# State v. Brown

> Court of Appeals of Oregon · May 22, 1996 · 141 Or. App. 156

URL: https://www.frixlaw.com/law-library/cases/9536023

## Case

- **Full name:** STATE OF OREGON, Respondent, v. RANDALL VICTOR BROWN, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** May 22, 1996
- **Citations:** 141 Or. App. 156; 917 P.2d 527; 1996 Ore. App. LEXIS 703
- **Precedential status:** Published
- **Opinion:** Dissent by Armstrong
- **Judges:** Armstrong, Edmonds
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9536023

## Opinion text

ARMSTRONG, J.,
dissenting.
Because I disagree with the majority’s conclusion that defendant’s waiver was an understanding and voluntary relinquishment of his right to counsel, I respectfully dissent.
*164 A valid waiver of counsel requires that a defendant know that she has the right to counsel, and that she intentionally relinquish it. That determination is based, in part, on the information that the defendant has about the consequences and pitfalls of proceeding without counsel. State v. Curran, 130 Or App 124, 126 , 880 P2d 956 (1994).
“In order to find that a waiver of the right to counsel is knowing, the trial court must assure itself that the defendant understands the risks of self-representation. The preferred means of doing this is a colloquy on the record between the court and the defendant ‘about the dangers and disadvantages of self-representation.’ ”
State v. Mendonca, 134 Or App 290,293 , 894 P2d 1247 (1995) (quoting State v. Meyrick, 313 Or 125, 133 , 831 P2d 666 (1992)). In this case, the record does not support a finding that defendant was informed specifically about the dangers and disadvantages of self-representation. At no time did the court inform defendant what the process of self-representation would entail.
The facts relied upon by the majority do not demonstrate that defendant was informed of the dangers and disadvantages of self-representation and, therefore, are insufficient to demonstrate that his waiver was knowing. The majority points out that the trial court informed defendant at arraignment that he had a right to counsel and a right to court-appointed counsel if he was indigent. 141 Or App at 162. Defendant stated that he would seek an attorney. At a subsequent hearing, the court again discussed with defendant whether he would be represented by counsel. Defendant stated that he still hoped to retain an attorney. The court did not discuss with defendant the dangers and pitfalls that he would face if he chose to proceed pro se. Defendant finally appeared for trial without an attorney, and the court, again, did not discuss the trial process or the dangers of appearing without counsel.
The majority points out that the trial court informed defendant about the potential sentence he could receive if found guilty. 141 Or App at 162. That information, by itself, was insufficient to inform defendant about what self-representation would entail. It did not tell him, for example, what *165 he would be called on to do should he proceed without counsel and the difficulties with proceeding in that manner.
The majority implies that defendant must have known those things based, in part, on the fact that he had talked to attorneys. The record does not indicate, however, what defendant and the attorneys talked about, except that it had led defendant to conclude that none of them would work “in his best interest.” Thus, there is no basis on which to conclude that the attorneys explained the pitfalls of self-representation to defendant.
As the court pointed out in Meyrick :
“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. The more relevant information that a trial court provides to a defendant about the right to counsel and about the dangers and disadvantages of self-representation, the more likely it will be that a defendant’s decision to waive counsel is an intentional relinquishment or abandonment of a known right or privilege and that the record will so demonstrate.” 313 Or at 133 .
In this case, nothing in the record suggests that defendant was so informed.
The majority also points out that defendant had eight months to find an attorney and that defendant never claimed that he could not afford one. 141 Or App at 162. Neither of those facts is relevant to whether defendant knowingly waived his right to counsel. Because the record does not suggest that defendant was informed about the dangers and disadvantages of self-representation, defendant’s waiver of counsel was not a “relinquishment or abandonment of a known right or privilege.” Meyrick, 313 Or at 133 . The decision of the trial court should be reversed. Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9536023. Public record. Not legal advice.