State v. Haines

388 P.3d 365, 283 Or. App. 444, 2017 Ore. App. LEXIS 89
CourtCourt of Appeals of Oregon
DecidedJanuary 25, 2017
DocketCR1201901; A155001
StatusPublished
Cited by6 cases

This text of 388 P.3d 365 (State v. Haines) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Haines, 388 P.3d 365, 283 Or. App. 444, 2017 Ore. App. LEXIS 89 (Or. Ct. App. 2017).

Opinion

ORTEGA, P. J.

Defendant appeals his judgment of conviction for five counts of identity theft, ORS 165.800. For part of his sentencing hearing, defendant was not represented by counsel, and he argues that his waiver of his right to counsel was invalid because it was not voluntarily and knowingly made, thus violating Article I, section 11, of the Oregon Constitution.1 Reviewing the validity of defendant’s waiver of the right to counsel as a legal question in light of the circumstances of his particular case, State v. Erb, 256 Or App 416, 420, 300 P3d 270 (2013), we conclude that the record is insufficient to show that defendant’s waiver of counsel was made with awareness of the risks of doing so. We remand for resentencing on that basis.

The circumstances of defendant’s lack of attorney representation at the sentencing hearing are as follows. In July 2013, defendant was represented during a bench trial in which he was convicted of the five identity theft counts at issue in this appeal. The following month, defendant appeared at his sentencing hearing with his attorney. Two other cases were at issue: one was in the same circuit court, Clackamas County, for which other charges of identity theft had been filed and were pending (the other Clackamas County case),2 and a second was in Multnomah County Circuit Court, in which charges against defendant were yet to be filed. Defendant and the state were in discussions contemplating a global plea for all three cases. Defendant, however, insisted that his sentence should include an alternative incarceration program (AIP); he believed that treatment for his methamphetamine addiction was of utmost importance.3 The prosecutor told the court that the state would [446]*446not agree to anything other than 96 months’ imprisonment without AIP. Defendant’s counsel, wanting an assurance that Multnomah County would not pursue its case against defendant, suggested that defendant enter a plea to the other Clackamas County case and that the court postpone sentencing. The prosecutor responded that the state wanted the court to sentence defendant on his convictions that day.

The court sided with the prosecutor, stating:

“I can only move forward. * * * I’m trying to work in a way that’s going to move this matter forward, * * * the State is entitled.
“We’ve set the sentencing today and if [the state] is saying, ‘By golly, we’re going to do sentencing,’ we’ll do the sentencing. I don’t know if [the state is] going to get [its] plea in [its] second case if that happens and I’m not sure that’s really where we want to go, but like I said, that’s not in [the state’s] control.
“That’s not in my control. I can’t make him plea. So all I can do is sentence him on the first case today. I’m *** willing and able to do that.”

The trial court directed the parties to take a break so that they could discuss further the possibility of reaching a plea agreement for all of the cases against defendant. The parties did so and returned to the court, where the prosecutor announced that a plea deal had been reached: Multnomah County would not pursue charges against defendant, defendant would enter a plea on the other Clackamas County case, and the sentence for both Clackamas County cases would be 96 months’ imprisonment without AIP. The prosecutor stated that defendant was eligible for drug treatment even if he did not receive AIP. At that point, defendant spoke up:

“I’m confused. Your honor, * * * I’ve been to prison before. [The] program that I want to get into is the program out at Powder River. It’s an intensive inpatient drug treatment [447]*447program. It’s 14 hours a day, seven days a week for approximately six months. I did a drug treatment program when I went to prison before. It’s like—they call it drug treatment light. It was held at Columbia River. It wasn’t all that different than what I would say outpatient drug treatment is on the streets. The only way to get into [the Powder River] program is if the Court provides me AIP eligibility. And I believe that’s my best chance for success.”

After the parties discussed drug treatment with and without AIP, defendant agreed to the plea deal but, after reiterating his desire for the Powder River AIP program, changed his mind and said that there would be no deal. The prosecutor did not budge on the state’s position that defendant serve 96 months without AIP.

The following exchange occurred when defendant again addressed the court directly:

“[DEFENDANT]: I know I probably threw a major wrench in the engine today, Your Honor. I would like to ask for different counsel. My lawyer smells like she drank about a half a bottle of vodka over lunch.
“ [DEFENSE COUNSEL]: Oh, hogwash.
«* ‡‡‡‡
“[THE COURT]: —but I don’t think [defense counsel] needs to start defending herself. You say what you want to say.
“[DEFENSE COUNSEL]: I have no problem with— with withdrawing from this case, Your Honor, given his statement today, also given the difficulties I’ve had and all of my staff have had in dealing with his issues and his change of mind and his—his other problems.
“So I think it’s appropriate for me to withdraw and I’ll file a motion to that effect. He’s had us jump through so many hoops that, you know—
“ [THE COURT]: And I’m taking it that you are no longer going to plead in the second case based on this request?
“[DEFENDANT]: I’ll plead, Your Honor, I just-talk—I’ll represent myself. I’m sorry that—I don’t know what else to do, all right? I’ve got a lawyer who I’ve had a great amount of difficulty with. I have done everything [448]*448I could to try to support the efforts of our defense team. There has been some glaring communication problems over the last year. And I’m not just saying this to—
“THE COURT: Well—
“[DEFENDANT]: —slip out of the noose. She smells like alcohol, Judge—
* * * ‡
“THE COURT: I will tell you that if your decision is to terminate your counsel, which you’re entitled to do, that I will sentence you on the first case today. I will not sentence you on the second case today. If you want to take a plea, do that, but I don’t have to sentence you today. I can set sentencing over. I can set it in my court or I can set it in somebody else’s court, ‘cause I’m just taking a plea.
“ [DEFENDANT]: Your Honor, I’m—as a judge, I think you’re outstanding. I have got a very good feel for you and I have no problem with you sentencing me and I would to be sentenced by you. I discussed quite a bit with my attorney about this sentencing over the last few days and nothing has gone the way that it was supposed to have gone. I’m obviously in a lot of trouble. I’m fighting for my life or at least a large chunk of it and I don’t feel that I’m being adequately represented by her. And I figure if I don’t speak up now, I’m not going to ever—you know.
“THE COURT: Do you want to request another attorney?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Nees
511 P.3d 67 (Court of Appeals of Oregon, 2022)
State v. Greeley
508 P.3d 33 (Court of Appeals of Oregon, 2022)
State v. Groff
472 P.3d 812 (Court of Appeals of Oregon, 2020)
State v. Garrett
451 P.3d 612 (Court of Appeals of Oregon, 2019)
State v. Borba
417 P.3d 430 (Court of Appeals of Oregon, 2018)
State v. Clardy
401 P.3d 1188 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
388 P.3d 365, 283 Or. App. 444, 2017 Ore. App. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-haines-orctapp-2017.