State v. Pedersen

362 March 5, 2025 No. 177

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DANNY JOE PEDERSEN,

Defendant-Appellant.

Yamhill County Circuit Court

21CR33854; A181064

Cynthia L. Easterday, Judge.

Argued and submitted November 20, 2024.

Daniel C. Silberman, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

Greg Rios, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

AOYAGI, P. J.

Affirmed.

Cite as 338 Or App 362 (2025) 363

364 State v. Pedersen

AOYAGI, P. J.

Defendant appeals a judgment of conviction for fleeing

or attempting to elude a police officer, ORS 811.540(1)(b)(A),

and reckless driving, ORS 811.140. The sole issue on appeal

is whether defendant was denied counsel at a critical stage of

the proceedings, in violation of his state and federal consti-

tutional rights to counsel. After defendant was charged and

before an attorney was appointed to represent him, the trial

court held what it described as an arraignment, at which

defendant spelled his last name and stated his date of birth,

the court read the charges, and the court gave defendant the

name and phone number of the attorney being appointed to

represent him and told him his next hearing date. Nothing

else occurred. Defendant argues that an arraignment is

necessarily a critical stage of criminal proceedings, such

that his right to counsel was violated, and he seeks reversal

of his convictions. The state counters that the claim of error

is unpreserved, that the hearing was not really an arraign-

ment because no pleas were taken, and that what did occur

was not a critical stage of the proceedings.

As explained below, regarding preservation, we agree

with defendant that it would be unreasonable to expect him

to personally object to the lack of counsel. Once counsel was

appointed, however, an objection needed to be made within a

reasonable time to preserve the claim of error. Counsel never

made any objection to the partial arraignment that occurred

immediately before her appointment, despite necessarily

being aware of it, so the claim of error is unpreserved. As

for plain error, we conclude that the hearing at issue was

not a critical stage, so no error occurred, plain or otherwise.

Whether a particular pretrial hearing was a critical stage

of the proceedings depends on what actually occurred at the

hearing, not generalizations. The hearing that occurred here

was not a critical stage of the proceedings under the applica-

ble state and federal standards for what constitutes a critical

stage. Accordingly, we affirm.

I. FACTS

In July 2021, defendant was indicted for fleeing or

attempting to elude a police officer and reckless driving. He

Cite as 338 Or App 362 (2025) 365

was later arrested and released on a security agreement.

On April 22, 2022, the trial court held a hearing docketed as

“arraignment.” The court told defendant that he was there

“to be arraigned on an indictment.” It asked defendant to

spell his last name and state his date of birth, which defen-

dant did. It stated that it was appointing an attorney to rep-

resent defendant, would do so “right away,” and gave defen-

dant the name and telephone number of that attorney. It then

read the charges. The court concluded, “All right. And so he’s

been arraigned.” It set the next hearing for May 26, 2022, at

9:30 a.m., told defendant that he would be arrested if he did

not appear, and reminded him to obey the law while on release.

Less than an hour after the hearing ended, an

order was entered on the court register appointing counsel

for defendant. Less than two hours after that, defendant’s

appointed counsel filed a discovery request and a speedy-

trial request.

On May 26, 2022, defendant appeared with counsel

for a hearing docketed as “plea hearing.” Not-guilty pleas on

both charges were entered on the court register at 9:48 a.m.

The court then began what it called “the first status confer-

ence” and asked the parties how they wanted to proceed.

Defendant’s counsel asked for a trial date. The court offered

a date that the parties accepted, set trial-related deadlines,

told defendant that it was important to stay in touch with

his attorney, and concluded the hearing at 9:50 a.m.

Defendant’s trial was held in February 2023. The

jury found him guilty on both charges. On appeal, defen-

dant seeks reversal of his convictions, arguing that it vio-

lated his state and federal constitutional right to counsel to

require him to represent himself at the hearing on April 22,

2022.

II. ANALYSIS

The right to counsel is recognized in both the state

and federal constitutions. Article I, section 11, of the Oregon

Constitution provides, “In all criminal prosecutions, the

accused shall have the right to * * * be heard by himself

and counsel.” The Sixth Amendment to the United States

Constitution provides, “In all criminal prosecutions, the

366 State v. Pedersen

accused shall enjoy the right * * * to have the assistance of

counsel for his defense.”

The right to counsel attaches “as early as the com-

mencement of criminal proceedings by indictment or other

formal charge.” State v. Prieto-Rubio, 359 Or 16, 24, 376 P3d

255 (2016). Once attached, the defendant has the right to

counsel at all “critical stages” of the prosecution, including

critical pretrial stages. Id.; see also United States v. Ash, 413

US 300, 310, 93 S Ct 2568, 37 L Ed 2d 619 (1973) (explaining

that the right to counsel used to apply only at trial but has

been extended to pretrial events as a result of “changing

patterns of criminal procedure and investigation that have

tended to generate pretrial events that might appropriately

be considered to be parts of the trial itself”). Under Oregon

law, a critical stage occurs when a defendant “must take

steps or make a choice which is likely to have a substantial

effect on the prosecution against him.” State v. Miller, 254

Or 244, 249, 458 P2d 1017 (1969). Under Sixth Amendment

law, a critical stage occurs “at any stage of the prosecution,

formal or informal, in court or out, where counsel’s absence

might derogate from the accused’s right to a fair trial”—or,

in more concrete terms, when “potential substantial preju-

dice to defendant’s rights inheres in the particular confron-

tation” and counsel may “help avoid that prejudice.” United

States v. Wade, 388 US 218, 226-27, 87 S Ct 1926, 18 L Ed 2d

1149 (1967).

In this case, the parties agree that defendant’s right

to counsel had attached, but they disagree as to whether the

hearing held on April 22, 2022, was a critical stage of the

proceedings. They also disagree as to whether the claim of

error is preserved.

A. Preservation

We begin with the threshold matter of preserva-

tion. “Generally, an issue not preserved in the trial court

will not be considered on appeal.” State v. Wyatt, 331 Or 335,

341, 15 P3d 22 (2000). Preservation may be excused, how-

ever, if a party had “no practical ability to raise an issue.”

Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008). We

also have discretionary authority to correct errors that are

Cite as 338 Or App 362 (2025) 367

unpreserved but “plain.” ORAP 5.45(1); State v. Gornick, 340

Or 160, 166, 130 P3d 780 (2006).

Defendant argues that preservation should be

excused, relying on State v. Cole, 323 Or 30, 912 P2d 907

(1996), which involved an unrepresented defendant’s waiver

of counsel. As a general rule, pro se litigants are “bound by

the same preservation rules” as all other parties. State v.

Morrow, 192 Or App 441, 444, 86 P3d 70, rev den, 337 Or

282 (2004). However, in Cole, the court adopted an exception

for waiver of counsel: “A defendant whose waiver of counsel

is accepted without first being apprised of the risks of self-

representation cannot be expected to object to acceptance of

that waiver on the ground that he or she was not apprised of

those risks.” 323 Or at 36. That exception to the preservation

requirement for pro se criminal defendants is “explicitly lim-

ited to the waiver of counsel.” Morrow, 192 Or App at 445.

Defendant never waived counsel, so Cole is not

directly on point, but defendant argues that it supports

excusing preservation in this situation too. The state count-

ers that Cole is inapposite and that defendant needed to

object at the April 22 hearing. Recognizing the “pragmatic”

and “prudential” nature of preservation rules, Peeples, 345

Or at 220, we conclude that the answer lies between the par-

ties’ positions.

On the one hand, we agree with defendant that it

would be unreasonable to expect him to personally object

to the lack of counsel at the April 22 hearing. It is simply

untenable to expect a party awaiting the appointment of

counsel to know to raise a constitutional objection to the

timing of that appointment. We therefore disagree with the

state that defendant needed to object at the April 22 hearing

to preserve his claim of error.

On the other hand, we disagree with defendant

that, because he could not be expected to object at the

April 22 hearing, he was excused altogether from pre-

serving the claim of error. An immediate objection is not

always required to preserve error. In appropriate circum-

stances, an objection may be timely even if it is not immedi-

ate, so long as the “practical purposes of preservation were

368 State v. Pedersen

served.” State v. Quebrado, 372 Or 301, 304, 549 P3d 524

(2024) (holding that the defendant’s motion for a mistrial

was timely, despite being filed several days after the state

rested, in part because “no significant event occurred in the

trial” in the interim); see also, e.g., Dept. of Human Services

v. M. E., 297 Or App 233, 241, 441 P3d 713 (2019) (declining

to excuse preservation, where the mother in a termination-

of-parental-rights case did not have an opportunity to object

beforehand to a court order continuing the appointment of

a guardian ad litem, but could have objected at a hearing

held a month later or anytime in the six months before the

termination trial).

Here, counsel was appointed less than an hour after

the April 22 hearing and made a filing on defendant’s behalf

the same day. Counsel then appeared with defendant at the

May 26 hearing. Certainly, by then, counsel must have been

aware that defendant was partially arraigned prior to coun-

sel’s appointment. If counsel took issue with that having

occurred, then counsel should have objected within a reason-

able time of appointment—either in writing or at the May

26 hearing—and the court would have been hard pressed

under the circumstances to treat the objection as untimely.

Instead, defendant entered not-guilty pleas, requested a

trial date, proceeded to trial, was found guilty by a jury, and

only then raised a concern about the arraignment procedure.

We therefore conclude that defendant failed to pre-

serve his claim of error. Objecting to the arraignment proce-

dure within a reasonable time after counsel was appointed

would have given the trial court an opportunity to promptly

address any constitutional or other concerns before the case

proceeded to trial. Because the claim of error is unpreserved,

we are limited to plain-error review, ORAP 5.45(1), which

defendant expressly requests in the event that preservation

is not excused.

B. Critical Stage of the Proceedings

Defendant claims that it plainly violated his consti-

tutional right to counsel to arraign him on April 22, 2022,

before appointing counsel. An error is “plain” when it is an

error of law, the legal point is obvious and not reasonably

Cite as 338 Or App 362 (2025) 369

in dispute, and the error is apparent on the record without

our having to choose among competing inferences. State v.

Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). The state

does not dispute that the first and third requirements are

met here. The point of contention is whether it is obvious

and not reasonably in dispute that the April 22 hearing was

a critical stage of the proceedings. Defendant contends that

it is, whereas the state disagrees.

To set the stage for our discussion, we first describe

the statutory framework for arraignments in Oregon. With

respect to timing, ORS 135.010 provides:

“When the accusatory instrument has been filed, and if

the defendant has been arrested, or as soon thereafter as the

defendant may be arrested, the defendant shall be arraigned

thereon as provided in ORS 135.030 before the court in which

it is found. Except for good cause shown or at the request of

the defendant, if the defendant is in custody, the arraignment

shall be held during the first 36 hours of custody, excluding

holidays, Saturdays and Sundays. In all other cases, except

as provided for in ORS 133.060 [(which allows up to 30 days

for arraignment on a criminal citation)], the arraignment

shall be held within 96 hours after the arrest.”

As for the scope of the proceeding, “[t]he arraign-

ment consists of reading the accusatory instrument to

the defendant, causing delivery to the defendant of a copy

thereof and indorsements thereon, including the list of wit-

nesses indorsed on it or appended thereto if the accusatory

instrument is an indictment, [and] asking the defendant

how the defendant pleads to the charge.” ORS 135.020.

Additionally, the defendant must be informed that, “[i]f

the name by which the defendant is charged in the accusa-

tory instrument is not the true name of the defendant the

defendant must then declare the true name,” or else “the

defendant is ineligible for any form of release other than a

security release under ORS 135.265.”1 ORS 135.060(1); see

1

“If the defendant gives no other name, the court may proceed against the

defendant by the name in the accusatory instrument.” ORS 135.065(1). If the

defendant alleges that the name in the information or indictment is not their true

name, the court is to attempt to determine the true name—including, if no birth

certificate was ever issued, asking the defendant for their true name under oath

or affirmation—and then “proceed under the name given unless the court is per-

suaded by a preponderance of the evidence that the name is not the defendant’s

370 State v. Pedersen

ORS 135.060(3) (defining “true name” as either the name

on the defendant’s certified birth record, the defendant’s

birth name, or the defendant’s name as changed by court

order or by operation of law). True-name acknowledgement

at arraignment “may not be used against the defendant at

trial on the underlying charge or any other criminal charge

or fugitive complaint,” except that the use of different names

in different proceedings “can be used in determining the

defendant’s release status,” and intentionally giving a false

name is prosecutable as perjury if done under oath or affir-

mation. ORS 135.060(2).

Arraignment also provides an opportunity to move

to set aside or dismiss the accusatory instrument or to

demur. “A motion to set aside the indictment or dismiss the

accusatory instrument shall be made and heard at the time

of the arraignment or within 10 days thereafter, unless for

good cause the court allows additional time.” ORS 135.520. A

“demurrer shall be entered either at the time of the arraign-

ment or at such other time as may be allowed to the defen-

dant for that purpose.” ORS 135.610(1).

Notably, the trial court is statutorily required

to advise the defendant of the right to counsel before pro-

ceeding with an arraignment: “If the defendant appears

for arraignment without counsel, the defendant shall be

informed by the court that it is the right of the defendant to

have counsel before being arraigned and shall be asked if the

defendant desires the aid of counsel.” ORS 135.040 (empha-

ses added). If the defendant wants counsel and is eligible,

the court must appoint counsel. ORS 135.045(1)(b). If the

defendant does not want counsel, “the court shall determine

whether the defendant has made a knowing and voluntary

waiver of counsel.” ORS 135.045(1)(c). However, only repre-

sented defendants may plead guilty or no contest to a felony

on their arraignment day. ORS 135.380(2) (“A defendant

may plead guilty or no contest on the day of arraignment or

any time thereafter except that a defendant without counsel

true name.” Id. “[T]he subsequent proceedings on the accusatory instrument may

be had against the defendant by that name, referring also to the name by which

the defendant is charged.” Id. However, upon the defendant’s motion, “all names,

other than the true name of the defendant, shall be stricken from any accusatory

instrument read or submitted to the jury.” ORS 135.065(2).

Cite as 338 Or App 362 (2025) 371

shall not be allowed to plead guilty or no contest to a felony

on the day of arraignment.”).

With that statutory framework for arraignments in

mind, we turn to the parties’ specific arguments. Defendant

argues that an arraignment is necessarily a critical stage

of criminal proceedings, regardless of how any particular

arraignment is conducted, such that the defendant always

has a constitutional right to counsel at an arraignment. The

state disagrees. It does not dispute that an arraignment

conducted in accordance with the Oregon statutory require-

ments outlined above would be a critical stage of the pro-

ceedings. It argues, however, that the April 22 hearing was

not really an arraignment because no pleas were taken and

that, based on what actually occurred, it was not a critical

stage of the proceedings.

Given how the parties have framed their arguments

and the particular record in this case, the most important

issue on appeal turns out to be a somewhat technical one—

whether the “critical stage” determination is case-specific

and circumstance-specific as the state argues, or more gen-

eralized as defendant argues. Although we recognize that

defendant’s argument finds support in our vacated opinion

in State v. Brooks, 301 Or App 419, 456 P3d 665 (2019), vac’d

and rem’d, 368 Or 168, 486 P3d 794 (2021), we conclude that

the state is correct that the determination is case-specific

and circumstance-specific. That view finds strong support in

the case law, including Oregon Supreme Court and United

States Supreme Court case law.

Existing case law establishes some types of pretrial

events as critical stages of a criminal proceeding for right-

to-counsel purposes. See, e.g., Argersinger v. Hamlin, 407 US

25, 34, 92 S Ct 2006, 32 L Ed 2d 530 (1972) (taking a guilty

plea); Missouri v. Frye, 566 US 134, 144, 132 S Ct 1399, 182

L Ed 2d 379 (2012) (plea negotiations); Massiah v. United

States, 377 US 201, 206, 84 S Ct 1199, 12 L Ed 2d 246 (1964)

(post-indictment interrogation). However, “not all pretrial

proceedings require the presence of defense counsel.” State

v. Gray, 370 Or 116, 129, 515 P3d 348 (2022). Once the right

to counsel attaches, “the court may evaluate the particular

circumstances, the nature of the evidence, and the like to

372 State v. Pedersen

determine the scope of the right to counsel.” State v. Davis,

350 Or 440, 478, 256 P3d 1075 (2011). Thus, for example, the

Oregon Supreme Court has held that it was a critical stage

in the criminal proceedings when a defendant was asked to

submit to a breathalyzer test while under arrest and in for-

mal custody, State v. Spencer, 305 Or 59, 74-75, 750 P2d 147

(1988); that it was not a critical stage in the criminal proceed-

ings when the state took photographs of a defendant’s tattoos

while he was in custody post-indictment, State v. Tiner, 340

Or 551, 563-64, 135 P3d 305 (2006), cert den, 549 US 1169

(2007); and that interrogation of the defendant regarding an

uncharged crime was a critical stage of the proceedings as

to an existing charged crime, where the crimes were “suffi-

ciently related,” Prieto-Rubio, 359 Or at 36-37.

As for arraignments specifically, the United States

Supreme Court held in Hamilton that an arraignment con-

ducted in accordance with Alabama law was a critical stage

of the proceedings because certain defenses were lost by not

being asserted and because a plea was taken. Hamilton v.

Alabama, 368 US 52, 53, 82 S Ct 157, 7 L Ed 2d 114 (1961).

However, the court did not adopt a bright-line rule that any

hearing designated by the court as an “arraignment” is a criti-

cal stage. To the contrary, it recognized that arraignment pro-

cedures differ by jurisdiction and that what happens at such

a hearing is what determines whether it is a critical stage.

Id. at 54 (“Whatever may be the function and importance of

arraignment in other jurisdictions, we have said enough to

show that in Alabama it is a critical stage in a criminal pro-

ceeding.” (Footnote omitted.)); id. at 54 n 4 (noting the “differ-

ing consequences” of arraignments in different jurisdictions).

Applying that principle, the Washington Court of

Appeals recognized in In re Sanchez, 197 Wash App 686, 701-

02, 391 P3d 517 (2017), that a fact-specific inquiry was nec-

essary to decide whether the defendant’s arraignment was a

critical stage in the criminal proceedings against him:

“As illustrated by the * * * United States Supreme Court

cases, the characterization of [defendant’s] hearing as an

arraignment is not determinative of whether the hearing

was a critical stage so that defense counsel’s absence was

presumptively prejudicial. Rather, we must examine the

Cite as 338 Or App 362 (2025) 373

nature of [defendant’s] arraignment before we can deter-

mine whether it was a critical stage. Only if the nature of

his arraignment was such that he stood to lose important

rights that might affect the outcome of his case should it be

considered a critical stage.”

Similarly, in Miller, 254 Or at 255, the Oregon Supreme Court

relied on the individual defendant’s circumstances to conclude

that his arraignment was not a critical stage of the proceed-

ings, even though he entered a plea while unrepresented,

where that plea was later set aside and he then “still had

available, at a time when he was represented, all means for

attacking the information which had existed at the time of his

arraignment.”

We are therefore convinced that the “critical stage”

determination is case-specific and circumstance-specific.

Such an approach makes sense. To exaggerate to make the

point, it would make little sense to say that a defendant’s con-

stitutional right to counsel was violated by holding a hearing

at which literally nothing occurred, on the theory that, had

the hearing been conducted differently (say in accord with the

governing statutes), something critical would have occurred.

We decline to readopt the contrary view implicit in

our vacated opinion in Brooks, as defendant urges us to do.

In Brooks, the trial court held a hearing similar to the one

in this case, except that the defendant was represented by

counsel. 301 Or App at 421. The issue on appeal was whether

the defendant’s constitutional right to self-representation—

which is incorporated into the constitutional right to coun-

sel—was violated at the hearing. Id. We held that it was

not, because the defendant made an equivocal request for

self-representation at an early stage of the proceedings, and

the trial court permissibly deferred considering it for a short

time so that the defendant could consult with his appointed

counsel. Id. at 428-29.

As a preliminary step en route to that holding, we

explained that the right to counsel had attached by the time

of the hearing, and that the hearing was a “critical stage”

of the proceedings. Id. at 425. On the latter point, we rea-

soned somewhat summarily that “[t]he arraignment con-

templated by statute clearly is a critical stage of a criminal

374 State v. Pedersen

proceeding”; the hearing at issue had “all the hallmarks of

an arraignment” except for the taking of a plea; and, thus,

the hearing was a critical stage. Id. In the alternative, we

reasoned that it was a critical stage because the defendant

was called upon to state his name, which we said has “seri-

ous consequences” under ORS 135.060. Id. at 426.

The Supreme Court vacated our opinion in Brooks

based on the guilty verdicts having been nonunanimous,

368 Or at 168, so Brooks is no longer precedential. Vacatur

“is an extraordinary action justified by the reviewing court’s

determination that the lower court’s decision should not

remain ‘on the books,’ so to speak, as binding precedent,

for reasons that are generally unrelated to the merits.”

Association of Oregon Corrections Employees v. DOC, 266

Or App 496, 511, 337 P3d 998 (2014); see also State v. Mott,

370 Or 830, 845, 527 P3d 758 (2023) (a published Court of

Appeals decision remains precedential even if the appeal is

later dismissed, “unless vacated”). Its only value is there-

fore persuasive, not precedential.2 And, given our foregoing

analysis, we do not find Brooks persuasive that any hearing

deemed an “arraignment” is a “critical stage,” regardless of

what actually occurred at the hearing.

Accordingly, we proceed with the understanding that

what matters for constitutional right-to-counsel purposes is

what actually occurred at the hearing on April 22, 2022, not

what the hearing was called or what “should” happen at an

Oregon arraignment as a statutory matter. Defendant is not

claiming that his arraignment was untimely or procedurally

defective under ORS 135.010, so it does not matter for pur-

poses of this appeal whether the April 22 hearing was truly

an arraignment. What matters is whether it was a critical

stage of the proceedings, based on what actually occurred.

2

Defendant insists that Brooks remains binding authority. He points to var-

ious decisions in which we have cited to vacated opinions. Having reviewed those

decisions, none are inconsistent with a vacated opinion being persuasive author-

ity, rather than binding precedent. Although we do not always say so expressly—

and perhaps we should—when we cite a vacated opinion, we are necessarily

relying on it as persuasive authority, because that is all it has. See, e.g., State v.

Slagle, 297 Or App 392, 395-96, 441 P3d 644, rev den, 365 Or 557 (2019) (relying

on a vacated opinion and subsequent opinions that followed it); State v. Dizick,

285 Or App 1, 7, 395 P3d 945, rev den, 362 Or 281 (2017) (relying on a vacated

opinion). By citing an opinion after it has been vacated, we effectively readopt the

cited reasoning because we find it persuasive.

Cite as 338 Or App 362 (2025) 375

Three things happened at the April 22 hearing: (1)

the court asked defendant to spell his last name and state

his birthdate, which defendant did; (2) the court gave defen-

dant the name and phone number of the attorney who was

going to be appointed to represent him; and (3) the court

read the charges from the indictment.

It is readily apparent that neither the court giving

defendant the name and number of his soon-to-be-appointed

attorney, nor the court reading the charges, made the hear-

ing a critical stage of the proceedings. Neither event required

defendant to “take steps or make a choice” that was “likely

to have a substantial effect on the prosecution against him,”

Miller, 254 Or at 249, or posed “potential substantial prej-

udice” to defendant’s rights that counsel could have helped

avoid, Wade, 388 US at 227.

As for defendant spelling his last name and stating

his birthdate, the trial court never asked defendant whether

the name used in the indictment (“Danny Joe Pedersen”)

was his true name or informed him that, if it was not, he

needed to declare this true name to be eligible for forms of

release other than security release. Nonetheless, both par-

ties treat the request that defendant spell his last name and

state his birthdate as equivalent to the “true name” proce-

dure in ORS 135.060, so we do the same.

Defendant describes having to “represent that he

was truly named” as a “critical decision” with “a significant

impact on the prosecution.”3 He never explains how spelling

his last name was a “critical decision,” however, or how it had

any impact on the prosecution. Instead, he relies entirely on

our vacated opinion in Brooks. See Brooks, 301 Or App at

426 (describing defendant’s name as a “critical fact,” given

the release limitations in ORS 135.060 for a defendant who

does not declare his true name, and concluding that the

true-name acknowledgement was therefore “a critical stage

of the proceeding to which the scope of the right to counsel

applies”). We do not find Brooks persuasive on that point,

3

Specifically, defendant argues that “the arraignment qualified as a ‘critical

stage’ ” because “it was a hearing at which defendant had to enter a plea and

represent that he was truly named, which are critical decisions that have a sig-

nificant impact on the prosecution.” Defendant did not enter any plea at the April

22 hearing, so we discuss only the true-name argument.

376 State v. Pedersen

particularly because it is apparent from the brief explana-

tion of our reasoning that we were not approaching the issue

in a fact-specific and circumstance-specific way, as we have

now recognized and explained is required. See id.

We are unpersuaded that defendant spelling his

last name on April 22 was a critical stage of the proceed-

ings. Defendant had already posted bail and entered into a

security release agreement when he appeared at the April

22 hearing, so his eligibility for other forms of release was

not at issue.4 And ORS 135.060(2) expressly provides that a

true-name acknowledgement at arraignment “may not be

used against the defendant at trial on the underlying charge

or any other criminal charge or fugitive complaint,” subject

to two narrow exceptions not utilized here. One exception is

that the use of different names in different proceedings may

be considered as relevant to release status, ORS 135.060(2)

(a), but no such consideration occurred here. The other

exception is that a defendant may be prosecuted for perjury

for intentionally giving a false name under oath or affirma-

tion, ORS 135.060(2)(b), but defendant was not under oath

or affirmation at the April 22 hearing. Under the circum-

stances, defendant spelling his last name and stating his

birthdate did not make the April 22 hearing a critical stage

of the proceedings.

We therefore conclude that the hearing held on

April 22, 2022, was not a critical stage of the proceedings

against defendant, under the state or federal standard,

such that defendant had a constitutional right to counsel at

that hearing. Nothing that actually occurred at the hearing

made it a critical stage. As for things that did not occur, had

counsel been present, defendant likely would have entered

his pleas then, instead of having to wait until the next hear-

ing, and counsel theoretically could have filed a demur-

rer to the indictment. But, on this record, defendant was

not prejudiced by waiting to enter his pleas until counsel

was appointed, nor was he prejudiced by counsel not being

4

For present purposes, we assume arguendo that a decision that affects a per-

son’s release status is one that “is likely to have a substantial effect on the prosecu-

tion against him[,]” Miller, 254 Or at 249 (emphasis added), or that “might derogate

from the accused’s right to a fair trial[,]” Wade, 388 US at 226 (emphasis added).

The parties have not addressed that issue, and we express no opinion on it.

Cite as 338 Or App 362 (2025) 377

present at the hearing to file a demurrer, where no demur-

rer was ever filed and there is no reason to believe that the

trial court would have rejected a demurrer filed promptly by

counsel. See ORS 135.610 (“[A] demurrer shall be entered

either at the time of the arraignment or at such other time

as may be allowed to the defendant for that purpose.”).

Although it is certainly preferable that a criminal

defendant have counsel at any pretrial hearing, nothing

that did or did not happen at the hearing on April 22, 2022,

had a substantial effect on the prosecution or derogated

from defendant’s right to a fair trial. That hearing therefore

was not a “critical stage” of the proceedings for purposes of

the right to counsel under Article I, section 11, or the Sixth

Amendment. It follows that defendant’s constitutional right

to counsel was not violated.

Affirmed.