269 P.3d 80
Or. Ct. App.2011Background
- Bailey convicted of eight counts of encouraging child sex abuse in the second degree (ORS 163.686).
- Bailey sought post-conviction relief under ORS 138.510-138.680, triggering appointment of counsel (Mahony).
- Mahony filed a petition for post-conviction relief alleging three IAC claims; Bailey sought amendment to add claims.
- Bailey requested substitute counsel or to direct Mahony to amend; Mahony refused to amend.
- A hearing showed Bailey wanted assistance and exhibits; court allowed Mahony to withdraw and Bailey to proceed pro se.
- Trial occurred July 27, 2010, after Mahony withdrawal; Bailey again requested substitute counsel; petition denied and judgment entered against Bailey.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the post-conviction court abused its discretion in denying substitute counsel. | Bailey sought substitute counsel to assist in pleading; kept asking for counsel. | Court should rely on Bailey pro se or Mahony; substitute counsel unnecessary. | Abuse of discretion; reversal and remand. |
Key Cases Cited
- Knox v. Nooth, 244 Or.App. 57 (2011) (reaffirmed right to substitute counsel and abuse-of-discretion standard and need for individual consideration)
- Church v. Gladden, 244 Or. 308 (1966) (requirement to notify court of attorney failures and seek replacement)
- State v. Farmer, 210 Or.App. 625 (2007) (abuse of discretion may occur when court fails to exercise discretion)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (arbitration standard analogy (not directly relevant here))