State v. Fields

94                       June 5, 2024                   No. 379

     This is a nonprecedential memorandum opinion
      pursuant to ORAP 10.30 and may not be cited
           except as provided in ORAP 10.30(1).

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                    STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 JEREMIAH JOEL FIELDS,
                    Defendant-Appellant.
                  Coos County Circuit Court
                    21CR30975; A179235

     Martin E. Stone, Judge.
     Submitted April 29, 2024.
   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 Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
     SHORR, P. J.
     Affirmed.
Nonprecedential Memo Op: 

 (2024)                                   95

           SHORR, P. J.
         Defendant appeals from a judgment of conviction for
three counts of attempted second-degree murder, one count
of attempted first-degree arson, three counts of recklessly
endangering another person, and one count of unlawful possession of a destructive device. Before trial on those charges,
during a hearing at which defendant was represented by
his appointed attorney’s colleague, Criswell, defendant complained about his attorney, Thompson, and about the lack of
progress in his case. In the course of those complaints, he
made a remark about representing himself: “I, I honestly
feel I should just go ahead and represent myself.” In his sole
assignment of error, defendant argues that that remark constituted an unambiguous request to represent himself, and
that the trial court violated his state and federal constitutional rights by not engaging in a colloquy concerning his
request. We disagree. Defendant’s remark, in context, was
an expression of defendant’s frustration about the lack of
contact from his attorney, and the lack of progress in his
case. The complaints about his attorney were about wanting the assistance of counsel, not waiving the right to have
it. Because defendant did not request to proceed without
counsel, the state and federal constitutions did not require
the trial court to engage in a colloquy with defendant about
waiving his constitutional right to counsel. We affirm.
         The Oregon Constitution protects both the right to
counsel and to self-representation.1 The “right to be heard
by himself and counsel” is among the rights enumerated in
Article I, section 11. The right to be heard by oneself “has
long [been] held” to include the right to self-representation
at trial. State v. Hightower, 

, 

(2017). The right to self-representation and the right to counsel are mutually exclusive counterparts. 

. If a
defendant asserts the right to counsel, they are necessarily
also waiving the right to self-representation, and likewise,

    1
      Defendant’s assignment of error encompasses both state and federal constitutional rights. We address the state constitutional claim and apply the analysis
in those terms. See State v. Kennedy, 

, 

 (1983) (“all
questions of state law [are to] be considered and disposed of before reaching a
claim that this state’s law falls short of a standard imposed by the federal constitution on all states”). In any event, the analyses are not meaningfully different.
96                                             State v. Fields

asserting the right to self-representation requires waiver of
the right to counsel—there is no right to a hybrid representation. 

 Exercising one of these rights, however, does not
mean that its counterpart is forever foreclosed. Id. at 417-18.
          Because asserting the right to self-representation
necessarily means waiving the right to counsel, trial courts
are required to engage in an inquiry to determine whether
the defendant is making an informed decision, and to consider whether granting the request would disrupt the judicial process. State v. Music, 

, 

(2020). That requirement is triggered by a clear, unambiguous, request to waive counsel and to represent oneself. See,
e.g., State v. Ortega, 

, 

 (2017)
(reversing denial of the defendant’s two explicit requests to
proceed without counsel). On the other hand, “[a] request for
self-representation and waiver of legal representation may
be denied under Article I, section 11, … if the request is
unclear or equivocal.” State v. Glasby, 

,

 (2019) (quoting State v. Fredinburg, 

, 

, rev den, 

 (2013)).
         Here, as of the hearing, defendant had not waived
the right to counsel, and defendant’s remark that he now
argues was a request to proceed pro se was not a clear and
unequivocal request to represent himself. To the contrary,
in context, it was part of a set of complaints in which he
expressed exactly the opposite view—that he wanted to
have the assistance of counsel, and he was asking for the
court’s assistance. At the time of the hearing, defendant
was represented by an attorney, Thompson, who, defendant
said, had come to see him at the jail only once. Thompson
was not present at the hearing, but his colleague Criswell
appeared in his stead to represent defendant. The absence
of his attorney, however, was one of several concerns that
defendant brought up to the trial court.
        Defendant was frustrated by an at least four-week
delay caused when defense counsel raised an “aid and assist”
question with the court. The court had ordered an evaluation
of defendant, but that had not happened because the state
hospital did not have the capacity to handle the evaluation.
Defense counsel was attempting to arrange for defendant to
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 (2024)             97

be examined at the jail. Defendant did not want a mental
evaluation. And he was concerned about not having received
discovery. In context, and after reviewing the entire transcript, we conclude that the reference to self-representation
was not an unequivocal request to waive counsel and represent himself.
         From our review of the trial transcript, it is clear
that defendant expressed frustration that his counsel had
not been in contact with him. The trial court took steps to
assist defendant with getting in touch with his attorney. The
court was not required to engage in a colloquy with defendant about waiving counsel and proceeding without counsel.
        Affirmed.