Lopez v. Nooth

When ruling on a motion for substitution of counsel in a post-conviction proceeding, a court must determine whether existing counsel is “suitable,” per ORS 138.590. Appointed counsel may be substituted “pursuant to the policies, procedures, standards, and guidelines of the Public Defense Services Commission.” ORS 138.590(4).

Petitioner appealed a judgment denying him post-conviction relief. On appeal, petitioner assigned error to denial of his motion to substitute counsel. Petitioner filed a Church motion, a legal mechanism which allows petitioners to preserve arguments not made by the attorney at trial.  See Church v. Gladden, 244 Or 308, 417 P2d 993 (1966). Petitioner’s attorney filed a written response that refuted each claim raised in Petitioner’s Church motion. Petitioner filed a subsequent motion for substitution of counsel on the basis that his attorney was not not suitable as he failed to properly advocate for the client’s interests. When ruling on a motion for substitution of counsel in a post-conviction proceeding, a court must determine whether existing counsel is “suitable,” per ORS 138.590. Appointed counsel may be substituted “pursuant to the policies, procedures, standards, and guidelines of the Public Defense Services Commission.” ORS 138.590(4). The Court of Appeals determined that the proceedings in addressing a Church motion should not be given weight when considering a motion to substitute counsel; the proper test is whether counsel is “suitable”, per ORS 138.590. Accordingly, the Court held that the lower court erred in considering counsel’s response when deciding Petitioner’s motion. Lastly, the Court determined that counsel’s written advocacy against the client precluded them from being suitable counsel. Reversed and remanded.