State v. Melvin

594                 October 23, 2024             No. 747

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
             RHETA LEANNE MELVIN,
                 Defendant-Appellant.
             Douglas County Circuit Court
         19CR79323; A180165 (Control), A180166

  Robert B. Johnson, Judge.
  Submitted July 16, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kate E. Morrow, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Cite as 

 (2024)                             595

        HELLMAN, J.
         In this consolidated appeal, defendant appeals an
amended judgment and a judgment revoking her probation.
In a single assignment of error, defendant argues that the
trial court abused its discretion when, on the day of her continued probation violation hearing, it denied her motion for
a second continuance. Specifically, defendant argues that,
because she had recently hired private counsel who could
not proceed that day, the “delay in obtaining new counsel
was not defendant’s direct fault.” Having considered the particular facts of the case and the parties’ arguments to the
trial court, we conclude that the trial court did not abuse its
discretion when it determined that defendant had hired private counsel for the purpose of delay and denied her motion.
Accordingly, we affirm.
         “We review the denial of a continuance for abuse of
discretion. If a trial court’s decision is within the range of
legally correct choices and produces a permissible, legally
correct outcome, then the trial court did not abuse its discretion.” State v. Ferraro, 

, 

 (2014) (internal quotation marks and citations omitted). “Our understanding and application of ‘the range of
legally correct choices’ in this context has been broad and
pragmatic.” State v. Kindler, 

, 

 (2016).
        In August 2022, the state alleged that defendant
had violated her probation by failing to complete sex offender
treatment. Specifically, the state alleged that defendant
“has now been terminated by two separate treatment providers” and that she exhibited “a pattern of behaviors …
while engaged with all providers, not just one.” Defendant
was arraigned that month and the trial court entered an
order appointing counsel.
        In September 2022, defendant appeared with
appointed counsel and requested a contested probation violation hearing. At the contested hearing in October 2022,
appointed counsel stated that she had conferred with the
state and was requesting a continuance. The state did not
object. After appointed counsel indicated that she could
596                                                  State v. Melvin

proceed in three days, the court continued the hearing until
that date. Defendant did not express any dissatisfaction
with appointed counsel or otherwise address the court.
         At the continued hearing, defendant appeared with
private counsel and requested a continuance. Private counsel explained that he “could not go forward today for medical
reasons.” The state objected.
      “[THE STATE]: This was already set over previously.
   [Defendant] has known since at least August that this
   [probation violation hearing] was taking place. This hearing has been set for some time. She’s had plenty of time to
   retain counsel if she was going to do so. This appears to
   be just more of her delaying which is part of the, the problem with her status on probation. And as articulated in the
   [probation violation] report, is that’s a common theme for
   [defendant]. Is delaying, not making appointments.”
        The trial court denied defendant’s request. After
noting that appointed counsel was present, the trial court
found that defendant’s request was “a clear delay tactic”
and had “nothing to do with [private counsel’s] health.” The
court further found that defendant “had over two months to
retain counsel, private counsel, if she wanted to. The whole
reason for the denial is the timing on the heels of a continuance earlier this week.” Although appointed counsel stated
that she “believe[d] that this has to do with dissatisfaction,”
the court disagreed.
        “THE COURT: My point is the same, however. And
   I mean if [private counsel] can, wants to be here at, at
   counsel table that’s fine … this is all about delay. … [I]
   f the concern was dissatisfaction with [appointed counsel’s]
   representation I don’t think that happened in the last 24
   hours. I don’t think that happened in the last hour. And so
   if [defendant] was dissatisfied with your representation she
   could have hired counsel a long time ago.”
The contested hearing proceeded and appointed counsel
represented defendant. After the court determined that the
purposes of probation were not being met, it revoked defendant’s probation. This appeal followed.
       On appeal, defendant argues that the trial court
abused its discretion when it denied her request for a
Cite as 

 (2024)                                              597

continuance because “defendant had already hired a new
attorney, but that attorney had a medical problem that
prevented him from representing defendant that day.”1
Defendant further contends that “the delay in obtaining new
counsel was not defendant’s direct fault.” We disagree.
         “As a general matter, denial of a motion for a continuance on the day of trial is unlikely to be an abuse of discretion, but that is not a hard-and-fast rule and instead depends
on the circumstances.” State v. Gallegos, 

, 

 (2014), rev den, 

 (2015) (citation
omitted). Therefore, “whether a denial of a continuance is
an abuse of discretion depends on the particular facts of the
case and the reasons presented to the court at the time the
request was denied.” State v. Thomas, 

,

 (2014).
    “To properly exercise discretion, a court must inquire into
    the nature of and reasons for a party’s continuance request
    and evaluate its merits. The court must also provide a sufficient record for review, describing the basic reasons for its
    decision and demonstrating that it was based on a correct
    application of the law and evaluation of the merits.”
A. D. L. and Lane, 

, 

 (2023)
(internal quotation marks and citations omitted).
         As relevant here, although “a criminal defendant
must have a reasonable opportunity to obtain counsel of the
defendant’s choice, … that right is balanced against the
need to conclude cases in a timely manner.” Thomas, 

. Consequently, “if obtaining counsel causes
delay, one factor we consider is whether the circumstances
surrounding [the] delay were within defendant’s control.”
Id.; State v. Hickey, 

, 

(1986) (concluding that the theft of the defense counsel’s
briefcase containing the “entire case file” the night before
trial was a factor “beyond [the defendant’s] or his counsel’s
control”).

    1
       We do not understand defendant to argue that the trial court’s ruling on
her motion for a continuance denied her the right to counsel of choice. In her
brief, defendant explains that she “construes the court’s ruling as a denial of a
continuance” because “defendant does not need court permission to discharge
court-appointed counsel and hire retained counsel, State v. Keerins, 

, 

 (1996)[.]”
598                                          State v. Melvin

          We have considered the “particular facts of the case
and the reasons presented to the court at the time the request
was denied,” Thomas, 

, and conclude that
the trial court did not abuse its discretion. Here, the state
objected to the continuance, argued that the request was
consistent with defendant’s pattern of “delaying, [and] not
making appointments,” and referenced defendant’s probation violation report. That report included a letter from
defendant’s treatment provider indicating that defendant
had missed regularly scheduled treatment appointments,
offered excuses at the last minute, and blamed others for
her conduct. Moreover, even though defendant acknowledges that she “[did] not need court permission to discharge
court-appointed counsel” and to retain private counsel, she
did not inform the court that she had hired private counsel
until the day of the continued hearing. Therefore, the trial
court did not abuse its discretion when it determined that,
notwithstanding private counsel’s “medical reasons,” defendant had hired private counsel for the purpose of delay and
denied defendant’s request. See, e.g., State v. Keerins, 

, 

 (1996) (“It is not an abuse of
discretion to deny a continuance that is requested on the
day of trial, when a defendant had a reasonable opportunity
to obtain counsel but had failed to do so because of his own
lack of effort and his own choice.”); State v. Makinson, 

, 

, rev den, 

(2001) (concluding that the trial court did not abuse its discretion in denying the defendant’s request for a continuance
on the day of trial when the defendant had contacted a private attorney two weeks before trial, “did not contact that
attorney again,” then told his court-appointed counsel two
days before trial that he “wanted to relieve [the appointed
counsel] of his duties” and that he would hire private counsel); see also State v. Page, 

, 

(1974) (concluding that “[t]he trial court was justified in
observing that defendant was ‘playing games’ with the court
in continually seeking postponement of his case”).
        Affirmed.