        “…
        “In terms of court-appointed counsel, you’re a fairly
     lucky young man. She’s a pretty darn good lawyer. And I
     could say that having watched her in jury in here a couple
     times. So you’re pretty lucky in that regard. So if you just
     trust her, work with her, I think you’re going to come out of
     this—I don’t know what you’re going to come out of this, but
     I think you’re going to find that she represents you hard
     and zealously and knows the law. And that’s really what
     matters. Okay?
        “[DEFENDANT]: All right. Yeah.
        “THE COURT: All right. So why don’t we proceed then
     with [defense counsel] as your attorney.
        “And then, [defense counsel], you wanted to speak with
     your client about jury or judge or—
       “[DEFENSE COUNSEL]: Yeah. If I could have just a
     moment.”
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         Defendant proceeded to trial with counsel and was
tried by the court. At the conclusion of the trial, the court
acquitted defendant of second-degree criminal trespass
and found defendant guilty of resisting arrest. On appeal,
defendant asserts that the trial court erred by denying his
request for self-representation on the morning of trial in violation of Article I, section 11, of the Oregon Constitution and
the Sixth Amendment to the United States Constitution.2
Specifically, defendant contends that his waiver of counsel was knowing and voluntary, and that the court did not
make findings that self-representation would disrupt the
judicial process or that defendant suffered a severe mental
illness that would prevent him from representing himself.
Thus, defendant argues, the court was obliged to grant his
request.
         In response, the state does not advance any arguments justifying the trial court’s purported denial of defendant’s request for self-representation. Rather, the state
argues that, as a result of the court’s conversation with
defendant, he voluntarily elected to proceed with counsel.
In short, the state argues that defendant changed his mind
before the court made any ruling. Consequently, according
to the state, the court was not required to, and in fact did
not, rule on defendant’s request.
         The issue before us, as framed by the parties’ arguments on appeal, is whether the trial court denied defendant’s request for self-representation. 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. State v. Brooks, 

, 

 (2019).
        “Article I, section 11, guarantees criminal defendants both the right to counsel and the right to self-representation.” State v. Williams, 

, 713, 

 (2017) (citing State v. Hightower, 

,

 (2017)). “The right to represent oneself is not
absolute; the trial court must deny a request of the right to

     2
       Defendant does not assign error to the prior denials of his motion for
self-representation.
46                                             State v. Groff

self-representation if such a request is not knowing or voluntary.” State v. Glasby, 

, 

(2019). Accordingly, “[w]hen 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). The court
must further determine “whether granting the defendant’s
request would disrupt the judicial process.” 

         In ensuring that a defendant’s waiver of counsel and
corresponding assertion of the right to self-representation is
made knowingly, the trial court must warn the defendant
of “the dangers and disadvantages of self-representation.”
Hightower, 

 (internal quotation marks omitted). A “colloquy on the record between the court and the
defendant” that “in some fashion, explains the risks of self-representation is the preferred means of assuring that the
defendant understands the risks of self-representation.”
State v. Meyrick, 

, 

 (1992).
        We conclude that the trial court did not improperly
deny defendant’s request for self-representation. Rather,
we conclude, based on the record, that defendant chose to
proceed with counsel before the court ruled with respect to
defendant’s request. We begin by examining the conversation between defendant and the court. Defendant’s initial
request for self-representation was clear and unequivocal.
In response, the court engaged in a colloquy with defendant
as required. Throughout that colloquy, defendant made several statements with respect to his request that confused
the nature of his request or were otherwise equivocal.
         For example, defendant consistently appeared to
conflate his request for self-representation with a request
for the court to determine defendant’s guilt based on defendant’s explanation of the facts in lieu of a trial. Defendant
explained more than once that he did not “think it would be
fair for a jury to make a judgment” based on the evidence
that would be presented at trial, and that, instead, defendant preferred for the court to “consult with” other judges
“based on what [the other judges] know about me and what
they know concerning this case.” Defendant also explained
his perspective that “it would be easy and most comfortable
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for [the court] just to hear out the case because I think we
have enough evidence[.]” In response to the court’s admonishment that “even a lawyer representing himself would be
foolish,” defendant stated that he was “willing to … present the evidence and just go from there” because it would
not be “fair to the jury” and because the court could “consult
with the other judges.” In addition, defendant indicated that
he was open to representation when he stated that, if the
court felt “more comfortable with [defense counsel] presenting the evidence,” either the court or counsel could “ask any
questions” of defendant.

         As we observed in Brooks, a trial court faced with
an equivocal request for self-representation on the morning
of trial “would have no practical option but to attempt to
clarify the nature of the equivocal request.” 301 Or App at
428. The court faced just such a situation here. Accordingly,
near the end of the conversation, the court attempted to clarify defendant’s request by asking if he correctly understood
defendant’s earlier statement that he would be “willing to
have [defense counsel] present the evidence.” Defendant
confirmed that he was. That is, defendant affirmed that
he was amenable to at least some form of representation.
At that point, the court explained its view that defendant’s
counsel would represent defendant “hard and zealously”
and that “that’s really what matters.” Defendant agreed,
and the court finally suggested that defendant proceed with
counsel.

         As we understand that interaction, defendant
agreed to proceed with counsel before the trial court issued
a ruling with respect to defendant’s request. The factual
scenario here is different, but we find it useful to contrast
the present case with State v. Nyquist. In that case, we held
that the court abused its discretion in denying the defendant’s midtrial motion to represent himself. State v. Nyquist,

, 

 (2018). The defendant
asked to represent himself after he became frustrated with
his attorney’s examination of a witness. We rejected the
state’s argument that the defendant abandoned his request
when he responded “Okay” to the court’s suggestion that
he write down the questions he wanted his attorney to ask.
48                                              State v. Groff

. At the same time, the court had stated, “I’m not
going to remove [counsel] from representing you.” 

 We
explained that, “in the same breath in which the court proposed written questions, it also rejected defendant’s request
to represent himself.” 

 Thus, “by the time defendant
responded, the court had already rejected his request for
self-representation.” 

.

         In contrast, the trial court here made no ruling or
denial of defendant’s request prior to defendant’s statement.
After considerable discussion with defendant about his
background, education, and legal training, the court reasonably understood defendant’s statements as an indication
that defendant was willing to go forward with counsel. The
court subsequently advised defendant that his lawyer would
adequately represent him, after defendant had already indicated his willingness to move forward with counsel.

         Defendant urges us to view the conversation differently, contending that the trial court “cajoled defendant to
accept counsel despite his requests to the contrary.” We take
a different view for two reasons. First, as noted, defendant
independently asserted his willingness for defense counsel
to present the evidence—later the court asked defendant if
it had correctly understood defendant’s own statement. That
clarification was appropriate and necessary in light of defendant’s earlier statement that his counsel could present evidence and ask questions when compared to defendant’s later
and more ambiguous statement that defendant was willing
to “present the evidence and just go from there.” Second,
the court properly advised defendant of the benefits of having counsel. Although a court may not deny a defendant’s
motion for self-representation on the bases that the defendant has adequate counsel, the defendant lacks legal training, or representation by counsel is in the defendant’s best
interest, it is not error for the court to advise the defendant
of those things. Indeed, a trial court’s failure to “mention
any of the risks of self-representation, or put on the record
any facts indicating that defendant understood the risks, is
akin to the circumstances that we have described as prima
facie error.” State v. Haines, 

, 

 (2017).
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         Lastly, we conclude for the reasons stated above
that the trial court did not err under the federal constitution because the court did not deny defendant’s request for
self-representation in light of defendant’s intervening decision to proceed with counsel. See State v. Hayne, 

, 

 (2018), rev den, 

 (2019)
(citing Indiana v. Edwards, 

, 

,

 (2008) (“The Sixth Amendment gives courts
a similar range of discretion when addressing a defendant’s
request to exercise the right of self-representation.”)).
        In conclusion, the trial court did not deny defendant’s
request for self-representation under Article I, section 11,
or the Sixth Amendment, because defendant elected to
proceed with counsel before the court ruled on defendant’s
request. Therefore, the trial court did not err and we affirm.
        Affirmed.