State v. Guerrero, 277 Or. App. 837

Background

Defendant had three successive court-appointed attorneys over ~1 year; each sought to withdraw after breakdowns with defendant; the court warned the defendant that the third appointed attorney would be his last.
On the day of trial the third attorney (Bernstein) sought to withdraw citing an implied threat of a bar complaint and an unspecified ethical issue relating to defendant’s desire to testify; the court found an ethical conflict and granted withdrawal.
The court concluded defendant implicitly waived his right to counsel by continued misconduct and declined to appoint substitute counsel; the court later conducted a limited colloquy explaining trial procedures and the difficulties of self-representation.
Defendant elected to represent himself (did not ultimately testify) and was convicted of first-degree assault and unlawful use of a weapon.
On appeal defendant argued the court erred by (1) finding an implicit waiver by misconduct without adequate warning that self-representation’s risks would follow, and (2) failing to appoint substitute counsel; he asserted the waiver was not knowing and intelligent.
The Court of Appeals reversed and remanded for a new trial, holding the record did not show a knowing waiver of the right to counsel because the defendant was not adequately apprised of the risks of self-representation at the time the court relied on for implied waiver.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether defendant implicitly waived right to counsel by misconduct after being warned his next appointed attorney would be his last	Defendant’s repeated efforts to discharge appointed counsel and threats (bar complaints) justified an inference of implied waiver; warnings and defendant’s experience made waiver knowing	Court relied on the court’s later warning and argued the waiver was not knowing because defendant was not adequately warned of disadvantages of self-representation before the conduct relied on for waiver	Reversed: implicit waiver not shown to be "knowing"; warning that third attorney would be last was insufficient without evidence defendant appreciated risks of self-representation at that time
Whether trial court’s later colloquy about trial procedures cured lack of earlier advisement of risks	Later explanation demonstrated some awareness of complexity and risks	Colloquy came after the warning relied on for implied waiver and thus could not retroactively make the earlier waiver knowing	Court held the later colloquy was too late to supply the requisite knowledge at the critical time
Whether court abused discretion by not appointing substitute counsel after Bernstein withdrew	State: court balanced judicial efficiency and defendant-caused delay/misconduct; prior cases allow refusal to appoint where defendant created the situation	Defendant: refusal forced choice between counsel (but barred from testifying) or preserve right to testify but proceed pro se; lack of substitute counsel violated Article I, §11	Because implicit waiver was not shown to be knowing, requiring pro se representation without appointing counsel was error requiring reversal
Whether prior cases (Spry, Hussin) permit denying substitute counsel when defendant repeatedly seeks new counsel	State: those decisions support denying substitute counsel to prevent manipulation/delay	Defendant: Langley requires review whether waiver was knowing when court grants withdrawal and does not appoint substitute counsel	Court: Langley supersedes prior approach; those cases don’t relieve court of ensuring waiver was knowing before requiring pro se trial

Key Cases Cited

State v. Langley, 351 Or. 652 (Supreme Court) (implicit waiver by misconduct requires advance warning and knowing, intentional waiver review)
State v. Meyrick, 313 Or. 125 (Supreme Court) (preferred practice: on-the-record colloquy explaining risks of self-representation)
State v. Easter, 241 Or. App. 574 (explaining totality-of-circumstances approach and considering defendant’s prior experience)
State v. Erb, 256 Or. App. 416 (defendant must understand risks; abstract awareness insufficient)
State v. Spry, 166 Or. App. 26 (prior case upholding refusal to appoint substitute counsel in serial-replacement context)
State v. Hussin, 90 Or. App. 359 (prior case upholding requiring defendant to proceed pro se after repeated requests for substitution)
State v. Phillips, 235 Or. App. 646 (harmless-error principle for proceeding without counsel)
State v. Mendonca, 134 Or. App. 290 (prior convictions alone insufficient to impute knowledge and waiver)
United States v. Goldberg, 67 F.3d 1092 (3d Cir.) (once warned, further dilatory tactics may be treated as implied waiver)