State v. Cole , 135 Or. App. 643 ( 1995 )

HASELTON, J.

Defendant appeals from his conviction for being a felon in possession of a firearm. ORS 166.270. He argues that the trial court erred in accepting his proffered waiver of counsel, particularly in the context of a pretrial suppression hearing. We affirm.

On July 10, 1992, Portland police officer Ronald Cash stopped a vehicle, in which defendant was a passenger, for a traffic violation. Cash asked the driver for consent to search the vehicle, the driver assented, and, in the ensuing search, Cash discovered a loaded firearm beneath the passenger seat where defendant was sitting. Defendant was charged with the crime of felon in possession of a firearm.

At his arraignment, the following colloquy ensued:

“THE COURT: I have an indictment charging you with being a felon in possession of a firearm. Do you have a lawyer?

“THE DEFENDANT: No, I don’t, Your Honor.

“THE COURT: Okay. Can you afford one? * * *

“[DEPUTY DISTRICT ATTORNEY]: Your Honor, on July 13th, * * * defendant was directed to hire his own attorney, or he wanted to hire some attorney or proceed pro se.

“THE COURT: Okay. You want to do that, then? Do you want to represent yourself, then?

“THE DEFENDANT: Yes, I do.

“THE COURT: Okay. What we’re goingto do, then * * *, is if someone — lawyer, will just stand there, kind of stand in for you and basically, what that consists of is you waive reading — You’re going to get a copy of the indictment and advice of rights. I think it — you knowyour rights, and you’re going to get some dates, and these are very important. I’ll explain them to you in a minute.”

An “assistant” stood in for defendant during the remainder of the arraignment proceeding and entered defendant’s not guilty plea.

Defendant subsequently filed a pro se motion to suppress all evidence seized during the stop and argued the motion himself. The court denied that motion but immediately thereafter, on its own motion, appointed counsel to represent defendant at trial:

“THE COURT: I think you would be much better off having a lawyer represent you than you trying this case yourself about whether you were in possession of a gun. You probably would make a good witness but you don’t do a very good job as your lawyer.”

Defendant was ultimately convicted after a stipulated facts trial.

Defendant’s sole contention on appeal is that the trial court erred in allowing him to proceed pro se at the hearing on his motion to suppress.¹ Specifically, he argues that the court failed to advise him adequately of the risks of self-representation and that, consequently, his waiver of counsel was not voluntary and intelligent. The state contends that defendant’s claim of error was not properly preserved because, even after counsel was appointed, defendant did not object to the court’s acceptance of his pretrial waiver of counsel. The state also contends that, even if the trial court erred in allowing defendant to proceed pro se, that error was harmless.

We first address, and reject, the state’s non-preservation argument. The Supreme Court and we have consistently assumed that a trial court’s failure to insure that an uncounselled defendant is adequately informed of the risks of self-representation is reviewable without any objection by the defendant. See, e.g., State v. Meyrick, 313 Or 125, 831 P2d 666 (1992); State v. Curran, 130 Or App 124, 880 P2d 956 (1994); State v. Meyer, 116 Or App 80, 840 P2d 1357 (1992); State v. Carter, 107 Or App 48, 810 P2d 872 (1991). Although it is unclear whether that assumption derives, ultimately, from some principle of special “per se preservation” or some variant of the plain error doctrine, it makes practical and legal sense: It would be absurd to require an uncounselled defendant to object that his or her waiver of counsel was inadequately informed. Such a hypothetical defendant would have to understand the consequences of a waiver of counsel well enough to know that an uninformed waiver is objectionable, but not well enough to make an informed decision to waive.

The state suggests, nonetheless, that this case differs from Meyrick, Curran, et al, because here, unlike in those cases, counsel was subsequently appointed for defendant and appointed counsel failed to object to the court’s earlier acceptance of an uninformed waiver. Thus, in the state’s view, error was effectively “unpreserved.”

We are unaware of any authority for such ‘ ‘unpreservation.” In particular, the state does not present any authority for the proposition that, unless subsequently appointed counsel revisits prior error, that error shall be deemed, retroactively, to have been rendered unreviewable.² Consequently, we conclude that the error is reviewable.

In Curran, we reiterated and summarized Meyrick’s standards for assessing the validity of waivers of counsel:

“A valid waiver requires that the defendant know that he has a right to counsel and that he intentionally relinquishes it. We examine the totality of the circumstances to see if there is a knowing and intentional waiver of the right to the assistance of counsel. That determination is based in part on the information a defendant has about the consequences and pitfalls of proceeding without counsel.

“Although no particular catechism is required, the court must provide some information about the dangers of self-representation.” 130 Or App at 127 (emphasis supplied, citations omitted). Accord Meyer, 116 Or App at 84-85.

Here, the record indicates that the trial court never engaged defendant in any colloquy regarding the dangers of proceeding without counsel. Moreover, nothing in the record suggests that defendant was already aware of those dangers. Consequently, after assessing the totality of the circumstances, we conclude that defendant’s waiver of his right to counsel was ineffective. See Curran, 130 Or App at 128; Meyer, 116 Or App at 84-85.

The state argues, however, that even if the trial court erred in accepting defendant’s waiver of counsel, his conviction should not be reversed because the error was harmless. In considering that contention, we must first determine whether the error is even subject to harmless error analysis. In particular, is the error “structural error,” compelling automatic reversal?

Although errors in a criminal case, including constitutional errors, are generally subject to harmless error analysis,³ some constitutional rights are “so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 US 18, 23, 87 S Ct 824, 17 L Ed 2d 705, 710 (1967).⁴ Such infractions, including adjudication by a biased judge, Tumey v. Ohio, 273 US 510, 47 S Ct 437, 71 L Ed 749 (1927), abrogation of the right to self-representation, McKaskle v. Wiggins, 465 US 168, 104 S Ct 944, 79 L Ed 2d 122 (1984), and giving of a constitutionally deficient jury instruction, Sullivan v. Louisiana, 508 US _, 113 S Ct 2078, 124 L Ed 2d 182 (1993), are deemed structural error, which, per se, require reversal.

The Supreme Court has characterized a complete denial of the right to counsel as structural error. See Rose v. Clark, 478 US 572, 577, 106 S Ct 3101, 92 L Ed 2d 460, 470 (1986) (citing Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963), and the “complete denial of right to counsel” in list of constitutional errors that require reversal without regard to the evidence in the particular case). Our court has, albeit implicitly, reached the same conclusion under the Oregon Constitution. See, e.g., Meyer, 116 Or App at 84-85 (no harmless error analysis following determination that waiver of counsel was invalid); State v. Fiala, 107 Or App 193, 810 P2d 1344 (1991) (same).

Here, defendant did not suffer a complete denial of the right to counsel in the sense that he was uncounselled throughout all proceedings. He was uncounselled at one substantive proceeding — the submission and argument of his motion to suppress — and immediately thereafter obtained counsel. The issue, then, is whether the trial court, by allowing defendant to litigate the suppression motion pro se, based on an invalid waiver of counsel, committed structural error, notwithstanding the subsequent appointment of counsel. The answer lies in the principle underlying the structural error doctrine, i.e., that certain errors render a trial fundamentally unfair and, therefore, useless as a vehicle for determining guilt:

“The State of course must provide a trial before an impartial judge, with counsel to help the accused defend against the State’s charge. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair. Harmless-error analysis thus presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Rose, 478 US at 577-78, 92 L Ed 2d at 470 (citations omitted).

Here, the partial denial of defendant’s right to counsel did not impair the function of his trial as a “vehicle for determination of guilt or innocence.” Id. Whatever the impact of defendant’s lack of representation on the trial court’s suppression ruling, appointed counsel could have, either before or during trial, asked the court to reconsider that ruling on the ground that defendant had been imper-missibly unrepresented. Moreover, defendant does not argue that the circumstances of the court’s earlier ruling somehow foreclosed effective reconsideration. Thus, the error was not structural and is susceptible to harmless error analysis.

An error that violates the Oregon Constitution is harmless if there is “little likelihood that the error affected the verdict.” If the error violates the United States Constitution, the error must be harmless beyond a reasonable doubt. State v. Walton, 311 Or 223, 231, 809 P2d 81 (1991). Thus, the harmless error issue reduces to whether there was little likelihood (or no reasonable doubt) that defendant’s lack of representation during the one material procedural event that occurred before he retained counsel — the suppression hearing — affected his conviction.

The state argues that the result of the suppression hearing was correct and would not have been altered even if defendant had been represented in that context.⁵ At the suppression hearing, the state argued that the warrantless search of the vehicle was constitutional because: (1) it was made in the course of a valid traffic infraction stop, after the officer developed a reasonable suspicion that defendant and the vehicle’s driver posed a threat to his safety, State v. Bates, 304 Or 519, 747 P2d 991 (1987); and (2) the driver had freely consented to the search, State v. Kennedy, 290 Or 493, 624 P2d 99 (1981).

Defendant acknowledged that the driver had verbally assented to the search but disputed the “officer safety” justification for the search. The trial court denied the suppression motion on the ground that the search was a valid consent search.

When defendant later obtained counsel, counsel did not ask the court to revisit that ruling, or otherwise assert any factual or legal grounds that would indicate why that ruling was erroneous. In particular, counsel never argued that defendant had failed to advance all of the plausible bases for suppression that competent counsel would have, or had failed to argue the bases that were raised as effectively or persuasively as defense counsel would have. Nor do defendant’s arguments to this court purport to demonstrate how competent counsel could have presented different, or more effective, arguments that might have prevailed at the suppression hearing. Defendant’s failure to assign error directly to the trial court’s denial of his motion to suppress underscores that fact.

Given those circumstances, we conclude that there is little, if any, likelihood that the lack of representation affected the outcome of the suppression hearing and defendant’s consequent conviction. We further conclude, for the same reason, that the trial court’s error in accepting defendant’s invalid waiver of counsel, and in proceeding on that basis, was harmless beyond a reasonable doubt.

Affirmed.

1 Defendant does not challenge the trial court’s denial of his motion to suppress.

2 The state does not suggest that appointed counsel’s silence waived the earlier error. Nor could it. That is so for two reasons. First, regardless of whether present counsel might have revisited the uninformed waiver issue hy seeking to relitigate suppression-related issues either before or during the stipulated facts trial, counsel was not required to revisit the suppression issue. State v. Foster, 296 Or 174, 183-84, 674 P2d 587 (1983); State v. Engweiler, 118 Or App 132, 135, 846 P2d 1163, rev den 317 Or 486 (1993). Second, counsel’s mere inaction was insufficient, without more, to establish an “intentional relinquishment or abandonment of a known right or privilege.” Church v. Gladden, 244 Or 308, 312-13, 417 P2d 993 (1966).

3 See Delaware v. Van Arsdall, 475 US 673, 681, 106 S Ct 1431, 89 L Ed 2d 674 (1986) (“[W]e have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”); State v. Isom, 306 Or 587, 595, 761 P2d 524 (1988) (“Under Oregon law, a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a ‘substantial right’ of the defendant.”); see also Or Const, Art VII (amended), § 3; ORS 138.230 (“[T]he court shall give judgment, without regard * * * to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”).

4 Although there appear to be no Oregon cases that expressly adopt the distinction that the United States Supreme Court drew in Chapman, it is apparent from our cases that we, too, treat some constitutional errors as “structural,” i.e., beyond harmless error analysis. See, e.g., State v. Meyer, 116 Or App 80, 840 P2d 1357 (1992) (reversal, without harmless error analysis, following determination that defendant’s right to counsel had been abrogated); State v. Verna, 9 Or App 620, 498 P2d 793 (1972) (reversal, without harmless error analysis, following determination that defendant’s right to self-representation had been abrogated).

5 The state does not, and could not, argue that the error was harmless because it could have convicted defendant even if the suppression issue had been decided in defendant’s favor. Indeed, the object of defendant’s suppression motion — the fact that a gun was discovered under the seat of the vehicle in which defendant was riding — was vital to his conviction.