State v. Allen

490                  August 21, 2024                No. 586

   This is a nonprecedential memorandum opinion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.
             CURTIS SHERWOOD ALLEN,
                 Defendant-Appellant.
              Douglas County Circuit Court
                 19CR39464; A176394

  Kathleen E. Johnson, Judge.
  Argued and submitted January 24, 2023.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Susan G. Howe, Assistant Attorney General.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2024)                            491

           HELLMAN, J.
         Defendant was convicted of coercion, ORS 163.275,
and menacing, ORS 163.190. On appeal, he argues that the
trial court violated his rights under Article I, section 11, of
the Oregon Constitution and the Sixth Amendment to the
United States Constitution by denying a pretrial request
to represent himself.1 For the following reasons, we reverse
and remand for a new trial.
        In June 2019, defendant was charged with several
crimes in connection with an incident on a boat dock. An
attorney, Bouck, was appointed to represent him. When
defendant failed to appear for a conference on September 30,
2019, the court issued an arrest warrant and cancelled the
existing trial date of December 11, 2019.
         On December 11, 2019, defendant appeared in court,
with a colleague of Bouck’s present, and the court denied
what it understood to be a request by defendant to recall
the warrant. After the court ruled, defendant, who had been
speaking directly to the court throughout the proceeding
and who claimed to be unaware of the warrant, stated to the
court, “From here on out, any notices are to be mailed to me to
that address. I will be representing myself in this case.” The
court responded that defendant was “actually represented
by Mr. Bouck” and that “[u]ntil he withdraws, Mr. Bouck
still represents you.” Defendant protested, “I have the legal
right to represent myself.” The court responded that defendant did have that legal right, but that he had requested a
lawyer and one had been appointed. Defendant insisted that
he “didn’t ask for a lawyer” and had never completed any
financial paperwork. The court reiterated its position, stating that “Mr. Bouck, nonetheless, represents you until he
withdraws.” Bouck’s colleague stated that she worked with
Bouck and would “let him know.” The court then made a
brief observation as to defendant’s need for a lawyer, given
that he had lost his $15,000 security by failing to appear
and was going into custody. The hearing then concluded.

   1
     Defendant also assigns error to the trial court’s exclusion of certain evidence after OEC 403 balancing. We do not address that assignment of error,
which involves a discretionary ruling, in light of our remand for a new trial.
492                                            State v. Allen

         On December 18, 2019, defendant appeared in court
with another of Bouck’s colleagues. Through counsel, defendant requested a new attorney, adding that, “if his request
for new counsel is denied, that he would like to waive his
right to counsel and proceed without an attorney.” Asked
why he wanted a new attorney, defendant expressed dissatisfaction and disagreement with Bouck’s advice. The court
asked whether defendant understood that he might not find
an attorney who agreed with him. Defendant said that he
did and indicated that he would waive his right to counsel
and represent himself in that event. The court stated for the
record that it viewed Bouck as a competent attorney, but it
granted the request for substitute counsel, describing it as
a one-time event and stating that if defendant did not like
his next attorney that he would have to represent himself.
Defendant agreed, stating, “That’s understandable.”
        Defendant proceeded to a jury trial, during which
he was represented by substituted appointed counsel. The
jury found defendant guilty of coercion, ORS 163.275, and
menacing, ORS 163.190. It acquitted him of unlawful use of
a weapon, ORS 166.220, and pointing a firearm at another,
ORS 166.190.
         On appeal, defendant contends that the trial court
violated his rights under Article I, section 11, and the Sixth
Amendment by denying his self-representation request on
December 11. In response, the state does not dispute that
defendant unequivocally requested to represent himself. It
argues that the trial court did not err, however, because the
court did not so much deny the request as defer it until it
was properly brought, and because the court appointed new
counsel at defendant’s request at the next hearing. The state
further urges that any error was harmless, because “defendant was not compelled to appear with undesired counsel at
a critical stage of his case.”
         “We review the denial of the right to self-representation, as well as any underlying legal conclusions
related to the scope of the right of self-representation, for
legal error.” State v. Ashbaugh, 

, 

 (2022); State v. Dunn, 

, 

 (2022) (“Whether the trial court violated defendant’s
Nonprecedential Memo Op: 

 (2024)                              493

state and federal constitutional right to self-representation
is a question of law.”); see also State v. Hightower, 

, 

 (2017) (explaining that, “although
the trial court’s decision in response to a request for self-representation is ordinarily a matter of discretion,” when
the decision “turns on the court’s legal conclusions as to the
scope of the right, that determination is reviewed for errors
of law”).
          We normally consider state constitutional issues
before federal constitutional issues. State v. Lowell, 

, 

 (2015) (“Ordinarily, the ‘first-things-first’ doctrine directs us to resolve state constitutional law claims before reaching federal law claims.”); State
v. Babson, 

, 307 n 6, 

 (2012),
aff’d, 

, 

 (2014) (until the Supreme
Court repudiates the first-things-first doctrine, we will generally choose to follow it). However, judicial efficiency sometimes counsels starting with the federal claim. See Babson,

 n 6 (“[I]n some instances, where a rights
claimant obviously prevails under the federal constitution
regardless of whether the state law vindicates the claim,
we will, as a matter of judicial efficiency, decide the case
under the federal constitution without treating the state law
issue.”). In this case, like in Babson, defendant “obviously
prevails under the federal constitution,” so we begin and end
with the Sixth Amendment.
          The Sixth Amendment guarantees a criminal defendant the right of self-representation. Faretta v. California,

, 

, 

 (1975). The
“improper denial of [a] request to proceed pro se is structural error” under the Sixth Amendment. U. S. v. Farias,

 (9th Cir 2010), cert den, 

(2013) (citing McKaskle v. Wiggins, 

, 177 n 8, 

, 

 (1984)). In this case, we agree with
defendant that the trial court improperly denied his request
for self-representation on December 11, based on the erroneous belief that it could not be granted until and unless
appointed counsel withdrew.2 Although the court reaffirmed

    2
      At oral argument, the state conceded that the trial court’s explanation “was
not precisely correct.”
494                                            State v. Allen

defendant’s right to represent himself in the process, we disagree with the state that the court simply deferred ruling.
The more accurate reading of the record, in our view, is that
the court denied the motion on December 11, while leaving
open that it could be made again in the event that appointed
counsel withdrew.
         Because defendant’s request on December 11 was
unambiguous, it was error to deny it. The court should have
engaged in a colloquy and granted the request if it was
knowing and voluntary. State v. Meyrick, 

,

 (1992). Moreover, under federal law, the error
was structural in nature. State v. Flores Ramos, 

, 

 (2020) (stating that “wrongful denial of the
right” to self-representation under the Sixth Amendment “is
a structural error because of its interference with ‘the fundamental legal principle that a defendant must be allowed
to make his own choices about the proper way to protect his
own liberty’ ” (quoting Weaver v. Massachusetts, 

,

, 

 (2017)). “Structural error is
not susceptible to a harmlessness analysis; if a structural
error occurred, the conviction must be reversed.” 

.
Accordingly, we conclude that defendant is entitled to a new
trial.
        Reversed and remanded.