State v. Kyei

“The trial court needs to evaluate the error, along with the explicit and implicit instructions from the appellate court, and consider the impact of the error on the record. If the trial court determines that the record could have developed in a materially different way if the error had not occurred, then a defendant is entitled to a new trial.” State v. Hightower, 368 Or 378, 387, 491 P3d 769 (2021).

Defendant was subject to a punitive contempt proceeding for failure to comply with a child support order. Following defense counsel’s withdrawal (but before appointment of new counsel) the trial court required Defendant to present two pretrial motions pro se (without waiver of Defendant’s right to counsel).

The Court first concluded that the record supported the trial court’s punitive contempt verdict.

The Court then concluded that requiring pro se presentation of pretrial motions without waiver of Defendant’s right to counsel was erroneous. Because that error might have affected the case’s outcome, it was not harmless.

If an error occurs in a pretrial hearing, which causes the hearing or trial record to develop in a materially different way, Hightower entitles the defendant to a new trial, “absent explicit direction from the remanding appellate court spelling out a different approach.” State v. Black, 317 Or App 181, 185, 504 P3d 691 (2022).

Here, Defendant was entitled to a new hearing (with counsel present), on their motions. Were either motion granted, “a new contempt trial would be required.”

“Vacated and remanded.”