by David Kim

The Supreme Court of Oregon held that the State violates Article I, section 11, of the Oregon Constitution when it fails to appoint counsel for an eligible criminal defendant for an extended period following arraignment. The Court established a bright-line rule under which dismissal of criminal charges without prejudice is ordinarily required when an eligible defendant lacks appointed counsel for more than 60 consecutive days in a misdemeanor case or more than 90 consecutive days in a felony case. In reaching this conclusion, the Court reasoned that prolonged denial of counsel subjects defendants to the State’s prosecutorial powers while depriving them of the means to respond, creates an imbalance in the adversarial system, and exerts coercive pressure on defendants to waive the very right intended to ensure fair proceedings.

Background

The case arose against the backdrop of Oregon’s ongoing systemic public defense crisis, which the Court noted has left thousands of pretrial, out-of-custody defendants without legal representation. According to amicus curiae, the Oregon Public Defense Commission (“OPDC”), there are “simply not enough defense attorneys in the state to represent every indigent defendant,” and many eligible defendants “may be without counsel for weeks if not months.”

The relator, Allen Rex Roberts, was originally charged by indictment in 2021 with unauthorized use of a vehicle and possession of a stolen vehicle. Those charges were dismissed without prejudice in October 2022 because the State could not appoint counsel. Approximately 18 months later, in April 2024, Roberts was re-indicted on the same two charges. He was arraigned on the new indictment and released subject to conditions, including requirements that he appear at all times and places ordered by the court and not leave Oregon without court permission.

At arraignment, the trial court determined Roberts was eligible for appointed counsel and appointed “OPDC,” rather than a named attorney, to represent him. Over the following months, several hearings were held for the purpose of appointing counsel, but no attorney was available.

In December 2024, a volunteer lawyer filed a notice of limited representation and moved to dismiss the case for lack of counsel. Roberts argued that the State’s failure to appoint an attorney violated his right to counsel under both state and federal constitutions. On January 2, 2025, the trial court denied the motion, reasoning that Roberts had been “represented at the critical stages” reached thus far and that the case was in “suspended animation” due to “a failure of the system.”

Roberts timely petitioned for mandamus relief in the Oregon Supreme Court. By that point, he had been without named counsel for approximately nine months. The Court issued an alternative writ commanding the trial court to vacate its order or show cause. The trial court declined to vacate, and briefing proceeded. While the mandamus case was pending, the trial court, following what it described as the sixth setover for appointment of counsel, entered a judgment dismissing the criminal case without prejudice “due to lack of attorneys.”

Analysis

Preliminary Issues: Mootness, Justiciability, and Mandamus Relief

Because the trial court dismissed Roberts’ criminal case while the mandamus proceeding was pending, the Court first addressed whether the case was moot and, if so, whether it remained justiciable. The Court acknowledged that Roberts had already received the relief he sought – dismissal without prejudice – and that the mandamus case would have no practical effect on the parties. State v. K. J. B., 416 P.3d 291 (Or. 2018).

Nevertheless, the Court determined the case was justiciable under ORS 14.175, which permits courts to adjudicate otherwise moot cases involving challenges to acts of public bodies that are “capable of repetition” and “likely to evade judicial review.” The Court concluded that all four statutory requirements were satisfied: (1) Roberts was challenging an act of a public body, (2) he had standing when he filed his petition, (3) the failure to appoint counsel is a recurring issue, and (4) the challenged act is likely to evade review. ORS 14.175; Couey v. Atkins, 355 P.3d 866 (Or. 2015); Penn v. Board of Parole, 451 P.3d 589 (Or. 2019).

On the fourth requirement, the Court rejected the State’s argument that defendants could challenge delayed appointment of counsel through direct appeals following conviction. The Court explained that challenges to the State’s failure to appoint counsel are “likely to end before a challenge can even be initiated, much less fully litigated,” because defendants generally need counsel to litigate constitutional violations. The Court observed that Roberts was able to bring his challenge “only because a lawyer volunteered to represent him on a limited basis.” Penn.

The Court also determined that mandamus relief was available. Although direct appeal is generally considered an adequate remedy that precludes mandamus, the Court concluded that direct appeal would not vindicate the pretrial harms Roberts alleged. His claim was “that the failure to appoint counsel is a constitutional violation that causes harms independent and irrespective of the ultimate judgment in the defendant’s case.” ORS 34.100; ORS 34.110; State ex rel. Automotive Emporium v. Murchison, 611 P.2d 1169 (Or. 1980); HotChalk, Inc. v. Lutheran Church – Missouri Synod, 548 P.3d 812 (Or. 2024).

The Nature and Scope
of the Right to Counsel

The Court began its constitutional analysis by examining the nature of the right to counsel under Article I, section 11, which guarantees that “[i]n all criminal prosecutions, the accused shall have the right to be heard by himself and counsel.” The Court stated that this guarantee is “a core component of our criminal justice system,” which operates on adversarial principles premised on the belief that “the best way to resolve legal disputes correctly is through a competitive process, with each party making its own case.” Oregon Const, Art I, § 11; State v. Craigen, 524 P.3d 85 (Or. 2023); State v. Lacey, 431 P.3d 400 (Or. 2018).

The right to counsel serves as a check on governmental power, the Court explained. Oregon’s founders “were concerned that governmental powers could be misused,” and Article I, section 11, exists to protect against such misuse by helping ensure “the state abides by the legal limits on its authority, that criminal proceedings are fair, and that verdicts are reliable.” Without counsel, “a trial court cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Stevenson v. Holzman, 458 P.2d 414 (Or. 1969); State v. Cotter, 567 P.3d 1034 (Or. 2025).

Regarding the scope of the right, the parties agreed that Roberts’ right to counsel had attached at arraignment, but they disputed what that right encompassed. The State argued that the right guarantees counsel’s presence only at “critical stages” and within a reasonable time before such stages occur. Therefore, according to the State, no constitutional violation occurred if a defendant lacked counsel as long as the trial court continued the case until counsel could be appointed. See State v. Gray, 515 P.3d 348 (Or. 2022).

The Court rejected the State’s narrow framing. While acknowledging that defendants have a right to counsel at critical stages, the Court stated that Article I, section 11, is “not that limited.” Rather than asking whether a particular stage qualifies as “critical,” the proper inquiry is “whether the absence of counsel would risk prejudice to the defendant’s legal interests” or “undermine the purposes of the right to counsel,” the Court stated. Gray.

Application to Pretrial Circumstances

Applying this framework, the Court identified numerous actions defense counsel can take to protect a defendant’s rights and prepare a defense, many of which occur “on defense counsel’s own initiative, outside of court, and before any trial.” Counsel must promptly contact defendants to explain their rights and options, gather information while events are recent, and have privileged discussions. Counsel assesses whether the charging instrument is legally sufficient and can file demurrers based on deficiencies apparent from the face of the charging instrument. Counsel can assert discovery rights, secure physical evidence before it is lost, record witness statements before memories fade, and arrange timely medical or psychological examinations. Counsel can also pursue case resolution through civil compromise, diversion programs, or plea negotiations.

The Court then identified three categories of pretrial harm resulting from the failure to appoint counsel for an extended period. First, defendants with pending charges are subjected to restraints on their liberty while being deprived of the ability to challenge or modify them. The Court explained that defendants must appear when ordered under threat of arrest and criminal prosecution, may not leave the state without permission, and may be subject to additional restrictions on activities, movements, and associations. ORS 135.250(1).

Second, defendants cannot move their cases forward. They lack legal advocates to review charges and evidence, gather and preserve defense evidence, and advance their cases toward resolution. Meanwhile, the State “has counsel to continue to collect evidence, interview witnesses, and take other steps to prepare its case,” the Court noted.

Third, the Court stated that the failure to appoint counsel exerts coercive pressure. As “the burdens of having an open case without counsel grow, so does the likelihood that a defendant will waive their right to counsel just to move their case forward,” thereby undermining the very purpose of the right.

Dismissal Without Prejudice
as the Appropriate Remedy

Having concluded that the State violated Roberts’ constitutional rights, the Court determined that dismissal without prejudice was an appropriate remedy. The Court explained that this remedy “terminates the imbalanced situation where the state is asserting its prosecutorial power over the defendant, but the defendant is without counsel to help them respond.” It also “releases the pressure on a defendant to waive their right to counsel” while preserving the State’s ability to prosecute later when counsel can be provided.

The Court adopted a bright-line rule for determining when dismissal becomes required. It stated that such a rule “will help ensure that similarly situated defendants are treated consistently across the state” and “will be a tool for courts to remedy denials of counsel efficiently.”

In setting the appropriate time periods, the Court considered the escalating burdens and pressures on defendants over time, the statutory framework governing criminal procedures, and the Time to Disposition Standards adopted by the Chief Justice in 2018. Those standards set goals of resolving 75 percent of misdemeanor cases within 60 days and 75 percent of felony cases within 90 days. The Court observed that these standards were adopted when, according to the State, Oregon’s indigent defense system “was able to provide prompt legal representation to eligible criminal defendants.”

Based on these considerations and “our own assessment of when the pretrial harms justify the remedy of dismissal without prejudice,” the Court announced the following rule: “when an eligible criminal defendant lacks appointed counsel after arraignment for a period of more than 60 consecutive days in a misdemeanor case, or 90 consecutive days in a felony case, dismissal of the criminal charges without prejudice is ordinarily required.”

The Court clarified that dismissal is not required if, during the relevant period, the defendant failed to appear for court as required. The Court also noted that its decision does not foreclose earlier dismissal based on case-specific reasons and left open the possibility that, “in truly extraordinary circumstances, a court could decline to dismiss a case after the 60- or 90-day period for exceptionally good cause.”

Conclusion

The Court held that the State violates Article I, section 11, of the Oregon Constitution when it fails to appoint counsel for an eligible defendant for an extended period after arraignment. Dismissal without prejudice is an appropriate remedy for such a violation. Defendants are entitled to that remedy when, at any point post-arraignment, the State fails to appoint counsel for more than 60 consecutive days in a misdemeanor case or more than 90 consecutive days in a felony case.

Because Roberts had been without named counsel for over 90 days while appearing for court as required, the trial court had a legal duty to grant his motion to dismiss. However, because the trial court subsequently dismissed the criminal case, no additional relief was available.

Accordingly, the Court dismissed the alternative writ of mandamus as moot. See: State v. Roberts, 2026 Ore. LEXIS 94 (2026).

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