State v. Pedersen

362                    March 5, 2025                 No. 177

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                DANNY JOE PEDERSEN,
                  Defendant-Appellant.
               Yamhill County Circuit Court
                  21CR33854; A181064

   Cynthia L. Easterday, Judge.
   Argued and submitted November 20, 2024.
   Daniel C. Silberman, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
   AOYAGI, P. J.
   Affirmed.
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 (2025)   363
364                                         State v. Pedersen

        AOYAGI, P. J.
         Defendant appeals a judgment of conviction for fleeing
or attempting to elude a police officer, ORS 811.540(1)(b)(A),
and reckless driving, ORS 811.140. The sole issue on appeal
is whether defendant was denied counsel at a critical stage of
the proceedings, in violation of his state and federal constitutional rights to counsel. After defendant was charged and
before an attorney was appointed to represent him, the trial
court held what it described as an arraignment, at which
defendant spelled his last name and stated his date of birth,
the court read the charges, and the court gave defendant the
name and phone number of the attorney being appointed to
represent him and told him his next hearing date. Nothing
else occurred. Defendant argues that an arraignment is
necessarily a critical stage of criminal proceedings, such
that his right to counsel was violated, and he seeks reversal
of his convictions. The state counters that the claim of error
is unpreserved, that the hearing was not really an arraignment because no pleas were taken, and that what did occur
was not a critical stage of the proceedings.
         As explained below, regarding preservation, we agree
with defendant that it would be unreasonable to expect him
to personally object to the lack of counsel. Once counsel was
appointed, however, an objection needed to be made within a
reasonable time to preserve the claim of error. Counsel never
made any objection to the partial arraignment that occurred
immediately before her appointment, despite necessarily
being aware of it, so the claim of error is unpreserved. As
for plain error, we conclude that the hearing at issue was
not a critical stage, so no error occurred, plain or otherwise.
Whether a particular pretrial hearing was a critical stage
of the proceedings depends on what actually occurred at the
hearing, not generalizations. The hearing that occurred here
was not a critical stage of the proceedings under the applicable state and federal standards for what constitutes a critical
stage. Accordingly, we affirm.
                         I.   FACTS
        In July 2021, defendant was indicted for fleeing or
attempting to elude a police officer and reckless driving. He
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was later arrested and released on a security agreement.
On April 22, 2022, the trial court held a hearing docketed as
“arraignment.” The court told defendant that he was there
“to be arraigned on an indictment.” It asked defendant to
spell his last name and state his date of birth, which defendant did. It stated that it was appointing an attorney to represent defendant, would do so “right away,” and gave defendant the name and telephone number of that attorney. It then
read the charges. The court concluded, “All right. And so he’s
been arraigned.” It set the next hearing for May 26, 2022, at
9:30 a.m., told defendant that he would be arrested if he did
not appear, and reminded him to obey the law while on release.
         Less than an hour after the hearing ended, an
order was entered on the court register appointing counsel
for defendant. Less than two hours after that, defendant’s
appointed counsel filed a discovery request and a speedytrial request.
         On May 26, 2022, defendant appeared with counsel
for a hearing docketed as “plea hearing.” Not-guilty pleas on
both charges were entered on the court register at 9:48 a.m.
The court then began what it called “the first status conference” and asked the parties how they wanted to proceed.
Defendant’s counsel asked for a trial date. The court offered
a date that the parties accepted, set trial-related deadlines,
told defendant that it was important to stay in touch with
his attorney, and concluded the hearing at 9:50 a.m.
         Defendant’s trial was held in February 2023. The
jury found him guilty on both charges. On appeal, defendant seeks reversal of his convictions, arguing that it violated his state and federal constitutional right to counsel to
require him to represent himself at the hearing on April 22,
2022.
                       II. ANALYSIS
        The right to counsel is recognized in both the state
and federal constitutions. Article I, section 11, of the Oregon
Constitution provides, “In all criminal prosecutions, the
accused shall have the right to … be heard by himself
and counsel.” The Sixth Amendment to the United States
Constitution provides, “In all criminal prosecutions, the
366                                          State v. Pedersen

accused shall enjoy the right … to have the assistance of
counsel for his defense.”
          The right to counsel attaches “as early as the commencement of criminal proceedings by indictment or other
formal charge.” State v. Prieto-Rubio, 

, 

 (2016). Once attached, the defendant has the right to
counsel at all “critical stages” of the prosecution, including
critical pretrial stages. Id.; see also United States v. Ash, 

, 

, 

 (1973) (explaining
that the right to counsel used to apply only at trial but has
been extended to pretrial events as a result of “changing
patterns of criminal procedure and investigation that have
tended to generate pretrial events that might appropriately
be considered to be parts of the trial itself”). Under Oregon
law, a critical stage occurs when a defendant “must take
steps or make a choice which is likely to have a substantial
effect on the prosecution against him.” State v. Miller, 

, 

 (1969). Under Sixth Amendment
law, a critical stage occurs “at any stage of the prosecution,
formal or informal, in court or out, where counsel’s absence
might derogate from the accused’s right to a fair trial”—or,
in more concrete terms, when “potential substantial prejudice to defendant’s rights inheres in the particular confrontation” and counsel may “help avoid that prejudice.” United
States v. Wade, 

, 

, 

 (1967).
         In this case, the parties agree that defendant’s right
to counsel had attached, but they disagree as to whether the
hearing held on April 22, 2022, was a critical stage of the
proceedings. They also disagree as to whether the claim of
error is preserved.
A.    Preservation
          We begin with the threshold matter of preservation. “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). Preservation may be excused, however, if a party had “no practical ability to raise an issue.”
Peeples v. Lampert, 

, 

 (2008). We
also have discretionary authority to correct errors that are
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unpreserved but “plain.” ORAP 5.45(1); State v. Gornick, 

, 

 (2006).
         Defendant argues that preservation should be
excused, relying on State v. Cole, 

, 

(1996), which involved an unrepresented defendant’s waiver
of counsel. As a general rule, pro se litigants are “bound by
the same preservation rules” as all other parties. State v.
Morrow, 

, 

, rev den, 

 (2004). However, in Cole, the court adopted an exception
for waiver of counsel: “A defendant whose waiver of counsel
is accepted without first being apprised of the risks of self-representation cannot be expected to object to acceptance of
that waiver on the ground that he or she was not apprised of
those risks.” 

. That exception to the preservation
requirement for pro se criminal defendants is “explicitly limited to the waiver of counsel.” Morrow, 

.
          Defendant never waived counsel, so Cole is not
directly on point, but defendant argues that it supports
excusing preservation in this situation too. The state counters that Cole is inapposite and that defendant needed to
object at the April 22 hearing. Recognizing the “pragmatic”
and “prudential” nature of preservation rules, Peeples, 

, we conclude that the answer lies between the parties’ positions.
         On the one hand, we agree with defendant that it
would be unreasonable to expect him to personally object
to the lack of counsel at the April 22 hearing. It is simply
untenable to expect a party awaiting the appointment of
counsel to know to raise a constitutional objection to the
timing of that appointment. We therefore disagree with the
state that defendant needed to object at the April 22 hearing
to preserve his claim of error.
         On the other hand, we disagree with defendant
that, because he could not be expected to object at the
April 22 hearing, he was excused altogether from preserving the claim of error. An immediate objection is not
always required to preserve error. In appropriate circumstances, an objection may be timely even if it is not immediate, so long as the “practical purposes of preservation were
368                                         State v. Pedersen

served.” State v. Quebrado, 

, 

(2024) (holding that the defendant’s motion for a mistrial
was timely, despite being filed several days after the state
rested, in part because “no significant event occurred in the
trial” in the interim); see also, e.g., Dept. of Human Services
v. M. E., 

, 

 (2019) (declining
to excuse preservation, where the mother in a terminationof-parental-rights case did not have an opportunity to object
beforehand to a court order continuing the appointment of
a guardian ad litem, but could have objected at a hearing
held a month later or anytime in the six months before the
termination trial).
         Here, counsel was appointed less than an hour after
the April 22 hearing and made a filing on defendant’s behalf
the same day. Counsel then appeared with defendant at the
May 26 hearing. Certainly, by then, counsel must have been
aware that defendant was partially arraigned prior to counsel’s appointment. If counsel took issue with that having
occurred, then counsel should have objected within a reasonable time of appointment—either in writing or at the May
26 hearing—and the court would have been hard pressed
under the circumstances to treat the objection as untimely.
Instead, defendant entered not-guilty pleas, requested a
trial date, proceeded to trial, was found guilty by a jury, and
only then raised a concern about the arraignment procedure.
         We therefore conclude that defendant failed to preserve his claim of error. Objecting to the arraignment procedure within a reasonable time after counsel was appointed
would have given the trial court an opportunity to promptly
address any constitutional or other concerns before the case
proceeded to trial. Because the claim of error is unpreserved,
we are limited to plain-error review, ORAP 5.45(1), which
defendant expressly requests in the event that preservation
is not excused.
B.    Critical Stage of the Proceedings
         Defendant claims that it plainly violated his constitutional right to counsel to arraign him on April 22, 2022,
before appointing counsel. An error is “plain” when it is an
error of law, the legal point is obvious and not reasonably
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in dispute, and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 

, 

 (2013). The state
does not dispute that the first and third requirements are
met here. The point of contention is whether it is obvious
and not reasonably in dispute that the April 22 hearing was
a critical stage of the proceedings. Defendant contends that
it is, whereas the state disagrees.
         To set the stage for our discussion, we first describe
the statutory framework for arraignments in Oregon. With
respect to timing, ORS 135.010 provides:
        “When the accusatory instrument has been filed, and if
    the defendant has been arrested, or as soon thereafter as the
    defendant may be arrested, the defendant shall be arraigned
    thereon as provided in ORS 135.030 before the court in which
    it is found. Except for good cause shown or at the request of
    the defendant, if the defendant is in custody, the arraignment
    shall be held during the first 36 hours of custody, excluding
    holidays, Saturdays and Sundays. In all other cases, except
    as provided for in ORS 133.060 [(which allows up to 30 days
    for arraignment on a criminal citation)], the arraignment
    shall be held within 96 hours after the arrest.”
        As for the scope of the proceeding, “[t]he arraignment consists of reading the accusatory instrument to
the defendant, causing delivery to the defendant of a copy
thereof and indorsements thereon, including the list of witnesses indorsed on it or appended thereto if the accusatory
instrument is an indictment, [and] asking the defendant
how the defendant pleads to the charge.” ORS 135.020.
Additionally, the defendant must be informed that, “[i]f
the name by which the defendant is charged in the accusatory instrument is not the true name of the defendant the
defendant must then declare the true name,” or else “the
defendant is ineligible for any form of release other than a
security release under ORS 135.265.”1 ORS 135.060(1); see
    1
       “If the defendant gives no other name, the court may proceed against the
defendant by the name in the accusatory instrument.” ORS 135.065(1). If the
defendant alleges that the name in the information or indictment is not their true
name, the court is to attempt to determine the true name—including, if no birth
certificate was ever issued, asking the defendant for their true name under oath
or affirmation—and then “proceed under the name given unless the court is persuaded by a preponderance of the evidence that the name is not the defendant’s
370                                                     State v. Pedersen

ORS 135.060(3) (defining “true name” as either the name
on the defendant’s certified birth record, the defendant’s
birth name, or the defendant’s name as changed by court
order or by operation of law). True-name acknowledgement
at arraignment “may not be used against the defendant at
trial on the underlying charge or any other criminal charge
or fugitive complaint,” except that the use of different names
in different proceedings “can be used in determining the
defendant’s release status,” and intentionally giving a false
name is prosecutable as perjury if done under oath or affirmation. ORS 135.060(2).
         Arraignment also provides an opportunity to move
to set aside or dismiss the accusatory instrument or to
demur. “A motion to set aside the indictment or dismiss the
accusatory instrument shall be made and heard at the time
of the arraignment or within 10 days thereafter, unless for
good cause the court allows additional time.” ORS 135.520. A
“demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.” ORS 135.610(1).
        Notably, the trial court is statutorily required
to advise the defendant of the right to counsel before proceeding with an arraignment: “If the defendant appears
for arraignment without counsel, the defendant shall be
informed by the court that it is the right of the defendant to
have counsel before being arraigned and shall be asked if the
defendant desires the aid of counsel.” ORS 135.040 (emphases added). If the defendant wants counsel and is eligible,
the court must appoint counsel. ORS 135.045(1)(b). If the
defendant does not want counsel, “the court shall determine
whether the defendant has made a knowing and voluntary
waiver of counsel.” ORS 135.045(1)(c). However, only represented defendants may plead guilty or no contest to a felony
on their arraignment day. ORS 135.380(2) (“A defendant
may plead guilty or no contest on the day of arraignment or
any time thereafter except that a defendant without counsel

true name.” 

 “[T]he subsequent proceedings on the accusatory instrument may
be had against the defendant by that name, referring also to the name by which
the defendant is charged.” 

 However, upon the defendant’s motion, “all names,
other than the true name of the defendant, shall be stricken from any accusatory
instrument read or submitted to the jury.” ORS 135.065(2).
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shall not be allowed to plead guilty or no contest to a felony
on the day of arraignment.”).
         With that statutory framework for arraignments in
mind, we turn to the parties’ specific arguments. Defendant
argues that an arraignment is necessarily a critical stage
of criminal proceedings, regardless of how any particular
arraignment is conducted, such that the defendant always
has a constitutional right to counsel at an arraignment. The
state disagrees. It does not dispute that an arraignment
conducted in accordance with the Oregon statutory requirements outlined above would be a critical stage of the proceedings. It argues, however, that the April 22 hearing was
not really an arraignment because no pleas were taken and
that, based on what actually occurred, it was not a critical
stage of the proceedings.
         Given how the parties have framed their arguments
and the particular record in this case, the most important
issue on appeal turns out to be a somewhat technical one—
whether the “critical stage” determination is case-specific
and circumstance-specific as the state argues, or more generalized as defendant argues. Although we recognize that
defendant’s argument finds support in our vacated opinion
in State v. Brooks, 

, 

 (2019), vac’d
and rem’d, 

, 

 (2021), we conclude that
the state is correct that the determination is case-specific
and circumstance-specific. That view finds strong support in
the case law, including Oregon Supreme Court and United
States Supreme Court case law.
         Existing case law establishes some types of pretrial
events as critical stages of a criminal proceeding for right- to-counsel purposes. See, e.g., Argersinger v. Hamlin, 

, 

, 

 (1972) (taking a guilty
plea); Missouri v. Frye, 

, 

, 

 (2012) (plea negotiations); Massiah v. United
States, 

, 

, 

 (1964)
(post-indictment interrogation). However, “not all pretrial
proceedings require the presence of defense counsel.” State
v. Gray, 

, 

 (2022). Once the right
to counsel attaches, “the court may evaluate the particular
circumstances, the nature of the evidence, and the like to
372                                           State v. Pedersen

determine the scope of the right to counsel.” State v. Davis,

, 

 (2011). Thus, for example, the
Oregon Supreme Court has held that it was a critical stage
in the criminal proceedings when a defendant was asked to
submit to a breathalyzer test while under arrest and in formal custody, State v. Spencer, 

, 

(1988); that it was not a critical stage in the criminal proceedings when the state took photographs of a defendant’s tattoos
while he was in custody post-indictment, State v. Tiner, 

, 

 (2006), cert den, 

(2007); and that interrogation of the defendant regarding an
uncharged crime was a critical stage of the proceedings as
to an existing charged crime, where the crimes were “sufficiently related,” Prieto-Rubio, 

.
         As for arraignments specifically, the United States
Supreme Court held in Hamilton that an arraignment conducted in accordance with Alabama law was a critical stage
of the proceedings because certain defenses were lost by not
being asserted and because a plea was taken. Hamilton v.
Alabama, 

, 

, 

 (1961).
However, the court did not adopt a bright-line rule that any
hearing designated by the court as an “arraignment” is a critical stage. To the contrary, it recognized that arraignment procedures differ by jurisdiction and that what happens at such
a hearing is what determines whether it is a critical stage.

 (“Whatever may be the function and importance of
arraignment in other jurisdictions, we have said enough to
show that in Alabama it is a critical stage in a criminal proceeding.” (Footnote omitted.)); 

 at 54 n 4 (noting the “differing consequences” of arraignments in different jurisdictions).
          Applying that principle, the Washington Court of
Appeals recognized in In re Sanchez, 197 Wash App 686, 701-
02, 

 (2017), that a fact-specific inquiry was necessary to decide whether the defendant’s arraignment was a
critical stage in the criminal proceedings against him:
   “As illustrated by the … United States Supreme Court
   cases, the characterization of [defendant’s] hearing as an
   arraignment is not determinative of whether the hearing
   was a critical stage so that defense counsel’s absence was
   presumptively prejudicial. Rather, we must examine the
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   nature of [defendant’s] arraignment before we can determine whether it was a critical stage. Only if the nature of
   his arraignment was such that he stood to lose important
   rights that might affect the outcome of his case should it be
   considered a critical stage.”
Similarly, in Miller, 

, the Oregon Supreme Court
relied on the individual defendant’s circumstances to conclude
that his arraignment was not a critical stage of the proceedings, even though he entered a plea while unrepresented,
where that plea was later set aside and he then “still had
available, at a time when he was represented, all means for
attacking the information which had existed at the time of his
arraignment.”
          We are therefore convinced that the “critical stage”
determination is case-specific and circumstance-specific.
Such an approach makes sense. To exaggerate to make the
point, it would make little sense to say that a defendant’s constitutional right to counsel was violated by holding a hearing
at which literally nothing occurred, on the theory that, had
the hearing been conducted differently (say in accord with the
governing statutes), something critical would have occurred.
         We decline to readopt the contrary view implicit in
our vacated opinion in Brooks, as defendant urges us to do.
In Brooks, the trial court held a hearing similar to the one
in this case, except that the defendant was represented by
counsel. 

. The issue on appeal was whether
the defendant’s constitutional right to self-representation—
which is incorporated into the constitutional right to counsel—was violated at the hearing. 

 We held that it was
not, because the defendant made an equivocal request for
self-representation at an early stage of the proceedings, and
the trial court permissibly deferred considering it for a short
time so that the defendant could consult with his appointed
counsel. 

.
        As a preliminary step en route to that holding, we
explained that the right to counsel had attached by the time
of the hearing, and that the hearing was a “critical stage”
of the proceedings. 

. On the latter point, we reasoned somewhat summarily that “[t]he arraignment contemplated by statute clearly is a critical stage of a criminal
374                                                         State v. Pedersen

proceeding”; the hearing at issue had “all the hallmarks of
an arraignment” except for the taking of a plea; and, thus,
the hearing was a critical stage. 

 In the alternative, we
reasoned that it was a critical stage because the defendant
was called upon to state his name, which we said has “serious consequences” under ORS 135.060. 

.
         The Supreme Court vacated our opinion in Brooks
based on the guilty verdicts having been nonunanimous,
368 Or at 168, so Brooks is no longer precedential. Vacatur
“is an extraordinary action justified by the reviewing court’s
determination that the lower court’s decision should not
remain ‘on the books,’ so to speak, as binding precedent,
for reasons that are generally unrelated to the merits.”
Association of Oregon Corrections Employees v. DOC, 

, 

 (2014); see also State v. Mott,

, 

 (2023) (a published Court of
Appeals decision remains precedential even if the appeal is
later dismissed, “unless vacated”). Its only value is therefore persuasive, not precedential.2 And, given our foregoing
analysis, we do not find Brooks persuasive that any hearing
deemed an “arraignment” is a “critical stage,” regardless of
what actually occurred at the hearing.
         Accordingly, we proceed with the understanding that
what matters for constitutional right-to-counsel purposes is
what actually occurred at the hearing on April 22, 2022, not
what the hearing was called or what “should” happen at an
Oregon arraignment as a statutory matter. Defendant is not
claiming that his arraignment was untimely or procedurally
defective under ORS 135.010, so it does not matter for purposes of this appeal whether the April 22 hearing was truly
an arraignment. What matters is whether it was a critical
stage of the proceedings, based on what actually occurred.
     2
       Defendant insists that Brooks remains binding authority. He points to various decisions in which we have cited to vacated opinions. Having reviewed those
decisions, none are inconsistent with a vacated opinion being persuasive authority, rather than binding precedent. Although we do not always say so expressly—
and perhaps we should—when we cite a vacated opinion, we are necessarily
relying on it as persuasive authority, because that is all it has. See, e.g., State v.
Slagle, 

, 

, rev den, 

 (2019) (relying
on a vacated opinion and subsequent opinions that followed it); State v. Dizick,

, 

, rev den, 

 (2017) (relying on a vacated
opinion). By citing an opinion after it has been vacated, we effectively readopt the
cited reasoning because we find it persuasive.
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          Three things happened at the April 22 hearing: (1)
the court asked defendant to spell his last name and state
his birthdate, which defendant did; (2) the court gave defendant the name and phone number of the attorney who was
going to be appointed to represent him; and (3) the court
read the charges from the indictment.
          It is readily apparent that neither the court giving
defendant the name and number of his soon-to-be-appointed
attorney, nor the court reading the charges, made the hearing a critical stage of the proceedings. Neither event required
defendant to “take steps or make a choice” that was “likely
to have a substantial effect on the prosecution against him,”
Miller, 

, or posed “potential substantial prejudice” to defendant’s rights that counsel could have helped
avoid, Wade, 

.
          As for defendant spelling his last name and stating
his birthdate, the trial court never asked defendant whether
the name used in the indictment (“Danny Joe Pedersen”)
was his true name or informed him that, if it was not, he
needed to declare this true name to be eligible for forms of
release other than security release. Nonetheless, both parties treat the request that defendant spell his last name and
state his birthdate as equivalent to the “true name” procedure in ORS 135.060, so we do the same.
         Defendant describes having to “represent that he
was truly named” as a “critical decision” with “a significant
impact on the prosecution.”3 He never explains how spelling
his last name was a “critical decision,” however, or how it had
any impact on the prosecution. Instead, he relies entirely on
our vacated opinion in Brooks. See Brooks, 

 (describing defendant’s name as a “critical fact,” given
the release limitations in ORS 135.060 for a defendant who
does not declare his true name, and concluding that the
true-name acknowledgement was therefore “a critical stage
of the proceeding to which the scope of the right to counsel
applies”). We do not find Brooks persuasive on that point,
     3
       Specifically, defendant argues that “the arraignment qualified as a ‘critical
stage’ ” because “it was a hearing at which defendant had to enter a plea and
represent that he was truly named, which are critical decisions that have a significant impact on the prosecution.” Defendant did not enter any plea at the April
22 hearing, so we discuss only the true-name argument.
376                                                           State v. Pedersen

particularly because it is apparent from the brief explanation of our reasoning that we were not approaching the issue
in a fact-specific and circumstance-specific way, as we have
now recognized and explained is required. See 

         We are unpersuaded that defendant spelling his
last name on April 22 was a critical stage of the proceedings. Defendant had already posted bail and entered into a
security release agreement when he appeared at the April
22 hearing, so his eligibility for other forms of release was
not at issue.4 And ORS 135.060(2) expressly provides that a
true-name acknowledgement at arraignment “may not be
used against the defendant at trial on the underlying charge
or any other criminal charge or fugitive complaint,” subject
to two narrow exceptions not utilized here. One exception is
that the use of different names in different proceedings may
be considered as relevant to release status, ORS 135.060(2)
(a), but no such consideration occurred here. The other
exception is that a defendant may be prosecuted for perjury
for intentionally giving a false name under oath or affirmation, ORS 135.060(2)(b), but defendant was not under oath
or affirmation at the April 22 hearing. Under the circumstances, defendant spelling his last name and stating his
birthdate did not make the April 22 hearing a critical stage
of the proceedings.
         We therefore conclude that the hearing held on
April 22, 2022, was not a critical stage of the proceedings
against defendant, under the state or federal standard,
such that defendant had a constitutional right to counsel at
that hearing. Nothing that actually occurred at the hearing
made it a critical stage. As for things that did not occur, had
counsel been present, defendant likely would have entered
his pleas then, instead of having to wait until the next hearing, and counsel theoretically could have filed a demurrer to the indictment. But, on this record, defendant was
not prejudiced by waiting to enter his pleas until counsel
was appointed, nor was he prejudiced by counsel not being
    4
       For present purposes, we assume arguendo that a decision that affects a person’s release status is one that “is likely to have a substantial effect on the prosecution against him[,]” Miller, 

 (emphasis added), or that “might derogate
from the accused’s right to a fair trial[,]” Wade, 

 (emphasis added).
The parties have not addressed that issue, and we express no opinion on it.
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present at the hearing to file a demurrer, where no demurrer was ever filed and there is no reason to believe that the
trial court would have rejected a demurrer filed promptly by
counsel. See ORS 135.610 (“[A] demurrer shall be entered
either at the time of the arraignment or at such other time
as may be allowed to the defendant for that purpose.”).
         Although it is certainly preferable that a criminal
defendant have counsel at any pretrial hearing, nothing
that did or did not happen at the hearing on April 22, 2022,
had a substantial effect on the prosecution or derogated
from defendant’s right to a fair trial. That hearing therefore
was not a “critical stage” of the proceedings for purposes of
the right to counsel under Article I, section 11, or the Sixth
Amendment. It follows that defendant’s constitutional right
to counsel was not violated.
        Affirmed.