2016 Ore. App. LEXIS 784
Coos Cty. Cir. Ct., O.R.2016Background
- Petitioner was convicted after a bench trial on a fourth-degree felony assault charge; Parker was his trial counsel.
- Petitioner filed a post-conviction relief (PCR) petition alleging inadequate representation by Parker; Goldman was appointed as PCR counsel.
- About a week before the scheduled PCR trial petitioner filed a motion for substitute counsel with an affidavit and two letters claiming breakdown in the relationship and failure to prepare; no hearing was requested and the court denied the motion.
- On the original trial date the court allowed Goldman to withdraw at petitioner’s request and continued the trial so petitioner could retain new counsel.
- At the continued date petitioner appeared unrepresented, did not request appointed counsel, proceeded pro se at the PCR trial, and the court denied relief.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether the PCR court abused its discretion by denying substitute counsel | Goldman was unsuitable due to inadequate preparation and irreparable breakdown in the attorney-client relationship | Denial proper because petitioner’s filings did not show Goldman was unsuitable and disagreements about strategy are not grounds for substitution | Court affirmed: no abuse of discretion — records showed counsel was suitable and complaints did not require substitution |
| Whether the court had duty to appoint substitute counsel after counsel withdrew on the first trial date | After withdrawal petitioner argued court should have appointed replacement counsel | State: court did not remove counsel in a manner requiring appointment; petitioner later chose to proceed pro se | Court found petitioner was not forced to proceed without counsel and Knox/Bailey are inapplicable |
Key Cases Cited
- Temple v. Zenon, 124 Or. App. 388 (1993) (standard: denial of substitute counsel reviewed for abuse of discretion)
- State v. Langely, 314 Or. 247 (1992) (mere loss of confidence or strategic disagreement is not cause for substitution)
- Knox v. Nooth, 244 Or. App. 57 (2011) (court erred where appointed counsel was removed and no substitute appointed under circumstances compelling appointment)
- Bailey v. Nooth, 247 Or. App. 240 (2011) (similar rule to Knox regarding appointment after withdrawal)