State v. Abbott

                                       578

Argued and submitted December 3, 2021, reversed and remanded May 18, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     ANGELA SUSAN ABBOTT,
                        Defendant-Appellant.
                     Union County Circuit Court
                        18CR53751; A171539
                                   

    Defendant appeals from a judgment of conviction for various crimes and
raises three different assignments of error. First, she argues that the record does
not reflect a knowing and intelligent waiver of her right to counsel. Specifically,
defendant argues that the trial court did not engage in a colloquy on the record
and the record is otherwise insufficient to satisfy the requirements of State v.
Meyrick, 

, 

 (1992). Held: The Court of Appeals agreed
with defendant that the trial court erred in accepting her waiver of counsel. The
court explained that despite the trial court’s written order noting that it had
reviewed with defendant the right to counsel and the benefits and disadvantages
of proceeding without a lawyer, the substance of that discussion, and not merely
that it had occurred, appeared nowhere in the record. The court’s resolution on
that assignment of error obviated the need to address the remaining assignments of error.
    Reversed and remanded.



    Thomas B. Powers, Judge.
   Erik Blumenthal, Deputy Public Defender, argued the
cause for the appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
    JAMES, P. J.
    Reversed and remanded.
Cite as 

 (2022)                                              579

           JAMES, P. J.
         Defendant appeals from a judgment of conviction
for various crimes, arguing that the record does not reflect
a knowing and intelligent waiver of her right to counsel,
because the trial court did not engage in a colloquy, on the
record, nor is the record otherwise sufficient to satisfy the
requirements of State v. Meyrick, 

, 

 (1992). We agree, and reverse and remand.1
         We review a trial court’s acceptance of a waiver of
the right to counsel for legal error. State v. Langley, 

, 

 (2012); State v. Guerrero, 

, 

 (2016). In determining whether the
trial court erred, we view a waiver of the right to counsel
“in light of the circumstances particular to each case.” State
v. Erb, 

, 

 (2013); State v.
Culver, 

, 

 (2005). Here, the
pertinent facts are procedural and not in dispute.
         The state arraigned defendant on August 13, 2018,
at which point defendant stated that she did not know
whether she wanted an attorney. The court told her, “Well,
if in doubt, you get a lawyer. It’s an absolute constitutional
right. And I have to remind you, you’re facing multiple felony
counts here where a lawyer is going to be critically important to protect your interests.”
         Defendant was represented by counsel for the next
nine months. Then, on May 17, 2019, defendant’s counsel
informed the court that defendant would like to represent
herself:
       “[DEFENSE COUNSEL]: Your Honor, my client has
    now informed me she wishes to represent herself in this
    matter it sounds like. So I would be—
        “THE COURT: All right. Well, what we’ll need to do,
    [defense counsel], is you’ll need to file the appropriate
    motion. We may have a hearing on that motion and at that
    hearing, we’ll have a colloquy with [defendant] about how
    she would want to proceed. So get something filed, we’ll tee
    it up.”

   1
     Our resolution on defendant’s first assignment of error obviates the need to
address any of her remaining assignments of error.
580                                              State v. Abbott

        The same day, after the hearing, defense counsel
filed a motion to withdraw as appointed counsel on the
grounds that defendant had discharged him and wished
to represent herself, and the court granted the motion that
afternoon. On May 22, 2019, defendant appeared before the
court on a pretrial conference at which time, defendant proceeded pro se:
      “THE COURT: All right.
     “This is the time set for a pretrial conference. This is a
  60-day custodial speedy trial case with a priority setting
  on June 6 and June 7 for a two-day jury trial.
      “It’s a matter in which [defendant] has indicated a
  desire to waive counsel and represent herself at trial. Her
  attorney has filed the proper papers to withdraw as counsel. It’s a mandatory withdrawal under the Oregon Rules
  of Professional Conduct and that motion was granted;
  so [defendant] is in a position where she would be a selfrepresented litigant at trial.
     “So, [defendant], this is set for Thursday and Friday,
  June 6 and 7th. Are you prepared to go forward on those
  dates?
      “[DEFENDANT]: Yes, sir.
      “THE COURT: All right.”
        All parties on appeal are in agreement that the
record does not reflect that the trial court engaged in any
colloquy with defendant regarding self-representation at
that time, though the court informed defendant she would
need to complete a waiver of counsel form that the court
would send to her in custody, and she could write any handwritten notes on the waiver. The next day, defendant submitted a handwritten notice to the court stating:
  “[I] hereby request and demand that I will represent myself
  on this case and being of sound mind, body, and spirit and
  soul—do hereby acknowledge that I stand under God alone
  and will conduct myself in a manner I deem to be acceptable. I will seek truth, be honest and am willing to waive
  traditional counsel as my counsel comes from God alone.”
        On May 29, 2019, the court stamped on the bottom
of defendant’s request:
Cite as 

 (2022)                                  581

   “I find that defendant’s waiver of counsel—even though not
   in the form of a standard waiver—is knowingly, freely, and
   voluntarily made. The court and [defendant] have reviewed
   together the right to counsel as well as the benefits of having a lawyer and the disadvantages of proceeding without
   a lawyer. She understands the elements of the charges
   against her, her right to discovery, and her right to a jury
   trial. Her waiver is accepted.”
         Defendant proceeded to trial where she represented
herself and was ultimately convicted. This appeal followed.
         Article I, section 11, of the Oregon Constitution
entitles a criminal defendant “to be heard by [herself] and
counsel.” A defendant has the constitutional right either to
be represented by counsel or, if she so elects, to represent
herself. State v. Hightower, 

, 

(2017); State v. Verna, 

, 

 (1972).
The constitutional right to counsel may be waived, but the
record must reflect that any such waiver was “voluntarily
and knowingly made.” State v. Easter, 

,

 (2011) (citing Meyrick, 

). “To knowingly waive the right to counsel, a defendant must be aware
of the right to counsel and also understand the risks inherent in self-representation.” Easter, 

 (citing
Meyrick, 

). The preferred method of making
such a record is for the court to engage in a colloquy with the
defendant, on the record, of the risks of self-representation—
otherwise known as a Meyrick colloquy. “The obligation rests
with the court to determine whether the waiver of counsel
is made knowingly.” Id. at 582. The “failure to even 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. Todd, 

, 

,
rev den, 

 (2014).
         Despite the preference for a Meyrick colloquy, in its
absence we can affirm a trial court’s acceptance of a defendant’s waiver if, under the totality of the circumstances, the
record reflects that the defendant understood the risks of
proceeding without counsel, that is, a defendant “substantially appreciates the material risks of self-representation
in his or her case.” State v. Jackson, 

,
582                                           State v. Abbott

 (2001). The appreciation of the risks must be
grounded in the defendant’s case; they cannot be general or
abstract. A “defendant’s abstract knowledge that there may
be risks or disadvantages of self-representation, without any
appreciation of what those risks may be, is insufficient.” 

          Here, the parties agree that no Meyrick colloquy occurred at the time of defendant’s waiver of counsel.
Nevertheless, the state argues that we can infer, from the
totality of the record, that defendant understood the risks
of self-representation. We disagree that the record here
suffices.
         The record reflects that defendant had only one
prior conviction, and the record is silent as to whether that
case even proceeded through trial. And while the record does
show that defendant had waived counsel in the past, that
was in the context of a noncriminal dependency proceeding.
The only mention of the risks of proceeding without a lawyer
occurred briefly at arraignment, nine months prior to the
waiver. Finally, while the trial court does note in its order
that “[t]he court and [defendant] have reviewed together the
right to counsel as well as the benefits of having a lawyer
and the disadvantages of proceeding without a lawyer,” that
discussion—and critically, the substance of that discussion,
not just that it merely occurred—appears nowhere in the
record. “[T]he record must reflect” that any waiver of counsel
is “voluntarily and knowingly made.” Easter, 

 (citing Meyrick, 

 (emphasis added)).
        Reversed and remanded.