State v. White

                                 444

   This is a nonprecedential memorandum opinion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 December 20, 2022, affirmed September 27, 2023


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             RONALD ANTHONY WHITE, JR.,
                   Defendant-Appellant.
               Klamath County Circuit Court
                   20CR28320; A175599


   Alycia E. Kersey, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2023)                     445

         HELLMAN, J.
          Defendant appeals from a judgment of conviction
for unlawful use of a weapon constituting domestic violence,
ORS 166.220, and fourth-degree assault constituting domestic violence, ORS 163.160. In his sole assignment of error, he
argues that the trial court abused its discretion in denying
his third motion to substitute counsel. For the following reasons, we affirm.
         Defendant’s convictions arise out of a domestic dispute. Prior to the motion at issue in this appeal, defendant
had twice moved for substitution of appointed counsel. Those
motions were granted, and defendant was proceeding with
his third attorney. On the day before trial, defendant again
requested substitute counsel. When asked what was wrong,
defendant stated,
   “I’m ready to just get this over with. … [A]nd [trial counsel] told me, you know, he was going to push forward for me
   having time served and classes and things like that.
   “But then he comes back and tells me, … they took this
   offer off of the table, but … I was confused, basically. I did
   see the offer, but … he told me he was going to do something, didn’t do it and then now we’re, you know, going to
   trial.”
Defense counsel responded to that concern and explained
that the plea offer had been withdrawn due to an error in
defendant’s criminal history score assessment. Counsel
thought the problem was a “trust issue” but did not believe
there was a reason for counsel himself “to ask to be taken
off the case.”
        The trial court denied defendant’s request for new
counsel, stating “you’re not getting another attorney. You’ve
already had two. This is your third. This is your last attorney. He is quite capable. He has tried a million cases. And
you’re not getting a new attorney.”
         On appeal, defendant argues that the trial court
abused its discretion because it did not apply the correct
legal analysis; specifically, that the trial court failed to
determine whether defendant’s complaint was legitimate,
and, if so, whether it warranted appointing a new attorney.
446                                           State v. White

Defendant asserts that the trial court impermissibly based
the denial on the number of attorneys. The state takes the
position that defendant’s claim is unpreserved because he
did not raise an argument regarding a legal error to the
trial court after it denied his motion.
         We review a trial court’s denial of a criminal defendant’s motion for substitution of counsel for abuse of discretion. State v. Olson, 

, 

 (2019).
If the trial court’s decision was within the range of legally
permissible discretionary choices and produced a legally
correct outcome, the trial court did not abuse its discretion.
State v. Rogers, 

, 

 (2000).
         Assuming without deciding that the entirety of
defendant’s claim is preserved, the record does not show
any abuse of discretion on the trial court’s part. Contrary
to defendant’s assertion, the trial court did not impermissibly base its ruling solely on the fact that this was defendant’s third request for new counsel. Instead, the trial court
gave defendant a chance to explain why he wanted a new
lawyer. After defendant indicated that he was confused by
the current posture of his case, the trial court gave counsel
an opportunity to clarify that the plea offer had been withdrawn because of an error in calculating defendant’s criminal history. Nothing in defendant’s statement or counsel’s
clarification established a situation in which new counsel
was required. At most, it indicated that defendant did not
fully trust his attorney, which is not a basis to substitute
appointed counsel. See State v. Langley, 

,

 (1992) (explaining that a “legitimate complaint
about a court-appointed lawyer is one that is based on an
abridgement of a criminal defendant’s constitutional right
to counsel” (internal quotation marks omitted)). Given that
a trial court has no “affirmative duty to conduct an inquiry
and make a factual assessment in response to defendant’s
complaints about appointed counsel,” the trial court’s
approach here appropriately “engag[ed] in such inquiry as
the nature of defendant’s complaints require[d].” State v.
Smith, 

, 

 (2005).
         To be sure, in denying the substitution motion the
trial court mentioned that defendant “already had two” prior
Nonprecedential Memo Op: 

 (2023)             447

attorneys and that he was on his third. But given the trial
court’s invitation to defendant to explain why he wanted
new counsel, the problem that defendant identified, and the
clarification by counsel, the court’s reference to the number
of prior attorneys does not indicate that it failed to apply
the correct legal analysis or otherwise abused its discretion
in denying the motion. Further, the law allows the trial
court to take into account all known circumstances when
determining whether to grant a motion for substitution of
counsel, which here included defendant’s prior substitution
motions. See State v. Vierria, 

, 

 (2016) (explaining that it is within a trial court’s discretion to weigh what the defendant put before it in light of all
the other known circumstances).
        Affirmed.