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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. Quirk

Court of Appeals of Oregon

• Citations: 347 Or. App. 845
• Docket Number: A184296
• Precedential Status: Non-Precedential
• Judges: Tookey

• Disposition: Remanded for resentencing; otherwise affirmed.

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Remanded for resentencing; otherwise affirmed.

Combined Opinion

No. 209 March 18, 2026 845

This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
DEVIN MICHAEL QUIRK,
Defendant-Appellant.
Marion County Circuit Court
22CR56629; A184296

Sean E. Armstrong, Judge.
Submitted February 5, 2026.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Oregon Public Defense Commission, filed the opening brief
for appellant. Devin M. Quirk filed the supplemental briefs
pro se.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Remanded for resentencing; otherwise affirmed.
846 State v. Quirk

TOOKEY, P. J.
Defendant appeals from a judgment of conviction
for 15 sex crimes, including first-degree rape, ORS 163.375
(Counts 1, 9, and 11), first-degree sexual abuse, ORS 163.427
(Counts 2, 4, 6, 8, 10, 12, 14, 15), second-degree unlawful
sexual penetration, ORS 163.408 (Counts 3, 5, 13), and first-
degree sodomy, ORS 163.405 (Count 7). The charges against
defendant arose when his 13-year-old daughter reported that
defendant had sexually abused her on multiple occasions.
After a trial, a jury convicted defendant on all 15 counts. On
appeal, defendant raises four assignments of error through
counsel and 12 assignments of error in his pro se supple-
mental briefs. Defendant argues that the trial court plainly
erred by not merging Counts 2 and 4, and he argues that we
should remand for resentencing. The state concedes the sen-
tencing error which we accept as well taken. For the reasons
discussed below, we reject defendant’s remaining assign-
ments of error. Therefore, we remand for resentencing and
otherwise affirm.
Substitution of Counsel. In his first, second, and
third assignments of error, defendant argues that the trial
court erred when it denied his motions to substitute coun-
sel. Defendant was arraigned on December 6, 2022. About
a month later, on January 3, 2023, defendant requested
substitute counsel, and the trial court granted that request
and appointed a new attorney. On February 13, 2023, defen-
dant again requested that the trial court appoint substitute
counsel, which the trial court denied. Over a year later, on
March 5, 2024, on the first day of trial, defendant requested
substitute counsel once again. Following a colloquy between
defendant and the trial court and the trial court’s question-
ing of defense counsel, the trial court determined that it
was “persuaded by [counsel’s] representation” that counsel
was “available to [defendant] by phone any time he want[ed]
to talk,” and that there was no reason to grant defendant’s
request for a new attorney. During trial the following day,
defendant renewed his pretrial motion to substitute counsel
twice more, which the trial court denied.
The right to counsel is guaranteed by Article I,
section 11, of the Oregon Constitution, and by the Sixth
Nonprecedential Memo Op: 347 Or App 845 (2026) 847

Amendment to the United States Constitution. When a
defendant cannot afford an attorney, they have the right
to an appointed attorney who can represent them ade-
quately. Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d
458 (1981); Gideon v. Wainwright, 372 US 335, 83 S Ct 792,
9 L Ed 2d 799 (1963). Defendants have a right to replace
one court-appointed attorney with another only when they
have a “legitimate complaint concerning the one already
appointed to them.” State v. Langley, 314 Or 247, 257, 839
P2d 692 (1992), adh’d to on recons, 318 Or 28, 839 P2d 692
(1993) (internal quotation marks omitted).
Citing State v. Davis, 345 Or 551, 580, 201 P3d 185
(2008), cert den, 558 US 873 (2009), defendant argues that
he was entitled to substitute counsel because there was a
“breakdown in the attorney-client relationship sufficient to
establish an abridgment of the constitutional right to coun-
sel.” However, the state responds that, under Davis, “[t]he
proper question to ask is whether, given the circumstances
involved, defense counsel adequately performed those func-
tions of professional assistances which an accused relies
upon counsel to perform on his behalf.” Id. at 581-82 (inter-
nal quotation marks omitted). The state further argues
that, like in Davis, there is nothing in the record to suggest
that counsel could not—or would not—provide defendant
with adequate representation. Having reviewed the record,
we agree with the state. While the trial court acknowledged
that the attorney-client relationship was “fairly contentious”
and that defendant and his counsel did not “get along,” the
trial court did not “detect any difficulty or inability that
[counsel] is having to present the evidence that [defen-
dant] want[ed] to present * * * and to represent [defendant]
throughout the[ ] proceedings.”
Reviewing for abuse of discretion, State v. Olson,
298 Or App 469, 472, 447 P3d 57 (2019), we conclude that
the trial court did not err in denying defendant’s motions
for substitute counsel because the trial court engaged in an
appropriate colloquy with defendant and his counsel and
determined that there was no reason to think that their
contentious relationship prevented counsel from exercis-
ing professional skill and judgment in his representation of
848 State v. Quirk

defendant. See Bogle v. State, 363 Or 455, 472, 423 P3d 715
(2018) (explaining that “appointed counsel—like all coun-
sel—must exercise reasonable professional skill and judg-
ment”). Therefore, we reject defendant’s first three assign-
ments of error.
Merger of Counts 2 and 4. In his fourth counseled
assignment of error, defendant contends that the trial court
plainly erred by not merging the verdicts for Counts 2 and
4. Although defendant did not object to the trial court’s fail-
ure to merge the counts at trial, he asks that we review the
issue as plain error. See ORAP 5.45(1) (“No matter claimed
as error will be considered on appeal unless the claim of
error was preserved in the lower court and is assigned as
error in the opening brief in accordance with this rule, pro-
vided that the appellate court may, in its discretion, con-
sider a plain error.”).
The state concedes that the trial court plainly
erred in failing to merge Counts 2 and 4 because, under
ORS 161.067(3), merger was required. Having reviewed
the record, we agree with the parties. Counts 2 and 4 were
based on a single criminal episode, and the state presented
no evidence of a sufficient pause in defendant’s conduct for
separate convictions. See State v. Campbell, 265 Or App 132,
138, 333 P3d 1220 (2014) (holding that ORS 161.067(3) does
not authorize separate convictions for successive assaults
when the record fails to establish that a “sufficient pause”
separated the violations).
Defendant argues, and the state agrees, that we
should exercise our discretion to correct this plain error.
See, e.g., State v. Sheikh-Nur, 285 Or App 529, 533, 398 P3d
472, rev den, 361 Or 886 (2017) (“[T]he presence of an addi-
tional conviction on [the] defendant’s criminal record mis-
states the nature and extent of [the] defendant’s conduct;
furthermore, the state has no interest in convicting a defen-
dant twice of the same crime.” (Internal quotation marks
omitted.)). We conclude that the trial court plainly erred in
failing to merge Counts 2 and 4 into a single conviction of
first-degree sexual abuse, and we exercise our discretion to
correct the error. Therefore, we remand for sentencing.
Nonprecedential Memo Op: 347 Or App 845 (2026) 849

Pro Se Assignments of Error. In a supplemen-
tal pro se brief, defendant raises 12 assignments of error,
including, in his first through fourth assignments of error,
that the trial court erred in denying motions to dismiss
and his motion to suppress evidence. Having reviewed the
arguments and the record, we are not persuaded that the
trial court erred when it denied those motions. Although
defendant’s arguments are often difficult to follow, to the
extent that defendant’s sixth through ninth assignments of
error can be viewed as asserting sentencing errors, we do
not reach them because they can be addressed by the trial
court on remand for resentencing. See State v. Manning,
300 Or App 390, 391, 453 P3d 946 (2019), rev den, 366 Or
292 (2020) (“Because we must remand for resentencing to
correct [one] error, we do not reach defendant’s assignment
regarding [another sentencing error], which the trial court
will have an opportunity to address in the first instance on
remand.”). In addition, we do not address defendant’s fifth,
tenth, eleventh, and twelfth assignments of error because
the arguments are unpreserved and undeveloped. Although
we recognize the challenges inherent in representing one-
self pro se in an appellate court and may disregard technical
deficiencies up to a point, we cannot step out of our role as
neutral arbiter in order to “make or develop a party’s argu-
ment.” Beall Transport Equipment Co. v. Southern Pacific,
186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified
on recons, 187 Or App 472, 68 P3d 259 (2003); see also Briggs
v. Lamvik, 242 Or App 132, 142 n 9, 255 P3d 518 (2011) (stat-
ing similar).
Remanded for resentencing; otherwise affirmed.