- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 09-01-2021
- Case #: A173052
- Judge(s)/Court Below: Per Curiam; Ortega, P.J.; Shorr, J.; & Powers, J.
- Full Text Opinion
Defendant appealed a conviction for failure to report as a sex offender and failure to register as a sex offender. Defendant assigned error to the trial court’s failure to properly ensure his waiver of counsel was knowing and intelligent, additionally, Defendant assigned error to the court’s decision to sentence him under guideline 6E. Defendant argued that the court failed to hold a proper colloquy when conducting sentencing such that the court failed to properly advise Defendant of the risk of proceeding without counsel. Second, Defendant argued that the sentence of 10 months imprisonment under guideline 6E was plain error because his charges carried a presumptive sentence under guideline 4. Oregon law demands that a waiver of counsel be done “knowingly and intelligently.” Typically, this standard is met when the court conducts a colloquy with the defendant explaining the risks of proceeding without representation. Additionally, under Ailes v. Portland Meadows, Inc., the court can exercise its discretion to correct plain errors that serve the “ends of justice.” The Court held that the colloquy between the trial court and Defendant fell below the standard needed for intelligent waiver of counsel because the trial court made statements regarding the effect of counsel at sentencing being helpful to some, but not to others. Exercising their discretion, the Court also held that the plain error of sentencing Defendant under the incorrect presumptive guideline was grave because, under the proper guideline, Defendant would have received probation rather than imprisonment. Reversed and remanded for reentering; otherwise affirmed.