State v. Guerrero

Waiver of the right to counsel in criminal proceedings may be implied by misconduct only if (1) the defendant receives warning that repeated misconduct will force him to appear pro se, and (2) the defendant is allowed an opportunity to explain the situation in court.

Defendant appealed convictions for two felonies, arguing that the trial court required him to go to trial without counsel and refused to provide a substitute under Article 1, Section 11 of the Oregon Constitution and the Sixth Amendment of the United States Constitution. The court did appoint two substitute attorneys as Defendant’s counsel, but the first attorney refused to represent Defendant as requested, and an ethical conflict arose with the second attorney. The trial court refused to appoint Defendant new counsel before his trial, forcing Defendant to represent himself. The trial court had categorized the dismissals of counsel as a waiver through misconduct; Defendant argued that this waiver was not voluntary, and if the trial court found that it was, that it was not waived knowingly.

Waiver of the right to counsel may be “implied through a defendant’s conduct [if] the conduct adequately conveys the defendant’s knowing and intentional choice to proceed . . . without counsel.” State v. Langley, 351 Or. 652, 669, 273 P.3d 901 (2012) (internal quotes omitted). In order to waive the right to counsel, a defendant must (1) receive advance warning that continuing to dismiss counsel will force him to appear pro se, and (2) be given an opportunity to explain the situation to the court. Id. at 670, 673. The court held that Defendant was not given these opportunities, and therefore did not knowingly waive his right to counsel. Reversed and remanded.