Brewer v. District Court In & For the Eighteenth Judicial District, County of Arapahoe

ROVIRA, Justice.

In this original proceeding we issued a rule to show cause why the respondent district court’s order denying petitioner Ronald Brewer’s motion for a free transcript should not be reversed. We now discharge ■ the rule.

Brewer was charged with aggravated robbery of the Buckingham Broker restaurant and similarly charged in three other cases. Because of petitioner’s indigency, ' James Dumas was appointed to represent Brewer in the Buckingham Broker case as well as in another case which is referred to as the Albertson case.

On July 1, 1982, the Buckingham Broker case having proceeded to trial, the jury found Brewer guilty. At the conclusion of the trial, Brewer requested that Dumas be relieved of his duties as counsel and also asked the trial court to appoint other counsel to represent him in the Albertson case.

On July 7,1982, the trial court permitted Dumas to withdraw in both cases. On July 20, it appointed William Fritsche as Brewer’s counsel in the Buckingham Broker case for purposes of post-trial proceedings. On the same day, Fritsche requested that a transcript of the just-completed trial be provided to him in order to assist him in preparing and filing a motion for new trial. This request was denied, and he was given twenty days in which to file a motion for new trial.

Subsequently, Fritsche met with Brewer who objected to Fritsche’s seeking the assistance of Dumas in preparing the motion for new trial. In Brewer’s opinion Dumas had not provided an adequate defense, and he believed that an appropriate ground for appeal was ineffective assistance of counsel. On the basis of Brewer’s statements, Fritsche again requested that a transcript of the trial be provided prior to filing a motion for new trial. Again the request was denied.

Petitioner’s argument in support of his request for a free transcript of the trial is grounded on the fact that since his new counsel did not participate in the trial he has no knowledge of possible error, and consultation with trial counsel would be inappropriate because ineffective assistance of counsel at trial might well be alleged as a basis for a new trial.

Petitioner also contends that if required to file a motion for a new trial without the benefit of a transcript and possible error is overlooked and not included in the motion, he would have lost his right to appeal on that issue unless the error was “plain error.” Further, he contends that if the motion for new trial is denied, an appeal will certainly be filed and he would be entitled to a free transcript at that time. In short, he argues that the only question is when he is entitled to the transcript, not if.

The district attorney filed an answer to the rule to show cause on behalf of the respondent. The answer relies on a lack of precedent for the furnishing of a transcript in a factual situation such as is presented here, and the existence of possible alternatives to the production of a transcript. The district attorney argues that there was no sufficient showing that Dumas would not cooperate with petitioner’s present counsel and petitioner has failed to allege specific potential errors which might allow the production of a limited rather than a complete transcript.

At the outset, we should note that the limited facts set out in this opinion are derived from the petition and are not disputed in the answer of respondent. We have not been provided a transcript of the proceedings in which counsel sought the transcript of the trial, nor a copy of the respondent’s ruling. In short, we are given a minimum of information and requested on that basis to hold that the “respondent exceeded its jurisdiction and wrongly continues to exercise such jurisdiction.” We decline to do so.

While it is true that the petitioner would be entitled to a free copy of the trial transcript on appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), that alone does not justify a requirement that petitioner is entitled to a complete transcript of the trial in order to prepare a motion for new trial.

In an original proceeding pursuant to C.A.R. 21, the burden is on the petitioner to clearly establish that the respondent trial court is proceeding without or in excess of its jurisdiction, or has seriously abused its discretion. Margolis v. District Court, 638 P.2d 297 (Colo.1981); Gonzales v. District Court, 198 Colo. 505, 602 P.2d 857 (1979).

In the case before us, there is no showing that the respondent did not carefully weigh the alternatives available to petitioner’s new counsel to secure the information necessary to enable him to file a motion for new trial. The petitioner has failed to establish that level of abuse of discretion which warrants extraordinary relief, and we decline to speculate as to the propriety of the respondent’s rulings. See Brown v. District Court, 189 Colo. 469, 541 P.2d 1248 (1975).

Accordingly, we discharge the rule.

LOHR, J., specially concurs, and ERICKSON, J., joins in the special concurrence. QUINN, J., dissents, and DUBOFSKY, J., joins in the dissent.