435
Argued and submitted August 5, 2020, affirmed March 23, petition for review
denied July 7, 2022 (370 Or 56)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES EDMUND GREELEY,
Defendant-Appellant.
Jefferson County Circuit Court
16CR55731; A169128
508 P3d 33
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants and reckless driving. He argues that the trial court erred in
refusing to appoint a fourth substitute counsel for him without first obtaining a
knowing and intelligent waiver of counsel, and in admitting at trial defendant’s
refusal to submit to a breath test. Held: Any error of the trial court in refusing
to appoint substitute counsel without first obtaining defendant’s waiver of counsel did not rise to the level of constitutional error and was otherwise harmless
because defendant was represented by retained counsel at his trial. The trial
court did not plainly err in admitting defendant’s refusal to submit to a breath
test.
Affirmed.
Daniel Joseph Ahern, Judge.
Stacy M. Du Clos, 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.
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.
ORTEGA, P. J.
Affirmed.
436 State v. Greeley
ORTEGA, P. J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants and reckless
driving. Defendant asserts two assignments of error. In
the first, he argues that the trial court erred in refusing to
appoint a fourth substitute counsel for defendant without
first obtaining a knowing and intelligent waiver of counsel
from him. In the second, defendant asserts that the trial
court plainly erred, under State v. Banks, 364 Or 332,
434
P3d 361 (2019), in admitting at trial defendant’s refusal to
submit to a breath test. We reject defendant’s second assignment without discussion, because it does not constitute
plain error. State v. Smith,
302 Or App 787, 792,
462 P3d
310, rev den,
366 Or 731 (2020). As explained below, we also
reject defendant’s first assignment on the basis that any
error did not rise to the level of constitutional error and was
otherwise harmless, because defendant was represented by
retained counsel at his trial.
The facts relevant to our discussion are procedural
and undisputed. At his arraignment, in September 2016,
defendant requested court-appointed counsel and the court
determined that he was eligible and appointed counsel.
Defendant was represented by that attorney at a hearing on defendant’s motion to suppress. In September 2017,
defendant’s first appointed counsel moved to withdraw from
representing defendant at defendant’s request. The court
granted that request and appointed new counsel for defendant. In May 2018, defendant’s second appointed counsel
moved to withdraw from representing defendant, again at
defendant’s request. The court granted that request and
again appointed new counsel, who worked with the same
public defense group as the second appointed attorney.
Within a few weeks of that appointment, defendant’s third
counsel moved to withdraw based on an ethical conflict and
informed the court that there were no other attorneys in
the public defense group who could represent defendant. At
the hearing on that motion to withdraw, the court allowed
counsel to withdraw and engaged in a colloquy with defendant. The court informed defendant that “[y]ou’ve run out
of eligible court-appointed attorneys” and asked whether
Cite as 318 Or App 435 (2022) 437
defendant intended to hire an attorney or proceed with representing himself. Defendant ultimately responded that,
“[i]f you don’t have any remaining attorneys, I’m left with
hiring my own attorney.” The court set an appearance date
to give defendant an opportunity to review the file that counsel provided to him and so that he could inform the court
whether he was going to hire an attorney.
At the next appearance, defendant represented
himself, asserted his right to counsel, and requested that
the court appoint him a new attorney. After a discussion, the
court told defendant that his request for another appointed
attorney had already been denied and that the hearing was
to set a trial date. Defendant informed the court that he was
going to meet with an attorney the next week. The court set
the matter over for another status hearing. At that hearing, defendant informed the court that his meeting with
the attorney had been rescheduled. The court then set the
trial date for one month out from the date defendant had
scheduled to meet with his attorney. Defendant informed
the court that that would give him enough time to contact
his witnesses. At the pretrial readiness hearing, defendant’s
retained counsel advised the court that he was ready for
trial. At trial, defendant’s attorney cross-examined the
state’s two witness but did not call any defense witnesses.
On appeal, defendant argues that the trial court violated Article I, section 11, of the Oregon Constitution and the
Sixth Amendment to the United States Constitution when
it failed to appoint substitute counsel without first obtaining a knowing and intelligent waiver from defendant of his
right to counsel. Defendant further argues that the state
constitutional error was not harmless because the record
does not demonstrate whether defendant’s compelled choice
of retained counsel affected the verdict. Defendant argues
that, here, defense counsel did not present witnesses or a
defense expert, and we cannot determine whether that was
from a lack of funds, which defendant may have had access
to with appointed counsel. Similarly, defendant argues that
the federal constitutional error was structural error because
it is impossible to evaluate the effect of the error on the case,
requiring reversal for a new trial.
438 State v. Greeley
The state responds that there was no error or, if
there was any error, it was harmless because the record
reflects only that defendant was represented by counsel at
every critical stage of the proceedings and that nothing in
the record suggests that any of those lawyers were unqualified, unprepared, or representing defendant over his objection. As a result, the state argues that defendant was not
denied his right to counsel. In addition, even if any error
occurred, the state argues that it was harmless and not
structural error, because defendant cannot show that he
suffered prejudice by being represented by counsel of his
own choosing.
We first emphasize that the error that defendant
claims on appeal is that the trial court’s failure to obtain
a waiver from defendant of his right to counsel was necessarily a violation of Article I, section 11, and the Sixth
Amendment. However, defendant was represented by either
appointed or retained counsel at all critical stages of the
proceedings; that is, his constitutional right to be represented by counsel ultimately was not violated. See, e.g., State
v. Erb, 256 Or App 416, 421,
300 P3d 270 (2013) (the right to
counsel under Article I, section 11, includes the right to be
represented by counsel during all critical stages of a criminal proceeding, unless the defendant voluntarily and intelligently waives that right); see also Montejo v. Louisiana,
556 US 778, 786,
129 S Ct 2079,
173 L Ed 2d 955 (2009)
(same principle applies under the Sixth Amendment). Thus,
to the extent that the trial court here erred in not obtaining
a waiver from defendant, it did not rise to the level of a constitutional violation under the circumstances of this case.
In addition, even assuming that the trial court erred in failing to appoint a fourth attorney to represent defendant, any
such error was harmless under both the state and federal
constitutions.
We begin our discussion with the Oregon Constitution. Error is harmless if there is “little likelihood that the
particular error affected the verdict.” State v. Davis, 336
Or 19, 32,
77 P3d 1111 (2003). Here, defendant argues that
the alleged error in not appointing another attorney is not
harmless because we cannot tell whether the scope of his
Cite as
318 Or App 435 (2022) 439
hired representation was deficient in some respects as compared to the scope of representation defendant would have
received from a court-appointed attorney. Defendant argues
that we should apply the same harmlessness standard in
this case that we apply when a defendant is forced to proceed
pro se without the court obtaining a proper waiver of the
right to counsel. See, e.g., State v. Haines,
283 Or App 444,
454,
388 P3d 365 (2017) (not obtaining a valid waiver from
a defendant who proceeds without counsel “is not harmless
if, on review, we are unable to determine what the outcome
would have been if the defendant had been represented by
counsel” (internal quotation marks omitted)).
We reject defendant’s framing of our inquiry. The
risks attendant to a defendant representing himself pro se
are not present when a defendant is represented by counsel—
whether that counsel is retained or court appointed. To apply
the same type of analysis in these circumstances would completely ignore that reality, and we decline to do that. Here,
defendant was represented by counsel at every critical stage
in these proceedings, and defendant does not argue otherwise. Also, defendant’s suggestion that a lack of funds could
have harmed him in his defense is mere speculation. As
the state points out, neither defendant nor his trial counsel
raised at any time with the court that defendant’s lack of
funds hindered his defense at trial, nor did they request any
indigent services or funding to aid in the defense. The record
shows that defendant’s trial counsel put on a defense at trial;
the decision by trial counsel to not call defense witnesses
was equally as likely, if not more likely, to have been a strategic decision than a decision based on a lack of funds. The
only actual harm that we can identify on this record is that,
presumably, defendant had to pay for his retained attorney.
That, however, is not the type of harm to which the harmless error standard speaks. Because there is little likelihood
that the particular error affected the verdict, we reject defendant’s argument under Article I, section 11.
We also reject defendant’s argument that the alleged
error here qualifies as structural error under the Sixth
Amendment. We agree with the state that United States
v. Gonzalez-Lopez, 548 US 140,
126 S Ct 2557,
165 L Ed
440 State v. Greeley
2d 409 (2006), does not apply. In that case, the Court concluded that denial of a defendant’s right to counsel of choice
under the Sixth Amendment was structural error, requiring reversal.
Id. at 150-51. Defendant, however, was not
denied his counsel of choice—an unnamed and unknown-todefendant court-appointed counsel is not “counsel of choice,”
as discussed in Gonzalez-Lopez. Counsel of choice is a particular named counsel that a defendant wishes to represent
him. See
id. at 142-43 (involving a circumstance in which
the district court denied pro hac vice admission for the out-of-state attorney that the defendant wished to have represent him and prohibited the out-of-state attorney from
assisting in the proceedings or contacting the defendant).
Further, “the right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.”
Id. at 151. Defendant does not explain why the counsel of
choice structural error analysis should apply when what
he argues is that the court should have appointed a fourth
court-appointed attorney, a circumstance in which defendant decidedly did not have the right to counsel of choice.
We also do not discern from the federal denial of counsel
cases a basis on which to reverse based on structural error;
as explained above, defendant was not denied counsel at any
critical stage of the proceedings and, thus, the court’s failure to obtain a waiver of the right to counsel from defendant
was not a constitutional error. Cf., e.g., Satterwhite v. Texas,
486 US 249, 256,
108 S Ct 1792,
100 L Ed 2d 284 (1988)
(explaining that “[s]ome constitutional violations, however,
by their very nature cast so much doubt on the fairness of
the trial process that, as a matter of law, they can never
be considered harmless. Sixth Amendment violations that
pervade the entire proceeding fall within this category.”).
Thus, applying the usual federal harmless error test to
the assumed error the trial court made in not appointing a
fourth attorney, we conclude for the same reasons already
stated that any error here was harmless beyond a reasonable doubt. See
id. (stating the rule that, “if the prosecution
can prove beyond a reasonable doubt that a constitutional
error did not contribute to the verdict, the error is harmless
and the verdict may stand”).
Affirmed.
