532
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted September 14, affirmed October 26, 2022, petition for review denied
February 23, 2023 (370 Or 789)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JERIMIE LEE LUNSFORD,
Defendant-Appellant.
Josephine County Circuit Court
19CR82678; A175224
Pat Wolke, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, Paul L. Smith, Assistant Attorney
General, and Emily N. Snook, Assistant Attorney General,
filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 322 Or App 532 (2022) 533
EGAN, J.
Defendant appeals following a judgment of conviction for first-degree robbery, ORS 164.415 (Count 1); unlawful use of a weapon, ORS 166.220 (Count 2); and seconddegree theft, ORS 164.045 (Count 3). Defendant brings forth
two assignments of error on appeal, which both allege that
the trial court abused its discretion when it denied defendant’s requests for substitution of counsel, first immediately
prior to trial and then immediately before sentencing. We
review the trial court’s ruling for an abuse of discretion
and, as explained below, we conclude that the trial court’s
decision was well within the parameters of its discretion.
Accordingly, we affirm.
Defendant initially sent the trial court a letter
outlining various reasons for requesting a substitution of
counsel. Defendant complained that his attorney had failed
to share discovered materials with him and did not show
him the video recordings of the incident. He explained that
he and his family were attempting to secure a different
attorney to try the case on his behalf. At the hearing on
his motion, immediately prior to trial, defendant reiterated
most of those concerns, except for admitting that he had
received discovery from his attorney but that his “paperwork
got messed up” because of flooding on his tier of the county
jail. Additionally, he complained that he hadn’t watched the
videos or recordings and that defense counsel was not investigating his case properly.
Defense counsel explained that she had been sharing her discovery with defendant but did not know of
the flood and damage to his discovery until “last week.”
Additionally, defense counsel refuted defendant’s statement
that he did not watch the videos, explaining that they had
watched the videos together. The prosecutor pointed out
that in monitored calls, defendant’s family disclosed that
the defense investigator had contacted them. With regard
to defendant’s claim that he or his family had made efforts
to secure another attorney, the prosecutor disclosed that no
such efforts were discussed in any of the monitored telephone
calls over the course of months between the last scheduling
534 State v. Lunsford
hearing and the hearing on the motion for substitution. In
response to defense counsel and prosecutor’s points, defendant voiced his frustration and anxiety at his situation.1
The trial court denied defendant’s request and attempted to
ease defendant’s anxiety by assuring him of his attorney’s
qualifications.2
At the start of the sentencing hearing, defendant
renewed his request for substitution of counsel, recounting the timing of his letter near the beginning of his trial.
Defendant argued that defense counsel had refused to let
him testify, pick his own jury, call his witnesses to the stand,
or file any motions on his own behalf regarding evidence of
previous bad acts. The trial court again denied defendant’s
request for substitution of counsel, explaining the array of
evidence against him and lauding the work of defense counsel throughout the trial.
In his first assignment of error, defendant argues
that, based on the trial court’s explanation of its ruling
on defendant’s first motion for substitution of counsel, the
trial court had applied an incorrect legal analysis and had
failed to properly evaluate defendant’s complaints about his
appointed counsel. However, defendant himself admitted
that there was no factual basis for the claims he had made
1
“Alright, yeah, your correct, my last court date was in May, but since
May until now, I haven’t had a court date. I haven’t had anybody to talk to
other than [defense counsel], and I didn’t know what to do. My paperwork was
destroyed. I—yes she says that we watched the videos together. She watched
the videos, your Honor. I—I have stigmatisms in both my eyes, and I have a
really hard time seeing, and if you see—you think staring between a partition with glass, like a nine-by-nine laptop screen, and—then the—the video
is like two-by-two, how am I supposed to see that? How am I supposed to—
and if I can’t read all of my—my discovery, and I don’t know all the evidence
against me, that’s against—that’s—I have a right to know that. I have a right
to see that.”
2
“Okay, well I’m going to deny your request, and the reason being is that
I think of all the attorneys in Josephine County that come to court, [defense
counsel] is probably in court more often than anybody else. She’s a very experienced and good trial attorney. If it—if I were to grant your request and you
had a brand new attorney, it would be the total luck of the draw, and I—I really
believe that you would be—you’d have a different and maybe less qualified
attorney than you do right now. I think you have a good attorney, so your
request is denied.”
Nonprecedential Memo Op: 322 Or App 532 (2022) 535
requesting substitute counsel, because he had received all of
the discovery, and defense counsel had reviewed the videos
with him.
A defendant “has no right to new appointed counsel
in the absence of a legitimate complaint about existing counsel[.]” State v. Smith, 339 Or 515, 523,
123 P3d 261 (2005).
A loss of confidence, frustration with the developments in
a case, and the anxiety over strategy immediately prior to
trial do not rise to the level of a legitimate complaint about
appointed defense counsel. State v. Langley,
314 Or 247, 258,
839 P2d 692 (1992); State v. Henry,
315 Or App 169, 176,
499
P3d 863 (2021), rev den,
369 Or 211;
369 Or 856 (2022). The
extent of the trial court’s inquiry is fact-dependent, and the
trial court has broad discretion “to determine the scope of
the inquiry necessitated by a particular complaint.” State v.
Olson,
298 Or App 469, 472,
447 P3d 57 (2019).
In rejecting defendant’s request to substitute counsel before trial, the trial court made appropriate inquiry of
defendant, defense counsel, and the prosecutor. In the end,
defendant admitted his misstatements. The trial court recognized the anxiety that drove defendant’s arguments and
attempted to alleviate it. We reject the contention that the
court’s comments expressed a legal theory or that, in denying
the motion, the court did not determine whether defendant’s
complaints were legitimate; rather the court’s statements
were in response to defendant’s arguments. Therefore, we
reject the first assignment of error.
In his second assignment of error, defendant argues
that the trial court abused its discretion when it denied his
request for substitute counsel at sentencing because the
court did not determine whether defendant’s complaints
were legitimate.
Defendant complained that his attorney had “refused
to call any of my witnesses,” that she forbade him from testifying, that she refused to ask questions of witnesses that he
had proposed, and that she made no objections in the trial.
The court’s inquiry at sentencing was significantly different
from the inquiry before trial, because the court had observed
the trial and defense counsel’s performance. Specifically,
the court had observed defense counsel’s responsiveness to
536 State v. Lunsford
defendant’s questions of witnesses. The court had conducted
a colloquy with defendant about his right to testify on his
own behalf, and defendant had acknowledged that the decision on whether or not to testify was his own.
The court had sufficient information to rule on
defendant’s motion and on which to base the conclusion that
defendant again failed to raise a legitimate complaint about
defense counsel’s performance. Thus, the trial court did not
abuse its discretion in denying defendant’s second motion to
substitute counsel. See Henry, 315 Or App at 176.
Affirmed.
