Defendant appeals from a judgment of conviction for multiple counts of sexual abuse in the first degree, ORS 163.427, raising three assignments of error. We reject without discussion the second and third assignments and write only to address the first. There, defendant challenges the trial courts denial of his request for substitute counsel. We review a request for substitute appointed counsel for abuse of discretion. State v. Davis, 345 Or. 551, 579, 201 P.3d 185 (2008), and on this record, affirm.
On the morning of defendants July 2019 trial, defendants counsel reported that defendant “wants a new attorney, hes not prepared for trial,” and “he wants to make a motion for the Court for new counsel and a resetting of the trial date.”
The trial court engaged in a lengthy colloquy with defendant, starting with asking why defendant wanted new counsel. Defendant explained that “there was a motion that was supposed to be *** put in yesterday” but counsel “didnt show up”; he cited his disagreement with counsel over whether he should undergo a polygraph test or a “sex eval”; he expressed frustration over the limited contact he had had with counsel, noting that they had not had any “pre-trial *** conference” and that counsel had “pop[ped] up” with a “plea offer”; and he said it felt like counsel was “just trying to get [him] to take a plea” rather than “help.”
After listening to defendant, and inquiring of defense counsel, the court denied defendants motion for substitute counsel, concluding that defendants complaints about counsel failed to show that defendant lacked the “ability to have a full and fair defense provided[.]” It explained that, “while a defendant absolutely has a right to counsel,” that is “not synonymous with a right to *** micromanage counsels decision making[.]” The trial court noted that defendants counsel “has been busy filing some motions that would be anticipated” in a case like defendants, and that “[t]heres no indication *** that [counsel] has not been diligently pursuing representation” of defendant. The trial court also noted the late timing of defendants motion, explaining that witnesses and the victim were “assembled” and present, and that defendants counsel had “reported that hes ready to proceed for trial[.]”
An indigent criminal defendants right to court-appointed counsel is guaranteed by Article I, section 11, of the Oregon Constitution, and by the Sixth Amendment to the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Krummacher v. Gierloff, 290 Or. 867, 871-72, 627 P.2d 458 (1981). “The right to substitute counsel is not absolute.” State v. Heaps, 87 Or. App. 489, 493, 742 P.2d 1188 (1987) (citations omitted). The trial court has discretion regarding substitution of counsel. Id. A defendant has a right to replace court-appointed counsel with another only when she has a “legitimate complaint concerning the one already appointed for [her].” State v. Langley, 314 Or. 247, 257, 839 P.2d 692 (1992), adhd to on recons., 318 Or. 28, 861 P.2d 1012 (1993) (internal quotation marks omitted). A “ ‘legitimate complaint’ *** is one that is based on an abridgement of a criminal defendants constitutional right to counsel. The right to counsel requires adequate performance of an appointed lawyers professional assistance.” Id. at 258, 839 P.2d 692.
A trial court faced with a motion to substitute indigent counsel should engage in an inquiry into “ ‘the legitimacy of any complaint about appointed counsel.’ ” State v. Olson, 298 Or. App. 469, 472, 447 P.3d 57 (2019) (quoting State v. Smith, 339 Or. 515, 526, 123 P.3d 261 (2005)). Such an inquiry is, necessarily, case—and fact—specific. Id. The trial court “possesses discretion to determine the scope of the inquiry necessitated by a particular complaint,” and the trial courts ruling on a motion to substitute counsel is reviewed for abuse of discretion. Id.
Substitute counsel is not required merely because a defendant disagrees with counsels otherwise reasonable strategic choices; a “simple loss of confidence or disagreement with counsels approach to matters of strategy is not cause to substitute one appointed lawyer for another.” Goodlette v. Causey, 279 Or. App. 113, 115, 379 P.3d 739 (2016) (quoting Langley, 314 Or. at 258, 839 P.2d 692). Another factor that may be considered by the court in its exercise of discretion is the timing of the motion in relation to the trial date. See Knox v. Nooth, 244 Or. App. 57, 69, 260 P.3d 562 (2011) (relying in part on the timing of motion in analyzing a similar question).
Applying those principles here, the trial court made a full and proper inquiry of both defendant and defense counsel. On this record, the trial courts denial of defendants request for substitute counsel was within the bounds of discretion.
Affirmed.
PER CURIAM