State v. Joyce

580                      May 15, 2024                   No. 316

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                  NATHAN ERIC JOYCE,
                   Defendant-Appellant.
                 Lane County Circuit Court
                   22CR10382; A178715

   Stephen W. Morgan, Judge.
   Submitted October 3, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
  Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and David B. Thompson,
Assistant Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   MOONEY, J.
   Reversed and remanded.
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          MOONEY, J.
         Defendant appeals a judgment convicting him of
robbery in the third degree, ORS 164.395, and giving false
information to a peace officer, ORS 162.385. He raises four
assignments of error. In his first and second assignments,
defendant contends that the trial court violated his right to
self-representation under the state and federal constitutions
when it failed to engage him in an inquiry designed to determine whether his request to represent himself was “knowingly and intelligently” made.1 The record does not reflect
that the trial court engaged in the appropriate inquiry and
we, therefore, reverse and remand for a new trial. We need
not, and do not, reach the third and fourth assignments.
          Whether the trial court violated defendant’s right
to self-representation is a question of law. State v. Groff, 

, 

, rev den, 

 (2020). The
trial court’s decision concerning a request to self-represent
“is subject to appellate review for an abuse of discretion, in
light of all other relevant interests that come into play at
the commencement of trial.” State v. Hightower, 

, 

 (2017) (Hightower I). However, “the record
must include some indication of how the trial court actually weighed the relevant competing interests involved for
an appellate court to be able to determine whether the trial
court abused its discretion in ruling on a request to waive
the right to counsel and proceed pro se.” 

.
         The pertinent facts are not in dispute. Defendant
advised the court at least twice—once on April 7 and again
on April 14—that he wished to proceed pro se. On April 27,
the trial court entered an order permitting defendant to represent himself, and the case proceeded to trial that same
day. The jury found defendant guilty on both counts.
         “The accused in a criminal trial has a choice either
to be represented by counsel or to represent himself or
herself.” Hightower I, 

. A court cannot summarily deny a defendant’s request to represent themselves,
but must instead “determine, on the record, whether [the]

   1
     Because we resolve defendant’s right to counsel claims under the Oregon
Constitution, we do not reach his claims under the federal constitution.
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decision is an intelligent and understanding one.” State v.
Miller, 

, 

 (2013) (internal
quotation marks omitted). A court has discretion to defer
conducting the so-called “Miller inquiry” when a defendant’s
request is ambiguous and made well ahead of trial. State v.
Brooks, 

, 

 (2019), vac’d on
other grounds, 

, 

 (2021). However, an
unambiguous request triggers an obligation on the part of
the trial court to engage in the inquiry. State v. Music, 

, 

 (2020).
         Error regarding a defendant’s state constitutional
right to self-representation is subject to the harmless error
doctrine, which precludes reversal if there is “little likelihood” that the particular error affected the verdict. State
v. Martineau, 

, 

 (2019)
(internal quotation marks omitted). If the error is not harmless and we are unable to conclude that the record “would
have developed in materially the same way without the error,
a defendant is entitled to a new trial.” State v. Hightower,

, 

 (2021) (Hightower II).
          Defendant argues that he unambiguously asked to
represent himself on April 7 and 14, and that “the court’s
failure to conduct an inquiry and to rule on defendant’s
motion” violated his right to self-representation. The state,
for its part, acknowledges that “to the extent that defendant,
when he appeared before the trial court on April 7 and 14,
unambiguously requested to represent himself and the
court failed to respond with a [Miller] inquiry, that was a
problem.” It nevertheless argues that that error was harmless, because the court “ultimately granted defendant’s
request to represent himself, and [defendant] did so at trial.”
Defendant counters that his “pretrial strategy may have
been materially different” and he “would have had greater
opportunity to conduct his own investigation of the case,
review his own discovery, and file pretrial motions” if the
court had not delayed its ruling and violated his constitutional right to represent himself.
        We conclude that defendant unambiguously requested
to proceed pro se on April 7 and 14 and that the trial court
was obligated to conduct a “Miller inquiry” at the time of
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each request. The trial court made no such inquiry, and the
record does not reflect that it balanced “defendant’s right
to self-representation against the court’s potential basis for
denying the request.” State v. Glasby, 

,

 (2019) (internal quotation marks omitted).
        Although the trial court eventually granted defendant’s motion to represent himself, it did not do so until the
day of trial. We cannot say that the timing of the court’s
order was harmless, because had defendant’s request been
granted earlier, he would have had additional time to investigate his case and develop a trial strategy. For that same
reason, we cannot determine whether the record would have
developed in materially the same way if the error had not
been made. Defendant is, therefore, entitled to a new trial.
        Reversed and remanded.