STATE v. LUNDQUIST (2026)

Defendant appeals from a judgment of conviction for two counts of driving under the influence of intoxicants (DUII), ORS 813.010(4) (Counts 1 and 2), and one count of reckless driving, ORS 811.140 (Count 3). On appeal, defendant argues that he was denied counsel at his arraignments in violation of his state and federal constitutional rights to counsel.¹ We conclude that defendant was entitled to counsel under the state and federal constitutions, but that the error was harmless. Accordingly, we affirm.

In May 2023, defendant was arrested and charged with one count of DUII (Count 1). The court held an arraignment hearing on that charge on June 5, 2023. The court confirmed the spelling of defendant's name, confirmed that defendant had a copy of the information and could read it himself, and reviewed some of defendant's constitutional rights.² It noted that defendant appeared to be eligible for diversion and asked if he wanted an attorney to assist him. After defendant responded affirmatively, the court informed defendant that it could not appoint an attorney for him at that time because there were no attorneys available. The court told him to fill out an application for an attorney, had him sign a conditional release agreement, and gave him the next hearing date.

In July 2023, while on release for the first DUII charge, defendant was arrested for another count of DUII (Count 2) and one count of reckless driving (Count 3), and the information was amended to reflect the new charges. All three charged offenses were misdemeanors. The court held an arraignment hearing on the amended information on July 24, 2023. The same judge who presided over the first arraignment presided over the second one. The court again confirmed the spelling of defendant's name, confirmed that he had a copy of the amended information and could read it himself, and informed defendant, “I can't appoint an attorney to help you with this right now * * * because I don't have any attorneys that are able to take any cases right now.” A representative of the state initially recommended conditional release on the understanding that defendant had one DUII charge. After the court correctly noted that defendant had two DUII charges, the state recommended against release. The court denied release, noting that defendant picked up another charge of the same nature while on release, raising concerns about community safety. The court set security at $100,000 and gave defendant a court date in two weeks. Defendant attempted to argue for release, but the court interrupted him, saying, “I don't want to get into it too much. You don't have a lawyer.” Without discussion, the court entered a not-guilty plea for defendant. One week later, on August 1, 2023, defendant was appointed counsel. After appointment, counsel moved for defendant's release and that motion was denied. Defendant went to trial in October 2023 where the jury found him guilty as charged.

On appeal, defendant argues that the trial court violated his state and federal constitutional rights to counsel by arraigning him while he was unrepresented. The state contends that defendant's arguments are unpreserved and that, in any event, the arraignments were not events at which the assistance of counsel was constitutionally required.

PRESERVATION

We begin with the issue of preservation. In his opening brief, defendant notes that he had asked for an attorney at his initial arraignment but was told that none was available. He also observes that, at the second arraignment, the court instructed him not to speak on the issue of his release because the court recognized that he needed counsel. Defendant argues that, under those circumstances and where the trial court nevertheless conducted a critical stage of the proceeding without counsel and an informed waiver of the right to counsel, the claim of error is preserved even without an objection by the unrepresented party. In addition to disputing that the initial arraignment here was a critical stage, the state contends that the claimed error is not preserved because even unrepresented defendants should be expected to be aware of the right to appointed counsel and to object on that basis. After the initial briefing in this case was completed, we decided State v. Pedersen, 338 Or App 362, 566 P3d 24, rev. den., 374 Or 188 (2025). We explained that it would be unreasonable to expect the defendant to personally object to the lack of counsel at an uncounseled arraignment, but, once counsel was appointed, “an objection needed to be made within a reasonable time to preserve the claim of error.” Id. at 364. In supplemental briefing, defendant contends, among other things, that Pedersen is distinguishable. Ultimately, we need not decide that issue as we would reach the same disposition here whether or not the issue is preserved. As we discuss below, even assuming that defendant's claim of error is preserved, which is an issue that we do not decide, we still affirm as the error was ultimately harmless.

ARTICLE I, SECTION 11, RIGHT TO COUNSEL

We turn to the merits. Article I, section 11, of the Oregon Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right to * * * be heard by himself and counsel.” The right to counsel attaches “as early as the commencement of criminal proceedings by indictment or other formal charge,” State v. Prieto-Rubio, 359 Or 16, 24, 376 P3d 255 (2016), and can only be waived by a knowing and intelligent waiver, State v. Stanton, 369 Or 707, 715, 511 P3d 1 (2022). In this case, the record reflects that the right had attached and had not been waived. We therefore consider whether the lack of counsel at defendant's second arraignment violated his Article 1, section 11, rights.

The right to counsel “reflects the founders’ recognition that, given the significant and often life-altering consequences of a criminal prosecution, it is essential that criminal defendants have the right to call upon counsel to help them respond to the state's prosecutorial actions against them.” State v. Roberts, 374 Or 821, 841, 584 P3d 1217 (2026). In Roberts, the Supreme Court recently clarified that the Article I, section 11, right to counsel includes “critical stages,” but that the right “is not that limited.” Id. at 850. The scope of the right “depends on the particular circumstances at issue.” Id. at 844; see also Pedersen, 338 Or App at 371 (the “critical stage” determination is “case-specific and circumstance-specific”). The court explained that “rather than frame the question as whether the stage in the proceedings * * * constitutes a ‘critical stage,’ we ask whether the absence of counsel would risk prejudice to the defendant's legal interests, or stated differently, whether the absence of counsel would undermine the purposes of the right to counsel.” Roberts, 374 Or at 850. In making that determination, we consider “what assistance counsel c[an] provide to a defendant, even outside of an adversarial contact like police questioning or a court hearing.” Id.

In two recent cases, we have discussed whether lack of counsel at a pretrial hearing violated the Article I, section 11, right to counsel. In Pedersen, we held in the context of a plain-error challenge that the pretrial hearing was not a proceeding where a defendant had a constitutional right to counsel where the only events that occurred were the reading of charges, confirmation of the defendant's last name and date of birth, and provision of an attorney's name and contact information. 338 Or App at 375. We reasoned that nothing occurred at the hearing that made it a critical stage. Id. at 375-76. In contrast, we concluded in State v. Adams, 342 Or App 173, 180, 576 P3d 500 (2025), that the defendant had a state constitutional right to counsel at his arraignment. At that hearing, the court declared that the defendant had waived counsel based on its assertion that the defendant had failed to fill out the paperwork and the court did not allow the defendant to argue that he had completed the required paperwork; the defendant advocated for his own release in a way that might have impacted the prosecution's case against him; and the defendant expressed a desire to plead guilty. Id. We concluded that, in light of all of those events, the arraignment was a critical stage of the proceedings. Id. Pedersen and Adams were issued before the Supreme Court reframed the analysis in Roberts. We no longer focus solely on whether the event was a critical stage but rather consider whether the absence of counsel “would risk prejudice to the defendant's legal interests.” Roberts, 374 Or at 850. However, our reasoning in Pedersen and Adams provides helpful guidance here.

Applying those cases, and the Supreme Court's guiding principles in Roberts, we conclude that the trial court erred when it proceeded with defendant's second arraignment while defendant remained without counsel and without obtaining a valid waiver of his right to counsel. At that arraignment, the trial court held a release hearing where a representative of the state gave a release recommendation, but defendant was not allowed to advocate for his own release or obtain the benefit of his own counsel's advice because he did not have a lawyer. As the Supreme Court has recently emphasized, the right to counsel is a “core component” of our adversarial criminal justice system, and “the system is compromised” when a defendant lacks counsel at such an important stage. Id. at 840. In this case, defendant could not meet the state on equal grounds during a stage of the proceeding that affected his personal liberty. See id. at 854-55 (a defendant without counsel is disadvantaged by not being able to respond to the restraints on their liberty or the charges against them, while the state has counsel to advance its case); see also Gerstein v. Pugh, 420 US 103, 114, 95 S Ct 854, 43 L Ed 2d 54 (1975) (noting that pretrial confinement is a significant restraint on liberty). Moreover, the failure to demur at arraignment permanently foreclosed defendant's ability to demur as a matter of right and appeal with a more favorable standard of review.³ ORS 135.610; compare State v. Ivey, 342 Or App 649, 656, 577 P3d 884, rev. den., 374 Or 616 (2025) (reviewing denial of timely demurrer for legal error), with State v. Tucker, 252 Or 597, 600, 451 P2d 471 (1969) (a trial court may permit or deny a late demurrer and that is a decision we will not disturb except in a case of clear abuse). For the foregoing reasons, we conclude that defendant was entitled to the assistance of counsel at his arraignment and the deprivation of counsel at that stage was error. See Prieto-Rubio, 359 Or at 25 (explaining that a defendant has the right to have counsel present when “counsel's presence could prevent prejudice to [the] defendant”).

However, we will not reverse defendant's conviction if the trial court's error was harmless. State v. Hunt, 271 Or App 603, 608, 352 P3d 63 (2015). Error is harmless if there is little likelihood that it affected the outcome. Id. In this case, defendant might have proceeded differently had he been represented at the arraignments, but we are unable to perceive how doing so could have affected the outcome in this case. Under the circumstances, the confirmation of his name and the entry of a not-guilty plea did not prejudice the outcome of his case. Moreover, although counsel could have argued for his release at the second arraignment had he been represented, counsel did in fact file a motion for defendant's release after appointment, which the trial court denied. Nor can we say that, on this record, defendant was prejudiced by counsel not being present to file a demurrer at the arraignment where no demurrer was ever filed and there is no reason to believe that the trial court would have rejected a demurrer filed promptly after counsel's appointment. See Pedersen, 338 Or App at 376-77 (concluding for those reasons that the defendant was not prejudiced by counsel not being present at arraignment to file a demurrer). There was no evidence obtained at the arraignment in violation of defendant's right to counsel. See State v. Lewis (A123966), 217 Or App 56, 59, 174 P3d 1043 (2007) (explaining that the “usual remedy for violation of a defendant's Article I, section 11, right to counsel * * * is suppression of any evidence obtained in violation of that right”). Defendant was appointed counsel one week after the second arraignment, on Count 2, which he challenges here, and approximately eight weeks after the first arraignment. While that delay resulted in a significant constitutional violation of defendant's rights, as we recognize above, we discern no prejudice to the outcome of defendant's case as a result of that delay. Under the circumstances, the trial court's error was harmless because there is little likelihood that it affected the outcome of this case, and there is no reversible error under the Oregon Constitution.

SIXTH AMENDMENT RIGHT TO COUNSEL

We turn to the issue presented under the United States Constitution. The Sixth Amendment provides that “[i] n all criminal prosecutions, the accused shall enjoy the right * * * to have the [a]ssistance of [c]ounsel for his defen[s]e.” We begin our Sixth Amendment analysis addressing whether the right to counsel applies to this case in which defendant challenges Count 2, a misdemeanor conviction for DUII. The United States Supreme Court has held that the Sixth Amendment right to counsel applies to state courts through the Fourteenth Amendment to the United States Constitution, Gideon v. Wainwright, 372 US 335, 342, 83 S Ct 792, 9 L Ed 2d 799 (1963), and that “no indigent criminal defendant [may] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” Scott v. Illinois, 440 US 367, 373-74, 99 S Ct 1158, 59 L Ed 2d 383 (1979). There is no right to counsel solely because imprisonment is authorized for a misdemeanor offense if it is not imposed. Id. at 373 (actual imprisonment is the “line defining the constitutional right to appointment of counsel”); see also Lewis, 217 Or App at 60 (holding that defendant was not entitled to counsel under the Sixth Amendment where his misdemeanor conviction resulted in probation and monetary costs but no incarceration). Stated another way, for misdemeanor crimes where actual imprisonment is imposed, a defendant has a right to counsel at all “critical stages” of the criminal process. See Iowa v. Tovar, 541 US 77, 87, 124 S Ct 1379, 158 L Ed 2d 209 (2004) (stating that the defendant had a Sixth Amendment right to counsel at critical stages where he ultimately received a two-day prison term). Here, defendant received a 60-day jail term on Count 2 so the Sixth Amendment applies if, as we discuss below, the arraignment hearing here was a critical stage of the proceedings. We turn to that issue now.

Under the Sixth Amendment, the accused is “guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial” and that guarantee “appl[ies] to ‘critical’ stages of the proceedings.” United States v. Wade, 388 US 218, 224, 226, 87 S Ct 1926, 18 L Ed 2d 1149 (1967). In making the critical stage determination, “the test utilized by the Court * * * call[s] for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” United States v. Ash, 413 US 300, 313, 93 S Ct 2568, 37 L Ed 2d 619 (1973); see also Wade, 388 US at 227 (presence of counsel is required at “critical confrontations” to protect the accused's interests “consistently with our adversary theory of criminal prosecution”). We also ask “whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Coleman v. Alabama, 399 US 1, 7, 90 S Ct 1999, 26 L Ed 2d 387 (1970) (internal quotation marks omitted). In the arraignment context, the United States Supreme Court has held that an arraignment constituted a critical stage where certain rights were irretrievably lost, Hamilton v. Alabama, 368 US 52, 54, 82 S Ct 157, 7 L Ed 2d 114 (1961), and where the defendant entered a guilty plea, White v. Maryland, 373 US 59, 60, 83 S Ct 1050, 10 L Ed 2d 193 (1963). The Supreme Court has also held that an Alabama preliminary hearing, which included a bail determination, was a critical stage. Coleman, 399 US at 8 (the purpose of the preliminary hearing was “to determine whether there [was] sufficient evidence against the accused to warrant presenting his case to the grand jury and, if so, to fix bail if the offense is bailable”). In making that determination, the Court noted that counsel could assist “in making effective arguments for the accused on such matters as * * * bail.” Id. at 9-10. However, bail was only part of the critical stage determination—the Court also explained that the assistance of counsel at the hearing could result in the magistrate declining to submit the case to the grand jury or make possible the preparation of a proper defense at trial. Id. The Supreme Court has not yet addressed whether the type of arraignment at issue here, which included the equivalent of a bail hearing, constitutes a critical stage.

As under the state constitution, the determination under the Sixth Amendment is “case-specific and circumstance-specific.” Pedersen, 338 Or App at 371; White, 373 US at 60 (although not required by Maryland law to enter a plea, the defendant entered a guilty plea while unrepresented at a preliminary hearing, making it a critical stage). As noted, if the arraignment that occurred here was a critical stage, then defendant was entitled to the presence of counsel under the Sixth Amendment, and the deprivation of counsel at such a stage was constitutional error.

Defendant argues that his arraignment qualified as a critical stage under the Sixth Amendment because he was required to enter a plea, represent that he was truly named, and be heard regarding release. But defendant has not explained how potential substantial prejudice inhered in the entry of a not-guilty plea or the representation of his true name, without the assistance of counsel. We do not perceive any impairment to defendant's defense because he was required to proceed without counsel in those events.⁴ See Gerstein, 420 US at 122 (explaining that critical stages are “those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel”).

The question of whether the release decision made the arraignment a critical stage, however, requires further discussion.⁵ At the second arraignment, a representative of the state recommended against release. Defendant attempted to argue for his own release, but the trial court did not allow him to speak, telling defendant, “I don't want to get into it too much. You don't have a lawyer. I don't want you to respond to that.” To be sure, in this case the state's advocacy was minimal and the trial court apparently independently concluded that defendant was not a good candidate for release because he was charged with a second DUII while on release for a prior DUII. However, under the principles articulated in the Supreme Court case law, we conclude that the release hearing in this case was the type of adversarial proceeding where defendant is guaranteed the “equalizing effect” of counsel under the Sixth Amendment. Ash, 413 US at 309; see also Barker v. Wingo, 407 US 514, 532-33, 92 S Ct 2182, 33 L3d 2d 101 (1972) (explaining the many disadvantages of pretrial incarceration, including both personal consequences and a hindered ability to prepare a defense). The state gave a recommendation against release, which the court considered—and defendant was denied a parallel opportunity to respond. In that situation, defendant was forced to stand alone against the state's skilled counsel and the procedural system, with the power to restrain his liberty. As the Supreme Court has explained, the “core purpose of the counsel guarantee” is to assure defendant assistance at such a stage, where he is “confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Ash, 413 US at 309; see also Coleman, 399 US at 9-10 (counsel's assistance “in making effective arguments for the accused on such matters as * * * bail” was one among several factors indicating that a hearing was a critical stage).

Moreover, the Supreme Court has explained that an arraignment is a critical stage if certain rights or defenses are “irretrievably lost, if not then and there asserted.” Hamilton, 368 US at 54. Defendant's failure to demur at arraignment due to lack of counsel permanently foreclosed his ability to demur as a matter of right, although the court has discretion to allow the filing of a late demurrer. See ORS 135.610(1) (providing that a “demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose”). For the foregoing reasons, the second arraignment constituted a critical stage at which defendant was entitled to counsel under the Sixth Amendment.

Having concluded that defendant was denied his Sixth Amendment right to counsel at his arraignment, we next must determine whether that error is structural or subject to harmless error analysis. Structural error exists when “the deprivation of the right to counsel affect[s]—and contaminate[s]—the entire criminal proceedings.” Satterwhite v. Texas, 486 US 249, 257, 108 S Ct 1792, 100 L Ed 2d 284 (1988); Arizona v. Fulminante, 499 US 279, 309-10, 111 S Ct 1246, 113 L Ed 2d 302 (1991) (“structural defects” are those that affect the “framework within which the trial proceeds, rather than simply an error in the trial process itself”). The Supreme Court has held that the denial of counsel at an arraignment constituted structural error when defenses not pleaded were irretrievably lost, Hamilton, 368 US at 53-54, and when an admission of guilt entered at the uncounseled arraignment was later used against the defendant at trial, White, 373 US at 60.

Defendant relies on Hamilton and White in support of his argument that the error is structural, requiring reversal without any showing of prejudice. But defendant's argument ignores the Supreme Court's subsequent recognition that there are “some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may be * * * deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 US 18, 22, 87 S Ct 824, 17 L Ed 2d 705 (1967). Following Chapman, the Supreme Court has expressly rejected the argument that deprivation of counsel at a critical stage requires automatic reversal. Satterwhite, 486 US at 257. Instead, the court explained in Satterwhite that automatic reversal is required only where the violation results in a contamination of the entire criminal proceeding. Id. Consequently, the court has concluded that certain Sixth Amendment violations that did not pervade the entire proceeding were subject to harmless-error review. See Coleman, 399 US at 11 (denial of counsel at preliminary hearing); Satterwhite, 486 US at 258 (admission of psychiatric testimony obtained in violation of Sixth Amendment); Moore v. Illinois, 434 US 220, 232, 98 S Ct 458, 54 L Ed 2d 424 (1977) (admission of pretrial identification made without counsel present).

Here, defendant's arraignment without counsel, while a significant error for the reasons we have discussed, was not a structural defect that pervaded the entire trial process. Defendant was later appointed counsel who filed a motion for release, could have but did not file a late demurrer, and otherwise provided him with representation and advice at trial. Under the circumstances, we conclude that the denial of counsel at arraignment was not structural error and is subject to harmless-error analysis.

Under the federal harmless error standard, “constitutional error identified on direct appeal does not require reversal of a conviction if the prosecution can establish that the error was harmless beyond a reasonable doubt.” Brown v. Davenport, 596 US 118, 124, 142 S Ct 1510, 212 L Ed 2d 463 (2022) (citing Chapman, 386 US at 24). Here, the state asserts, and we agree, that nothing that occurred at the arraignment—the entry of a not-guilty plea, the release decision, or the failure to file a demurrer as a matter of right—prejudiced defendant's case on the merits. Defendant retained the ability to revisit those decisions after appointment of counsel one week later. See ORS 135.380(2) (allowing a defendant to plead guilty or no contest at any time after arraignment); ORS 135.285 (allowing for modification of the release agreement if circumstances concerning the defendant's release change); ORS 135.610(1) (allowing the trial court to permit the filing of a demurrer at times other than arraignment). After the appointment of counsel, defendant filed a motion for release, which the trial court denied. Although defendant never attempted to file a late demurrer, this is not a case where we must presume harm because “the degree of prejudice can never be known.” Hamilton, 368 US at 55. Under the circumstances, where defendant was unrepresented at arraignment, it would almost certainly have been an abuse of discretion for the court to reject a late demurrer. See Tucker, 252 Or at 600 (a trial court may permit or deny a late demurrer and that is a decision we will not disturb except in a case of clear abuse). Furthermore, no issues related to the merits of defendant's case were heard or decided at the arraignment. Nor did defendant make any statements harmful to his case. The error in this case was unlikely to have affected the verdict and was harmless beyond a reasonable doubt.

For the foregoing reasons, defendant had a right to counsel at his second arraignment under both Article I, section 11, and the Sixth Amendment. However, we conclude that the denial of counsel was harmless under the circumstances. We therefore affirm the judgment of conviction.

Affirmed.

FOOTNOTES

1.   On appeal, defendant initially raised three assignments of error and challenged all three of his convictions. Pursuant to a “global” plea agreement reached after appeal, which resolved other cases and parts of this case, defendant now challenges only his conviction on Count 2. Defendant was arraigned on Count 2 at his second arraignment, and we therefore consider whether the lack of counsel at that arraignment violated his constitutional rights to counsel. However, we still consider the first arraignment, and defendant's request for counsel there, as context for the second arraignment.

2.   The court did not expressly inform defendant of his right to counsel as is required by ORS 135.040.

3.   In Pedersen, we held that the arraignment was not a critical stage of the proceedings for purposes of the right to counsel under Article I, section 11. 338 Or App at 377. In doing so, we considered events occurring after the arraignment, such as the fact that the defendant never attempted to file a late demurrer after appointment of counsel, to conclude that the defendant's right to counsel had not been violated. Id. The Supreme Court has reframed the analysis since Pedersen, and accordingly, we consider defendant's loss of his right to demur as a matter of right as part of our analysis of whether defendant's right to counsel was violated. See Roberts, 374 Or at 850 (explaining that we must “ask whether the absence of counsel would risk prejudice to the defendant's legal interests, or stated differently, whether the absence of counsel would undermine the purposes of the right to counsel”). However, the fact that a defendant did not file a demurrer after appointment of counsel may factor into whether the error was harmless, as we discuss in the next paragraph.

4.   The Missouri Supreme Court recently concluded that an arraignment where the defendant was read the charges and pleaded not guilty was not a critical stage under the Sixth Amendment. State v. Woolery, 687 SW 3d 652, 666 (Mo 2024). In doing so, the court explained that the “entry, without more, of a plea of not guilty, as distinguished from a plea of guilty, without the presence of counsel could not have resulted in any disadvantage to [the] defendant or advantage to the state.” Id. (internal quotation marks and brackets omitted).

5.   In Pedersen, we expressly declined to address whether a release hearing is a critical stage. 338 Or App at 376 n 4. Other jurisdictions are split on the issue. Some have determined that a bail hearing is a critical stage under the Sixth Amendment. See Higazy v. Templeton, 505 F3d 161, 172-73 (2d Cir 2007) (a bail hearing is a critical stage at which the accused is entitled to the aid of counsel); Ditch v. Grace, 479 F3d 249, 252-53 (3d Cir 2007), cert. den., 552 US 949 (2007) (a preliminary hearing including a determination as to whether a defendant will be discharged or bound over to the court is a critical stage); Caliste v. Cantrell, 329 F Supp 3d 296, 314 (ED La 2018), aff'd on other grounds, 937 F3d 525 (5th Cir 2019) (in Louisiana, an initial bail hearing is a critical stage of the proceedings). Other courts have determined that a release hearing does not constitute a critical stage. See United States v. Portillo, 969 F3d 144, 161 (5th Cir 2020), cert. den., 141 S Ct 1275, 209 L Ed 2d 13 (2021) (holding that an initial appearance that included a recitation of the government's intent to detain the defendant without bond pending trial bore “none of the markings of a critical stage”); State v. Mills, 687 SW 3d 668, 679-80 (Mo 2024) (holding that a pretrial release proceeding in Missouri, which does not require the state to present witnesses, is not a critical stage).

SHORR, P. J.