refusing to infer a knowing waiver from a defendant's prior work as a paralegal, prior involvement in civil lawsuits, and prior representation by several lawyers in the absence of any indication that the defendant actually "understood the risks of self-representation"
How later courts described this case
- refusing to infer a knowing waiver from a defendant's prior work as a paralegal, prior involvement in civil lawsuits, and prior representation by several lawyers in the absence of any indication that the defendant actually "understood the risks of self-representation"
- distinguishing Brown by, among other reasons, the fact that the record in Massey did not disclose any colloquy between court and defendant, and defendant’s prior representation by counsel did not establish that anyone told him about risks of representing himself
- fact that the defendant had been represented by several lawyers in the case did not establish that anyone told him about the risks of representing himself and did not show, separately or in conjunction with the facts that the defendant had previously worked as a paralegal and had been involved in several civil lawsuits, that he understood the risks of self-representation
- evidence that defendant had worked as a paralegal, had been involved in several civil lawsuits before the commencement of his criminal case, and had been represented by several different lawyers in the criminal case was insufficient to establish that defendant understood the risks of proceeding pro se
Written by the judges who cited it.
The opinion
*199
LANDAU, P. J.
In this criminal case, defendant represented himself at trial and was convicted of second-degree theft. OES 164.045. On appeal, defendant argues that his conviction should be reversed because he did not knowingly and voluntarily waive his right to counsel. We agree and, therefore, reverse and remand.
The parties agree that Article I, section 11, of the Oregon Constitution, requires that a defendant’s waiver of right to counsel must be made knowingly and that “[a] colloquy on the record between the court and the defendant wherein the court, in some fashion, explains the risks of self-representation is the preferred means of assuring that the defendant understand^] the risks of self-representation.”
State v. Meyrick,
313 Or 125, 133 , 831 P2d 666 (1992). The court permitted defendant’s attorney to withdraw on the day of trial. There is nothing in the record showing that the required colloquy occurred either at trial or at any other stage of the proceedings. The state does not contend otherwise. Nor does the record show that the court discussed the charge and the possible sentences with defendant.
The state argues that this court may infer from the record that defendant understood the risks of self-representation.
See, e.g., State v. Brown,
141 Or App 156 , 917 P2d 527 ,
rev den
323 Or 691 (1996) (court was able to infer that, although colloquy on record was insufficient to explain risks of self-representation to the defendant, the record demonstrated that the defendant knowingly waived his right to counsel). In particular, the state relies on evidence in the record that (1) defendant previously had worked as a paralegal, (2) that defendant was involved in several civil lawsuits before the commencement of this case, and (3) that defendant already had been represented by several different lawyers in this case. After careful review of the record, we are unable to conclude that those facts, separately or in conjunction with one another, show that defendant understood the risks of self-representation. As to his previous work as a paralegal, there is nothing in the record that reveals the nature of the work that defendant did in that capacity, the extent to which
*200
it pertained to litigation generally, or the extent to which it pertained to criminal proceedings particularly. Concerning the previous litigation, the fact that defendant has appeared, either
pro se
or represented, in a prior proceeding does not establish that, in this criminal proceeding, he knew of the risks of self-representation. Finally, as to the fact that defendant already had been represented by several lawyers in this case, that prior representation does not establish that anyone told defendant about the risks of representing himself.
Reversed and remanded.