State v. Noakes

546 November 12, 2026 No. 1091 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. FRANK WAYNE NOAKES, Defendant-Appellant. Coos County Circuit Court 16CR55408; A183322 Martin E. Stone, Judge. Argued and submitted October 7, 2026. David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Frank W. Noakes filed the sup- plemental briefs pro se. Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Anna Sortun, Paul Balmer, and Tonkon Torp LLC filed the brief amicus curiae for Criminal Justice Reform Clinic at Lewis & Clark Law School. Before Tookey, Presiding Judge, Egan, Judge, and Joyce, Judge. EGAN, J. Affirmed. Cite as 354 Or App 546 (2026) 547 548 State v. Noakes EGAN, J. What do you get when you combine Oregon’s public defense crisis, the statutory time limits for defendants in custody, and a defendant who has difficulty working with court-appointed attorneys? The answer is a case like this one. After being held in custody in Coos County for approximately 270 days, and after his third court-appointed attorney sought to continue the trial, defendant waived his right to counsel and moved for release from custody under ORS 136.290. In November 2023, the trial court denied the motion. A month later, defendant represented himself at his second trial, and a jury found him guilty of the charges, which included first-degree rape, first-degree unlawful sex- ual penetration, and first-degree sodomy. On appeal, the state concedes that the trial court erred when it denied defendant’s motion for pretrial release under ORS 136.290. However, the state argues that the issue is moot because defendant is no longer in pretrial custody and, alternatively, that we cannot review his appeal because defendant did not seek habeas or mandamus relief. We con- clude that the issue is not moot and that it is reviewable on direct appeal. Having meticulously reviewed the record, we further conclude that the error in denying defendant’s motion for pretrial release had little likelihood of affect- ing the jury’s verdict. We therefore reject defendant’s first assignment of error. As explained below, we also reject the other assignments of error, including the pro se assignment. We affirm. I. PROCEDURAL BACKGROUND Because it is relevant to the issues raised on appeal, we describe the procedural history of this case in some detail. In 2017, a jury found defendant guilty of sex offenses against his stepdaughter, B, when she was 11 years old. Defendant was sentenced to 600 months in prison. In February 2023, pursuant to Watkins v. Ackley, 370 Or 604, 523 P3d 86 (2022), the convictions were vacated because the jury verdicts were not unanimous. Cite as 354 Or App 546 (2026) 549 A. Defendant’s Initial Hearings On or about February 17, 2023, defendant was moved to Coos County, and defendant’s first appearance in the Coos County Circuit Court occurred on February 24, 2023. Due to Oregon’s public defense crisis,1 no attor- ney was immediately available to represent defendant. The trial court appointed the Oregon Public Defense Services (OPDS) as defendant’s attorney, set the case for weekly sta- tus checks, and set bail at $500,000.2 At hearings in March and April, the trial court determined that defendant had waived the requirement to go to trial within 60 days based on a waiver defendant signed before his first trial in 2016. B. Defendant’s First Court-Appointed Attorney In March, attorney Falls contacted defendant, but defendant was unhappy that the attorney would not be ready for trial until July. It is unclear from the record when attorney Falls was appointed to represent defendant, but the minutes from the March 31 hearing indicate that he with- drew and was “relieved from appointment.” The trial court warned defendant that he did not get to pick and choose his appointed attorney and that if he continued to reject attor- neys, then he would have to represent himself, which “would be incredibly difficult” and “a major mistake.” C. Defendant’s Second Court-Appointed Attorney On April 7, attorney Boone was appointed to repre- sent defendant. At a hearing on that date, Boone indicated that he had received discovery and that the state had made a settlement offer, and Boone sought a continuance relying on the waiver defendant had signed in 2016. The trial court set the case for trial in October. In June, defendant filed motions for an omnibus hearing and a settlement conference, which were granted. The settlement conference was set for a date in August, and the omnibus hearing was scheduled for September. However, at the end of June, Boone filed a 1 For a discussion of Oregon’s public defense crisis, see State v. Roberts, 374 Or 821, 584 P3d 1217 (2026); Betschart v. Oregon, 103 F4th 607 (9th Cir 2024). 2 Under Senate Bill 337 (2023), the Public Defense Services Commission and OPDS were replaced by the Oregon Public Defense Commission, effective January 1, 2024. 550 State v. Noakes motion to withdraw due to an “undisclosable conflict.” The trial court granted the motion, but to keep the case moving, it did not reset the dates for trial and for the hearings. D. Defendant’s Third Court-Appointed Attorney It took some time to find another attorney to rep- resent defendant. The prosecutor filed a motion request- ing OPDS to identify counsel, and the trial court held a hearing on the motion. At the end of the hearing, the trial court ordered OPDS to identify an attorney by July 31. By the end of July, attorney Clark was appointed to represent defendant. Having just been appointed, the trial court can- celed the October dates for trial and reset them to dates in December. In August, the trial court received letters from defendant “in which he expressed some concern about trust and confidence between him and Mr. Clark.” Defendant indicated that he had “a bad history” with the attorney, who had previously represented defendant when he sought post-conviction relief, and defendant did not trust him. At a hearing, the trial court encouraged defendant to continue working with Clark, at least through a scheduled settlement conference, and it declined to remove Clark as defendant’s attorney. In October, the trial court received another letter from defendant purporting to “fire” Clark. At a hearing, the trial court explained to defendant that he could not termi- nate his court-appointed attorney and that it was the trial court’s decision to make. The trial court denied defendant’s request to relieve Clark, noting that “the defense is under- way in terms of preparation, investigation, preparing for this trial in December,” and the trial court was not persuaded that there was “a total breakdown in communication.” On October 30, defendant, through his attorney, filed motions in limine, which were the same as, or simi- lar to, ones filed before the first trial. They related to state- ments made by the complainant, B, in interviews at the Kids’ Hope Center,3 as well as statements made by defendant 3 The Kids’ Hope Center is the name of the child advocacy center where B’s forensic interviews were conducted. Cite as 354 Or App 546 (2026) 551 in bodycam recordings and jail calls. In addition, defen- dant sought in camera inspection of Oregon Department of Human Services (ODHS) records. On November 15, Clark moved to set over the trial, which was scheduled to begin on December 19. However, at the hearing on the motion, defendant requested that the motion be withdrawn. That request took Clark by surprise because, according to Clark, defendant had insisted on a setover. However, Clark explained that he also had personal reasons to request a setover. The trial court continued the hearing to provide defendant an opportunity to discuss the matter with his attorney. E. The November 17 Hearing On November 17, Clark continued to seek a setover of the trial for health reasons. Defendant argued that if Clark could not handle the case because of a medical issue, then defendant should have different representation, and defendant did not want “to sit in jail for another few months when * * * the trial’s already set.” Defendant wanted “to proceed with trial.” Defendant stated that after reviewing discovery, he realized that he no longer needed a setover. Clark stated that “it’s been an ongoing problem finding and keeping attorneys to work with [defendant] through a trial.” But Clark added, “I’m still committed to doing that.” The trial court told defendant that it wanted him to be represented by an attorney at trial, explaining that “not having a lawyer sitting beside you, puts you at a distinct disadvantage. I don’t want to do that. And, quite frankly, I’d be reversed if I even allowed you to proceed by yourself.” The trial court, the prosecutor, and Clark discussed pushing the trial to dates in March 2024. But defendant interjected, “If I have to wait until next year, I would like to represent myself. I’m not willing to wait. I want this trial done.” Regarding the pending motions in limine, defendant noted that they were the same ones that had been filed before his first trial and that he had the transcript of the last omnibus hearing. The trial court explained that defendant had a right to self-representation, but not having the assistance of an attorney would put him “at a real disadvantage.” Defendant 552 State v. Noakes replied that he was already working on his opening state- ments, and he stated, “I may not have a law degree, but I have been studying for the last six years about certain aspects of the law. And I believe I can handle the trial.” The trial court asked defendant whether he planned to call wit- nesses, and he replied that he did, but he did not have them under subpoena. After further discussion about witnesses, defendant expressed confidence that his witnesses would “show up” even if they were not subpoenaed. Clark stated that his investigator could not work with defendant because the investigator had a law license and could be perceived as providing legal advice to a self- represented defendant. Clark explained that it would be relatively straightforward for defendant to get funding approved for a new investigator. The trial court asked defendant whether he wanted more time to think about self-representation, but defendant expressed concern that it would affect the date of the omnibus hearing. The trial court indicated that it intended to move that hearing any- way because it wanted “to give the State a chance to see if they can’t narrow down what the issues are that I have to decide.” The prosecutor stated that defendant was making “stupid decisions” in seeking to represent himself. The trial court responded that it was trying to talk defendant out of it and that it would give defendant the weekend to determine whether an investigator who had worked on the case earlier was available. F. The November 20 Hearing At the next hearing on November 20, defendant stated that he would not change his mind about self- representation and that he was “firmly set” on representing himself. Defendant stated that the other investigator was available, but defendant was “having problems with get- ting the forms I need to fill out to get him paid and get him going.” The trial court sought to confirm that defendant understood what it meant to represent himself. Defendant claimed he understood, and, with respect to how to handle Cite as 354 Or App 546 (2026) 553 the trial, he stated that he would “figure it out.” To ensure defendant knew what he was waiving, the trial court sum- marized what occurs during criminal trials, and defendant responded, “[a]s long as I have access to the Court and legal system I should have no problem.” Defendant stated that the library in the jail was “not quite sufficient for research- ing,” but he hoped to get access to the law library behind the courthouse. The prosecutor pointed out that the library behind the courthouse had closed, and the trial court told defen- dant that “there may be some limitations on what access you’d have to [do] legal research.” Defendant responded that it was not an issue: “I can find help. I can find * * * somebody to help me do the research.” The prosecutor also pointed out that there was a computer or terminal at the jail for legal research. The prosecutor noted that defendant appeared to have knowingly waived his right to counsel, but the prose- cutor was concerned about whether he was doing so volun- tarily. Defendant responded, “I’m saying for the record that this is a voluntary—I am volunteering to represent myself.” According to defendant, “[n]obody’s pressuring me. I’m doing it on my own accord.” He further stated, “I’m the one that is taking the risk. I’m the one that knows the risk. And, you’re not making me do anything that I do not want to do.” When the trial court explained again to defendant that Clark was available to try the case in March 2024, defen- dant confirmed that he understood and that he preferred to represent himself. He had given it “plenty of thought.” When asked whether he would waive his right to counsel even if Clark was available to try the case in December, defendant stated, “I absolutely would. I’ve tried to fire him a couple of times.” The trial court determined that it would allow defen- dant to represent himself. Defendant then moved to be released from custody because he had been in jail for 270 days. Relying on the waiver that defendant signed in 2016, the trial court denied defendant’s motion: 554 State v. Noakes “So, to the extent you [are] asking the Court to release you, I’ll deny that request. I don’t find a violation of your rights to a trial within sixty days given the fact that you signed a sixty day waiver some time ago.” The discussion turned back to trial preparation. The trial court explained to defendant that it was complicated to get out-of-state witnesses to appear. Defendant responded, “No. They’ve already agreed that they’d be here.” When defendant stated that he needed “to fill out the paperwork” for the investigator, defendant’s former attorney, Clark, indicated that he would help out as one of “his last acts” and that it should not be a problem because the investigator had worked with a previous attorney on the case. Defendant added that the investigator was “already up to speed except for the last few months.” The trial court expressed concern about defendant later seeking to continue the trial because the state was paying for at least one out-of-state witness to appear, but defendant indicated that he was firm about going to trial in December and “dead set on representing” himself. The trial court stated: “Okay. Mr. Clark, I’m going to give [defendant] the doc- ument confirming that he is going to represent himself. I’m satisfied that he knows what’s going on. He has an understanding of what’s going on. And, I’m convinced that it’s voluntary on the part of [defendant]. Nobody’s forcing him to do this. Nobody’s doing it because—he’s not doing it because Mr. Clark is not available. He just prefers to repre- sent himself. “Is that accurate * * * ?” Defendant confirmed that was accurate. Defendant signed a waiver of counsel form, stating: “The Court has fully explained my right to and purpose of an attorney, including the right to a court appointed attorney. After the Court explained the right to me, includ- ing that it is extremely difficult to defend myself without an attorney, I waive my Constitutional right to an attorney and will represent myself.” Defendant stated that he needed to get the dis- covery in the case as soon as possible, explaining, “I need Cite as 354 Or App 546 (2026) 555 to start going through it. And once we get my investiga- tor on board, he needs to have any electronic information that I cannot have in the jail. So, that way he—I can go through it when he comes to see me.” The prosecutor indi- cated that there was a lot of discovery. Defendant stated, “I have already been given a thousand pieces of paper. I’ve already gone through them within a week. * * * [I]t’s a lot of duplicate[s].” Defendant also stated, “I have no problem with going through whatever stuff I have. I mean, I have nothing but time.” When defendant asked about materials from the attorney who had represented defendant during his first trial, defendant learned that that attorney had retired and closed his law practice. The trial court expressed concern that defendant would later argue that he was denied access to materials, but defendant responded, “No. I already told you I wouldn’t.” Once again, the trial court encouraged defendant to continue to work with Clark, who could try the case in March, because “there’s a risk you may not be able to gather all the information.” Defendant stated that he under- stood the risk, that he was “good,” and that he would “get it handled.” With respect to the upcoming omnibus hearing, defendant stated that he had “gone through” the motions in limine that Clark had filed. Defendant did not intend to call witnesses at the hearing, and he stated that “[t]here’s only a couple issues that I have a problem with.” Defendant explained that there were redacted portions of a transcript from a Kids’ Hope Center interview that defendant sought to admit because he viewed them as exculpatory. After hearing argument on the issue, the trial court indicated that defendant should put in writing the parts of the tran- script that he wanted admitted, and defendant agreed to do that. The parties discussed access to medical records of defendant’s ex-wife, but defendant stated that he did not need them because they were not relevant. The trial court told defendant to get his list of witnesses to the prosecutor and “get me that information on what you want to not be redacted.” 556 State v. Noakes Two days later, on November 22, the state filed a response to defendant’s motions in limine, pointing out, among other things, that if defendant sought to admit por- tions of a forensic interview with B, then he would likely be opening the door to admission of other portions of the interview that were not favorable to defendant and that defendant’s prior attorneys had sought to exclude the entire interview. At a later hearing, defendant confirmed that he had a chance to review the state’s response. G. The November 24 Hearing At the next hearing, the court began by stating that defendant had requested a legal advisor. However, defendant changed his mind when he learned that Clark was the only available option because defendant did “not want to further extend” his trial. After that, the discussion turned to the ODHS records that were referred to in defendant’s motions in limine. The prosecutor explained that, before the first trial, the records had been subpoenaed and inspected in camera but that they would have to be subpoenaed again to see if there were any new materials. The prosecutor continued to express misgivings about whether defendant would be prepared for trial without an attorney. The prosecutor explained: “And the big problem has always been in this case, is [defen- dant] has wanted this case to proceed faster than what counsel has been able to provide. I mean, we’re talking about a Jessica’s Law case, where if he were to be convicted again, and the sentence that you imposed previously was imposed, it’s fifty years. And given his age, that is a life sentence. He’s going to spend the rest of his life in jail.” The prosecutor stated “that we have offered him as many things as we can” and that his idea of having a legal advisor was a good one, but it would mean continuing the trial so that the attorney could get up to speed. Defendant responded that he was “ready to go” and that he did not “want to post- pone it any longer.” The trial court addressed the ODHS records: “The [O]DHS records, you’d be required to issue a subpoena for the records, prepare and submit a protective order for Cite as 354 Or App 546 (2026) 557 the Court to review those in-camera. Those types of things take—take expertise on doing that. “Do you have any idea how to do that?” Defendant responded, “Not right at the moment, but I’ll fig- ure it out.” Defendant clarified, “I’ve already looked at the [O]DHS records from 2016 and 2017 when they were issued. And I don’t believe there will be anything new pertaining to this case.” He stated that he was not sure if he needed the ODHS records but that the subpoena and protective order would be in place by the time of the omnibus hearing, “if I decide to do that.” When asked whether defendant still wanted to represent himself, he stated, “Absolutely.” H. The Omnibus Hearing On December 4, the court held an omnibus hear- ing. The parties and the court began by discussing portions of Kids’ Hope Center interviews that defendant sought to admit. Defendant did not bring his transcript of the inter- views, but the court was able to review the prosecutor’s copy. After reviewing transcripts and arguments from the par- ties, the trial court explained that defendant would have an opportunity to cross-examine witnesses, including B and a police officer, and that he could possibly use prior state- ments for impeachment. However, the trial court also cau- tioned defendant that, in doing so, he may be opening the door to other evidence that was not favorable to him. Defendant argued that he believed parts of one interview had been “erased” because of discrepancies between an officer’s report and the recording of the inter- view. The prosecutor disputed defendant’s claim that any- thing had been “doctored,” and he pointed out that it was the defense who had the forensic interviews transcribed before the first trial. Later at the same hearing, the prosecutor stated that defendant’s perceived discrepancy may relate to separate incidents. The trial court explained that it would not exclude the evidence entirely and that defendant could use it to cross-examine witnesses. Defendant indicated that he planned to do so. Ultimately, the court deferred ruling on whether to admit the evidence. 558 State v. Noakes The parties also discussed the ODHS records. Defendant explained that his sister had talked to ODHS and that he had hoped his investigator would have brought the subpoena and protective order to the hearing. However, defendant stated that he had not “heard anything about that,” and given that it only concerned “the recent records,” defendant decided that he would not be asking the trial court to review those records. Defendant raised questions about some of the med- ical evidence in the case pertaining to B. The prosecutor clarified that the pediatrician who examined B would testify again, and the prosecutor anticipated that her testimony would be “in accordance with what’s in the transcript.” The trial court indicated that defendant could cross-examine her, and defendant stated, “Oh, I plan to.” The prosecutor notified the trial court and defen- dant that the state would not be offering evidence of domes- tic violence, child disciplinary issues, or statements from bodycam records or jail calls. However, the state did intend to offer defendant’s testimony from the first trial. After the discussion of motions in limine ended, defendant moved to dismiss the case on the grounds of dou- ble jeopardy. The trial court denied the motion. Next, the parties discussed witnesses. Defendant indicated that he would know his number of witnesses by the end of the week and that his sister had confirmed that his witnesses would “show up.” The prosecutor indicated that the state intended to call the same witnesses from the first trial. The trial court also discussed and explained the jury selection process. I. The December 14 Hearing On or around December 12, defendant made a writ- ten request for some of his witnesses who resided in Arizona to appear by telephone at his trial, including one who was too ill to travel and another who was in custody in California. The state objected to the request and, relying on a statute which required the state’s consent, the trial court denied the request. Cite as 354 Or App 546 (2026) 559 At a hearing on December 14, the state objected that it had not been provided with discovery regarding defendant’s witnesses. Defendant indicated that his inves- tigator was “in the process of gathering these people up and bringing them up here,” that he would have statements from them, and that they would be “character witnesses.” The prosecutor expressed misgivings about whether defendant knew what they would say. Defendant indicated that he was “limited on funds for phone. But I’ll give my third party a call tonight and have them contact my investigator.” Defendant was upset that it hadn’t “been done already,” but he also did not want to move the trial or have Clark as his lawyer. To help defendant, the prosecutor stated that he would “make arrangements with the jail, since he’s representing himself he should be able to use the attorney line I think to call the investigator. And he wouldn’t need to worry about funds on that line.” The trial court confirmed that it would “make that attorney telephone line available to you to talk to the investigator.” The prosecutor pointed out that, because some of the evidence consisted of video recordings of forensic inter- views, the prosecutor had provided defendant with “an old laptop from our office” so that he would have access to the videos and the state’s trial exhibits. Defendant confirmed that he had been able to watch the videos “a couple of times.” Defendant returned to the issue of whether a police report was consistent with a Kids’ Hope Center interview. The trial court reiterated that defendant could cross-examine the police officer. On December 14, the state responded in writing to defendant’s tampering claim by attaching a copy of a police officer’s probable cause statement and parts of the transcript from the forensic interview. The prosecutor also indicated that he had provided defendant the state’s witness list and its exhibit list. J. The Trial Readiness Hearing On December 18, the court held the trial readiness hearing. When asked about his witnesses, defendant stated that his investigator was still trying to find some of them. 560 State v. Noakes Defendant explained that they were not character witnesses but “[t]hey were there during the time” of the allegations. The prosecutor complained that he did not have contact information for them, but he would “prefer to wait to see who actually shows up” and, if necessary, defendant could make an offer of proof outside the presence of the jury. K. Defendant’s Second Trial On December 19, 2023, the jury was selected, and defendant’s second trial began. It lasted two days. Before picking a jury, the trial court explained the process to defen- dant and had defendant provide the names of his witnesses to make sure that potential jurors did not know them. The trial court told defendant: “Just follow the rules of the court- room. That’s all I ask. And, you’ve always been respectful in my courtroom. I appreciate that.” In his opening state- ment, defendant emphasized that the state had the burden of proving his guilt beyond a reasonable doubt. Ultimately, the state called eight witnesses, and defendant called three. Witnesses for the state included defendant’s ex-wife, who testified that she was on medi- cation and sometimes in the hospital during the relevant timeframe due to a skin condition and because she was pregnant. She testified that after B made her disclosures of abuse, defendant told her that he had twice discovered B— who was 11 years old at the time—naked and masturbating and that he was asleep and had woken up to discover that “his penis was in her mouth.” Defendant told his ex-wife that their stepdaughter “had a problem and she needed help.” The witness also testified about another incident when she discovered that defendant and B were alone inside a shed with the door locked. The complainant, B, testified that, when she was 11 years old, defendant would put his hands under her clothing to touch her vaginal area and her breasts. She testified that defendant inserted a finger inside her and that he made her touch his penis. She testified about an incident when her mother was in the hospital and defendant was watch- ing “porn on the TV.” Defendant came into her bedroom and started touching her vaginal area. He eventually left but Cite as 354 Or App 546 (2026) 561 later came back and took her into his bedroom where he put his finger inside her vagina. B testified that it hurt and she screamed and her sister J, who was 3 at the time, came into the room. B left the room with J. B testified that defendant made her put her mouth on her penis and that he “ejacu- lated” into her mouth. B testified that, in the shed, defen- dant had “tried to put his penis inside of” her. The jury heard testimony from defendant’s former mother-in-law, a child welfare protective service worker, the former director of the Kids’ Hope Center who had interviewed B, the pediatrician who had physically examined B, a family friend, and a police officer. The state played parts of the video recordings of the forensic interviews for the jury. The pedia- trician who examined B discovered that B had trauma in her genital area consistent with B’s disclosures of sexual assault. A family friend testified that defendant told her that “it wasn’t his fault; that [B] had instigated it. That she had done it, not him.” Defendant told her about an incident in the shed where someone “had put their hand down his pants. He assumed it was his wife,” but he discovered it was B. Defendant also told the friend about an incident where he woke up to discover that B was “[o]n top of him, riding him.” For defendant, three witnesses testified, including another family friend, defendant’s sister-in-law, and his sis- ter. They testified that, at the time, they had no concerns about defendant being around their children. Unlike at his first trial, defendant chose not to testify at his second trial. The court provided the jury with instructions, and the jury heard closing arguments. Defendant argued that nothing happened in the shed and that he could not have gone into B’s bedroom because the children were sleeping on mattresses in the living room at the time. Defendant suggested that B’s responses during the forensic interviews were prompted by the “questions that were asked of her.” The jury found defendant guilty on all counts. Defendant was sentenced to 600 months in prison, and he now appeals. II. ANALYSIS As the parties acknowledge, defendant’s appeal from his second judgment of conviction raises novel and complex 562 State v. Noakes issues. We begin our analysis by noting what is not at issue. The Supreme Court recently determined that “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). But here, defendant does not argue that the trial court erred when it permitted him to waive his right to counsel. Instead, defendant’s primary argument concerns the trial court’s fail- ure to release him from custody pending his retrial.4 A. The Erroneous Denial of Defendant’s Motion for Pretrial Release In his first assignment of error, defendant argues that the trial court erred in denying his motion to be released from custody on November 20, 2023. In considering that argument, we begin with the relevant legal framework. 1. Limits on pretrial custody and the state’s concession Generally, a “defendant shall not remain in cus- tody pending commencement of the trial of the defendant more than 60 days after the time of arrest unless the trial is continued with the express consent of the defendant.” ORS 136.290(1). Although the trial court may order an extension of custody “upon a showing of good cause,” “in no event shall the defendant be held in custody before trial for more than a total of 180 days.” ORS 136.295(4)(a). “The obvious purpose” of ORS 136.290 “is to limit the amount of time that a defendant may be held in custody pending trial.” State v. McDowell, 352 Or 27, 31, 279 P3d 198 (2012). In a case decided after defendant’s second trial, the Supreme Court analyzed that statute’s text, context, and legislative history to conclude that ORS 136.290 applies when the pending trial is a retrial. Benjamin v. O’Donnell, 372 Or 764, 766, 557 P3d 1089 (2024). 4 In his reply brief, for the first time, defendant argues that “the state violated defendant’s right to counsel by holding critical-stage hearings in the absence of counsel, failing to appoint counsel for an extended amount of time, and holding him in custody for 43 days while unrepresented by counsel.” Whatever the merits of that argument, it is not one that defendant made in his opening brief. We gen- erally do not consider arguments raised for the first time in a reply brief. State v. Thomas, 324 Or App 114, 119, 524 P3d 969 (2023). We therefore do not consider the argument further. Cite as 354 Or App 546 (2026) 563 Here, on November 20, 2023, after being in cus- tody for about 270 days, the trial court granted defendant’s request to represent himself and denied his motion to be released from custody. The trial court stated, “I don’t find a violation of your rights to a trial within sixty days given the fact that you signed a sixty day waiver some time ago.” As a result of the Supreme Court’s subsequent clarifica- tion in Benjamin that ORS 136.290 applies to retrials, the state concedes that the trial court should have granted the motion.5 We accept that concession as well taken. 2. Mootness, reviewability, and available remedies Despite that concession, the state argues that we cannot grant defendant relief. First, the state argues that defendant’s challenge on appeal is moot because defendant is no longer in pretrial custody. And second, the state argues that the trial court’s decision is not reviewable on appeal because the “sole remedy for a violation of ORS 136.290 is release from pretrial custody.” We are not persuaded by the state’s mootness and reviewability arguments. With respect to mootness, “[a] case becomes moot when a court’s decision will no longer have a ‘practical effect on the rights of the parties.’ ” State v. B. Y., 371 Or 364, 370, 537 P3d 517 (2023) (quoting Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993)); see also Garges v. Premo, 362 Or 797, 801, 421 P3d 345 (2018) (“Mootness results when a change in circumstance or some intervening event has eliminated the possibility that the requested relief can be provided.”). In State v. Slight, 301 Or App 237, 244, 456 P3d 366 (2019), we considered whether a defendant’s challenge to the denial of his motion for pretrial release was moot after the 5 Because the trial court relied on a 2016 waiver, no record was developed below regarding whether there were other reasons to deny release. For example, ORS 136.295(1) provides that ORS 136.290 “does not apply to persons charged with crimes that are not releasable offenses,” and ORS 135.240 describes how persons charged with “a violent felony,” which includes “a felony sexual offense,” can be denied release. ORS 136.295(4) provides in part that a trial court may order an extension of custody “upon a showing of good cause,” which can include when “[t]he attorney for the defendant has recently been appointed and cannot be ready to try the case with the 60-day period.” Here, the trial court relied exclu- sively on a 2016 waiver to deny release. 564 State v. Noakes defendant entered conditional guilty pleas. We held that the issue was not moot: “[E]ven though [the] defendant is no lon- ger confined pursuant to the pretrial detention ruling, our decision on the legality of that ruling will have a practical effect on [the] defendant’s rights—if [the] defendant prevails on appeal, he will be invested with a right to withdraw his plea.” Id. at 244-45. Similarly, here, we conclude that defendant’s chal- lenge on appeal is not moot because defendant seeks rever- sal of the judgment of conviction entered after his second trial, not pretrial release. If we were to decide that defen- dant is entitled to reversal of his convictions, then that would have a practical effect on the rights of the parties. We acknowledge that, had defendant filed a petition for a writ of mandamus or a petition for a writ of habeas corpus seeking release from pretrial custody, then challenges to decisions on those petitions might have become moot after defen- dant’s second trial. See Roberts, 374 Or at 830 (determining that the relator’s mandamus case was moot after the trial court dismissed the underlying criminal case because the “relator has already received the relief he is seeking”); see also Benjamin, 372 Or at 768 (explaining that a habeas case relating to the failure to release the defendant from pretrial custody became moot after defendant pleaded no-contest to a charge and was sentenced). But that is not the relief that defendant seeks; instead, he seeks to overturn his convic- tions. Therefore, the issue raised on appeal is not moot.6 Turning to the state’s reviewability argument, the state contends that “a challenge to a trial court’s ruling on a motion for pretrial release is not reviewable on appeal because no effective relief can be granted; rather such a chal- lenge is raised by means of a petition for mandamus relief or habeas corpus relief.” In support of that claim, the state cites a case in which the Supreme Court determined that a habeas corpus petition was “a permissible means for [a] defendant to challenge the trial court’s denial of his request for pretrial release.” Rico-Villalobos v. Giusto, 339 Or 197, 203, 118 P3d 246 (2005). In Rico-Villalobos, the court also 6 The state cites authority from other jurisdictions to arg