State v. Hampton ( 2015 )

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IN CLERKS OFFICE '
IUPREME COV!~T, STATE OF WASHINGTON
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CHIEJ=l.JUSTIC •
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Petitioner, ) No. 90811-7
)
v. ) EnBanc
)
MATTHEW ALEXANDER HAMPTON, )
) Filed NOV 1 9 2015
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Respondent. )
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OWENS, J. - On the eve of Matthew Hampton's trial, Hampton moved to
replace his appointed counsel with a new private attorney on the condition that the
trial be continued so his new counsel could prepare. The trial court denied the
continuance, so Hampton proceeded with his previously appointed counsel. He was
ultimately convicted of third degree rape. The Court of Appeals reversed his
conviction, holding that the trial court's decision violated Hampton's constitutional
right to his choice of counsel because it considered Hampton's reasons for wanting a
new attorney. State v. Hampton, 182 Wn. App. 805,332 P.3d 1020 (2014). The
Court of Appeals relied on a United States Supreme Court opinion that held that when
a defendant's right to choice of counsel is erroneously denied, a defendant need not
State v. Hampton
No. 90811-7
show prejudice in order to obtain relief. I d. at 810 (quoting United States v. Gonzalez-
Lopez, 548 U.S. 140, 146, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)).
We reverse the Court of Appeals. A trial court has wide latitude to grant or
deny a motion to delay trial related to a defendant's request to change counsel. State
v. Aguirre, 168 Wash. 2d 350, 365, 229 P.3d 669 (2010). In making such a decision,
trial courts should consider the factual context for the motion, which can include-
among other factors-a defendant's reasons for dissatisfaction with existing counsel.
The United States Supreme Court explained that its Gonzalez-Lopez decision did not
affect or undermine its previous rulings to that effect. 548 U.S. at 151. In this case,
the trial court did not abuse its discretion when it denied Hampton's request to delay
trial to allow him to replace his counsel given that (1) he did not make his request
until the day his trial was scheduled to start, (2) his trial had already been continued
once, (3) the victim/witness opposed the continuance, and (4) he did not explain his
dissatisfaction with appointed counsel.
FACTS
For an incident that occurred with an 18-year-old female friend of his son, the
State charged Hampton with indecent liberties, which charge was later amended to
rape in the second degree. His trial was originally set for July 13, 2012, but the
parties jointly moved for a continuance until August 31, 2012.
2
State v. Hampton
No. 90811-7
On August 31, 2012, Hampton moved to replace his appointed counsel with a
new private attorney. The replacement was contingent on the trial court granting a
continuance to allow the new private attorney to prepare for trial. Hampton explained
that he had not had a good relationship with his court-appointed counsel and that he
had recently obtained funds to hire a private attorney. The State opposed the motion,
contending that it was untimely and would delay the trial. The State also indicated
that the victim opposed the continuance and that the State had concerns about the
defendant interfering with a witness.
The trial judge indicated that she would allow the substitution of counsel but
not the continuance. She explained, "I don't think that a compelling record has been
made as to why the Court essentially on the day of trial should grant a continuance of
a case that has already been continued." Verbatim Report ofProceedings (VRP)
(Aug. 31, 20 12) at 8. She indicated that Hampton's appointed counsel was "a very
capable attorney" and that she was not "being given much reason other than
apparently some other source decided to provide the funds today." Id. at 7-8. She
also noted that the court was being asked to take the victim's position on the
continuance into account. She concluded, "I'm not inclined to grant this continuance
at this late of stage when there is competent counsel who is prepared to go forward."
Id. at 9.
3
State v. Hampton
No. 90811-7
Hampton proceeded to trial with his original appointed counsel and was
convicted of third degree rape. The Court of Appeals reversed his conviction, holding
that the trial court's decision violated Hampton's right to his choice of counsel.
Hampton, 182 Wash. App. at 825-26. The Court of Appeals relied on Gonzalez-Lopez
for the proposition that when a trial court is deciding whether to delay trial to allow a
defendant to choose different counsel, it cannot consider a defendant's reasons for
desiring new counsel. Id. at 822 (citing Gonzalez-Lopez, 548 U.S. at 144).
The State petitioned for review, which we granted. 1 State v. Hampton, 182
Wash. 2d 1002, 342 P.3d 327 (2015).
ISSUE
Did the trial court's decision to deny Hampton's motion for continuance violate
Hampton's right to his choice of counsel?
ANALYSIS
The right to the assistance of counsel under the Sixth Amendment to the United
States Constitution generally includes the defendant's right to his or her choice of
private counsel. Aguirre, 168 Wash. 2d at 365. However, a defendant's choice has
limitations, particularly when a defendant's desire to choose new counsel affects "the
public's interest in the prompt and efficient administration of justice." !d. The
1
Hampton cross petitioned for review of a jury instruction on a lesser included charge,
but we denied review of that issue.
4
State v. Hampton
No. 90811-7
balancing of a defendant's right to choice of counsel with a trial court's need to
efficiently administer justice "falls squarely within the discretion of the trial court."
I d. The Court of Appeals held that the trial court abused its discretion because it
considered, among other factors, Hampton's reasons for desiring new counsel. The
Court of Appeals based its decision on a United States Supreme Court case, Gonzalez-
Lopez. As explained below, that reliance is misplaced. As many other courts have
held, Gonzalez-Lopez did not affect the factors that a trial court can consider when
deciding whether to grant a defendant's request to replace his or her attorney. Thus,
we reverse the Court of Appeals and hold that the trial court did not abuse its
discretion by considering Hampton's reasons for wanting new counsel.
1. Overview of the Right to Counsel of Choice
As part of the Sixth Amendment right to the assistance of counsel, defendants
with private attorneys generally have the right to the counsel of their choice. I d.;
Gonzalez-Lopez, 548 U.S. at 144. In contrast, indigent defendants with appointed
counsel do not have the right to their counsel of choice. Gonzalez-Lopez, 548 U.S. at
151 ("the right to counsel of choice does not extend to defendants who require counsel
to be appointed for them"). Instead, indigent defendants can move to substitute
counsel when there is an "irreconcilable conflict" with appointed counsel. In re Pers.
Restraint of Stenson, 142 Wash. 2d 710, 723-24, 16 P.3d 1 (2001). As noted by the
Court of Appeals, that "irreconcilable conflict" standard relates only to defendants
5
State v. Hampton
No. 90811-7
with appointed counsel and does not apply to defendants retaining private attorneys.
Hampton, 182 Wash. App. at 821 n.13.
However, even for defendants with private attorneys, the right to counsel of
choice is not absolute. Gonzalez-Lopez, 548 U.S. at 151. For instance, a defendant
does not have the right to be represented by a person who is not a licensed attorney.
!d. at 151-52. Relevant to this case, the United States Supreme Court has explained
that one of the basic limits on the right to counsel of choice is "a trial court's wide
latitude in balancing the right to counsel of choice ... against the demands of its
calendar." !d. at 152. We have characterized that balancing by the trial court as
"weigh[ing] the defendant's right to choose his counsel against the public's interest in
the prompt and efficient administration of justice." Aguirre, 168 Wash. 2d at 365. "The
resolution of this balancing exercise falls squarely within the discretion of the trial
court." !d.
This balancing often occurs in cases like this, where a defendant desires new
counsel but requires a continuance to do so. The United States Supreme Court has
explained that we review a trial court's denial of a continuance to determine whether
it was "so arbitrary as to violate due process." Ungar v. Sarqfite, 376 U.S. 575, 589,
84 S. Ct. 841, 11 L. Ed. 2d 921 (1964). At issue in this case is what factors a trial
court can consider when deciding whether to grant a continuance to allow substitution
6
State v. Hampton
No. 90811-7
of counsel and, in particular, whether a trial court can consider a defendant's reasons
for wanting a different attorney.
2. Factors That Trial Courts Can Consider When Ruling on a Continuance
Related to a Defendant's Choice of Counsel
We have not previously addressed what factors a trial court can or should
consider when deciding whether to grant a continuance related to a defendant's choice
of counsel. As described below, the Court of Appeals previously identified four
factors a trial court should consider, but it overruled that precedent in this case.
Hampton, 182 Wash. App. at 820-24. The Court of Appeals held that two of those
previously identified factors conflicted with a subsequent United States Supreme
Court case (Gonzalez-Lopez) and should no longer be considered by trial courts. !d.
We reverse the Court of Appeals. Like most other courts that have considered this
issue, we hold that Gonzalez-Lopez did not limit the factors that trial courts can
consider when balancing a defendant's right to choice of counsel and a trial court's
need to manage its calendar.
A. The Court ofAppeals' Previously Adopted Four-Factor Roth Test
In 1994, the Court of Appeals reviewed a trial court's denial of a defendant's
second motion to continue the trial to allow his lead counsel to be present during jury
selection. State v. Roth, 75 Wash. App. 808, 823, 881 P.2d 268 (1994). To help it
determine whether the trial court had abused its discretion, the Court of Appeals
turned to a prominent treatise, Criminal Procedure, by Wayne R. LaFave and
7
State v. Hampton
No. 90811-7
Jerold H. Israel, which described the wide variety of factors courts have used in
making such a determination. See id. at 825 (citing 2 WAYNE R. LAFAVE & JEROLD
H. ISRAEL, CRIMINAL PROCEDURE§ 11.4, at 39-40 (1984)). The treatise listed 11
factors that courts across the country have used. The Court of Appeals noted that four
of those factors were present and applicable in that particular case:
(1) whether the court had granted previous continuances at the
defendant's request; (2) whether the defendant had some legitimate
cause for dissatisfaction with counsel, even though it fell short of likely
incompetent representation; (3) whether available counsel is prepared to
go to trial; and (4) whether the denial of the motion is likely to result in
identifiable prejudice to the defendant's case of a material or substantial
nature.
!d. The Court of Appeals concluded that those factors strongly supported the trial
court's exercise of discretion and affirmed its ruling. !d. at 825-27.
Unfortunately, the Roth decision was later interpreted by the Court of Appeals
as selecting those four factors as the only factors that Washington courts can consider
when deciding a defendant's motion to continue the trial based on a desire to seek
new private counsel. State v. Price, 126 Wash. App. 617, 631-32, 109 P.3d 27 (2005).
This decision was an incorrect interpretation of Roth. Roth noted the 11 factors from
Lafave's Criminal Procedure but applied only the 4 factors relevant in that case. !d.
at 632.
8
State v. Hampton
No.90811-7
B. The Gonzalez-Lopez Decision Did Not Limit the Factors Trial Courts Can
Consider When Deciding Choice of Counsel Issues
In this case, the Court of Appeals concluded that under Gonzalez-Lopez, trial
courts cannot consider the reasons why a defendant wants to change counsel when
evaluating a motion to continue for purposes of replacing counsel. Hampton, 182 Wn.
App. at 822-23. But in Gonzalez-Lopez, the State conceded that the judge had
erroneously denied the defendant's right to his choice of counsel when it incorrectly
denied his attorney's application for admission pro hac vice. Gonzalez-Lopez, 548
U.S. at 143-44. The United States Supreme Court held only that when there is an
erroneous deprivation of a defendant's right to choice of counsel, the defendant need
not make an additional showing of prejudice. !d. at 150-52.
However, the Court did not provide any guidance as to how courts should
determine when a defendant's right to choice of counsel has been violated. !d. 151-
52. The Court specifically limited its holding to situations where it has already been
determined that the defendant's right to choice of counsel was erroneously denied. Id.
The Court explained that "[t]his is not a case about a court's power to ... make
scheduling and other decisions that effectively exclude a defendant's first choice of
counsel" and that "[n]othing we have said today casts any doubt or places any
qualification upon our previous holdings that limit the right to counsel of choice." !d.
at 152, 151. The Court reiterated that a trial court has "wide latitude in balancing the
9
State v. Hampton
No. 90811-7
right to counsel of choice against the needs of fairness and against the demands of its
calendar." !d. at 152 (citation omitted).
Nonetheless, the Court of Appeals in this case interpreted Gonzalez-Lopez as
limiting the factors that trial courts can consider when determining whether to grant a
continuance related to a defendant's choice of counsel. Specifically, the Court of
Appeals held that two of the four Roth factors were "incompatible" with Gonzalez-
Lopez. Hampton, 182 Wash. App. at 822. The Court of Appeals held that after
Gonzalez-Lopez, trial courts cannot consider whether the defendant has a legitimate
dissatisfaction with appointed counsel nor whether the denial of the defendant's
motion will likely result in material or substantial prejudice. Id. The Court of
Appeals held that considering either factor would conflict with the statements in
Gonzalez-Lopez that a defendant has the right to be defended by counsel that "'he
believes to be best.'" !d. at 823 (emphasis omitted) (quoting Gonzalez-Lopez, 548
U.S. at 146).
The Court of Appeals' interpretation of Gonzalez-Lopez was overbroad. The
Gonzalez-Lopez Court explicitly stated that it was not ruling on a court's power to
make scheduling decisions that affect a defendant's choice of counsel and that its
ruling did not "cast[] any doubt or place[] any qualification" on previous holdings
that limited the right to counsel of choice, including a trial court's wide latitude in
balancing the right to counsel of choice against the demands of its calendar. 548 U.S.
10
State v. Hampton
No.90811-7
at 151-52 (emphasis added). Gonzalez-Lopez addressed whether a defendant must
additionally show prejudice once it has already been established that his or her right to
choice of counsel was "wrongfully denied." I d. at 150 (emphasis added). The Court
explained that it was not addressing how to determine when a person's denial of
counsel of choice was erroneous or what factors courts can consider when deciding a
choice of counsel issue.
As described below, we agree with the many courts that have continued to
consider the factors that the Court of Appeals believed were incompatible with
Gonzalez-Lopez, including the Seventh, Eighth, and Tenth Circuit Courts of Appeals.
The Tenth Circuit Court of Appeals has directly addressed Gonzalez-Lopez's
impact and held that it applies only if the continuance was "'wrongly denied.'"
United States v. Flanders, 491 F.3d 1197, 1216 (lOth Cir. 2007) (quoting Gonzalez-
Lopez, 548 U.S. at 148, and citing cases from other jurisdictions that had come to the
same conclusion). The court then continued to apply the same pre-Gonzalez-Lopez
factors to determine whether a continuance was wrongly denied, including whether
"rejecting the request would materially prejudice or substantially harm the defendant's
case." Id.
Similarly, the Seventh Circuit Court of Appeals recently rejected a defendant's
argument that a trial judge had inappropriately focused on the competence of his
public defender when evaluating a motion to continue to allow the defendant to
11
State v. Hampton
No.90811-7
substitute a new private attorney. United States v. Sinclair, 770 F.3d 1148, 1156 (7th
Cir. 2014), cert. denied, No. 14-9255 (U.S. Nov. 2, 2015). In fact, the Sinclair court
held that it was often important for the trial court to inquire into the reasons that a
defendant desired a new attorney so that the court could properly weigh all of the
factors and determine whether to grant the continuance. !d. The court noted that it
had previously found that a trial court had abused its discretion by not considering the
reasons for the defendant's dissatisfaction with appointed counsel, including that
appointed counsel was unprepared for trial and that all communication between the
appointed counsel and the defendant had broken down. !d. (citing United States v.
Sellers, 645 F.3d 830, 838-39 (7th Cir. 2011)).
The Eighth Circuit Court of Appeals has come to the conclusion that even after
Gonzalez-Lopez, trial judges can take into consideration a defendant's dissatisfaction
with his appointed attorney and how promptly he reports that dissatisfaction. United
States v. Cordy, 560 F.3d 808, 815-16 (8th Cir. 2009) (noting that the defendant's
"dissatisfaction with counsel was neither sudden nor unforeseeable" and affirming the
trial court's denial of a continuance to allow the defendant's newly retained attorney
to prepare).
The Ninth Circuit Court of Appeals has similarly recognized that trial courts
have wide latitude in balancing the rights of defendants to choose their own counsel
with the demands of the court's calendar. See, e.g., United States v. Brown, 785 F.3d
12
State v. Hampton
No. 90811-7
1337, 1347-50 (9th Cir. 2015) (holding that a district court abused its discretion in
part because the record did not indicate that the trial court denied the defendant's
motion because of the demands of its calendar); Miller v. Blacketter, 525 F.3d 890,
896-98 (9th Cir. 2008) (holding that trial judges should inquire into problems between
a defendant and appointed counsel and consider the appointed counsel's ability to
provide effective representation when deciding whether to grant a continuance to
allow the defendant to obtain a new, private attorney).
Those courts are correct. The United States Supreme Court expressly stated in
Gonzalez-Lopez that its decision did not limit a trial court's ability to balance a
defendant's right to choice of counsel with the public's interest in the prompt and
efficient administration of justice. 548 U.S. at 151-52. We accept those statements by
the United States Supreme Court limiting the scope of its own holding.
C. Factors for Washington Trial Courts To Consider Going Forward
As explained above, the Court of Appeals' adoption of a four- factor test was
based on an erroneous interpretation of Roth, which identified and applied only the
four factors that applied in the specific factual circumstances of that case. The Court
of Appeals now rejects two of those factors based on an erroneous interpretation of
Gonzalez-Lopez. In light of these issues, we realize it would be helpful to trial courts
to provide guidance on what factors can be considered when deciding a motion to
continue for the purposes of substituting counsel. We have previously indicated that
13
State v. Hampton
No. 90811-7
these decisions require a trial court to "weigh the defendant's right to choose his
counsel against the public's interest in the prompt and efficient administration of
justice." Aguirre, 168 Wash. 2d at 365. As the United States Supreme Court has
observed, these situations are highly fact dependent and "[t]here are no mechanical
tests" that can be used. Ungar, 376 U.S. at 589. Instead, the judge must decide based
on "the circumstances present." Id. Therefore, we hold that trial courts can consider
all relevant information, including the 11 factors described in the most recent edition
of the LaFave Criminal Procedure treatise:
(1) whether the request came at a point sufficiently in advance of trial to permit
the trial court to readily adjust its calendar;
(2) the length of the continuance requested;
(3) whether the continuance would carry the trial date beyond the period
specified in the state speedy trial act;
(4) whether the court had granted previous continuances at the defendant's
request;
( 5) whether the continuance would seriously inconvenience the witnesses;
(6) whether the continuance request was made promptly after the defendant first
became aware of the grounds advanced for discharging his or her counsel;
(7) whether the defendant's own negligence placed him or her in a situation
where he or she needed a continuance to obtain new counsel;
(8) whether the defendant had some legitimate cause for dissatisfaction with
counsel, even though it fell short of likely incompetent representation;
(9) whether there was a "rational basis" for believing that the defendant was
seeking to change counsel "primarily for the purpose of delay";
14
State v. Hampton
No. 90811-7
( 10) whether the current counsel was prepared to go to trial;
( 11) whether denial of the motion was likely to result in identifiable prejudice to
the defendant's case of a material or substantial nature.
3 WAYNER.LAFAVEET AL., CRIMINALPROCEDURE § 11.4(c) at718-20 (3d ed.
2007). Not all factors will be present in all cases, and thus a trial court need not
evaluate every factor in every case, but we will not prohibit a trial court from
considering relevant information.
D. The Trial Court in This Case Did Not Abuse Its Discretion
Hampton contends that the trial court abused its discretion when it denied his
motion for a continuance to allow his newly retained private attorney to prepare for
trial. As described above, we review such decisions for abuse of discretion. Aguirre,
168 Wash. 2d at 365. A trial court abuses its discretion when its decision "is manifestly
unreasonable, or is exercised on untenable grounds, or for untenable reasons." State
v. Blackwell, 120 Wash. 2d 822, 830, 845 P.2d 1017 (1993); State v. Michielli, 132
Wash. 2d 229, 240, 937 P.2d 587 (1997). "A decision is based 'on untenable grounds'
or made 'for untenable reasons' if it rests on facts unsupported in the record or was
reached by applying the wrong legal standard." State v. Rohrich, 149 Wash. 2d 647,
654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wash. App. 786, 793, 905 P.2d
922 (1995)). "A decision is 'manifestly unreasonable' if the court, despite applying
the correct legal standard to the supported facts, adopts a view 'that no reasonable
15
State v. Hampton
No. 90811-7
person would take,' and arrives at a decision 'outside the range of acceptable
choices.'" ld. (citation omitted) (quoting State v. Lewis, 115 Wash. 2d 294, 298-99, 797
P.2d 1141 (1990); Rundquist, 79 Wash. App. at 793).
In this case, the trial court did not actually apply the four-factor Roth test (nor
was Roth or Price cited to the trial court by trial counsel). However, it did consider,
among other factors, the readiness of Hampton's existing counsel, as evidenced by its
statement, "I'm not inclined to grant this continuance at this late of stage when there is
competent counsel who is prepared to go forward." VRP (Aug. 31, 2012) at 9. The
trial court also appeared to consider whether Hampton's desire for different counsel
was justified, noting:
I know [the appointed defense counsel] is a very capable attorney. It
wouldn't be the first time he's represented someone who may not have
always been happy with [him]. I think that happens for most of the
defense attorneys that they occasionally have a client who would rather
have a different attorney appointed. I don't think that would in any way
impair his ability to represent his client zealously and capably, and I
don't think there's any question that [the appointed defense counsel] is a
highly qualified criminal defense attorney.
ld. at 7-8. As described above, the Gonzalez-Lopez decision does not prohibit trial
courts from considering a defendant's reasons for desiring a different attorney or other
relevant factors when considering a motion to continue for purposes of replacing
counsel. Other courts considering the issue have come to that same conclusion. The
trial court in this case did not err by considering the defendant's reasons for
dissatisfaction with his appointed attorney in addition to the other circumstances, such
16
State v. Hampton
No. 90811-7
as the lateness of the request, the previous continuance granted by the court, and the
victim/witness's opposition to further delay. The decision was within the discretion
of the trial court, and we affirm.
CONCLUSION
We reverse the Court of Appeals and hold that when ruling on a motion to
continue trial for purposes of substituting defense counsel, the trial court did not abuse
its discretion when it considered-among other factors-the defendant's reasons for
his dissatisfaction with his appointed counsel.
17
State v. Hampton
No.90811-7
WE CONCUR:
18
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
No. 90811-7
GORDON McCLOUD, J. (dissenting)-"[T]he Sixth Amendment right to
counsel of choice . . . . commands, not that a trial be fair, but that a particular
guarantee of fairness be provided-to wit, that the accused be defended by the
counsel he believes to be best." United States v. Gonzalez-Lopez, 548 U.S. 140,
146, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006); U.S. CONST. amend. VI. This
right to retain counsel of choice is distinct from the Sixth Amendment right to
effective assistance of counsel:
Deprivation of the right [to retain counsel of choice] is "complete"
when the defendant is erroneously prevented from being represented
by the lawyer he wants, regardless of the quality of the representation
he received. To argue otherwise is to confuse the right to counsel of
choice-which is the right to a particular lawyer regardless of
comparative effectiveness-with the right to effective counsel-
which imposes a baseline requirement of competence on whatever
lawyer is chosen or appointed.
Gonzalez-Lopez, 548 U.S. at 148. The majority conflates these two rights by
upholding the trial court's decision to deny counsel of choice based largely on its
impression of the quality of the public defender's representation and by adopting a
list of factors that permits trial courts to consider this in the future. Because I agree
1
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
with the United States Supreme Court that the constitutional right to counsel of
choice applies separately from and in addition to the right to effective assistance of
counsel, I respectfully dissent.
ANALYSIS
The Sixth Amendment to the United States Constitution guarantees the right
to retained counsel of choice. In fact, the Supreme Court originally understood the
Sixth Amendment right to counsel of choice as a guaranty of the right to retain
counsel, rather than a right to gain appointed counsel. See generally Bute v.
Illinois, 333 U.S. 640, 660-66, 68 S. Ct. 763, 92 L. Ed. 986 (1948); Betts v. Brady,
316 U.S. 455, 468, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), overruled on other
grounds by Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963). When the Court recognized the latter right in 1932, it regarded the creation
of that right not as the primary purpose of the Sixth Amendment, but as "a logical
corollary from the constitutional right to be heard by counsel." Powell v. Alabama,
287 U.S. 45, 72, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Thus, a defendant who retains
his own attorney has a right to the lawyer that he chooses. Gonzalez-Lopez, 548
U.S. at 147-48 ("The right to select counsel of one's choice ... has been regarded
as the root meaning of the [Sixth Amendment's] constitutional guarantee."); State
2
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
v. Aguirre, 168 Wash. 2d 350, 365, 229 P.3d 669 (2010) (citing State v. Roth, 75 Wn.
App. 808, 824, 881 P.2d 268 (1994)).
To be sure, there are some limits on this right. A defendant who retains
counsel has no right to representation that he or she cannot afford, representation
by someone who declines to represent him or her, or representation by someone
who has an actual or serious potential for conflict of interest. Wheat v. United
States, 486 U.S. 153, 158, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988); Aguirre, 168
Wash. 2d at 365 (citing Roth, 75 Wash. App. at 824; State v. Roberts, 142 Wash. 2d 471,
516, 14 P.3d 713 (2000)).
But providing appointed counsel does not satisfy the right to retain counsel
of choice. See United States v. Unit No. 7 & Unit No. 8, 853 F.2d 1445, 1451 (8th
Cir. 1988) ("[W]e reject the government's argument that even if its action should
push Kiser into indigency, the Sixth Amendment would be fully vindicated by
offering him appointed counsel. ... This is an extraordinarily impoverished view
of the non-indigent's right. In essence it collapses the two distinct rights into one,
the lesser."), rev'd, 890 F.2d 82 (8th Cir. 1989).
We must therefore review the denial of a motion for a continuance that
effectively denies a defendant the right to retain counsel of choice against this
backdrop. Aguirre, 168 Wash. 2d at 365 (citing State v. Chase, 59 Wash. App. 501,
3
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
506, 799 P.2d 272 (1990)). When ruling on a motion for a continuance, "the trial
court must weigh the defendant's right to choose his counsel against the public's
interest in the prompt and efficient administration of justice." !d. (citing Roth, 75
Wash. App. at 824-25). Trial courts certainly exercise discretion when making such
decisions on continuances sought to obtain new counsel.
Following Gonzalez-Lopez, however, the fundamental constitutional right to
retain counsel of choice does not balance equally with other rules and
inconveniences. Otherwise, Gonzalez-Lopez would likely have lost his appeal: the
trial court rejected his chosen counsel's motion for admission pro hac vice to
enforce its interpretation of a local rule. Instead, Gonzalez-Lopez won.
The majority's new 11-factor rule conflicts with Gonzalez-Lopez. The
majority holds that a trial court "can consider all relevant information, including
the 11 factors described in the most recent edition of the LaFave Criminal
Procedure treatise" when ruling on a motion for a continuance to permit a
defendant's preferred counsel to prepare. Majority at 14 (emphasis added); 3
WAYNE R. LAP AVE ET AL., CRIMINAL PROCEDURE § 11.4(c) at 718-20 (3d ed.
2007). But LaFave's factors 6, 8, 10, and 11 overvalue the right to appointed
counsel at the expense of the right to retained counsel and therefore violate the rule
that the right to appointed counsel is a corollary of the Constitution's principal
4
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
right to retain counsel of choice. Additionally, LaFave's "convenience" factors 1,
3, and 4 are incomplete unless we combine them with the rule that slight
inconvenience alone cannot outweigh the fundamental constitutional right to retain
counsel of choice.
The trial court in this case committed both errors. First, the trial court
improperly focused on the public defender's qualifications and ability to represent
Hampton, which were irrelevant to Hampton's right to retain his own attorney
under the Supreme Court's holding in Gonzalez-Lopez. In denying retained
counsel's request for a continuance, the trial court stated,
I know [appointed counsel] is a very capable attorney. It wouldn't be
the first time he's represented someone who may not have always
been happy with [appointed counsel]. I think that happens for most of
the defense attorneys that they occasionally have a client who would
rather have a different attorney appointed. I don't think that would in
any way impair his ability to represent his client zealously and
capably, and I don't think there's any question that [appointed
counsel] is a highly qualified criminal defense attorney.
Verbatim Report ofProceedings (VRP) (Aug. 31, 2012) at 7-8. 1
1
Although I think that this constitutes error, I certainly understand that the
trial court followed prior Washington precedent in its approach. In both Roth, 75
Wash. App. at 825, and State v. Price, 126 Wash. App. 617, 632, 109 P.3d 27 (2005),
the Court of Appeals held that a trial court may inquire about the legitimacy of the
defendant's satisfaction with appointed counsel and whether the denial of the
defendant's motion will result in material or substantial prejudice.
5
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting) .
Second, the trial court relied on the fact that a continuance would be
inconvenient, even though the court never determined the length of the requested
continuance and it granted the public defender a short continuance while denying
the same accommodation to retained counsel. Nothing in the record shows the
length of the requested continuance, whether it would be longer than the
continuance the trial court gave to appointed counsel, whether witnesses or victims
could adjust to a shorter continuance, or whether a continuance would interfere
with the court's calendar. In fact, both parties had agreed to the court's only prior
continuance and fewer than four months passed between Hampton's arraignment
and the hearing on his motions. The only concern that the trial court expressed
about its calendar was that "we have a lot of cases that are even older," VRP (Aug.
31, 2012) at 8, which seems irreconcilable with the notion that continuing
Hampton's case would cause unusual or undue delay.
To support its argument that a trial court can evaluate the defendant's
dissatisfaction with an attorney and abbreviate its inquiry into the length of the
requested continuance when ruling on a motion to continue, the majority cites the
Ninth Circuit's decision in United States v. Brown, 785 F.3d 1337 (9th Cir. 2015).
The majority asserts that Brown holds, "[T]rial courts have wide latitude in
6
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
balancing the rights of defendants to choose their own counsel with the demands of
the court's calendar." Majority at 12.
That case, however, actually rejected the majority's broad holding and
instead endorses the rule that the constitutional right to counsel of choice weighs
very heavily in the balance. In Brown, the district court denied retained counsel's
motion to withdraw to permit the defendant to obtain a public defender, who would
have required a continuance to prepare for trial. 785 F.3d at 1341-43. The Ninth
Circuit reversed, criticizing the district court for "focus[ing] on considerations
pertinent to the right to constitutionally adequate counsel, rather than to the right to
choice of counsel Brown actually enjoyed." Id. at 1347. The Ninth Circuit then
held, in contrast to the majority's holding here, "Brown's reasons for wanting to
discharge his retained lawyer were not properly the court's concern at all." Id. at
1348. Additionally, the Ninth Circuit in Brown cited three indications that the trial
court did not deny the motion to discharge counsel because of the demands of its
calendar: (1) the court did not indicate that it denied the motion because of concern
for its calendar, (2) the court offered to continue the case for the retained attorney
for "'whatever time he need[ ed] before we finally go to trial,"' and continued the
trial for one month after the hearing, and (3) the court never determined how long a
continuance would be necessary to allow Brown's newly appointed attorney to
7
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
prepare. Id. at 1349 (alteration in original). Finally, nothing in the record showed
that it would be unfair to grant the motion. Id. at 1350. The Ninth Circuit
concluded that the erroneous denial of the defendant's right to counsel of choice
constituted structural error. Id.
The same analysis leads to the conclusion that the trial court improperly
denied the right to counsel of choice here. In denying the continuance in this case,
the trial court also failed to determine the length of the requested continuance,
continued the case for a few days for the lawyer already on the case, and made no
finding about inability to accommodate any further continuance. The trial court in
· this case also cited the appointed attorney's readiness and qualifications and stated,
"I'm not really being given much reason other than apparently some other source
decided to provide the funds today when it was still a serious case." VRP (Aug.
31, 2012) at 8. But under Brown-and Gonzalez-Lopez-that's all that is relevant;
the trial court's satisfaction with existing counsel is not. Other courts following
Gonzalez-Lopez have reached the same conclusion in the same context. E.g.,
People v. Brown, 2014 CO 25, ~ 2, 322 P.3d 214 (2014) (when deciding whether to
grant a continuance to allow a defendant to change counsel, trial court must
conduct a multifactor balancing test and assess whether the public's interest in the
efficiency and integrity of the judicial system outweighs the defendant's right to
8
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
counsel of choice; remand for trial court to make findings about factors court
should have considered, including how long it would take retained counsel to
prepare for trial, length of any requested continuance, and the court's docket and
whether the continuance would cause significant inconvenience for witnesses).
A trial court abuses its discretion when it bases its ruling on an erroneous
view of the law or applies the wrong legal standard. State v. Rafay, 167 Wash. 2d
644, 655, 222 P.3d 86 (2009). The trial court applied the wrong legal standard,
and therefore abused its discretion, when it considered Hampton's appointed
lawyer's positive performance and failed to assess or even ascertain the length of
the continuance requested, or whether such a continuance would cause undue
delay. This improper denial of Hampton's request for a continuance denied him
his right to retain his chosen attorney. This erroneous deprivation of the right to
counsel of choice constitutes structural error requiring automatic reversal.
Gonzalez-Lopez, 548 U.S. at 149-50 (citing Sullivan v. Louisiana, 508 U.S. 275,
282, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)).
CONCLUSION
Gonzalez-Lopez makes clear that the right to retain counsel of choice is
fundamental, constitutional, and weighty. It also prohibits trial courts from
evaluating the defendant's satisfaction with his appointed attorney when ruling on
9
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
a continuance to retain counsel of choice. The trial court and the majority here,
however, do exactly that. The majority compounds the error by adopting a test that
( 1) instructs trial courts to continue considering appointed counsel's positive
performance when deciding whether to grant a continuance to retain counsel of
choice and (2) fails to clarify that slight inconvenience cannot outweigh the right to
retain counsel of choice. I therefore respectfully dissent.
10
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)
11