State v. Omar

Under State v. Smith, 190 Or. App. 576 (2003), when a motion for substitute counsel has been denied, the proper disposition is to vacate the conviction and remand for a hearing. If it is found that the defendant should have received substitute counsel, then the defendant should receive a new trial; if not, the defendant’s conviction should be reinstated.

Defendant appealed a conviction for four counts of second-degree robbery.  On appeal, Defendant argued that the trial court erred in denying his motion for substitute counsel.  Defendant asserted that this Court should follow State v. Nyquist, 293 Or. App. 502 (2018), rather than State v. Smith, 190 Or. App. 576 (2003) (hereinafter Smith II), and reverse his conviction and remand for new trial without first having a hearing to inquire into his request for substitute counsel.  In response, the State conceded the trial court’s error in not inquiring into Defendant’s request for substitute counsel but argued that the conviction should be vacated and remanded for a hearing to conduct the proper inquiry.  The rule in Nyquist controls in cases where a request to represent oneself pro se has been denied, whereas the rule in Smith II controls in cases where a request for substitute counsel has been denied.  Under Smith II, the proper disposition is to vacate the conviction and remand for a hearing.  If it is found that the defendant should have received substitute counsel, then the defendant should receive a new trial; if not, the defendant’s conviction should be reinstated.  Defendant’s convictions are vacated and remanded for a hearing on his motion for substitute counsel.  If it is determined that Defendant should have received substitute counsel, Defendant shall receive a new trial; otherwise, Defendant’s convictions will be reinstated.  Vacated and remanded.