State v. Adams

No. 666                      July 30, 2025               173

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                      SETH LEE ADAMS,
                      Defendant-Appellant.
                 Deschutes County Circuit Court
                     23CN00431; A180671

   Walter Randolph Miller, Jr., Judge.
   Argued and submitted September 27, 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.
   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 Erica L. Herb, Assistant Attorney General.
  Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
   ORTEGA, P. J.
   Reversed.




______________
   * Lagesen, Chief Judge, vice Mooney, Senior Judge.
174   State v. Adams
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        ORTEGA, P. J.
          Defendant appeals from a judgment finding him in
contempt of court four separate times for two statements and
two unidentified “gestures,” and summarily ordering him to
spend 10 days in jail for each violation for a total of 40 days.
In his first two assignments of error, defendant argues that
the court violated his Article I, section 11, right to counsel
under the Oregon Constitution and that, because the two
statements for which he was found in contempt derived from
that violation, those contempt findings should be reversed.
In his third assignment, defendant asserts that the record
on appeal does not support the court’s findings of contempt
as to the gestures because the court did not identify what
the gestures were, and the record otherwise cannot support
the conclusion that they constituted misconduct that “interfere[d] with a court proceeding or with the administration
of justice, or that impair[ed] the respect due the court.” ORS
33.015(2)(a). We conclude that the statements were derived
from a violation of defendant’s right to counsel and that the
record lacks legally sufficient support for the other contempt
findings and, accordingly, we reverse.
                          I.   FACTS
        The contempt judgment arose from an exchange
during the underlying criminal proceeding, in which the
court held an arraignment hearing as to three misdemeanor
charges against defendant and on the state’s motion to
revoke defendant’s probation. As the hearing began, defendant, who was then in custody, indicated that he would like
to address the court, but the court stopped him, told him the
court was going to arraign him, and asserted that he had
waived his right to an attorney:
   “I know that you refuse to do your application today, and so
   you don’t get a court appointed attorney and I’m about to
   go through that document with you, and then … we can
   talk to the State about their recommendations on release.
   And then I planned on turning to you to see if you have
   anything you wanted to say about release.”
Defendant twice began to speak, as did an unidentified
speaker in the courtroom, but the court stopped him and the
176                                               State v. Adams

speaker and proceeded to make findings about defendant’s
conduct:
   “THE COURT: Just a minute. You wouldn’t go to the
   interview room and you wouldn’t complete—
   “THE DEFENDANT: No contest.
   “THE COURT: —any—just a minute. Just everybody
   hold on. [Defendant] refused to go to the interview room
   and refused to complete any paperwork. And so in essence,
   we can’t tell if [he] would qualify for court appointed attorney because he won’t fill out the application.
   “If you choose to fill one out, then we can find out if you
   qualify, but you refused to do that. So I’m going to move
   forward based on your choices.”
The court proceeded to explain to defendant the disadvantages of self-representation. The court asked, “Have you been
threatened or [did] anybody make any promises to you to get
you to waive your right to have an attorney?” to which defendant said, “[n]o, Your Honor.” The court then found that defendant had waived his right to counsel, without any testimony or
any statement from defendant to that effect beyond the court’s
conclusion based on what it termed defendant’s choices.
         The court then continued with the arraignment by
reading the charging instrument and having defendant confirm his name and birthdate. After the state gave its release
recommendation that included restricting defendant from
visiting a particular address, defendant attempted to advocate for his release:
   “THE COURT: Okay. You get one argument. Make it.
   “THE DEFENDANT: Your Honor, that’s the DHS building. I don’t understand why I’m not allowed to go there,
   and my objection is—I would really like to be heard on it.
   So I’m trying to get help on my own, Your Honor, and it’s
   hard for me to get help if I cannot go there or be bailed out
   to get the help.
   “…
   “THE COURT: You’re obviously not listening to me when
   I tell you that you probably shouldn’t talk about your case
   because now you’re … talking about one of them at least.”
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Defendant responded to the court by asking to plead guilty
“to not waste the Court’s time any longer.” The court denied
his request because defendant did not have the requisite
paperwork to plead at that time. The court began discussing dates for the next hearing and, at that time, defendant
requested that a specific attorney represent him at that
hearing. The court responded, “No, you’re not getting anybody because you … didn’t fill out the paperwork, so we’re
done with that.” Defendant told the court that he did fill out
the paperwork and had it with him.
         An unidentified speaker attempted to communicate
with defendant, but the court would not allow it. The following colloquy ensued:
   “UNIDENTIFIED SPEAKER: It—it is related to something I need to tell him, honestly.
   “THE COURT: You don’t need to tell him anything.
   “UNIDENTIFIED SPEAKER: I do, actually, because he’s
   pro se now, and so I need to let him know something about
   a timeline.
   “THE COURT: We’re—just a minute.
   “UNIDENTIFIED SPEAKER:         Sure.
   “THE COURT: No, you don’t.
   “UNIDENTIFIED SPEAKER:         I do.
   “THE COURT: Not on this record for arraignment.
   “UNIDENTIFIED SPEAKER:         I think I do, actually, Your
   Honor.
   “THE COURT: Yeah. Well, you can write it to him. He’s
   going to come in on Monday on entry of plea and status.
   Thank you. That’s it.
   “THE DEFENDANT: I think you just fucked up, Your
   Honor.”
        The court then found that defendant was in contempt of court for his language use and summarily imposed
a sanction of 10 days in jail, and defendant responded,
“Thank you, Your Honor,” and asked to show “my paperwork that I have filled out and ready for my attorney, sir.”
178                                              State v. Adams

The court said that if defendant said another word, he would
get another 10-day jail sanction. The court then asked,
“Deputy, is he doing what I think he’s doing?” An unidentified voice said, “yes,” and the court imposed 10 more days
in jail and asked defendant if he wanted to “do it again.”
Defendant responded, “Thank you, sir. I would like to.” The
court imposed another 10-day jail sanction, and defendant
responded, “I didn’t.” The court told defendant, “Then don’t
say another word and don’t do any more gestures. Just sit
back and that’ll be the end of it. He’s in contempt three
times.”
         After setting a date for the next hearing, the court
offered the following explanation, and defendant made a
final statement advocating for his release:
   “THE COURT:   … I want the minute order to reflect
   court held him in contempt three times. The first [of] three
   was for cussing at the Court, the second and third reasons
   have to do with his gestures that the deputy confirmed with
   opportunities given to him to stop doing it, he continued to
   do it, that’s how he got the three.
   “…
   “THE DEFENDANT: Thank you, Your Honor. All I
   wanted to do when I got out the other day was step into
   rehab.”
The court found defendant in contempt for a fourth time for
that statement because the court had told defendant previously that he could not speak, though the court required
that he represent himself during the arraignment.
                        II. ANALYSIS
         We begin by addressing defendant’s assertion, in
his first two assignments of error, that his Article I, section 11, right to counsel was violated and that the appropriate remedy for that violation is to reverse the two contempt
findings based on his statements because those statements
derived from the court’s violation of his constitutional right.
As we will explain, we conclude that the pretrial proceeding at issue qualified as a critical stage in the proceedings
such that defendant was entitled to counsel, that defendant
did not explicitly or impliedly waive his right to counsel,
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and thus, that his Article I, section 11, right to counsel was
violated. We also agree that the appropriate remedy is to
reverse the contempt findings for conduct that was derived
from the violation of defendant’s constitutional right.
          Article I, section 11, provides that “[i]n all criminal prosecutions, the accused shall have the right to …
be heard by himself and counsel.” Defendants have a right
to counsel at all “critical stages” of the prosecution. State v.
Prieto-Rubio, 

, 

 (2016). 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). The determination of whether a proceeding
is a critical stage is “case-specific and circumstance-specific.”
State v. Pedersen, 

, 

 (2025).
         For a defendant to waive his right to counsel, the
“court must determine—and the record must reflect—that
the waiver is both intentionally and knowingly made.” State
v. Stanton, 

, 

 (2022). Further, “ ‘a
valid waiver will not be presumed from a silent record.’ ”

 at 716 (quoting State v. Meyrick, 

, 

 (1992)). A defendant may waive the right to counsel
expressly through words or impliedly through conduct, only
after receiving an advanced warning that such conduct will
result in the implied waiver. 

          The circumstances during the hearing lead us to conclude that the arraignment in this case was a critical stage
of the criminal proceedings. First, the court never explicitly
informed defendant of his right to counsel nor asked him if
he desired counsel as is required by ORS 135.040.1 Instead,
the court took what it described as defendant’s refusal to
fill out the application for a court-appointed attorney prior
to the arraignment (which was not affirmed by defendant
and, indeed, later was contradicted by defendant) as a voluntary waiver of counsel, stated that the court would “move
forward based on your choices” (meaning that defendant

    1
      ORS 135.040 provides, “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.”
180                                          State v. Adams

would proceed without counsel), and insisted on that view
in denying defendant’s later request for an attorney. After
asserting its view that defendant had waived counsel, the
court instructed him to declare his name and birthdate for
the record. Then defendant, who was in custody, attempted
to make an argument against the prosecutor’s recommendation that included some of the facts of the case. The court
cut off his argument, saying, “You’re obviously not listening
to me when I tell you that you probably shouldn’t talk about
your cases.” Lastly, defendant tried to plead guilty to “not
waste the Court’s time any longer,” but the court declined to
take a plea because defendant lacked the correct paperwork.
         The circumstances of this case are distinguishable
from those in Pedersen, where we held that a pretrial hearing was not a critical stage of the proceedings. At the hearing in that case, the defendant “spelled his last name and
stated his date of birth, the court read the charges, and the
court gave [the] defendant the name and phone number of
the attorney being appointed to represent him and told him
his next hearing date.” Pedersen, 

. Here,
by contrast, the court concluded that defendant had waived
counsel based solely on its own description of conduct outside
the courtroom and declined to follow up on defendant’s assertion that he had completed the required paperwork and his
request for counsel, defendant was forced to advocate for his
own release and did so in a way that might have impacted
the prosecution’s case against him, and defendant expressed
a desire to plead guilty. All of those events were likely to
affect the outcome of his case, making the hearing a critical
stage of the proceedings. See Prieto-Rubio, 

 (“[T]
he scope of the right to counsel encompasses stages in criminal proceedings in which counsel’s presence could prevent
prejudice to a defendant.”). Thus, defendant had a right to
counsel at the arraignment under Article I, section 11.
         Moreover, the record here does not support a finding that defendant had waived his right to counsel, either
expressly or impliedly through his conduct. Stanton, 269 Or
at 716. Defendant’s answers to the court’s questions regarding his understanding of the risks of self-representation and
whether he had been threatened or coerced into representing
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himself following the court’s conclusion that he had done
so, particularly in the absence of a legally sufficient basis
for that conclusion, did not constitute a waiver of his right
to counsel. To the extent that the court relied on what it
described as defendant’s refusal to go to the interview room
to fill out the application for court-appointed counsel, that
did not constitute a legally sufficient basis to imply a waiver.
Refusing to fill out paperwork without more—and which
defendant later asserted he had already completed—did
not convey an intention to proceed without counsel under
these circumstances. See State v. Guerrero, 

, 

 (2016) (holding that a waiver of the right
to counsel can be implied through a defendant’s conduct if
the conduct conveyed the defendant’s intention to proceed
in court without counsel). Moreover, if defendant did not
qualify for court-appointed counsel, he had the right to seek
retained counsel to assist him at arraignment, a possibility that the trial court does not appear to have considered
when treating defendant’s reported failure to complete the
paperwork as a basis for concluding that he was choosing
to proceed without counsel. See State v. Cotter, 

, 

 (2025) (concluding that a defendant
had not validly waived the right to counsel under similar
circumstances). The court therefore violated defendant’s
constitutional right to counsel by proceeding to conduct the
arraignment without counsel or a valid waiver.
         Next, we consider what remedy is available and
appropriate on appeal from a contempt judgment following
such a violation. The state argues that because a defendant
is not entitled to counsel for a summary contempt proceeding, reversal of the summary contempt judgment is inappropriate. See Pearson v. Pearson, 

, 

 (1995) (holding that “there is no right to counsel in
a summary contempt proceeding” under ORS 33.096). That
position misframes the issue; defendant here argues that
the statements for which he was sanctioned derived from
the violation of his Article I, section 11, right to counsel in
the underlying criminal proceeding, and thus, cannot lawfully form the basis of contempt sanctions against him. That
was neither offered nor addressed in Pearson, so we address
it here.
182                                           State v. Adams

         When a defendant’s Article I, section 11, right to
counsel is violated, the remedy must “vindicate the individual’s personal rights” and be sufficient to restore the defendant to a position “as if the state’s officers had remained
within the limits of their authority.” State v. Craigen, 

, 

 (2023); see 

 (holding that violation of the defendant’s Article I, section 11, right to counsel during an interview required suppression of his statements); see also Prieto-Rubio, 

 (“The remedy for
a violation of Article I, section 11, is the exclusion of any
prejudicial evidence obtained as a result of that violation.”);
State v. Garrett, 

, 

 (2024)
(holding that the exclusionary rule applies when a defendant establishes a minimum factual nexus between a violation of his Article I, section 11, rights and statements made
by the defendant). An exception to the exclusion of related
statements occurs when the statements are attenuated from
the constitutional violation. See, e.g., State v. Suppah, 

, 

 (2016) (holding that a defendant’s
commission of a new crime during an ongoing unlawful
seizure attenuated that evidence from the constitutional
violation such that suppression was not warranted). Here,
the state does not argue that defendant’s statements were
attenuated from the violation of defendant’s constitutional
right, and we conclude that the statements were a direct
result of the constitutional violation. Thus, “[w]e see no reason why that general framework for remedying an Article I,
section 11, violation should not apply here,” Garrett, 

, such that defendant’s statements that derived
from the violation of his constitutional right cannot be held
against him, including ones that might qualify as being in
contempt of court.
         We do not foreclose the possibility that a defendant
may be found in contempt of court for misconduct even when
their constitutional rights are violated. However, when the
contemptuous statements made to the court are derived from
the violation of defendant’s constitutional right, the appropriate remedy is reversal. Here, defendant’s first statement
unartfully conveyed to the court that he believed it was making a mistake in denying him an attorney, which amounted
to an objection to the court’s legal ruling that defendant had
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waived his right to counsel and its ensuing refusal to then
let him speak for himself. Defendant’s second statement
advocated for his release conditions in an arraignment proceeding after which the court’s erroneous legal ruling forced
him to represent himself but declined to allow him to speak.
Both of the statements that were the basis for the court’s
contempt findings derived from its violation of his Article I,
section 11, right to counsel. Consequently, those contempt
findings must be reversed to remedy that violation.
         We proceed to address defendant’s third assignment of error, in which he asserts that the record on appeal
is insufficient to support the trial court’s two contempt findings as to gestures. Both parties agree that defendant had
no practical ability to object to the court’s contempt findings,
so preservation was not required. See Peeples v. Lampert,

, 

 (2008) (“In some circumstances, the preservation requirement gives way entirely, as
when a party has no practical ability to raise an issue,” or
when “preservation would have been futile, because the trial
court would not have permitted an issue to be raised or the
record to be developed.”).
         ORS 33.096 permits the court to “summarily impose
a sanction upon a person who commits a contempt of court
in the immediate view and presence of the court.” Relevant
to this appeal, contempt of court means willful “[m]isconduct in the presence of the court that interferes with a court
proceeding or with the administration of justice, or that
impairs the respect due the court.” ORS 33.015(2)(a). We
review a contempt proceeding for “any evidence to support
the trial court’s findings.” Rodrigues and Gerhards, 

, 

 (2020).
         The court based two of its four contempt findings
on unidentified “gestures” that the court asked the deputy
to confirm. In its explanation for finding defendant in contempt, the court stated that the second and third contempt
findings “have to do with his gestures that the deputy confirmed with opportunities given to him to stop doing it.”
Without any description of the gestures defendant made,
we cannot conclude on this record that they constitute
“misconduct” under ORS 33.015(2)(a) that would warrant
184                                                        State v. Adams

a contempt finding. We reject the state’s assertion that the
deputy’s confirmation of the gesture permits a reasonable
inference that defendant flipped off the court, a gesture that
is recognized as disrespectful in a courtroom. See State v.
Bivins, 

, 

 (2004) (“Reasonable
inferences are permissible; speculation and guesswork are
not.”). The state relies on impermissible speculation without
anything more in the record to support its claim. Moreover,
given the heated nature of the exchange between the court
and defendant, it would be just as easy—and just as speculative—to conclude that defendant made an innocuous gesture that the court impermissibly found to be contemptuous.
Thus, without more detail about the “gestures,” this record
does not contain sufficient evidence to reasonably infer that
the gestures made were contemptuous in nature.2
           Reversed.




    2
      Although a court has the power to sanction conduct that “impairs the
respect due the court,” we acknowledge that circumstances where the court is
treating the actor with disrespect may well caution restraint in the exercise of
such power.