682
Submitted February 2, affirmed October 18, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER LEE PECK,
Defendant-Appellant.
Umatilla County Circuit Court
20CR68327; A176773
538 P3d 1223
Defendant appeals his conditional guilty plea of driving while under the
influence of intoxicants. Defendant assigns error to the trial court’s denial of his
request to enter a diversion program. Defendant argues that his previous entry
into diversion was uncounseled and should not preclude him from entering diversion a second time. Defendant contends that the trial court erred in relying on
State v. Maynard, 85 Or App 631,
738 P2d 210, rev den,
304 Or 56 (1987), which
rejected a similar argument, because Maynard was decided before entry into
diversion required a guilty or no contest plea. Held: The Court of Appeals concluded that the trial court did not err in relying on Maynard because defendant’s
prior diversion was successful and did not result in an uncounseled conviction.
Thus, the trial court did not err when it determined that defendant was not eligible for diversion.
Affirmed.
Jon S. Lieuallen, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
Cite as 328 Or App 682 (2023) 683
PAGÁN, J.
Defendant was convicted pursuant to a conditional
guilty plea of driving while under the influence of intoxicants (DUII) in violation of ORS 813.010.1 On appeal, defendant assigns error to the trial court’s denial of his request to
enter a diversion program under ORS 813.210(1). He argues
that his previous entry into diversion was uncounseled and
should not preclude him from entering diversion a second
time. Defendant contends that the trial court erred in relying
on State v. Maynard, 85 Or App 631,
738 P2d 210, rev den,
304 Or 56 (1987), which rejected a similar argument, because
Maynard was decided before entry into diversion required a
guilty or no contest plea under ORS 813.200(4)(a). We conclude
that the trial court did not err in relying on Maynard because
defendant’s prior diversion was successful and did not result
in an uncounseled conviction. Accordingly, we affirm.
We review the denial of defendant’s request to
enter diversion for errors of law. State v. Tuter, 259 Or App
338, 339,
314 P3d 285 (2013). The facts are undisputed and
largely procedural.
In May 2006, defendant was charged with DUII. He
was not represented by an attorney. He pleaded guilty to the
charge, entered diversion, and successfully completed it. In
June 2007, based on his successful completion of diversion,
his DUII charge was dismissed. Less than 15 years later, in
December 2020, defendant was again charged with DUII.
He petitioned to enter into a diversion agreement. The state
opposed his entry, arguing that defendant was ineligible
because he had completed diversion within the preceding
15 years. ORS 813.215(1)(e). Defendant argued that because
his prior diversion entry required a guilty plea that was
made without the assistance of counsel, he should not be
disqualified from reentering diversion. After a hearing, the
trial court denied defendant’s request for diversion. In its
order, the trial court cited Maynard and stated that defendant was ineligible because he completed his prior DUII
treatment within the last 15 years. Defendant entered a
1
ORS 813.010, and other sections of chapter 813, have been amended since
defendant’s 2020 arrest and prosecution. Or Laws 2023, ch 498, §§ 3-6, 11-15.
Those amendments do not affect our analysis and we refer to the current version
of the statute.
684 State v. Peck
conditional plea of guilty to DUII, reserving the right to
challenge the court’s denial of his motion.
A brief description of the law and procedure governing DUII diversion agreements is helpful to understanding defendant’s assignment of error. A person charged with
DUII may petition the court for a diversion agreement. ORS
813.210(1). To enter diversion, the defendant must, among
other requirements, agree to complete an alcohol treatment
assessment program and sign a plea of guilty or no contest.
ORS 813.200(4)(a), (b).2 If diversion is granted, the court will
accept the plea but withhold entry of a judgment of conviction. ORS 813.230(1)(a). If the defendant fails to comply with
the conditions of the diversion agreement, the court will “terminate the diversion agreement and enter the guilty plea or
no contest plea that was filed as part of the petition for the
diversion agreement.” ORS 813.255(3). However, if a defendant successfully completes diversion, the court may dismiss the charge with prejudice. ORS 813.250(1), (3). A defendant may not enter diversion if the defendant participated
in a prior diversion program within the previous 15 years.
ORS 813.215(1)(e).
Under Article I, section 11, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution,
a defendant has a constitutional right to counsel at all “critical stages” of a criminal prosecution. State v. Prieto-Rubio,
359 Or 16, 24,
376 P3d 255 (2016). The submission of a guilty
plea constitutes a “critical stage” of a criminal prosecution.
State v. Gaino,
210 Or App 107, 113,
149 P3d 1229 (2006).
Thus, a defendant is entitled to the representation of counsel
when entering a plea of guilty or no contest in order to participate in a DUII diversion program.
Id.
In Maynard, 85 Or App at 633-34, we held that
the defendant’s eligibility for diversion was not affected by
the defendant’s previous uncounseled entry into diversion
because the prior diversion did not result in an uncounseled
conviction. At the time Maynard was decided, a guilty plea
was not required to enter into diversion.
2
The diversion statute, ORS 813.200, was amended in 2003 to require the
defendant to plead guilty or no contest to DUII before entering diversion. Or
Laws 2003, ch 816, §1.
Cite as 328 Or App 682 (2023) 685
On appeal, defendant argues that his prior participation in diversion should not render him ineligible for a
second diversion because he entered a prior uncounseled
guilty plea as part of the diversion process in 2006. He
argues that, because he was unrepresented and diversion
law now requires an entry of a guilty plea, Maynard does
not apply, and the prior diversion cannot be used against
him in subsequent proceedings.
Defendant is correct that since Maynard was
decided, defendants are now required to enter a plea of
guilty or no contest when entering diversion and are entitled
to counsel at that stage. However, we disagree with defendant that Maynard is no longer applicable.
The principle underlying Maynard is that the successful completion of diversion does not result in a criminal
conviction—uncounseled or otherwise. Maynard, 85 Or App
at 633. Maynard states that “uncounseled convictions …
[can]not be used to enhance a penalty or deprive [a] defendant[ ] of diversion.”
Id. (emphasis in original). However, when
a defendant successfully completes diversion and the matter
is dismissed with prejudice, the defendant has not been convicted and thus has not suffered negative consequences as a
result of the denial of counsel. For that reason, we conclude
that Maynard continues to apply if a defendant successfully
completed diversion and the matter was dismissed.
Here, defendant previously entered diversion in
2006, which required entry of a guilty plea. Although he did
so without the assistance of counsel, he successfully completed the program. His prior charge was dismissed, and
he was not convicted of DUII. There was no uncounseled
conviction. Defendant participated in diversion less than 15
years prior to the present offense. Thus, the trial court did
not err when it determined that defendant was not eligible
for diversion pursuant to ORS 813.215(1)(e).3
Affirmed.
3
Based on our conclusion that defendant is ineligible for diversion under
ORS 813.215(1)(e), we do not address or analyze the state’s alternative argument
regarding defendant’s 2006 completion of an alcohol treatment program.
