107 Or. App. 48 810 P.2d 872

Argued and submitted December 7, 1990,

reversed and remanded for new trial May 1, 1991

STATE OF OREGON, Respondent, v. DAVID BRYAN CARTER, Appellant.

(89D-105542; CA A64550)

810 P2d 872

Loren W. Collins, Salem, argued the cause and filed the brief for appellant.

Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

*49Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.

DEITS, J.

*50DEITS, J.

Defendant appeals his conviction for harassment, ORS 160.065, asserting that his waiver of the right to counsel was not the product of an intelligent and understanding choice. The record does not show a valid waiver. Therefore, we reverse and remand.

The facts are not in dispute. Defendant was charged with assault in the fourth degree, ORS 163.160, and harassment, ORS 166.065, for allegedly striking his nine year old son. He chose to represent himself at all stages of the proceedings below. He was found not guilty of assault and guilty of harassment and was placed on probation for six months.

At his arraignment, the court advised defendant of the charges against him and the possible penalties. He was also given a document that described the elements of the offense with which he was charged. However, the record does not show if he read it, and he was not asked if he understood it. The court also asked the district attorney what sentence would be recommended if defendant pleaded guilty. Defendant entered a plea of not guilty.1 At trial, the court asked *51defendant whether he wished to represent himself and told him that he had a right to do so.2 Finally, at sentencing, the court asked defendant, again, whether he wished to have an attorney. Defendant said that he did not.

Article I, section 11, of the Oregon Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right * * * to be heard by himself and counsel * * *.”

The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall enjoy the right* * * to have the Assistance of Counsel for his defence.”

A defendant may waive the right to counsel, but the record must show that the waiver was “intelligent and competent.” State v. Meyrick, 106 Or App 682, 809 P2d 710 (1991); State ex rel Juv. Dept. v. Afanasiev, 66 Or App 531, 674 P2d 1199 (1984); State v. Verna, 9 Or App 620, 626, 498 P2d 793 (1972).

In State v. Boswell, 92 Or App 652, 760 P2d 276, we reiterated the language in Verna:

“Because the election to defend pro se necessarily involves a waiver of the right to counsel, it is incumbent upon *52the court to determine, by recorded colloquy, that the election or waiver is intelligent and competent. At minimum, the court should determine whether defendant understands the nature of the charge, the elements of the offense and the punishments which may be exacted. Further informing him of some of the pitfalls of defending himself, the possible advantage that an attorney would provide, and the responsibility he incurs by undertaking his own defense will also serve to insure defendant’s decision is made intelligently.” 92 Or App at 657. (Emphasis in original.)

We have not required trial courts to conduct a “catechism” with a defendant. However, the record must show that the defendant was made aware of the dangers of self-representation, that he knew what he was doing and that his choice was made with eyes open. State v. Twitty, 85 Or App 98, 101, 735 P2d 1252, rev den 304 Or 56 (1987).

Defendant was advised of the charges against him and the possible punishments, and he was given information on the elements of the charges against him. There is nothing in the record, however, that indicates that he understood the charges and possible punishment or that he was informed in any way of the pitfalls of defending himself. Because the record does not show that defendant’s waiver of counsel was the product of an intelligent and understanding choice, we hold that the waiver was not valid. Because of our disposition of this case, it is unnecessary to address defendant’s other assignments of error.

Reversed and remanded for a new trial.

State v. Carter
107 Or. App. 48 810 P.2d 872

Case Details

Name
State v. Carter
Decision Date
May 1, 1991
Citations

107 Or. App. 48

810 P.2d 872

Jurisdiction
Oregon

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