State Of Washington, Resp. v. Santos A. Saloy, App. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72204-2-1
Respondent, DIVISION ONE
VJD
v.
SANTOS ANDREW SALOY, UNPUBLISHED CO
Appellant. FILED: February 29. 2016
Cox, J. - A trial court has "'wide latitude in balancing the right to counsel
of choice against the needs of fairness and against the demands of its
calendar.'"1 Santos Saloy appeals his conviction for two counts of
communicating with a minor for immoral purposes, arguing that the trial court
violated his right to choice of counsel by denying his request to substitute
counsel and obtain a continuance. Because the trial court did not abuse its
discretion by denying Saloy's request for a continuance on the day of trial, we
affirm.
The State alleged Saloy had sexual relationship with a minor. It charged
him with several offenses, including two counts of communicating with a minor
for immoral purposes. Saloy hired Teh Rogers Kemp to represent him. Before
trial, the court continued the case several times, sometimes at Saloy's request.
1 State v. Hampton. 184 Wash. 2d 656, 361 P.3d 734, 738 (2015) (quoting
United States v. Gonzalez-Lopez. 548 U.S. 140, 152, 126 S. Ct. 2557, 165 L. Ed.
2d 409 (2006)).
No. 72204-2-1/2
On the day of trial, Saloy moved to replace Rogers Kemp with Robert
Perez, another private attorney. To represent Saloy, Perez would have required
a continuance to prepare for trial. The court denied the motion. Saloy moved for
reconsideration, which the court denied.
After trial, the jury found Saloy guilty of two counts of communicating with
a minor for immoral purposes and not guilty of the other charges. The court
entered its judgment and sentence on the jury verdict.
Saloy appeals.
RIGHT TO CHOICE OF COUNSEL
Saloy argues that the court violated his right to choice of counsel. We
disagree.
"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."2 But this right is not absolute.3
A trial court has "'wide latitude in balancing the right to counsel of choice
against the needs of fairness and against the demands of its calendar.'"4 We
review this balancing decision for abuse of discretion.5 If the defendant's new
counsel requires a continuance to prepare for trial, we review the "trial court's
2 \± at 736.
3 Id, at 737.
4 Id at 738 (quoting Gonzalez-Lopez. 548 U.S. at 152).
5 Id. at 740.
No. 72204-2-1/3
denial of a continuance to determine whether it was 'so arbitrary as to violate due
process.'"6
A trial court abuses its discretion if its decision "is manifestly
unreasonable, or is exercised on untenable grounds, or for untenable reasons."7
In State v. Hampton, the supreme court recently announced a list of
nonexclusive factors trial courts may consider when balancing a defendant's right
to choice of counsel.8 Courts may consider "all relevant information, including
the 11 factors described in the most recent edition of the LaFave Criminal
Procedure treatise:"9
"(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;
6 Id, at 737 (quoting Unqarv. Sarafite. 376 U.S. 575, 589, 84 S. Ct. 841,
11 L Ed. 2d 921 (1964)).
7 jd, at 740 (quoting State v. Blackwell. 120 Wash. 2d 822, 830, 845 P.2d
1017(1993).
8 184 Wash. 2d 656, 361 P.3d 734, 740 (2015).
9 Id.
No. 72204-2-1/4
(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';
(10) whether the current counsel was prepared to go to trial; [and]
(11) whether denial of the motion was likely to result in identifiable
prejudice to the defendant's case of a material or substantial
nature."!10^
Here, it is undisputed that Saloy required a continuance of the trial for
Perez to represent him. The trial court in this case did not have the benefit of the
supreme court's decision in Hampton when it made its decision. But the record
shows that the court considered many of these factors. The court did not abuse
its discretion by denying the request for a continuance.
Saloy did not move to replace his counsel until the day of trial. Thus, he
failed to move "'at a point sufficiently in advance of trial to permit the trial court to
readily adjust its calendar.'"11 The court noted this when it stated that Saloy's
request was "extremely untimely."
Additionally, the court asked Perez whether the issues Saloy had with his
original counsel could have been raised earlier than the day of trial. And Perez
10 jd, (quoting 3 Wayne R. LaFaveetal., Criminal Procedure § 11.4(c) at
718-20 (3d ed. 2007)).
11 ]d, (quoting LaFave, supra. § 11.4(c) at 718-20).
No. 72204-2-1/5
acknowledged that the issues could have been raised earlier. Thus, Saloy failed
to promptly move "'after [he] first became aware of the grounds advanced for
discharging [Rogers Kemp].'"12
The tenth factor also supports the trial court's decision. Rogers Kemp was
prepared to try the case.
Saloy had previously requested continuances. Thus, the fourth factor
further supports the court's decision.
Finally, the court properly considered "'whether [Saloy] had some
legitimate cause for dissatisfaction with [Rogers Kemp], even though it fell short
of likely incompetent representation.'"13 Both Perez and Saloy himself informed
the court of the reasons Saloy was dissatisfied with Rogers Kemp, stating that
Saloy felt Rogers Kemp was unprepared for trial and had not communicated well
with him.
We conclude that the court did not abuse its discretion when it denied
Saloy's motion for a continuance and to substitute counsel.
Saloy argues that the court's denial of the continuance was an
"unreasonable and arbitrary insistence upon expeditiousness." We disagree for
the reasons we already discussed.
Saloy also argues that court failed to "inquir[e] why Saloy waited until the
eve of trial to make his request." But as we noted earlier, the court asked Perez
whether Saloy's issues with Rogers Kemp would have supported an earlier
12 Id,
13 Id.
No. 72204-2-1/6
motion to continue, and Perez indicated that they would have. Thus, the court
inquired into whether Saloy's delay was justifiable.
Saloy also cites specific cases where the trial court properly denied a
motion to substitute counsel, arguing that the facts in those cases do not
resemble the facts in his case. But whether a trial court properly exercised its
discretion in denying such a motion is a "highly fact dependent" inquiry.14 Thus,
not every factor will be present in every case and the trial court does not need to
consider every factor.15 The fact that certain factors are not present in this case
does not establish that the court abused its discretion. As deschbed above, the
court properly balanced the relevant factors.
We affirm the judgment and sentence.
&?<|X
WE CONCUR:
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14]d\
15 Id.