S053206, Opinion — State v. Langley

652
* Balmer, Kistler, Linder, and Landau, JJ., did not participate in the consid-
eration or decision of this case.
Argued and submitted April 27, 2011, judgment of circuit court reversed and case
remanded to circuit court for further proceedings March 29, 2012
STATE OF OREGON,
Plaintiff - Respondent,
v.
ROBERT PAUL LANGLEY, JR.,
Defendant - Appellant.
(CC 88C21624; SC S053206)
273 P3d 901
Defendant was convicted of aggravated murder, but his sentence of death was
twice vacated and remanded for further penalty-phase proceedings. On automatic
and direct review of the third judgment of a sentence of death, defendant argued
that the trial court erred by requiring him to proceed pro se to trial without first
securing a valid waiver of his right to counsel. Held: Defendant did not either
expressly or impliedly engage in a knowing and intentional waiver of his right to
counsel under Article I, section 11, of the Oregon Constitution. Consequently, the
trial court erred in requiring defendant to proceed to trial without the assistance of
legal counsel.
The judgment of the circuit court is reversed and the case is remanded to the
circuit court for further proceedings.
On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Marion County
Circuit Court.
Joseph V. Ochoa, Judge.
Frank E. Stoller, Dundee, argued the cause and filed the
briefs for defendant-appellant.
Carolyn Alexander, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for plaintiff-
respondent. With her on the brief were John R. Kroger,
Attorney General, and David B. Thompson, Interim Solicitor
General.
Before De Muniz, Chief Justice, Durham and Walters,
Justices, Haselton, Judge, and Gillette, Senior Judge.*
DURHAM, J.

Cite as 351 Or 652 (2012) 	653
The judgment of the circuit court is reversed and the case
is remanded to the circuit court for further proceedings.

654 	State v. Langley
1 See ORS 138.012(1) (providing that a ‘‘judgment of conviction and sentence of
death * * * is subject to automatic and direct review by the Supreme Court’’).
2 The facts underlying defendant’s convictions for the murder of Anne Gray are
set forth in State v. Langley, 314 Or 247, 839 P2d 692 (1992), adh’d to on recons, 318
Or 28, 861 P2d 1012 (1993) (Langley I).
Defendant also was convicted of aggravated murder and sentenced to death for
the April 1988 death of Larry Rockenbrant. On automatic and direct review of that
judgment of conviction and sentence of death, this court reversed defendant’s mur-
der convictions and remanded for a new trial. State v. Langley, 314 Or 511, 520, 840
P2d 691 (1992). On remand in that case, defendant was again convicted of aggra-
vated murder and he received a sentence of life imprisonment with a minimum
imprisonment of 30 years without the possibility of parole.
DURHAM, J.
This case is before this court for the third time on
automatic and direct review of a judgment that imposed a
sentence of death for aggravated murder.1 This court has pre-
viously affirmed defendant’s aggravated murder convictions,
but twice has vacated his sentence of death and remanded for
further penalty-phase proceedings, as we discuss in greater
detail 	below. 	On 	this 	third 	review, 	defendant 	raises
27 assignments of error related to the third and most recent
penalty-phase proceeding. As his second assignment of error,
defendant submits that the trial court erred by requiring him
to proceed pro se without first securing a valid waiver of his
right to counsel. Because we determine that that assignment
of error is well taken, we reverse the trial court judgment and
remand the case to the trial court for further penalty-phase
proceedings.
In December 1989, a jury found defendant guilty of
16 counts of aggravated murder relating to the death of Anne
Gray. A few months later, defendant was sentenced to
death.2 In 1992, this court affirmed 15 of defendant’s aggra-
vated murder convictions. State v. Langley, 314 Or 247, 839
P2d 692 (1992), adh’d to on recons, 318 Or 28, 861 P2d 1012
(1993) (Langley I). The court in Langley I, however, vacated
defendant’s death sentence on the ground that the trial court
had failed to give a proper jury instruction on the considera-
tion and use of mitigating evidence, as required by State v.
Wagner, 309 Or 5, 786 P2d 93, cert den, 498 US 879 (1990)
(Wagner II). Langley I, 314 Or at 269-72.

Cite as 351 Or 652 (2012) 	655
After a second penalty-phase proceeding, defendant
again received a death sentence for Gray’s murder. In 2000,
on automatic and direct review, this court vacated that death
sentence, concluding that the trial court had erred by refus-
ing to allow defendant to waive his ex post facto objection to
retroactive application of the true-life sentencing option, and
thus also erred by refusing to instruct the jury on that sen-
tencing option. State v. Langley, 331 Or 430, 440, 16 P3d 489
(2000) (Langley II). The court in Langley II remanded the
case to the trial court for a third penalty-phase proceeding.
That third penalty-phase proceeding is now before us on
automatic and direct review.
When the case returned to the trial court in early
2001 for a third penalty-phase proceeding, the trial court
appointed Karen Steele and Marc Friedman to represent
defendant. In November 2002, three months before the
scheduled January 2003 trial date, Friedman moved to with-
draw, and Judge Guimond granted that motion. Concerned
about her lack of cocounsel, Steele moved on defendant’s
behalf to set the trial date over until January 2004. Judge
Guimond granted that motion in part, setting the trial date
for October 2003. Judge Guimond noted that he did not
believe that competent counsel would require an additional
year to prepare. Shortly thereafter, Rose Jade was appointed
as cocounsel for defendant.
In August 2003, defendant, through Steele and Jade,
moved for another continuance. Steele submitted a support-
ing affidavit in which she averred that the defense could not
provide adequate assistance of counsel if the trial date was
not continued. On September 4, 2003, over defendant’s objec-
tion, Judge Guimond issued an order removing Jade and
Steele as defendant’s counsel, explaining that he had no rea-
son to believe that defendant or defense counsel would be
ready for trial and that, accordingly, the interests of justice
required the removal of Steele and Jade.
Judge 	Guimond 	thereafter 	appointed 	Kenneth
Hadley to represent defendant and continued the trial date.
Defendant voiced dissatisfaction with the court’s removal of
Steele and Jade, and refused to cooperate with Hadley. In
response, Judge Guimond held a hearing in November 2003.

656 	State v. Langley
At that hearing, Judge Guimond encouraged defendant to
cooperate with Hadley, and told defendant that under no cir-
cumstances would he reappoint Jade or Steele as defendant’s
counsel. Judge Guimond explained to defendant that he
wanted defendant to have competent counsel, but cautioned
that ‘‘somewhere in these proceedings, [defendant], I will
appoint counsel who will move forward on this case regard-
less of your cooperation or lack of cooperation.’’
Subsequently, defendant indicated further that he
would not cooperate with Hadley and, as a result, Hadley
filed a motion to withdraw. Believing that defendant’s refusal
to cooperate stemmed from frustration towards the court for
the court’s previous removal of Jade and Steele, Judge
Guimond denied Hadley’s motion and recused himself from
the case in December 2003. In his letter to the parties
explaining his decision, Judge Guimond stated that he
believed that a different trial court judge would be able to
bring the case ‘‘to a fair and reasoned conclusion within a
reasonable time frame’’ with greater ease.
After 	Judge 	Guimond 	recused 	himself, 	Judge
Leggert was assigned to the case. Defendant, however, still
did not cooperate with Hadley. Hadley filed a renewed
motion to withdraw. At a March 17, 2004, hearing, Judge
Leggert considered Hadley’s renewed motion to withdraw
and initially denied it. Judge Leggert warned defendant that
he should cooperate with Hadley because his refusal to
cooperate could affect the quality of Hadley’s representation
but would not be a ground for Hadley’s removal. Judge
Leggert did not find that defendant was engaging in miscon-
duct in declining to cooperate with Hadley. Subsequently,
however, Judge Leggert granted Hadley’s motion to with-
draw, and appointed Ralph Smith as defendant’s counsel.
Judge Leggert later recused herself from the case.
In June 2004, the case was assigned to Judge Ochoa.
Judge Ochoa appointed Duane McCabe as cocounsel in
August 2004, and set a trial date of October 17, 2005. An
order setting the trial date stated that ‘‘[a] change of counsel
by defendant shall not be cause to continue or change this
trial date.’’ In April 2005, Judge Ochoa appointed Kathleen
Bergland as third-chair counsel.

Cite as 351 Or 652 (2012) 	657
3 Previously, defendant had attempted personally to submit pro se filings to the
court, including a motion for substitution of counsel. Acting pursuant to an earlier
order, the trial court declined to accept those pro se filings.
4 The court appointed Rockwell to represent defendant for the limited purpose
of ruling on Smith’s and McCabe’s motions to withdraw.
Bergland did not move to withdraw. At the time of the hearing, she had met
defendant only once (in her role as third-chair counsel).
On June 27, 2005, less than four months before the
October 2005 trial date, Smith and McCabe filed joint and
individual motions to withdraw; they filed affidavits support-
ing those motions ex parte and under seal.3 On July 13, 2005,
Judge Ochoa held a hearing on those motions. At the hearing,
Smith and McCabe were represented by counsel and defen-
dant 	was 	represented 	by 	independent 	counsel 	Craig
Rockwell.4 The trial court first allowed defendant and
Rockwell to review Smith’s and McCabe’s motions and sup-
porting affidavits.
During the discussion on the motions, the trial court
characterized the motions and supporting materials as aver-
ring the existence of ‘‘irreconcilable differences * * * not of
[defendant’s] making.’’ When the trial court sought addi-
tional details, Smith, through counsel, responded that he
could not answer that question without disclosing attorney
work product or confidential communications protected by
the attorney-client privilege. At that point, the state’s law-
yers offered to leave the courtroom if that was necessary for
the court to question Smith and McCabe and to make neces-
sary findings in support of any ruling on Smith’s and
McCabe’s motions. The court did not act on that offer.
The trial court then asked defendant personally to
state his reasons for supporting Smith’s and McCabe’s
motions 	to 	withdraw. 	Defendant, 	through 	Rockwell,
responded that defendant believed that the motions should
be granted, but also indicated that defendant did not want to
proceed pro se. Through counsel, defendant stated that, gen-
erally speaking, he believed ‘‘that the attorney-client rela-
tionship has broken down to such a degree that he is not able
to proceed to trial with these counsel.’’ When the trial court
requested more detail, defendant, through counsel, declined
to further explain the answer in open court, but indicated
that he wanted to give the explanation in an ex parte

658 	State v. Langley
5 We have reviewed the affidavits, and they support the trial court’s factual
finding on this point.
response filed under seal. The trial court denied that request.
Counsel for defendant also asked the court to consider allow-
ing defendant to explain his problems regarding his trial
counsel out of the presence of the state’s lawyers and the pub-
lic. The court responded by confirming that defendant was
declining to give his explanation in open court, and stated,
‘‘Well, you don’t leave me much information to go on,
Mr. Langley.’’
The court then granted McCabe’s motion to with-
draw but denied Smith’s motion to withdraw. The court
explained its reasoning:
‘‘[T]he Court looks at a number of issues in this case.
The Court looks at the affidavits under seal from Marc
Friedman and Mr. Smith and Mr. McCabe. The Court looks
at the affidavit that is not under seal from Mr. Hadley,
where [Mr. Hadley stated that] Mr. Langley refused to
cooperate with him and discuss with him.
‘‘The 	Court 	finds 	a 	pattern 	of 	manipulation 	on
Mr. Langley’s part to seek continuances. And indirectly
when denied continuances from the Court, his pattern of
manipulation the Court thinks is a finding of fact, is that he
will seek to be uncooperative with his attorney and delay
the process by trying to force the Court into a corner to
appoint a new attorney.’’
The court explained that it was granting McCabe’s motion to
withdraw and denying Smith’s motion to withdraw because
‘‘the affidavits are distinct from one another’’ and “there’s a
different quality in terms of the conflict that’s been created.’’5
In a subsequent order memorializing that decision, the court
explained that, at the time that it denied Smith’s motion to
withdraw, the court believed that defendant and Smith could
‘‘rehabilitate the attorney-client relationship if defendant
were to cooperate.’’
Immediately after granting McCabe’s motion to
withdraw and denying Smith’s motion, the trial court stated
that ‘‘[defendant] has a choice. If he does not want Mr. Smith
and Ms. Bergland to continue in his representation, he will

Cite as 351 Or 652 (2012) 	659
6 In conformance with its ruling, the trial court did not read the affidavit.
represent himself in this matter.’’ The court also indicated
that it would entertain a request to have defendant proceed
pro se with the assistance of Smith as advisory counsel, but
that in no circumstance would the court appoint different
substitute counsel or continue the October 17, 2005, trial
date. The court then stated that it would take a recess to ena-
ble defendant to discuss those options with Rockwell.
Before the recess, counsel for Smith and McCabe
expressed concerns about the effect of the trial court’s deci-
sion on defendant’s ability to receive adequate counsel:
‘‘[T]he defense team has allocated specific responsibilities
to specific members of that team. The Court’s order guts
that and renders it unreasonable to expect the remaining
members of that team to be able to render effective assis-
tance of counsel. And I think that—I would urge the Court
to reconsider the idea of removing more than a third, if less
than a half, of the defense team at this juncture.
“* * * 	[T]he 	allocation 	of 	responsibilities 	between
Mr. McCabe and Mr. Smith have been clear and in effect for
many, many months now. And to remove Mr. McCabe sim-
ply does not allow the defense to properly prepare within
the limited time that remains.’’
The trial court replied that it understood that concern, but
observed that, to the extent that the defense team ‘‘may now
be placed at a disadvantage,’’ that circumstance was the
result of defendant’s own conduct.
The court then took the recess. Upon returning from
the recess, the trial court indicated that it had reconsidered
its earlier ruling denying defendant’s request to submit an
ex parte sealed affidavit in response to the motions to with-
draw. The court explained that defendant ‘‘may submit an
affidavit under seal with the understanding that I’m not
going to review it,’’ and defendant subsequently did so.6
Next, the court inquired how defendant wished to
proceed regarding counsel. Through Rockwell, defendant
stated that, on Rockwell’s advice, it was his ‘‘decision not to
accept any of those choices and to have the Court go ahead
and direct how he is to proceed.’’ The court characterized

660 	State v. Langley
defendant’s response as ‘‘further evidence that [defendant]
seeks to manipulate the system’’ by ‘‘refus[ing] to cooperate
with his attorneys’’ and ‘‘refus[ing] to participate.’’ The court
then ruled that defendant would proceed pro se.
Defendant, through Rockwell, objected:
‘‘It’s [defendant’s] opinion that the Court’s ruling is in
error.
“* * * * *
“* * * [T]he Court’s ruling was in error and that [defen-
dant] should not be in the position of having to make this
choice, none of [the court’s offered options] are attractive to
him when he is entitled to constitutionally adequate
counsel.’’
The trial court noted defendant’s objection for purposes of
appeal, but adhered to its original decision to treat defen-
dant’s refusal to choose among the offered options as a deci-
sion to proceed pro se. After advising defendant of the risks of
proceeding pro se, the court discharged Smith, and assigned
Bergland to act as defendant’s advisory counsel.
The trial court memorialized its oral rulings in a
subsequent written order captioned as an ‘‘order allowing
joint and individual motion to withdraw and terminate rep-
resentation.’’ The order first explained the analytical frame-
work that it had applied reaching that decision:
‘‘[T]he court must balance defendant’s right to adequate
counsel with the orderly proceedings of court (court docket,
delays, etc.). The court must also 1) consider the timeliness
of the motion as well as the timeliness of the court’s hear-
ing, 2) ensure the adequacy of the court’s inquiry, 3) con-
sider whether the conflict is so great that it resulted in a
total 	lack of communication preventing an adequate
defense, and 4) consider the nature and the source of the
conflict. The court is cognizant that this is a capital case
and must do everything to ensure that defendant is
afforded all due process both mandated and possible within
reason under the circumstances of the case.’’
As to the issue regarding the adequacy of the court’s inquiry,
the trial court indicated that it had denied defendant’s
request to explain why he wanted new counsel under seal

Cite as 351 Or 652 (2012) 	661
because defendant, unlike Smith and McCabe, was not a law-
yer subject to the disciplinary rules of the Oregon State Bar.
As to the issue regarding the nature and source of the con-
flict, the trial court considered the affidavits supporting
the motions to withdraw of Smith, McCabe, Hadley, and
Friedman:
‘‘All [four] affidavits reveal a pattern [of] non-cooperation
and hostility on the part of the defendant. If this behavior
was only reflected in the affidavits of * * * Smith and
McCabe, then there would be some merit in the argument
that the conflict was not of the defendant’s making. That is
not the case however. It is also reflected in Mr. Friedman’s
affidavit in 2002, and Mr. Hadley’s affidavit in 2004.’’
Based on the affidavits, the court determined that a genuine
conflict of interest existed, and that it was caused by defen-
dant’s ‘‘ongoing actions to manipulate court proceedings and
delay trial in this case.’’
The court made the following factual findings about
defendant’s case:
‘‘1. 	This case was remanded by the Oregon Supreme
Court in December of 2000 for resentencing;
‘‘2. 	The defendant has had five trial dates, [and] seven
defense attorneys * * * since the case was remanded in
December of 2000;
‘‘3. 	The defendant has demonstrated an undeniable
pattern of manipulation. The defendant has cooperated
with defense attorneys only as long as they were willing
and able to obtain continuances of trial dates. When unable
to obtain a continuance on his behalf, the defendant refused
to cooperate, and has created a conflict of interest;
‘‘4. 	The conflicts between the defendant and his
attorneys were created by the defendant in an effort to
manipulate the criminal justice system and delay his
resentencing[.]’’
After the beginning of voir dire but before the begin-
ning of trial, the court relieved Bergland from her role as
advisory counsel at defendant’s request. Defendant pro-
ceeded pro se at trial. He declined to participate in voir dire,
present his own case, cross-examine the state’s witnesses, or

662 	State v. Langley
make opening and closing arguments. After considering the
evidence presented by the state, the jury answered each of
the four questions on the verdict form ‘‘yes,’’ and the trial
court entered a judgment sentencing defendant to death.
On automatic and direct review in this court, defen-
dant’s second assignment of error argues that the trial court
erred by requiring him to proceed without representation by
counsel, i.e., by removing his court-appointed counsel and
failing to provide substitute counsel. We understand the
assignment of error to encompass two related but distinct
arguments. First, defendant argues that, in light of the facts
that he concurred in the motions of Smith and McCabe to
withdraw as his counsel and that the trial court failed to con-
sider the ex parte evidence of his dissatisfaction with Smith,
the court’s purported ‘‘offer’’ of a ‘‘choice’’ to affirmatively
accept representation by Smith and Bergland or to represent
himself pro se was illusory. Second, defendant argues that, by
requiring him to proceed pro se in the absence of a knowing
and intentional waiver of his right to counsel, the trial court
violated his state and federal constitutional rights to counsel.
The state responds that the trial court acted within
its discretion by declining to appoint new counsel or to con-
sider defendant’s reasons for dissatisfaction with counsel if
defendant was willing to state his concerns only in an ex parte
response submitted under seal. The state also submits that,
even if the trial court had reviewed defendant’s response,
defendant’s claim that he had legitimate complaints with
Smith 	and 	McCabe’s 	representation 	would 	have 	failed
because his response reveals only a disagreement about trial
strategy. Additionally, the state argues that, because defen-
dant’s refusal to make a choice, as proposed by the trial court,
was based on defendant’s desire to manipulate the system
and create error, his ‘‘choice to proceed pro se was his own, as
a practical matter, and nothing in this record suggests that it
was not voluntary.’’ The state further argues that, because
defendant’s delay tactics placed the trial court in the position
where no practical alternative to self-representation existed,
it is immaterial that defendant ‘‘did not explicitly ask to rep-
resent himself.’’

Cite as 351 Or 652 (2012) 	663
7 Article I, section 11, of the Oregon Constitution provides that ‘‘[i]n all crimi-
nal prosecutions, the accused shall have the right to * * * be heard by himself and
counsel[.]’’
8 The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the
Assistance of Counsel for his defence.’’
We begin with a description of the applicable legal
principles governing a criminal defendant’s right to counsel.
A defendant in a criminal case has a constitutional right to
adequate assistance of counsel under both Article I, section
11, of the Oregon Constitution7 and the Sixth Amendment to
the United States Constitution.8 That right encompasses the
right to ‘‘an adequate performance by counsel of those func-
tions of professional assistance which an accused person
relies upon counsel to perform on his behalf.’’ Krummacher v.
Gierloff, 290 Or 867, 872, 627 P2d 458 (1981); see also
Strickland v. Washington, 466 US 668, 686, 104 S Ct 2052,
80 L Ed 2d 674 (1984) (similar standard under the Sixth
Amendment).
Oregon’s legislature has created the Public Defense
Services Commission (PDSC), ORS 151.213, and requires it
to:
‘‘(a) Establish and maintain a public defense system
that ensures the provision of public defense services in the
most cost-efficient manner consistent with the Oregon
Constitution, the United States Constitution and Oregon
and national standards of justice.’’
ORS 151.216(1)(a). According to the PDSC policy entitled
‘‘Legal Representation Plan for Death Penalty Cases’’ (Plan),
adopted June 14, 2007, the Office of Public Defense Services,
which is established by the PDSC, ORS 151.211(5), ‘‘shall
authorize appointment of co-counsel whenever it is reason-
able and necessary considering both the circumstances of the
case and lead counsel’s circumstances and needs.’’
Plan, ¶ 2. The Plan also provides:
‘‘Unless the particular circumstances of the case or the
defendant make such a team or a particular member of the
team unnecessary for high quality representation, the
Office of Public Defense Services shall require lead counsel
at the trial level in each death penalty case to assemble a

664 	State v. Langley
defense team including co-counsel, as needed and author-
ized under paragraph 2 above, an investigator and a miti-
gation specialist.’’
Plan, ¶ 4(a). Finally, the Plan adopts several standards
that pertain to counsel in death penalty cases from the
American Bar Association Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases
(rev ed Feb 2003), including Guideline 10.4 ‘‘The Defense
Team,’’ paragraph A, which provides: ‘‘When it is responsible
for designating counsel to defend a capital case, the Respon-
sible Agency [here, the PDSC] should designate a lead coun-
sel and one or more associate counsel.’’ Plan, ¶ 4(f) (incorpo-
rating 	Guideline 	10.4, 	paragraph 	A). 	Those 	provisions
confirm that, in a death penalty case involving an indigent
defendant in Oregon, the defense team responsible for fur-
nishing professional assistance to the accused ordinarily
includes a lead counsel and a cocounsel. In this case, Smith
and McCabe served in those roles until the July 13, 2005,
hearing described above. The trial court, in describing its pro-
posed ‘‘choice’’ to defendant, indicated that Smith and
Bergland would serve in those roles unless defendant did not
accept representation by them, in which case he would rep-
resent himself pro se.
Although an indigent criminal defendant has a right
to the assistance of appointed counsel, that right is not to
appointed counsel of the defendant’s own choosing. United
States v. Gonzalez-Lopez, 548 US 140, 151, 126 S Ct 2557,
165 L Ed 2d 409 (2006) (‘‘[T]he right to counsel of choice does
not extend to defendants who require counsel to be appointed
for them.’’); see also State v. Davidson, 252 Or 617, 620, 451
P2d 481 (1969) (A criminal defendant has ‘‘no right to have
another court-appointed lawyer in the absence of a legitimate
complaint concerning the one already appointed for him.’’).
Accordingly, a trial court, in its discretion, may replace a
defendant’s 	appointed 	counsel 	with 	substitute 	counsel.
Langley I, 314 Or at 258; see also Wayne R. LaFave, 3
Criminal Procedure § 11.4(b), 703 (3d ed 2007) (‘‘Because the
indigent defendant has no right to appointed counsel of
choice, he also has no right to replace one appointed counsel

Cite as 351 Or 652 (2012) 	665
9 ORS 135.050(6) provides a statutory limitation on the trial court’s discretion
to appoint substitute counsel:
‘‘Unless otherwise ordered by the court, the appointment of counsel under
this section shall continue during all criminal proceedings resulting from the
defendant’s arrest through acquittal or the imposition of punishment. The
court having jurisdiction of the case may not substitute one appointed counsel
for another except pursuant to the policies, procedures, standards and guide-
lines of the Public Defense Services Commission under ORS 151.216.’’
The PDSC guidelines provide that a court may substitute one appointed counsel for
another either when, after reviewing appointed counsel’s motion to withdraw, the
court determines counsel ‘‘cannot ethically continue to represent the client,’’ or ‘‘in
other circumstances, when the interests of justice so require.’’ Public
Defense Services Commission, Office of Public Defense Services, Public Defense
Payment Policies and Procedure § 1.7.1 (8th rev) (effective Oct 22, 2010). In either
case, the court must consult with the Office of Public Defense Services. Id.
10 The federal constitution requires a similar standard for a waiver of the right
to counsel:
“The Sixth Amendment right to counsel may be waived. Faretta v. California,
422 US 806, 95 S Ct 2525, 45 L Ed 2d 562 (1975) * * * . Courts indulge in every
reasonable presumption against waiver of the right to counsel. Johnson v.
Zerbst, 304 US 458, 465, 58 S Ct 1019, 82 L Ed 1461 (1938). Accordingly, a valid
waiver will not be presumed from a silent record. Burgett v. Texas, 389 US 109,
114-15, 88 S Ct 258, 19 L Ed 2d 319 (1967).’’
Meyrick, 313 Or at 136-37.
with another even if that can be done without causing any
delay in the proceedings’’).9
A defendant also may elect to waive his or her right
to counsel and proceed pro se. However, under Article I, sec-
tion 11, that waiver must be knowing and intentional. As the
court in State v. Meyrick, 313 Or 125, 133, 831 P2d 666
(1992), explained,
‘‘a trial court may accept a defendant’s proffered waiver of
counsel only if it finds that the defendant knows of his or
her right to counsel and, if indigent, of his or her right to
court-appointed counsel, and that the defendant intention-
ally relinquishes or abandons that right.’’
The requirement that a waiver be ‘‘intentional’’ ‘‘refers to a
defendant’s ‘intent’ to waive the right.’’ Id. at 132 n 8.
Because courts are reluctant to find that a defendant has
waived fundamental constitutional rights, we will not pre-
sume a waiver of the right to counsel from a silent record. Id.
at 131-32.10

666 	State v. Langley
The touchstone of the inquiry into a motion to with-
draw as counsel is: ‘‘[W]hether there has been a breakdown in
the attorney-client relationship sufficient to establish an
abridgement of the constitutional right to counsel.’’ State v.
Davis, 345 Or 551, 580, 201 P3d 185 (2008). When faced with
a defense counsel’s motion to withdraw, the trial court must
consider the circumstances involved and determine whether
defense counsel is able to provide adequate representation
for the defendant. Id. at 581-82. Although a trial court may
inquire into a defendant’s position on defense counsel’s
motion, the defendant has no burden to provide information
in support of or in opposition to such a motion. Nor can a
motion to withdraw by defense counsel, standing alone, be
treated as an implied waiver of a defendant’s right to counsel.
See Meyrick, 313 Or at 132-33 (explaining that waiver of
counsel must be a voluntary and intentional act undertaken
by a defendant). Because the right to counsel is one held per-
sonally by the defendant, any waiver of that right must orig-
inate with the defendant.
We review a trial court’s decision to grant or deny a
motion for withdrawal of counsel for an abuse of discretion.
Davis, 345 Or at 578-79 (denial of motion to withdraw). If a
trial court grants a motion to withdraw and does not appoint
substitute counsel, thus requiring the criminal defendant to
proceed pro se, we review for error of law whether the defen-
dant has knowingly and intentionally waived his or her right
to counsel. See Meyrick, 313 Or at 133 (setting out legal stan-
dard for waiver analysis).
With those legal standards in mind, we return to the
facts of this case. As noted, the trial court held a hearing on
Smith’s and McCabe’s joint and individual motions to with-
draw, which were supported by affidavits from both attor-
neys. Those were the only motions regarding defendant’s rep-
resentation pending before the court; prior to the hearing, the
court declined to allow defendant, acting pro se, to file a
motion to substitute new counsel for Smith and McCabe.
After allowing defendant an opportunity to examine the con-
tents of Smith’s and McCabe’s affidavits, the court inquired
into defendant’s position on the motions. Defendant, through
his 	counsel, 	responded that he 	supported the 	motions

Cite as 351 Or 652 (2012) 	667
because he felt that the attorney-client relationship had bro-
ken down. Defendant declined to elaborate further in open
court. Defendant sought to submit an affidavit under seal to
the court explaining his position on the motions to withdraw,
but the court declined to consider it. The court then consid-
ered Smith’s and McCabe’s affidavits and noted that both
affidavits averred the existence of evidence of ‘‘irreconcilable
differences * * * not of [defendant’s] making.’’ The court
further determined that, as to McCabe, the strain on the
attorney-client relationship was genuine and that, as a result
of that strain, McCabe could not provide adequate assistance
of counsel. As to Smith, the court determined that Smith’s
relationship with defendant could be rehabilitated ‘‘if defen-
dant were to cooperate.’’ Stated differently, the court con-
cluded that there was evidence of some degree of breakdown
in the attorney-client relationship involving Smith, but that
that evidence was insufficient to demonstrate that Smith
was not capable of providing adequate representation consis-
tent with defendant’s constitutional right to counsel.
Based on those determinations, the trial court
granted McCabe’s motion to withdraw but denied Smith’s
motion. 	Thus, 	Smith 	continued 	to 	act 	as 	defendant’s
appointed lead counsel, and the court identified Bergland as
Smith’s 	cocounsel 	on 	the 	defense 	team. 	Those 	rulings
resolved all pending motions pertaining to defendant’s pro-
spective legal representation. The court also declined to post-
pone the trial date of October 17, 2005. At that point, the only
remaining matter for the trial court to address was a sched-
ule for pretrial motions.
The trial court, however, raised another issue.
Immediately after ruling on the motions before it, the court
unilaterally confronted defendant with the choice of either
(a) affirmatively accepting Smith and Bergland as his coun-
sel, or (b) proceeding pro se either with or without the assis-
tance of advisory counsel. Defendant, as noted, responded
through counsel that he did not want to ‘‘accept any of those
choices’’ and instead desired to have ‘‘the Court go ahead and
direct how he is to proceed.’’ Defendant also stated repeatedly
that he did not wish to represent himself. Citing defendant’s
refusal to make a choice from those alternatives as evidence

668 	State v. Langley
of defendant’s misconduct, the trial court treated defendant’s
response as a request to proceed pro se.
The trial court erred in ruling that, by declining to
make the described choice, defendant had requested to rep-
resent himself pro se. Defendant’s refusal to make the choice
proposed by the court did not constitute an express relin-
quishment of defendant’s right to counsel. None of defen-
dant’s statements to the court expressed such a waiver. This
court will not infer a waiver of a defendant’s constitutional
right to counsel from a silent record. Meyrick, 313 Or at 132.
The state appears to concede that point, acknowl-
edging that the record does not demonstrate an express
waiver of the right to counsel. The state contends, however,
that the trial court properly could infer a waiver of counsel by
defendant from the totality of his conduct, including his
refusal to elect from among the choices that the court offered
and his refusal to cooperate with multiple court-appointed
lawyers in his defense. According to the state, defendant’s
pattern of misconduct and noncooperation justified the
court’s determination that a waiver of counsel had occurred
and that the court thus was authorized to require defendant
to represent himself pro se. For the reasons that follow, we
disagree.
At the outset, it is important to correctly character-
ize the nature and extent of a defendant’s obligation to coop-
erate in the attorney-client relationship with appointed coun-
sel. A defendant, as a represented client, may choose whether
to cooperate with his or her appointed legal counsel and is
under no legal duty to make an abstract promise to cooperate
with counsel in the future. It is a truism that, in virtually
every conceivable circumstance, cooperation by the defen-
dant with appointed lawyers will lead to more effective legal
representation. But if a defendant decides that that is not the
case, he or she may choose not to cooperate with counsel, sub-
ject to the possibility that that choice is the wrong one and
that it carries with it potential consequences, including
denial by the court of a request for substitute counsel or for
postponement of 	court proceedings and, ultimately, an
adverse judgment.

Cite as 351 Or 652 (2012) 	669
A defendant’s noncooperation with counsel may
become relevant if counsel seeks to withdraw, asserting a
breakdown in the attorney-client relationship based on the
defendant’s noncooperation. We recognize that a defendant’s
refusal to cooperate with legal counsel almost always makes
the task of representation more difficult. But a defendant’s
choice to decline to cooperate with counsel is but one of many
circumstances that can magnify the difficulty of representing
persons accused of crime. A criminal defendant does not vio-
late a legal duty by declining to cooperate with counsel; a
defendant who chooses not to cooperate with appointed coun-
sel simply must live with the consequences of that conduct.
Thus, a court considering a motion of counsel to withdraw
must distinguish between problems in the attorney-client
relationship engendered by the defendant’s permissible (but
usually foolish) decision to decline to cooperate and other
problems, such as a bona fide conflict of interest, that prevent
counsel from participating effectively in the attorney-client
relationship.
Some state and federal courts have held that a
defendant may impliedly waive his or her Sixth Amendment
right to counsel by engaging in repeated misconduct in the
attorney-client 	relationship. 	See 	LaFave, 	3 	Criminal
Procedure § 11.4(b) at 705-06 nn 29-31 (collecting cases).
This court has never had the occasion to consider whether, or
to what extent, that same principle adheres under Article I,
section 11, of the Oregon Constitution. We address that ques-
tion here because it is clear that the trial judge justified
requiring defendant to make the choice, described above, and
later requiring defendant to proceed pro se, by pointing to
defendant’s past behavior with respect to his lawyers and
describing that behavior as misconduct or noncooperation.
A criminal defendant, as noted, may waive the right
to counsel protected by Article I, section 11, of the Oregon
Constitution, if the defendant waives that right knowingly
and intentionally. It is not essential that such a waiver be
expressed in words. A defendant’s conduct may serve as a
valid waiver so long as the conduct adequately conveys the
defendant’s knowing and intentional choice to proceed in
court without counsel. However, to establish a waiver of
counsel by conduct, something different is required than a

670 	State v. Langley
mere showing that the defendant has engaged in past or
present misconduct.
By way of example, Professor LaFave indicates that
a defendant must receive an advance warning that a repeti-
tion of behavior that amounts to misconduct will result in the
defendant having to proceed pro se. LaFave observes that ‘‘a
true ‘waiver by conduct’ * * * would require that [the] defen-
dant have received advance warning that continuation of his
[or her] abusive behavior would result in * * * being forced to
proceed pro se.’’ Id. at n 30. We agree with that observation.
An advance warning of that kind is necessary to alert the
defendant to the fact that a repetition of demonstrated mis-
conduct may result in a waiver of the right to counsel, rather
than some other consequence.
In deciding whether a defendant’s misconduct con-
stitutes a waiver of counsel by conduct, a court must bear in
mind the distinction between a defendant’s noncooperation
with appointed counsel and the kind of misconduct that may
establish a waiver of counsel by conduct. As noted, the trial
court in this case repeatedly inquired whether defendant
would agree to cooperate with his appointed counsel and,
when defendant declined to make that agreement on the
advice of counsel, the court concluded that defendant was
engaging in misconduct and manipulation. It is perhaps con-
ceivable that a defendant’s recalcitrant behavior toward
counsel can move beyond noncooperation and become mis-
conduct that defeats the ability of counsel to carry out the
representation function. As we discuss below, however, the
record here does not support the conclusion that defendant
waived his right to counsel by engaging in some form of
misconduct.
The trial court noted that, in the past, it had
replaced defendant’s appointed trial counsel on some occa-
sions for valid reasons. The court also observed that, on other
occasions, 	defendant 	had 	raised 	objections 	about 	his
appointed counsel without good cause to inflate interpersonal
problems, fabricate conflicts with counsel, and otherwise
manipulate the court into postponing legal proceedings sim-
ply to create needless delays. The trial court stated that it
had scolded defendant for that conduct or had indicated that

Cite as 351 Or 652 (2012) 	671
11 The task of naming the appointed counsel for the defense team was the
court’s responsibility, not defendant’s.
12 As noted, defendant prior to the July 13, 2005, hearing had attempted pro se
to file a motion for substitute counsel, but the court had declined to accept that
pro se motion for filing. Consequently, there was no motion by defendant for sub-
stitute counsel pending before the court at the time of that hearing.
the court may be compelled at some point to require defen-
dant to proceed with his appointed counsel notwithstanding
his objections about their representation. The court, how-
ever, did not refer to or otherwise base its decision on any
prior warning to defendant that repetition of defendant’s
manipulative behavior to unreasonably delay court proceed-
ings would (or even could) result in the court requiring him to
proceed pro se. Neither party refers to such a warning in the
record. Our review of the record indicates that the required
prior warning that we have described is lacking in this case.
The record also falls short of demonstrating that,
during the hearing, defendant engaged in misconduct by
complaining about his lawyers’ representation and declining
to make the choice that the trial court identified. The trial
court, as noted, had resolved the pending motions of Smith
and McCabe for withdrawal of counsel when it granted
McCabe’s motion and denied Smith’s motion. The court indi-
cated that Smith and Bergland would serve prospectively as
defendant’s appointed counsel.11 The court was well aware
that defendant had asserted earlier that his relationship
with Smith had broken down and that defendant supported
Smith’s motion to withdraw as counsel.12 The court, as noted,
declined to consider defendant’s evidence regarding those
assertions.
The trial court’s subsequent presentation of the
choice regarding representation, described above, to defen-
dant implicitly required defendant to waive or abandon his
objections to Smith’s representation as the price of avoiding
having to represent himself pro se. In contrast with the
court’s earlier decision on the attorneys’ motions to with-
draw, in which the court focused on the lawyers’ factual
claims about their ability to adequately represent defendant,
the court’s submission of the choice regarding prospective
representation to defendant was based on the court’s mere
assumption that defendant’s potential complaints about his

672 	State v. Langley
13 This case does not require us to decide whether a client’s objections about
appointed counsel can constitute misconduct. In most conceivable circumstances, a
criminal defendant’s expression of objections about appointed counsel or submis-
sion of one or more motions to obtain substitute counsel will not constitute miscon-
duct because criminal defendants commonly submit them to the court without the
benefit of legal training and without the assistance of a lawyer and the fact that
such submissions lack merit will not evidence a knowing and intentional waiver of
counsel. Whether circumstances might exist in which a court could infer such a
waiver is a question for another day.
14 A criminal defendant is entitled to the right to remain silent and to the con-
fidentiality of privileged communications with counsel. But when a defendant
seeks to demonstrate to the court that counsel is not providing adequate represen-
tation, the court must consider, not reject, the facts proffered by the defendant, as
well as other relevant evidence in the entire record, before deciding whether the
defendant’s complaints have any merit and, even if they do not, whether the defen-
dant’s behavior as a separate matter constitutes misconduct. In that connection,
the court should take reasonable precautions to permit a defendant to communi-
cate any concerns about counsel’s representation without disclosing matters of
trial strategy, evidence, or attorney-client confidences to other parties or the
public.
lawyers were frivolous and amounted to further misconduct
and manipulation of the court.
There 	are 	several 	problems 	with 	the 	court’s
approach. To begin, defendant has no legal obligation to
waive or abandon his objections regarding his appointed
counsel or, as already noted, to affirmatively cooperate with
their legal representation. The court erred in pressuring
defendant to disregard his concerns about his legal represen-
tation and to cooperate with appointed counsel.13
Moreover, even if a client’s objections to counsel
could constitute misconduct in other circumstances, the court
in this case based its assumption that defendant’s complaints
about his lawyers were frivolous only on the evidence prof-
fered by Smith and McCabe in their sealed affidavits. The
court inquired about defendant’s complaints, but made it
clear that the court would require defendant to disclose all
that information in open court. That approach necessarily
would require defendant to publicly discuss his private com-
munication with his lawyers and, in all likelihood, sensitive
information about trial strategy. Even after the state sought
to eliminate that problem by agreeing to a nonpublic disclo-
sure of defendant’s objections out of the state’s presence, the
court continued to request that defendant publicly disclose
his problems with his appointed legal counsel. Defendant
declined to do so on the advice of counsel.14 As a result, the

Cite as 351 Or 652 (2012) 	673
court assumed that defendant was engaging in misconduct
and manipulation without considering defendant’s side of his
dispute regarding his legal representation. That was a legal
error. In our view, before a court properly can reach that con-
clusion, the court must allow the defendant a reasonable
opportunity to present his or her position on the facts in a
manner that permits, if appropriate, the safeguarding of con-
fidential communications and trial strategy from public
disclosure.
The fact that defendant had not moved to obtain
substitute counsel at the hearing does not alter our conclu-
sion. Such a motion would have required the court to consider
any evidence offered by defendant in support of the motion. A
claim of legal error regarding a court’s refusal to consider
defendant’s evidence in that procedural context at a mini-
mum would present the legal issue in the starkest terms. But
the choice regarding representation proposed by the court
here made it clear to defendant that the court would consider
defendant’s complaints about his legal representation only if
defendant disclosed them in open court against the advice of
counsel. As noted, that was no choice at all. Further, the pro-
posed choice indicated that defendant’s only option to avoid
self-representation was to accept representation by Smith
and thus acquiesce in the court’s assumption that defen-
dant’s unexamined complaints against Smith were frivolous.
That, too, was not a permissible choice.
The foregoing discussion demonstrates that the
court erred in requiring defendant to make the choice that
the court described. Defendant’s decision, on the advice of
counsel, to decline to make the proposed choice did not
amount to misconduct or manipulation of the court by defen-
dant. By declining to make the choice, defendant did not
engage in a knowing and intentional waiver by conduct of his
right to counsel in the proceeding that we review here.
The record indicates that the court decided that
defendant’s refusal to make the offered choice entitled the
court to make the choice itself in favor of compelled self-
representation, rather than representation by counsel. That
was error. In our view, because submission of the choice to

674 	State v. Langley
15 We sympathize entirely with the trial court’s expressions of frustration at
the extent of the delay that had occurred in the administration of this case due in
large part to problems in securing and retaining counsel for defendant. The state
points out, and we agree, that if defendant had requested replacement counsel
without an adequate justification, or without adequate advance notice to avoid dis-
ruption or postponement of trial court proceedings, the court had authority to exer-
cise its discretion reasonably to deny such a request.
defendant was itself impermissible, defendant’s refusal to
make the proposed choice was entirely proper.15
It follows that the trial court erred in requiring
defendant to proceed to trial on the sentencing phase of a cap-
ital murder case without the assistance of legal counsel. That
error was not harmless. Consequently, we vacate defendant’s
death sentence based upon his second assignment of error.
The basis of our disposition obviates any need to reach defen-
dant’s other assignments of error.
The judgment of the circuit court is reversed and the
case is remanded to the circuit court for further proceedings.