Opinion
A182853 A182854 A182855
09-25-2024
STATE OF OREGON, Plaintiff-Respondent, v. CODY DANIEL DAILY, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section and Nora Coon, Deputy Public Defender, Oregon Public Defense Commission, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.
Submitted August 9, 2024.
Lane County Circuit Court 23CR51412, 22CR54196, 23CR24856 Charles M. Zennaché, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section and Nora Coon, Deputy Public Defender, Oregon Public Defense Commission, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Chief Judge and Egan, Judge.
Affirmed.
EGAN, J.
In this consolidated appeal, defendant appeals judgments of conviction in three cases. In Case No. 22CR54196, defendant pleaded guilty to aggravated theft in the first degree, ORS 164.057. In Case No. 23CR24856, defendant pleaded guilty to felon in possession of a firearm, ORS 166.270(1), and theft in the first degree, ORS 164.055. In Case No. 23CR51412, defendant pleaded guilty to criminal mischief in the second degree, ORS 164.354. The trial court sentenced defendant to a total of 60 months in prison.
Defendant's appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). The brief contains a Section B, in which defendant argues, among other things, that he was denied his right to counsel and forced to proceed pro se. The state filed an answering brief responding to defendant's arguments. Reviewing under ORAP 5.90(3) for "arguably meritorious issues," we affirm.
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel. See, e.g., State v. Yother, 310 Or.App. 563, 484 P.3d 1098 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v. Nooth, 254 Or.App. 402, 295 P.3d 115 (2012), rev den, 353 Or. 747 (2013) (same).
Over the course of almost a year, defendant was represented by three experienced criminal defense attorneys, and he had problems with each of them. After the trial court denied defendant's request for a fourth attorney, defendant waived his right to counsel but later attempted to withdraw that waiver. After reopening the hearing on defendant's request for representation, the trial court found that defendant had "implicitly waived his right to court appointed counsel," and "that, based on the timing of the four motions and the lack of coherent reason for his request, [defendant was primarily motivated by a desire to avoid going to trial. The Court finds that appointing a fourth counsel for[d] efendant a week prior to trial would necessitate yet another postponement and that is [defendant's primary goal." Defendant continued to request representation, but the trial court did not appoint new counsel, and defendant accepted a plea offer resolving three of the cases pending against him without the advice of counsel.
Defendant did not enter a conditional plea reserving his right to challenge the trial court's order finding that he had waived his right to counsel and its refusal to appoint a fourth attorney. As a result, we have no authority to reach the question of whether the trial court erred in finding that defendant waived his constitutional right to counsel and in requiring defendant to proceed pro se. See ORS 138.105(5) ("The appellate court has no authority to review the validity of the defendant's plea of guilty or no contest, or a conviction based on the defendant's plea of guilty or no contest[.]").
Although we have no authority to reach the issue, defendant may not be without recourse to raise the issue of whether there was a violation of his constitutional right to counsel. See ORS 138.530.
Affirmed.