State v. Schmick

Court of Appeals of Oregon

State v. Schmick

660 P.2d 693, 62 Or. App. 227, 1983 Ore. App. LEXIS 2424

CourtCourt of Appeals of Oregon

DecidedMarch 16, 1983

Docket10-81-02833; CA A23474

StatusPublished

Cited by13 cases

This text of 660 P.2d 693 (State v. Schmick) 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. Schmick, 660 P.2d 693, 62 Or. App. 227, 1983 Ore. App. LEXIS 2424 (Or. Ct. App. 1983).

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Opinions

[229]*229GILLETTE, P. J.

Defendant was convicted by a jury of sodomy in the first degree and rape in the first degree, both class A felonies. He represented himself at trial. He now seeks a new trial on the ground that he was denied his right to a fair trial by the failure of the trial court to ensure that he had waived his right to assistance of counsel.¹

When defendant first appeared for arraignment, on April 3, 1981, he appeared without counsel. The court ■determined that he was ineligible for court-appointed counsel, and the arraignment was continued. On April 6, he appeared with retained counsel, Mr. Miller, and entered a plea of not guilty. On May 15, 1981, defendant’s motion to postpone his trial, which had been set for May 20, was granted.² The trial was postponed again for the convenience of the court, because of a shortage of judges, and reset for November 17, 1981.

On October 30, 18 days before trial, Miller moved to be allowed to withdraw as defendant’s attorney, because defendant had failed to pay his fee.³ A hearing was held on this motion on November 2, before Judge Beckett. Defendant stated that he intended to have an attorney at trial and still desired to have Miller represent him. He was employed, but his budget did not leave him money to pay his attorney. Miller stated that defendant owned a house but that he could not use it as collateral to obtain a loan. The court concluded:

«* * * Mr Schmick, I’m willing to allow Mr. Miller to withdraw, and I will so order. But it’s got to be with the understanding that you have your attorney no later than [230]*230this, the end of this week, and shall inform the court who that attorney is.

“Now, there will be no delay of the trial, so whatever you do from now until the time of trial, as far as securing an attorney, you are going to be stuck with that decision, and it is your decision.”

Defendant expressed concern that he could not obtain a new attorney, because he could not afford one. He reapplied for court-appointed counsel, and it was again determined that he was ineligible.

On November 12, at the request of the deputy district attorney prosecuting the case, a hearing was held to determine if defendant was to be tried on the 17th as scheduled. Witnesses for the state who lived in Arizona were planning to leave for Oregon the next morning by car, and the deputy district attorney was concerned about a possible postponement because defendant had not yet obtained a lawyer. He advised the court that he was opposed to a postponement but that, if there were one, it needed to be ordered then so that he could notify the witnesses before their departure.

Defendant stated that he had been looking for a lawyer but could not find one:

“* * * I can’t seem to find a new lawyer. He wants either five thousand or ten thousand cash. They won’t accept payments. I can put some mortgage on my home and have my mortgage and lose the house and my kids will have no house at all.”

On interrogation by the court, defendant stated that he had three children, earned $545 net bi-weekly, and had deposited $500 as security for his release. The judge concluded:

“He has tenure in his job and earns good money. I take it is a matter of priority tying the allocation of his funds rather than the lack of financial resources that postures him in the way I find him today. I interpret that to be of his own willful choice and decision, so the case will go on for trial on the 17th.”

That afternoon, another hearing was held, this time at the request of Mr. Melevin, a lawyer whom defendant had contacted. Melevin stated that he was willing to [231]*231represent defendant, but because of the short time remaining before trial and his own conflicting schedule on the trial date, he would be willing to do so only if the trial were postponed. The deputy district attorney opposed the postponement. He stated that he did not know whether he could intercept the witnesses from Arizona. The judge expressed doubts about defendant’s willingness to pay a lawyer; Melevin stated that he was not willing to take the case without pay. Defendant stated that he was willing to convey to Melevin whatever was left unencumbered in his residence.

The judge asked the deputy district attorney to call the Arizona witnesses to see if he could intercept them and discussed with the two attorneys a possible alternate trial date if the postponement were to be allowed. During a recess, the deputy telephoned the witnesses in Arizona. He reported that they, the alleged victim and her father, were opposed to further postponement but that the father had stated that January would be better than December if the trial were set over. The deputy also stated that he had talked to the alleged victim, who told him that, if the trial were again delayed, she would not attend. The judge, stating that the defendant’s “heroic effort to get an attorney at the last minute” should have been made as soon as he and his first lawyer had a falling out, denied the motion to postpone.⁴ Defendant appeared pro se at his trial.⁵ On appeal, he contends that he did not knowingly and voluntarily waive his right to assistance of counsel.

[232]*232We find the trial court’s refusal to grant a further continuance to this defendant, and the court’s requirement that defendant proceed to trial, to be entirely appropriate and permissible under the facts of the case. A defendant’s right to retain counsel of his choice must, after a reasonable opportunity to exercise that right, be balanced against the state’s need to conclude the case in a timely manner. Ungar v. Sarafite, 376 US 575, 589-90, 84 S Ct 841, 11 L Ed 2d 921 (1963); State v. Page, 18 Or App 109, 523 P2d 1291 (1974).⁶

Unlike an indigent defendant who must rely on the state, a defendant who is able to retain counsel is free to do so (or forego doing so) at any time. Where a defendant has failed to obtain counsel at the time of trial after a reasonable opportunity to do so, he may be compelled to go to trial without counsel. Ungar v. Sarafite, supra; see also State v. Page, supra. The appropriate considerations are whether the defendant has had a reasonable opportunity to obtain counsel, whether his failure to obtain counsel is a result of his own actions and whether the interests of the state would be prejudiced by the delay. Ungar v. Sarafite, supra; State v. Page, supra; State v. Pflieger, 15 Or App 383, 515 P2d 1348 (1973). In this case, the trial judge appropriately addressed all these considerations and answered them against defendant. The record justifies his conclusions in each instance.

Affirmed.

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[229]*229GILLETTE, P. J.

Defendant was convicted by a jury of sodomy in the first degree and rape in the first degree, both class A felonies. He represented himself at trial. He now seeks a new trial on the ground that he was denied his right to a fair trial by the failure of the trial court to ensure that he had waived his right to assistance of counsel.¹

When defendant first appeared for arraignment, on April 3, 1981, he appeared without counsel. The court ■determined that he was ineligible for court-appointed counsel, and the arraignment was continued. On April 6, he appeared with retained counsel, Mr. Miller, and entered a plea of not guilty. On May 15, 1981, defendant’s motion to postpone his trial, which had been set for May 20, was granted.² The trial was postponed again for the convenience of the court, because of a shortage of judges, and reset for November 17, 1981.

On October 30, 18 days before trial, Miller moved to be allowed to withdraw as defendant’s attorney, because defendant had failed to pay his fee.³ A hearing was held on this motion on November 2, before Judge Beckett. Defendant stated that he intended to have an attorney at trial and still desired to have Miller represent him. He was employed, but his budget did not leave him money to pay his attorney. Miller stated that defendant owned a house but that he could not use it as collateral to obtain a loan. The court concluded:

«* * * Mr Schmick, I’m willing to allow Mr. Miller to withdraw, and I will so order. But it’s got to be with the understanding that you have your attorney no later than [230]*230this, the end of this week, and shall inform the court who that attorney is.

“Now, there will be no delay of the trial, so whatever you do from now until the time of trial, as far as securing an attorney, you are going to be stuck with that decision, and it is your decision.”

Defendant expressed concern that he could not obtain a new attorney, because he could not afford one. He reapplied for court-appointed counsel, and it was again determined that he was ineligible.

On November 12, at the request of the deputy district attorney prosecuting the case, a hearing was held to determine if defendant was to be tried on the 17th as scheduled. Witnesses for the state who lived in Arizona were planning to leave for Oregon the next morning by car, and the deputy district attorney was concerned about a possible postponement because defendant had not yet obtained a lawyer. He advised the court that he was opposed to a postponement but that, if there were one, it needed to be ordered then so that he could notify the witnesses before their departure.

Defendant stated that he had been looking for a lawyer but could not find one:

“* * * I can’t seem to find a new lawyer. He wants either five thousand or ten thousand cash. They won’t accept payments. I can put some mortgage on my home and have my mortgage and lose the house and my kids will have no house at all.”

On interrogation by the court, defendant stated that he had three children, earned $545 net bi-weekly, and had deposited $500 as security for his release. The judge concluded:

“He has tenure in his job and earns good money. I take it is a matter of priority tying the allocation of his funds rather than the lack of financial resources that postures him in the way I find him today. I interpret that to be of his own willful choice and decision, so the case will go on for trial on the 17th.”

That afternoon, another hearing was held, this time at the request of Mr. Melevin, a lawyer whom defendant had contacted. Melevin stated that he was willing to [231]*231represent defendant, but because of the short time remaining before trial and his own conflicting schedule on the trial date, he would be willing to do so only if the trial were postponed. The deputy district attorney opposed the postponement. He stated that he did not know whether he could intercept the witnesses from Arizona. The judge expressed doubts about defendant’s willingness to pay a lawyer; Melevin stated that he was not willing to take the case without pay. Defendant stated that he was willing to convey to Melevin whatever was left unencumbered in his residence.

The judge asked the deputy district attorney to call the Arizona witnesses to see if he could intercept them and discussed with the two attorneys a possible alternate trial date if the postponement were to be allowed. During a recess, the deputy telephoned the witnesses in Arizona. He reported that they, the alleged victim and her father, were opposed to further postponement but that the father had stated that January would be better than December if the trial were set over. The deputy also stated that he had talked to the alleged victim, who told him that, if the trial were again delayed, she would not attend. The judge, stating that the defendant’s “heroic effort to get an attorney at the last minute” should have been made as soon as he and his first lawyer had a falling out, denied the motion to postpone.⁴ Defendant appeared pro se at his trial.⁵ On appeal, he contends that he did not knowingly and voluntarily waive his right to assistance of counsel.

[232]*232We find the trial court’s refusal to grant a further continuance to this defendant, and the court’s requirement that defendant proceed to trial, to be entirely appropriate and permissible under the facts of the case. A defendant’s right to retain counsel of his choice must, after a reasonable opportunity to exercise that right, be balanced against the state’s need to conclude the case in a timely manner. Ungar v. Sarafite, 376 US 575, 589-90, 84 S Ct 841, 11 L Ed 2d 921 (1963); State v. Page, 18 Or App 109, 523 P2d 1291 (1974).⁶

Unlike an indigent defendant who must rely on the state, a defendant who is able to retain counsel is free to do so (or forego doing so) at any time. Where a defendant has failed to obtain counsel at the time of trial after a reasonable opportunity to do so, he may be compelled to go to trial without counsel. Ungar v. Sarafite, supra; see also State v. Page, supra. The appropriate considerations are whether the defendant has had a reasonable opportunity to obtain counsel, whether his failure to obtain counsel is a result of his own actions and whether the interests of the state would be prejudiced by the delay. Ungar v. Sarafite, supra; State v. Page, supra; State v. Pflieger, 15 Or App 383, 515 P2d 1348 (1973). In this case, the trial judge appropriately addressed all these considerations and answered them against defendant. The record justifies his conclusions in each instance.

Affirmed.

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660 P.2d 693, 62 Or. App. 227, 1983 Ore. App. LEXIS 2424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schmick-orctapp-1983.

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