86
Submitted January 17, 2019; judgment in Case No. 17CR01419 reversed, judgment in Case No. C160541CR reversed and remanded August 19, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH ANGELO GRANBERG,
Defendant-Appellant.
Washington County Circuit Court
17CR01419, C160541CR;
A164940 (Control), A164941
473 P3d 560
In this consolidated criminal case, defendant appeals from a judgment
convicting him of unlawful possession of methamphetamine (case number
17CR01419) and from a judgment finding that he violated a condition of his probation (case number C160541CR). Defendant argues that the trial court lacked
jurisdiction to enter the felony conviction because he was charged by information
and was not indicted, did not have a preliminary hearing, and did not knowingly
waive his right to indictment or a preliminary hearing as described by Article
VII (Amended), section 5, of the Oregon Constitution. Held: The trial court lacked
jurisdiction to enter a judgment of conviction because there was an absence of a
valid waiver. At defendant’s initial appearance, defendant’s counsel requested a
preliminary hearing and there is insufficient evidence in this record to draw the
inference that defendant changed his mind about that decision after having been
supplied the information needed for a knowing waiver.
Judgment in Case No. 17CR01419 reversed; judgment in Case No. C160541CR
reversed and remanded.
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Powers, Presiding Judge, and Egan, Chief Judge,
and Lagesen, Judge.
POWERS, P. J.
Judgment in Case No. 17CR01419 reversed; judgment in
Case No. C160541CR reversed and remanded.
Cite as 306 Or App 86 (2020) 87
POWERS, P. J.
In this consolidated criminal case, defendant
appeals from a judgment convicting him of unlawful possession of methamphetamine (case number 17CR01419) and
from a judgment finding that he violated a condition of his
probation (case number C160541CR). Defendant argues that
the trial court lacked jurisdiction to enter the felony conviction for unlawful possession of methamphetamine because
he was charged by information and was not indicted, did not
have a preliminary hearing, and did not knowingly waive
his right to indictment or a preliminary hearing.1 For the
reasons explained below, we agree with defendant’s position and, therefore, reverse the judgment of conviction and
reverse and remand the probation violation.
The relevant facts are undisputed. Defendant was
arrested for possession of methamphetamine in violation of
ORS 475.894, which is a Class C felony, and the state filed an
information charging defendant with that crime. At defendant’s arraignment, his attorney requested a preliminary
hearing. On the date scheduled for the preliminary hearing,
the state informed the court that it was not ready to proceed and inquired as to whether defendant would waive the
preliminary hearing. Defendant’s counsel stated that, “at
this point,” defendant was not going to waive a preliminary
hearing. The trial court then rescheduled the hearing and
released defendant.
On the date of the rescheduled preliminary hearing, defendant was present, but his counsel was not. Instead,
defendant was represented by another lawyer who was
standing in for defendant’s attorney of record.2 At the start
of the hearing, the state informed the court that it believed
defendant was waiving his right to a preliminary hearing,
defendant’s stand-in counsel confirmed the state’s belief,
and the trial court accepted defendant’s waiver:
1
In his second assignment of error, defendant challenges the trial court’s
denial of his motion to suppress. Our resolution of defendant’s first assignment of
error obviates the need to address the suppression challenge.
2
The record does not indicate why defendant’s attorney was not able to be
present at the rescheduled preliminary hearing.
88 State v. Granberg
“THE COURT: And we are resetting this for an
arraignment/case management hearing, March 6th at
9:00 a.m.
“THE STATE: And the Defendant is—to my understanding, he’s waiving his right to a preliminary hearing,
Your Honor.
“[DEFENDANT’S STAND-IN COUNSEL]: That’s
correct. And Alex Spinks is actually the attorney of record.
I’m just standing in.
“THE COURT: Okay. Very good. The order indicates
that he has waived his right to a preliminary hearing.
March 6th, 9:00 a.m.”
The state then filed a district attorney’s information, defendant was arraigned on that information, and the case proceeded to trial. Defendant waived his right to a jury trial,
and, after a trial to the court, the trial court found him
guilty of unlawful possession of methamphetamine and further found that the new conviction constituted a violation of
defendant’s probation.
On appeal, defendant argues that the trial court
lacked jurisdiction to convict him of a felony without an
indictment, a preliminary hearing, or his waiver of the right
to an indictment or preliminary hearing as described by
Article VII (Amended), section 5, of the Oregon Constitution.
Defendant acknowledges that he did not raise this argument before the trial court but argues that he may raise this
argument for the first time on appeal because it is jurisdictional. Specifically, defendant contends that the trial court
lacked jurisdiction to convict him, because his waiver of the
right to a preliminary hearing was not valid; defendant’s
waiver was made by his stand-in counsel and defendant did
not knowingly waive the right to a preliminary hearing.
According to defendant, the record reflects that, “[n]either
defendant’s attorney nor the court gave defendant any information about his right to a preliminary hearing, nor did
they confirm that defendant understood what he was relinquishing.” (Emphasis omitted.)
In response, the state argues that State v. Sheppard,
35 Or App 69,
581 P2d 549 (1978), rev den,
285 Or 1 (1979),
Cite as
306 Or App 86 (2020) 89
rejected the argument that the failure to comply with Article
VII (Amended), section 5, constitutes a jurisdictional defect.
As such, the state asserts that defendant’s argument is not
preserved and is subject to plain-error review. Further, the
state argues that, even if the right to a preliminary hearing is “personal” to a defendant, it is not obvious that a
defendant must communicate the waiver directly, rather
than through his counsel. According to the state, defendant
validly waived his right to a preliminary hearing, because
defendant was present at the hearing, was represented by
counsel, and “said nothing to dispute the attorneys’ representations or to suggest that he had not decided to waive his
preliminary hearing right.” (Emphasis omitted.) Therefore,
the state argues that “the trial court committed no error,
plain or otherwise, by proceeding to trial without a preliminary hearing.”
Under the Oregon Constitution, circuit courts enjoy
subject matter jurisdiction over all actions unless “a statute or rule of law” divests the courts of jurisdiction. State v.
Terry, 333 Or 163, 186,
37 P3d 157 (2001), cert den,
536 US
910 (2002). In State v. Keys,
302 Or App 514,
460 P3d 1020,
rev allowed,
366 Or 760 (2020), a case decided after this case
was submitted on the parties’ briefs, we interpreted Article
VII (Amended), section 5, to be a “rule of law” that can
divest a circuit court of jurisdiction in criminal proceedings.
Article VII (Amended), section 5, provides, in part:
“(3) Except as provided in subsections (4) and (5) of
this section, a person shall be charged in a circuit court
with the commission of any crime punishable as a felony
only on indictment by a grand jury.
“(4) The district attorney may charge a person on an
information filed in circuit court of a crime punishable as a
felony if the person appears before the judge of the circuit
court and knowingly waives indictment.
“(5) The district attorney may charge a person on an
information filed in circuit court if, after a preliminary
hearing before a magistrate, the person has been held to
answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person
has committed it, or if the person knowingly waives preliminary hearing.”
90 State v. Granberg
In concluding that Article VII (Amended), section 5,
can divest a court of jurisdiction, we analyzed and reconciled the pertinent case law discussing a court’s jurisdiction
to enter a judgment of conviction: Huffman v. Alexander, 197
Or 283,
251 P2d 87 (1952), reh’g den,
197 Or 283,
253 P2d
289 (1953); Sheppard; Terry; and State v. Young,
188 Or App
247,
71 P3d 119, rev den,
336 Or 125 (2003). Keys,
302 Or
App at 520-27. Relying primarily on Huffman, we held:
“Circuit courts generally have subject matter jurisdiction
over criminal cases. However, under Article VII (Amended),
section 5, a circuit court obtains jurisdiction to try or convict a defendant in a felony case only upon issuance of an
indictment, an information supported by a probable-cause
determination made following preliminary hearing, or the
defendant’s knowing waiver of indictment or preliminary
hearing.”
Keys, 302 Or App at 523-24 (emphasis in original). In other
words, “in the absence of indictment, preliminary hearing,
or waiver, the circuit court lacks jurisdiction to try the defendant and any judgment rendered in that case is void.”
Id. at
524. Accordingly, we held that an argument challenging the
court’s jurisdiction under Article VII (Amended), section 5,
can be raised for the first time on appeal. See
id. (“Whether
or not that particular type of jurisdiction is labeled ‘subject
matter jurisdiction,’ it is the kind of jurisdiction that must
exist for a court to try or convict a defendant and, like the
absence of subject matter jurisdiction, its absence may be
raised for the first time on appeal.” (Emphasis omitted.)).
Given our decision in Keys, we reach the merits of
the parties’ arguments—whether defendant validly waived
the right to a preliminary hearing—for the first time on
appeal. Like defendant, the defendant in Keys was arrested
for possession of methamphetamine and an information was
filed charging him with that crime. Id. at 515. At the defendant’s arraignment, the trial court appointed counsel to
assist the defendant with the arraignment.
Id. After counsel introduced herself to the defendant, counsel proceeded to
waive the defendant’s right to a preliminary hearing.
Id. On
appeal, the defendant argued “that the transcript show[ed]
that neither the court nor defense counsel explained the
purpose or benefits of a preliminary hearing to defendant.”
Cite as
306 Or App 86 (2020) 91
Id. at 516. Although the state did not contest the argument
that the defendant’s purported waiver made by his counsel was invalid, we noted that an argument to the contrary
“would be a challenging argument to make, given that
counsel purported to waive her client’s constitutional right
without having advised or consulted [the defendant] on the
point.” Id. at 517. We further rejected the argument that the
defendant had several other hearings, which, although they
were not transcribed, could have theoretically suggested
that the defendant “might have waived his right to a preliminary hearing during one of those untranscribed hearings.”
See id. at 526 n 9 (“[G]iven that jurisdiction does not attach
until there is an indictment, preliminary hearing, or knowing waiver, the state’s argument would not answer the question of when, exactly, the court obtained jurisdiction (assuming that defendant expressed a knowing waiver during
one of those hearings) and what the significance would be
of the court having acted without jurisdiction before that
point.”).
Shortly after our decision in Keys, we decided State
v. Foss-Vigil, 304 Or App 267,
467 P3d 38 (2020), another
case in which the defendant was charged by information
without a preliminary hearing. The defendant in Foss-Vigil,
who was charged with three felonies, similarly argued that
the waiver of his right to a preliminary hearing made by
his counsel was invalid, because the “record d[id] not establish a knowing and voluntary waiver.”
304 Or App at 272
(internal quotation marks omitted). We disagreed and held
that, unlike in Keys, the record in Foss-Vigil did not compel
the conclusion that the waiver was invalid.
Id. at 274. After
the state inquired as to whether the defendant would waive
the right to a preliminary hearing, the defendant’s counsel asked the court for a couple of minutes to “check with”
the defendant, before informing the court that the defendant was waiving the preliminary hearing.
Id. at 269. Given
those circumstances, we concluded that, in contrast to Keys,
“the record suggest[ed] that counsel was communicating
defendant’s own waiver to the court; the record d[id] not
establish (as it did in Keys) that the lawyer was purporting
to waive a right that she had not discussed with her client.”
Id. at 274.
92 State v. Granberg
This case is more like Keys than Foss-Vigil. At defendant’s initial appearance, defendant’s counsel requested a
preliminary hearing and there is insufficient evidence in
this record to draw the inference that defendant changed
his mind about that decision after having been supplied the
information needed for a knowing waiver. Unlike Foss-Vigil,
there is no indication that defendant’s stand-in counsel consulted with him before purportedly waiving defendant’s
right to a preliminary hearing. Further, we are unpersuaded
by the state’s argument that defendant’s silence during
the rescheduled preliminary hearing indicated that defendant knowingly waived the right to a preliminary hearing.
Ultimately, the record here is similar to the one in Keys and
one in which we conclude that there was an absence of a
valid waiver. The trial court, therefore, lacked jurisdiction
to enter a judgment of conviction. Accordingly, the judgment
of conviction is void and the judgment finding a violation of
probation is reversed and remanded. See State v. McMilian,
191 Or App 62, 69,
80 P3d 538 (2003), rev den,
337 Or 248
(2004) (remanding the probation revocation proceeding to
the trial court for reconsideration in light of the reversal of
the defendant’s convictions).
Judgment in Case No. 17CR01419 reversed; judgment in Case No. C160541CR reversed and remanded.
