v. Rainey

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 18, 2021

                                

No. 17CA1133, People v. Rainey — Constitutional Law — Sixth
Amendment — Right to Counsel

     The defendant in this criminal case requested a continuance

so that he could continue to be represented by his appointed

counsel who could not appear on the scheduled trial date. The

district court, relying primarily on scheduling issues, denied the

request, and the defendant proceeded to trial with new, substitute

counsel. On appeal, he argued that the district court’s denial of his

continuance request violated his Sixth Amendment right to

continued representation by his counsel.

     A division of the court of appeals holds that because indigent

defendants have a constitutional right to continued representation

by appointed counsel, the district court must apply the factors

enumerated in People v. Brown, 

, when the defendant
seeks a continuance to enable him to continue the representation

by his appointed counsel. Because the district court did not apply

the Brown factors, the division reverses the judgment and remands

for further proceedings.
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 17CA1133
El Paso County District Court No. 16CR3477
Honorable Robin Chittum, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert James Rainey,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                          Opinion by JUDGE HARRIS
                        Johnson and Vogt*, JJ., concur

                          Announced March 18, 2021


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1    Defendant, Robert James Rainey, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of second

 degree kidnapping and criminal mischief.

¶2    On appeal, one claim is potentially dispositive. Rainey

 contends that the district court violated his Sixth Amendment right

 to continued representation when it denied a continuance on

 grounds of judicial efficiency, thereby forcing him to proceed with a

 different public defender. We conclude that the district court

 applied the wrong legal standard in considering the motion to

 continue, and we therefore reverse and remand for further findings.

                            I. Background

¶3    Rainey was charged with second degree kidnapping, a felony,

 and several misdemeanor domestic violence offenses following an

 altercation with the victim. The district court appointed counsel to

 represent him.

¶4    Trial was originally scheduled to begin January 9, 2017, but

 was thereafter delayed and continued multiple times for reasons not

 attributable to the defense:

       The court delayed trial to January 10 because a storm had

         damaged the courthouse.


                                   1
       On January 10, the prosecution moved for a continuance

        because the victim failed to appear. Over Rainey’s

        objection, the court granted the continuance and

        rescheduled trial for February 2.

       The jury commissioner did not have enough jurors available

        on February 2, so the court continued the case to February

        23.

       On February 23, the prosecution moved for a second

        continuance because one of its witnesses was unavailable.

        The court granted the continuance (again, over Rainey’s

        objection) and reset trial for March 6, 2017, the day before

        the speedy trial deadline.

¶5    At a pretrial hearing on March 3, Rainey, through his public

 defender, Neil DeVoogd,1 requested a continuance. DeVoogd

 explained that he would be out of town for the week of March 6, and

 that when he had accepted that date, the parties had reached an

 agreement and there was “not any [likelihood] that [the case] was


 1DeVoogd had recently replaced Rainey’s initial public defender,
 who, according to Rainey’s wife, had “called [Rainey] an asshole,
 had called him stupid at some point,” and did not “communicate
 back in a timely manner.”

                                     2
 going to be going to trial,” but the agreement “ended up not going

 through.” He said that Rainey wanted to continue the

 representation and was asserting his “right to have [DeVoogd] as his

 attorney” at trial. DeVoogd told the court that Rainey would agree

 to waive his right to a speedy trial.

¶6    The court recognized that every prior delay or continuance had

 “either been attributable to the DA or the Court” and that “none of

 them [we]re attributable to the Defense.” The trial judge rejected

 any notion that the continuance request was a dilatory tactic and

 indicated that she personally “felt terrible for Mr. Rainey in the

 midst of all of this” and was “sympathetic” to the request.

¶7    Nonetheless, the trial judge denied the continuance, finding,

 primarily, that it had been difficult to find a substitute judge to hear

 the case and, due to the nature of the case, it would be difficult to

 fit the trial back into her docket:

            It would have been great to have [DeVoogd] do
            it and that would have been a little more
            comfortable, I think for Mr. Rainey. But what
            the factual [sic] comes down to is that this isn’t
            a [complicated] case. It’s not a case that
            involved anything technical. It’s just straight
            forward witnesses and a victim who doesn’t
            want to cooperate.



                                       3
             ....

             If I have to reset this case, it’s getting reset [in]
             July, and then even then it’s not a high
             priority case. Every week I have sex assault on
             a child, I have homicides set, I have [serious]
             assault cases set, crimes of violence set. There
             is a darn good chance that if we continue this,
             he gets bumped again. And I can’t do that. I
             just can’t do that for the sake of this case. He
             is getting his attorney of choice. He’s getting
             the Public Defender and a fine one too. So, I
             understand where you’re coming from, record
             so noted. But I’m gonna deny the request for a
             continuance.

¶8     Accordingly, in place of DeVoogd, two other public defenders

  from the same office represented Rainey at trial.

                    II. Sixth Amendment Right to Counsel

¶9     Rainey contends that the district court’s denial of his request

  for a continuance violated his constitutional right to continued

  representation by DeVoogd, his counsel of choice.

                          A.   Standard of Review

¶ 10   We review the district court’s denial of a continuance motion

  for an abuse of discretion. People v. Brown, 

. The

  court’s “failure to understand the . . . criteria upon which [its]

  discretion is to be exercised can amount to an abuse of that

  discretion.” Pierson v. People, 

. And the court


                                      4
  necessarily abuses its discretion if it bases its ruling on an

  erroneous view of the law. People v. Wadle, 

 (Colo.

  2004). Whether the court applied the correct legal standard is a

  question of law we review de novo. Ronquillo v. People, 

.

                               B.   Analysis

¶ 11      The Sixth Amendment guarantees a criminal defendant “the

  Assistance of Counsel for his defence.” U.S. Const. amend. VI; see

  also Colo. Const. art. II, § 16. That guarantee has been interpreted

  to include, among other things, the right to appointed counsel for

  indigent defendants, Gideon v. Wainwright, 

  (1963), and the right to “select and be represented by one’s

  preferred attorney” for defendants of means, Wheat v. United States,

  

 (1988).

¶ 12      The People argue that because Rainey, as an indigent

  defendant, had no constitutional right to choose his lawyer, he also

  had no right to continued representation by his appointed lawyer.

  That argument cannot be squared with our supreme court’s well-

  settled precedent.




                                     5
¶ 13   To be sure, an indigent defendant does not have a right to

  select his appointed counsel. Ronquillo, ¶ 25 (“[A] defendant

  requesting a free lawyer can’t choose which one he’s given.” (citing

  United States v. Gonzalez-Lopez, 

 (2006))). But

  “[t]he right to continued representation by counsel of choice [is

  distinct] from an asserted right to have particular counsel of choice

  appointed.” People v. Harlan, 

 (Colo. 2002).

  “[O]nce counsel is appointed, the attorney-client relationship is no

  less inviolable than if the counsel had been retained by the

  defendant.” People v. Shari, 

 (Colo. 2009)

  (quoting Harlan, 

). So, “[w]hile there is no Sixth

  Amendment right for an indigent defendant to choose his appointed

  counsel, that defendant is ‘entitled to continued and effective

  representation’” by court-appointed counsel of choice “in the

  absence of a demonstrable basis in fact and law to terminate that

  appointment.” Harlan, 

 (citation omitted); accord

  People v. Nozolino, 

.

¶ 14   The People’s argument, which conflates the right to select

  counsel with the right to continued representation, was expressly

  rejected by the supreme court in Harlan. In that case, after the


                                    6
defendant was convicted at trial and while two postconviction

motions were pending, the district court disqualified appointed

counsel based on an alleged conflict of interest. Harlan, 

. On appeal, the prosecution contended that the court’s interest

in avoiding a potential conflict necessarily outweighed any interest

the defendant had in keeping his appointed counsel, noting that an

indigent defendant has no right to counsel of his choice. 

.

The court deemed that contention a non sequitur:

           [T]he People’s contention that indigent
           defendants are not entitled to choose court-appointed counsel is irrelevant to the issue
           before us. . . . As noted above, an indigent
           defendant has a presumptive right to
           continued representation by court-appointed
           counsel absent a factual and legal basis to
           terminate that appointment. Because the
           issue presented in this case is whether Harlan
           may continue to be represented by his current
           counsel, and not whether he may choose his
           counsel, this argument by the People, and the
           case law cited to support the argument, is
           inapposite.

 (citation omitted); see also Nozolino, ¶ 17; Shari, 

; Lane v. State, 

 (Ala. Crim. App. 2010)

(explaining that the right to continued representation applies

equally to indigent defendants and collecting state and federal cases



                                   7
  applying the rule); State v. McKinley, 

 (Iowa

  2015) (adopting Harlan’s view and collecting cases).

¶ 15   In light of this case law, we reject the People’s position that if a

  defendant does not pay for his lawyer, he has no grounds to object

  to his lawyer’s replacement as long as the replacement lawyer

  handles the case competently. See Lane, 

. “To

  allow trial courts to remove an indigent defendant’s court-appointed

  counsel with greater ease than a non-indigent defendant’s retained

  counsel would stratify attorney-client relationships based on

  defendants’ economic backgrounds.” Weaver v. State, 

 (Fla. 2004).

¶ 16   And the right to continued representation means that an

  indigent defendant has a right to proceed with his specific

  appointed lawyer, not just any appointed lawyer from the public

  defender’s office.

¶ 17   We have recognized that non-indigent defendants have this

  right. In People v. Stidham, 

, a division of this

  court held that a defendant has a Sixth Amendment right to

  proceed with his specific lawyer, and that the district court erred by

  denying a motion to continue and thereby requiring the defendant


                                     8
  to proceed with another lawyer from the same firm. See also

  Gonzales v. State, 

 (Md. 2009) (trial court erred

  by denying the defendant’s request to continue with his own lawyer

  and instead requiring him to choose between proceeding to trial

  with a different lawyer from the same firm or representing himself).

¶ 18   If, as Harlan says, the attorney-client relationship between an

  indigent defendant and his appointed counsel is no less inviolable

  than the relationship between a non-indigent defendant and his

  retained counsel, then the Sixth Amendment limits the district

  court’s power to replace a defendant’s appointed lawyer with

  another from the same firm or organization.2 See Stearnes v.



  2 People v. Coria, 

 (Colo. 1997), does not affect our
  conclusion. In that case, after noting that an indigent defendant
  does not have “an absolute right to demand a particular attorney,”
  the supreme court stated that “[t]he substitution of one public
  defender with another does not violate the Sixth Amendment right
  to counsel, absent evidence of prejudice.” 

. The question
  on appeal, though, was whether a defendant has a right to be
  represented by a law student intern. 

. The supreme
  court never purported to address whether an indigent defendant
  has a right to continued representation by his appointed counsel.
  That precise issue was resolved five years later in People v. Harlan,
  

 (Colo. 2002), which did not mention Coria.
  Because the propriety of substituting appointed counsel over a
  defendant’s Sixth Amendment-based objection was outside the
  scope of the issue decided by the Coria court, the court’s statement

                                    9
Clinton, 

 (Tex. Crim. App. 1989) (“[T]he power

of the trial court to appoint counsel to represent indigent

defendants does not carry with it the concomitant power to remove

counsel at [its] discretionary whim.”); State v. Huskey, 

 (Tenn. Crim. App. 2002) (“[A]ny meaningful distinction

between indigent and non-indigent defendants’ right to

representation by counsel ends once a valid appointment of counsel

has been made.”). To the client — whether indigent or wealthy —

“[a]ttorneys are not fungible, as are eggs, apples and oranges.”

United States v. Laura, 

 (3d Cir. 1979). Once

counsel has been appointed, and the defendant has reposed his

trust and confidence in the attorney assigned to represent him, the

district court may not “rend that relationship by dismissing the




is “mere dictum which is not binding on us.” McCallum Fam. L.L.C.
v. Winger, 

 (Colo. App. 2009).
    The Coria court’s statement was taken from People v.
Gardenhire, 

 (Colo. App. 1995), in which a division of
this court held that, absent some showing of prejudice, “the
substitution of one public defender with another does not constitute
a violation of defendant’s Sixth Amendment right to effective
assistance of counsel.” 

 (emphasis added). That narrow
proposition is unrelated to the issue in this case. And to the extent
a broader rule was intended, we decline to adopt it. See Chavez v.
Chavez, 

.

                                  10
  originally appointed attorney and then thrusting unfamiliar and

  unwelcome counsel upon the defendant.” McKinnon v. State, 

 (Alaska 1974); see also English v. State, 

 (Md. Ct. Spec. App. 1969) (“[O]nce counsel has been

  chosen, whether by the court or the accused, the accused is entitled

  to the assistance of that counsel at trial.”) (emphasis added).

¶ 19   The right to counsel of choice, including the right to continued

  representation, is not absolute. See Rodriguez v. Dist. Ct., 

 (Colo. 1986). But, as Harlan recognizes, there is “a

  presumption in favor of a defendant’s choice of counsel” that

  “extends to indigent defendants: A defendant’s desire for continued

  representation by a court-appointed public defender is ‘entitled to

  great weight.’” 

 (quoting Rodriguez, 

);

  accord Nozolino, ¶ 17. Only when that presumption is overcome

  may a court disregard a defendant’s choice. See Brown, ¶ 21

  (refusing to allow the defendant to proceed with his counsel of

  choice “is an ‘extreme remedy’ that should not be used absent a

  showing of prejudice”) (citation omitted); Harlan, 

.

  For instance, if the defendant’s choice of counsel has a conflict of

  interest, the presumption may be outweighed by the public’s


                                    11
  interest in maintaining the integrity of the judicial process and the

  defendant’s Sixth Amendment right to conflict-free counsel. See

  Nozolino, ¶ 16; Harlan, 

. Likewise, if counsel of

  choice is unable to appear without a continuance, some

  combination of interests including prejudice to the prosecution and

  the victim’s rights may overcome the presumption. Brown, ¶ 24.

¶ 20   In determining whether competing interests overcome the

  presumption, the court “must balance the defendant’s right to

  counsel of choice against the public’s interest in both the ‘efficient

  administration of justice’ and maintaining the integrity of the

  judicial process.” 

 at ¶ 22 (quoting Harlan, 

). As

  noted, when balancing those interests, the court must afford “great

  weight” to the defendant’s choice. Nozolino, ¶ 17 (citing Harlan, 

); accord Brown, ¶¶ 16, 21.

¶ 21   The People argue that even if, in some circumstances, the

  court should consider the defendant’s “desire” to continue with

  appointed counsel, no such deference was warranted here.

  DeVoogd had no longstanding or “special” relationship with Rainey,

  they say, and no substantial history with the case; thus, the court




                                     12
  had no obligation to cater to Rainey’s “preference” to keep his

  lawyer.

¶ 22   But the argument arises from the faulty premise that Rainey’s

  interest in continued representation by his counsel of choice

  amounts to no more than a mere “desire” or “preference,” with no

  constitutional dimension. The premise is irreconcilable with Harlan

  and Nozolino. Contrary to the People’s assertion, an indigent

  defendant’s right to continued representation is not based on the

  district court’s assessment of the strength or longevity of a

  particular attorney-client relationship, but on the recognition that

  “respect and deference must be accorded to a defendant’s intelligent

  and informed choice of counsel under our justice system.”

  Nozolino, ¶ 17; see also Brown, ¶¶ 7, 11, 28 (remanding to consider

  whether continuance should have been granted where retained

  counsel entered his appearance twelve days before trial).

¶ 23   Accordingly, though the decision whether to grant or deny a

  continuance ultimately falls within the sound discretion of the

  district court, where constitutional rights are concerned, the court

  must consider and weigh additional factors to enable our review of

  whether it properly exercised its discretion. See Brown, ¶¶ 19-24;


                                    13
  see also People v. Travis, 

 (“[W]hen the Sixth

  Amendment right to counsel of choice is at issue,” a court ruling on

  a motion for a continuance “must demonstrate that it weighed the

  full range of factors that might affect its exercise of discretion.”).

¶ 24   When ruling on a request for a continuance to allow

  representation by counsel of choice, Brown directs the district court

  “to consider and make a record of the impact” of eleven factors:

             1. the defendant’s actions surrounding the
             request and apparent motive for making the
             request;

             2. the availability of chosen counsel;

             3. the length of continuance necessary to
             accommodate chosen counsel;

             4. the potential prejudice of a delay to the
             prosecution beyond mere inconvenience;

             5. the inconvenience to witnesses;

             6. the age of the case, both in the judicial
             system and from the date of the offense;

             7. the number of continuances already granted
             in the case;

             8. the timing of the request to continue;

             9. the impact of the continuance on the court’s
             docket;




                                      14
            10. the victim’s position, if the victims’ rights
            act applies; and

            11. any other case-specific factors
            necessitating or weighing against further
            delay.

  Brown, ¶ 24.

¶ 25   Though Brown involved a request for a continuance to change

  counsel, see id. at ¶¶ 7-9, we conclude that the same factors should

  guide the district court’s discretion when the defendant seeks a

  continuance to continue with his counsel. In both situations, the

  defendant’s Sixth Amendment right to counsel of choice is

  implicated, and therefore the same interests must be balanced.

¶ 26   Indeed, the division in Stidham, ¶ 17, applied the Brown

  factors where the defendant sought a continuance to allow

  continued representation by his retained lawyer. Because the right

  to continued representation applies equally to indigent defendants,

  we hold that the district court was required to weigh the Brown

  factors before deciding whether to grant or deny a continuance

  necessary for DeVoogd’s continued representation of Rainey at




                                    15
  trial.3 See Harlan, 

; see also Lane, 

  (“With respect to continued representation, however, there is no

  distinction between indigent defendants and nonindigent

  defendants.”).

¶ 27   It is undisputed that the district court did not consider the

  Brown factors on the record. What is more, it mistakenly concluded

  that Rainey was still “getting his attorney of choice” — i.e., any

  lawyer employed by “the Public Defender.” Cf. Nozolino, ¶ 20;

  Stidham, ¶¶ 14-17. And rather than affording “great weight” to

  Rainey’s choice to continue the representation, Harlan, 

, the court suggested only that Rainey “would have been a little

  more comfortable” with DeVoogd as his trial counsel.

¶ 28   As a result, we must remand for the district court to make

  findings on the record as to each applicable Brown factor and apply




  3 We reject Rainey’s argument, relying on People v. Stidham, 

, that when the right to continued representation is at
  issue, as opposed to the right to select counsel of choice, no
  balancing test applies, and the district court must simply grant
  every request for a continuance. The Stidham division’s analysis in
  this regard, see 

 at ¶ 14 & n.1, applied only to a situation where
  a defendant’s chosen counsel fails to appear, through no fault of,
  and without notice to, the defendant.

                                    16
  the correct legal standard. See, e.g., Brown, ¶ 29 (remanding for

  court to make additional findings and apply the correct standard).

                  III.   Conclusion and Remand Order

¶ 29   The judgment is reversed, and the case is remanded for

  further proceedings. On remand, the district court must make

  findings on the record as to each applicable Brown factor (and state

  on the record why the remaining factors, if any, do not apply). If

  the court, after considering those factors and affording great weight

  to Rainey’s choice to continue DeVoogd’s representation, concludes

  that the presumption of continued representation has been

  overcome, it may reinstate the judgment of conviction, from which

  Rainey may separately appeal.4 Otherwise, Rainey is entitled to a

  new trial. See People v. Cardenas, 

, ¶ 19 (violation of

  a defendant’s right to counsel of choice is structural error).

       JUDGE JOHNSON and JUDGE VOGT concur.




  4 In light of our disposition, we decline to address Rainey’s
  additional contentions. If, after remand, the judgment of conviction
  is reinstated and Rainey appeals, he may re-raise his other claims
  at that time.

                                    17