No. 718 October 9, 2024 421
This is a nonprecedential memorandum opinion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.
DAVID LEROY MILES,
Defendant-Appellant.
Polk County Circuit Court
22CR23398; A179755
Norman R. Hill, Judge.
Argued and submitted August 28, 2024.
David O. Ferry, 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.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Reversed and remanded.
422 State v. Miles
MOONEY, J.
Defendant appeals a judgment convicting him of
several crimes,1 assigning error to the trial court’s denial
of his request to represent himself, and to the sentences
imposed on two of the counts. We conclude that the trial
court erred when it denied defendant’s request to represent
himself. We reverse and remand for a new trial. Because we
are remanding this matter for a new trial, we need not, and
do not, address the assignments concerning the sentences
imposed on Counts 2 and 8.
A person accused of committing a crime has a constitutional right to representation by an attorney or to self-representation in the related criminal trial.2 The “choice
either to be represented by [an attorney] or to represent
[one]self” belongs to the accused. State v. Hightower, 361 Or
412, 417,
393 P3d 224 (2017). But the right to represent oneself in a criminal case is not absolute, and it is incumbent
upon the trial court to deny such a request if it is not knowing or voluntary.
Id. Before denying a criminal defendant’s
request to represent himself, the trial court must create a
record that demonstrates either “expressly or implicitly, that
[it] engaged in the required balancing of defendant’s right
to self-representation against” the court’s reasons for denying the request. State v. Williams,
288 Or App 712, 718,
407
P3d 898 (2017). No matter what might be its “reasoning—
whether it be that the request was unknowing, equivocal,
or would be disruptive to the proceeding—the trial court’s
record should reflect an appropriate exercise of discretion.”
State v. Glasby,
301 Or App 479, 484,
456 P3d 305 (2019)
1
A jury found defendant guilty of attempting to assault a public safety officer (ORS 163.208), second-degree escape (ORS 162.155), resisting arrest (ORS
162.315), unauthorized use of a vehicle (ORS 164.135), possession of a stolen vehicle (ORS 819.300), reckless driving (ORS 811.140), felony fleeing or attempting to
elude a police officer (ORS 811.540), and misdemeanor fleeing or attempting to
elude a police officer (ORS 811.540). The jury found defendant not guilty of firstdegree criminal mischief (ORS 164.365).
2
The Sixth Amendment to the United States Constitution provides that “[i]
n all criminal prosecutions, the accused shall enjoy the right … to have the
Assistance of Counsel for his defence.”
Article I, section 11, of the Oregon Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right … to be heard by himself and
counsel[.]”
Nonprecedential Memo Op: 335 Or App 421 (2024) 423
(internal quotation marks omitted). We review a decision to
deny a request to represent oneself for abuse of discretion,
considering “all other relevant interests that come into play
at the commencement of trial.” Hightower,
361 Or at 418.
A full recitation of the facts would not benefit the
bench, the bar, or the public. There is no dispute that defendant asked the court to allow him to proceed to trial representing himself, when this colloquy occurred:
“DEFENDANT: Alright, I would like to fire all my
attorneys and I would like to represent myself.
“THE COURT: I’m going to deny that as well. So.
Right now Mr. Howell’s going to continue to be your lawyer.
I’m going to let him come back and address the Court on
the sixth.”
Defendant characterizes that ruling as definitive, while the
state characterizes it as “a conditional denial” made “for the
time being” with leave to raise the issue at a later date when
defense counsel was present. We have reviewed the record
and conclude that the denial was not a deferral of the court’s
ruling to another day, but rather an outright denial of defendant’s request to proceed pro se.
Having reached that conclusion and noting the
absence of a record reflecting the court’s balancing of defendant’s right to self-representation with the court’s interests
in proceeding to trial, the next question is whether defendant was prejudiced by that error. As we recently explained,
“[e]rror 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.
Joyce, 332 Or App 580, 582,
549 P3d 581 (2024) (internal
quotation marks omitted). We have consistently concluded
under Oregon law that such error is not harmless. See
id. at 583 (explaining that we could not say that the trial
court’s decision to grant the defendant’s request to procced
pro se on the first day of trial, after having denied similar requests earlier in the proceedings, was harmless); see
also Glasby,
301 Or App at 486 (reversing and remanding
where the trial court, without giving a reason, summarily
424 State v. Miles
denied the defendant’s request to represent himself); State
v. Martineau,
300 Or App 784, 791,
455 P3d 1020 (2019)
(reversing and remanding for new trial because trial court
abused its discretion by failing to weigh any of the relevant
considerations before denying the defendant’s request to
represent himself). We reach the same conclusion here. The
trial court did not inquire and did not otherwise make a
record of the relevant considerations that it weighed when it
denied defendant’s request to represent himself. We cannot
say that such error was harmless. Defendant is, therefore,
entitled to a new trial. We need not, and do not, reach his
claim under the federal constitution.
Reversed and remanded.
