State v. Erb
256 Or. App. 416
| Or. Ct. App. | 2013Background
- Defendant was charged with pointing a firearm at another (ORS 166.190); menacing (ORS 163.190); and disorderly conduct in the second degree (ORS 166.025).
- The trial court ordered counsel appointed for defendant on February 22, 2010, but by March 1, 2010 denied appointment, stating defendant was financially ineligible.
- Defendant appeared with retained counsel on March 24, 2010 and entered not guilty pleas on April 20, 2010; defense counsel filed a withdrawal on May 12, 2010.
- On June 28, 2010, defendant signed a Waiver of Counsel stating she knowingly waived her right to counsel and did so freely and voluntarily.
- Defendant filed a pro se motion to compel discovery on June 28, 2010 and argued it on July 7, 2010; the court did not question her waiver at that time.
- Defendant appeared pro se for trial on July 14, 2010; the jury returned guilt on two charges and acquitted on one.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver of right to counsel was valid under Article I, section 11 | State contends waiver valid given totality of circumstances | Waiver was not validly knowing or intelligent | Waiver invalid; trial court erred in allowing self-representation |
| Whether waiver also violated the Sixth Amendment | State asserts waiver valid under federal standard | Waiver not knowingly made under due process | Not addressed due to Oregon-con Constitution conclusion |
| Whether error was harmless | Unknown; not explicitly argued as harmless but implied | Error likely affected outcome | Not harmless; reversal required |
| Whether ORS 135.045 governs counsel waiver and its subconstitutional implications | State relies on statute for guidance; subconstitutional grounds available | Statutory interpretation not clearly broader than constitutional protections | No ruling beyond constitutional analysis; court notes its stance |
Key Cases Cited
- Meyrick, 313 Or 125 (1992) (waiver must be voluntary and intelligent; catechism not required)
- Gaino, 210 Or App 107 (2006) (colloquy to explain risks helps but is not strictly required)
- Jackson, 172 Or App 414 (2001) (definition of substantial appreciation of risks in totality of circumstances)
- Culver, 198 Or App 267 (2005) (colloquy insufficiency shown by vague warnings; prima facie error standard)
- Massey, 160 Or App 197 (1999) (prior experience with paralegal work or litigation does not prove understanding)
- Easter, 241 Or App 574 (2011) (extensive criminal history and court warnings supported knowing waiver)
- Lasarte, 203 Or App 222 (2005) (prior attorney representation does not establish knowledge of risks)
- Phillips, 235 Or App 646 (2010) (discusses framework for resolving cases on subconstitutional grounds)
- Cole, 323 Or 30 (1996) (harmless-error standard for trial court errors)
- Reed, 247 Or App 155 (2011) (distinguishes Easter-like scenarios in waiver analysis)