No. 808 November 14, 2024 131
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL SHANE AKERS,
aka Michael Akers, aka Michael C. Akers,
aka Michael S. Akers,
Defendant-Appellant.
Jackson County Circuit Court
20CR43393; A179143
Kelly W. Ravassipour, Judge.
Argued and submitted August 29, 2024.
Kristin A. Carveth, 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.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
EGAN, J.
Affirmed.
132 State v. Akers
EGAN, J.
Defendant appeals from a judgment convicting him,
after a jury trial, of two counts of felon in possession of a
firearm, ORS 166.270(1), two counts of felon in possession of
a restricted weapon, ORS 166.270(2), and one count each of
unlawful possession of heroin, ORS 475.854, and unlawful
possession of methamphetamine, ORS 475.894. Defendant’s
assignments of error, some of which are unpreserved, concern the trial court’s rulings on defendant’s purported waiver
of counsel and the court’s failure to appoint new counsel, to
allow defendant to represent himself, to allow a continuance, or to give a special instruction when appointed counsel
declined for ethical reasons to question defendant and defendant instead presented his testimony in narrative form. As to
defendant’s preserved challenges, we conclude that the trial
court did not err or abuse its discretion. As to defendant’s
unpreserved challenges, we conclude that there was no plain
error. Accordingly, we affirm defendant’s convictions.
We summarize the facts that bear on the issues
raised on appeal. Pretrial, in the context of plea negotiations, defendant asked the court to remove his third courtappointed counsel, Perkins. After inquiry, the court declined
to appoint new counsel, determining that Perkins was providing adequate representation.
On the morning of trial, before jury selection and
during a further discussion of plea negotiations, defendant
again asked the court to remove his counsel and allow an
extension so that he could hire new counsel. The court heard
defendant’s concerns and again rejected the request, stating
that defendant had “an extremely qualified attorney representing you who’s prepared to go and did an excellent job in
our discussions this morning.”
Still pretrial, during a continued discussion of plea
negotiations and a discussion of defendant’s willingness to
stipulate to a former felony conviction for purposes of the
felon-in-possession charge, defendant again complained
that he needed new counsel. Perkins had advised the court
that defendant would stipulate to a single felony conviction
to avoid requiring the state to bring in documentation of all
Cite as 336 Or App 131 (2024) 133
of defendant’s former convictions. But defendant then disagreed, explaining that he would not stipulate to the former
conviction, because he wanted the jury to know about all his
past felony convictions. Defendant said, “I’m ready to represent myself.” At that point, the court gave no advice to defendant as to self-representation. The conversation continued
regarding defendant’s desire not to stipulate to a prior felony
conviction. The court noted that defendant would not stipulate to his former conviction and advised defendant that the
state would therefore be permitted to provide evidence of all
of defendant’s former convictions.
Mid-trial, in the state’s case in chief, after two witnesses had testified, defendant interrupted to express dissatisfaction with his counsel:
“How much do you guys pay him to do this? He’s asked two
questions. Nothing of what I’ve asked him to do.”
The court advised defendant to wait. Defendant then stated,
“No, because I want—they need to hear. That’s the reason why I waived my right to let them know my past, my
history, my felonies, and everything. I want them to know
who I am.
“THE COURT: Okay. Mr. Akers, right now, the State is
putting on their case and what you need to understand—a
lot of their questions—
“THE DEFENDANT: I want to represent myself.
“THE COURT: No. I know a lot of the questions that
you’re wanting to ask, most likely are not allowed by the
rules of evidence. You have an attorney who knows what
can be asked and what can’t be asked. Mr. Perkins is doing
an excellent job despite you trying to disrupt the trial.
You’re not helping yourself and the jurors are sitting there,
and they see you get flustered.
“The best thing that you can do is let your attorney do
his job. If there’s something specific, write it down. We can
take breaks if you feel like you need to talk to him.
“THE DEFENDANT: Can I give them to you?
“THE COURT: No, you can’t give those to me,
Mr. Akers. He’s doing an excellent job—
134 State v. Akers
“THE DEFENDANT: No, he’s not.
“THE COURT: And he’s only allowed to ask certain
questions. So you have an opportunity to put on evidence
and call your own witnesses.
“THE DEFENDANT: Don’t I have the opportunity to
represent myself?
“THE COURT: This trial—
“THE DEFENDANT: Do I not have that right?
“THE COURT: —has started.
“THE DEFENDANT: And I would like to fire him.”
A lengthy discussion among the court, counsel, and defendant ensued concerning defendant’s complaint that Perkins
had told defendant that he would not call him to testify. The
court and prosecutor assured defendant that he had a right
to testify. Defendant then launched into a discussion of his
failed attempts to hire other legal counsel:
“I cannot find legal counsel because of conflict of interest
because of all the identity thefts that the State has put on
me since being incarcerated, ma’am.
“That is—so at this point, I’m ready to represent myself.
That’s all I’m asking is I just want a fair trial. If I’m found
guilty by the jury, then so be it. If I put my foot in my mouth
and I end up saying something, that’s fine. I’m okay with
that. But I’m not okay with sitting here and having to be
quiet and keep my mouth shut because he said so.”
At that point, at the prosecutor’s suggestion, the court
engaged in a full colloquy with defendant about the pitfalls
of self-representation. Defendant continued to reference his
desire to hire new counsel. But the court told defendant that
there would be no new counsel, and told defendant:
“The question is if you want to represent yourself. There
obviously are a number of things that you’re not qualified.
I don’t believe you’re qualified to –
“THE DEFENDANT: I don’t—
“THE COURT: —represent yourself.
“THE DEFENDANT: I agree with you, ma’am.”
Cite as 336 Or App 131 (2024) 135
(Emphases added.) The court then stated that Perkins would
continue to represent defendant, and defendant agreed.
The state completed its case in chief. Defendant
wished to testify. But citing “ethical reasons,” defendant’s
trial counsel said that he would not question defendant.1
Counsel suggested that defendant could take the stand and
make a narrative sworn statement. The court and the prosecutor agreed with that procedure. Defendant asked if he
could have a continuance to the next day to prepare some
testimony. The court denied the request. Defendant then
took the stand and gave a narrative sworn statement.
The next day, at the close of the evidence, defendant
told the court that he wished to represent himself. The court
again advised defendant of the pitfalls of self-representation
and told defendant that the only remaining portions of the
trial were the instructions to the jury and deliberations.
Defendant persisted in his desire to represent himself. The
court presented defendant with a form for a waiver of counsel, which defendant signed.
Defendant and the prosecutor then presented their
closing arguments, and the jury deliberated and returned
guilty verdicts on all of the charges.
In his first assignment of error, defendant contends
that, after defendant’s pretrial statement, “I’m ready to represent myself,” the trial court should have conducted a full
colloquy and inquiry into whether defendant would knowingly and voluntarily waive counsel. We assume, for the
sake of discussion, that defendant’s argument is preserved.
1
Oregon Rule of Professional Conduct 3.3 provides:
“The Oregon Rules of Professional Conduct prohibit a lawyer from knowingly offering false evidence:
“(a) A lawyer shall not knowingly:
“…
“(3) offer evidence that the lawyer knows to be false. … A lawyer may
refuse to offer evidence other than the testimony of a defendant in a criminal
matter, that the lawyer reasonable believes is false.
“(b) A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if permitted, disclosure to the tribunal.”
136 State v. Akers
A request to waive counsel and represent oneself
must be clear and unequivocal, and whether a trial court has
denied a request for self-representation is a question of law.
State v. Groff, 306 Or App 40, 45,
472 P3d 812, rev den,
367
Or 387 (2020). We have reviewed the pertinent portions of the
record. Understood in context,2 we conclude that defendant’s
statement was not a clear and unequivocal request to waive
counsel, and that, therefore, there was no denial by the trial
court of a request for self-representation or error in failing to
engage in colloquy with defendant about waiver of counsel.
In his second assignment, defendant contends that
the trial court erred in denying his request, made mid-trial,
to waive counsel and represent himself, asserting that the
trial court applied an incorrect legal standard in basing its
decision on the determination that defendant was not qualified to represent himself.
A ruling on waiver of counsel is reviewed for an
abuse of discretion. State v. Nyquist, 293 Or App 502, 507,
427 P3d 1137 (2018). Once again, we have reviewed the pertinent portions of the record. From the colloquy between
defendant and the court, it is clear that defendant was not
2
Defense counsel addressed defendant concerning his willingness to sign a
stipulation to a single former felony conviction:
“MR. PERKINS: Do you want to sign or not?
“THE DEFENDANT: No. I want the State to—I want the jurors to know
what I’ve done in my history. I understand I’ve made mistakes—
“MR. PERKINS: Okay.
“THE DEFENDANT: —but I don’t want them to be just led to believe
stuff that’s not true.
“…
“THE DEFENDANT: I’m ready to represent myself.
“(Pause)
“[PROSECUTOR] … [Mr. Perkins] I certainly don’t presume to tell
your business, but do you want to go over that on the record just to avoid any
complications down the road?
“MR. PERKINS: Sure.
“THE DEFENDANT: Let’s—
“[PROSECUTOR]: Yeah, we should.
“THE DEFENDANT: Let’s do the math.”
Later, during trial, defendant told the court,
“I waived my right to let them know my past, my history, my felonies, and
everything. I want them to know who I am.”
Cite as 336 Or App 131 (2024) 137
actually seeking to represent himself at that time but was
instead again seeking substitute counsel. Additionally,
after being advised of the risks of self-representation and in
response to the court’s question whether he wished to represent himself, defendant replied that he did not. Thus, we
conclude that there was no abuse of discretion by the trial
court in declining to allow defendant to represent himself.
In his third assignment of error, defendant contends
that after Perkins declined to guide defendant through questioning and suggested that he testify in narrative form, the
trial court plainly erred in failing to discharge Perkins and
appoint new counsel. Defendant did not raise that argument
at trial; thus, it is unpreserved.
As an initial matter, we reject defendant’s contention
that preservation would have been futile. Although the trial
court had previously ruled against defendant on requests
for substitute counsel after determining that defendant had
adequate representation, those rulings did not necessarily forecast how the trial court would have ruled on a new
request made under the circumstances of counsel’s refusal
to guide defendant’s testimony for ethical reasons.
And we further reject defendant’s the contention
that the failure of the trial court to sua sponte appoint new
counsel constituted plain error. To support review for plain
error, the asserted error must be one of law that appears
on the face of the record and is obvious or not reasonably
in dispute. Ailes v. Portland Meadows, Inc., 312 Or 376,
381,
823 P2d 956 (1991). Here, the legal point raised by
defendant—his argument that, in response to counsel declining for ethical reasons to examine him, the court was required
to allow defendant to represent himself—is not “obvious.”
Plain error review is further complicated by the
fact that the ruling that defendant asserts the trial court
should have made sua sponte is one that we would review
in the preserved context for an abuse of discretion—that is,
for whether the trial court’s ruling was within the range
of legally correct alternatives. See State v. Rogers, 330 Or
282, 312,
4 P3d 1261 (2000) (“If the trial court’s decision was
within the range of legally correct discretionary choices and
138 State v. Akers
produced a permissible, legally correct outcome, the trial
court did not abuse its discretion.”). Thus, in order for the
asserted error to constitute an “error of law” in the plain
error context, we must conclude that, had counsel raised a
request for the appointment of new counsel, it would have
been an abuse of discretion for the trial court to have denied
the request and instead allowed defendant to testify by narrative statement. We cannot conclude on this record that,
had a request for new counsel been made, the trial court’s
rejection of the request and decision to allow defendant to
testify in narrative form would have been an abuse of discretion. Thus, we conclude that defendant has not established “legal error” and that any error is not plain.
In his preserved fourth assignment of error, defendant contends that the trial court abused its discretion
when it denied his request for a continuance so that he could
prepare his narrative testimony. Whether to grant a continuance was within the court’s discretion. State v. Thomas,
266 Or App 642, 643,
338 P3d 762 (2014). Although the
trial court could have granted defendant’s request, we have
reviewed the record and conclude that the trial court did not
abuse its discretion in denying defendant’s request.
In his unpreserved fifth assignment of error, defendant contends that the trial court plainly erred in failing to
give an instruction to the jury that it should not draw any
inferences from the narrative form of defendant’s testimony.
We reject defendant’s contention that any error was plain,
and we therefore decline to address it.
Affirmed.
