People v. Brown

JUSTICE MÁRQUEZ,

dissenting.

¶ 31 At issue here is a trial court’s discretionary decision to deny a defendant’s request to postpone a trial. Underlying this defendant’s particular request, however, is the tension between the public’s interest in the orderly administration of justice, on the one hand, and a defendant’s Sixth Amendment constitutional right to counsel of choice, on the other. We have stated that a defendant’s Sixth Amendment right to be represented by counsel of choice is “entitled to great deference.” Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo.1986). We have also made clear that “[tjhere are no mechanical tests for determining whether the denial of a continuance constitutes an abuse of discretion.” People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). Rather, “ ‘[t]he answer must be found in the circumstances present in every ease, particularly in the reasons presented to the trial judge at the time the request is denied.’ ” Id. at 1353-54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).

¶ 32 In my view, whether a trial court abuses its discretion in denying a continuance to permit a defendant to be represented by his retained counsel of choice depends on the totality of the circumstances, which necessarily will vary in any given ease. I disagree with the majority’s new test, which requires trial courts not only to consider a list of at least ten specific factors, but also requires trial courts to “make a sufficient record” of such factors or risk remand years after the fact to make additional findings about the circumstances that existed at the time the continuance was denied. The majority’s test is not only rigid, but it gives trial courts virtually no guidance on how to weigh the various factors. In short, it is the very type of “mechanical” test that we — following the United States Supreme Court — have eschewed. For these reasons, and because in my view the circumstances in the record before us do not reflect that the orderly administration of justice outweighed Brown’s Sixth Amendment right to retained counsel of choice, I respectfully dissent.

I.

¶ 33 The trial court appointed a public defender to represent Brown, who was indigent. A month and a half before trial, Brown’s family met with a private defense attorney to retain him to represent Brown. Shortly before trial, Brown’s family secured the necessary funds for the retainer. Brown’s newly retained counsel filed an entry of appearance twelve days before trial, and requested a continuance eight days before trial. At that time, the case had been pending for ten months, and the court had granted three prior continuances. Two of the continuances were not directly attributable to Brown; none of the previous continuances involved a request to delay trial to obtain different counsel.¹

¶ 34 Brown’s motion for a continuance indicated that Brown was willing to waive his speedy trial rights. At the hearing on the motion, Brown’s newly retained counsel explained that he had met with Brown’s family more than one month before the trial date, but he did not enter an appearance until Brown’s family was able to retain him. He informed the court that he already had an investigator and was “prepared to jump into this ease.” However, he explained that because he had just received discovery, he needed additional time to prepare for trial. Brown’s retained counsel also stated that he did not think that Brown was “doing this for any purpose of delay, or anything like that ... it’s just been a matter of getting the retainer put together.” He noted that Brown remained in custody.

¶ 35 The trial court asked the public defender whether she was prepared for trial and she responded in the affirmative. The People then objected to any continuance, stating that the victim and the CRE 404(b) witness had been subpoenaed. The trial court denied Brown’s motion for a continuance, reasoning:

It’s been continued several times; we’ve got a number of witnesses subpoenaed; [the public defender] is ready to proceed; and, you know, I have no doubt that [the public defender] will do a very competent job representing Mr. Brown.

¶ 36 By denying Brown’s request for a continuance, the trial court effectively forced Brown to proceed to trial without his retained counsel of choice. Brown was convicted of kidnapping, assault, sexual assault, attempted unlawful sexual contact, and menacing. He was sentenced to an indeterminate term of thirty-six-years-to-life in the Department of Corrections.

II.

¶ 37 “The freedom of a defendant to choose his own counsel is central to our adversarial judicial system.” People v. Maestas, 199 P.3d 713, 716 (Colo.2009). A criminal defendant’s right to retained counsel of choice is protected by the Sixth Amendment. Id.; United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).² The United States Supreme Court has explained, “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624- 625, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989).

¶ 38 A defendant’s Sixth Amendment right to be represented by his counsel of choice is “entitled to great deference.” Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo.1986). This constitutional guarantee “ ‘reflects the substantial interest of a defendant in retaining the freedom to select an attorney the defendant trusts and in whom the defendant has confidence.’ ” Anaya v. People, 764 P.2d 779, 781 (Colo.1988) (quoting Rodriguez, 719 P.2d at 705). Although the right to counsel of choice is not absolute, a trial court must recognize a presumption in favor of a defendant’s choice of retained counsel. Tyson v. Dist. Court, 891 P.2d 984, 990 (Colo.1995) (citing Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). A court’s wrongful denial of the right to counsel of choice is not subject to harmless error analysis, and a defendant need not show prejudice. Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557; Anaya, 764 P.2d at 783.

¶ 39 The presumption in favor of a defendant’s right to his retained counsel of choice may be overcome by considerations that “relate to the paramount necessity of preserving confidence in the integrity of the administration of justice.” Rodriguez, 719 P.2d at 706. For instance, a defendant cannot insist on representation by an advocate who is not a member of the bar, by an attorney he cannot afford or who declines to represent the client, or by an attorney who has a conflict of interest that would undermine public confidence in the impartiality and fairness of the judicial process. Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557; Wheat, 486 U.S. at 159, 108 S.Ct. 1692; Rodriguez, 719 P.2d at 706. Similarly, a defendant cannot use his counsel of choice for an improper purpose, such as to delay proceedings or to impede the efficient administration of justice. Maestas, 199 P.3d at 717.

¶40 This court has not reviewed a trial court’s discretionary decision to deny a continuance where such a denial implicates the defendant’s Sixth Amendment right to retained counsel of choice. However, the tension that arises here between the public’s interest in the orderly administration of justice and a defendant’s Sixth Amendment constitutional right to counsel of choice is similar to the tension that arises where a defendant’s choice of counsel potentially results in a conflict of interest. We have stated that where a conflict or potential for a conflict exists, the trial court must weigh the “public’s confi-denee in the integrity of the judicial process against the defendant’s interest in being represented at trial by counsel of choice, even though the attorney may have a conflict of interest.” Tyson, 891 P.2d at 990. Importantly, we have not required trial courts to consider a list of particular factors when balancing those important competing interests, but instead we have looked generally to the circumstances of the case to determine if the conflict undermines the fair and proper administration of justice. Rodriguez, 719 P.2d at 706-08.

¶ 41 We have held that because a defendant’s counsel of choice is entitled to great deference, “disqualification should not be imposed unless the conflict of interest somehow taints the judicial system.” Maestas, 199 P.3d at 717. Moreover, “such disqualification must be based on the evidence in the record and cannot be based on conjecture or speculation.” Id. Thus, where the record does not show that a defendant’s right to counsel of choice is outweighed by evidence of circumstances relating to the fair and efficient administration of justice, a trial court abuses its discretion by disqualifying counsel. Id. at 718.

III.

¶ 42 Like a decision to disqualify counsel, a trial court’s discretionary decision to deny a continuance may implicate a defendant’s Sixth Amendment right to counsel of choice. The majority instructs trial courts to “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 system.” Maj. op. ¶ 22. The majority also purports to give trial courts “wide latitude” in determining how to strike this balance. Maj. op. ¶ 20. Importantly, the majority acknowledges that there are no “mechanical tests” for determining whether a trial court abuses its discretion by denying a continuance. Maj. op. ¶ 20 (citing People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988)). I agree. In Hampton, we made clear that “ ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ ” Id. at 1353-54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).

¶ 43 Nevertheless, the majority ultimately adopts a mechanical test that requires trial courts to consider and “make a sufficient record” with respect to a list of ten or more factors, regardless of whether the factors are even relevant in a particular case. Maj. op. ¶25. The majority derives these factors from tests articulated by the Fifth and Tenth Circuits. Unlike these circuits, however, the majority requires trial courts to consider each factor. Cf. United States v. Hughey, 147 F.3d 423, 432 (5th Cir.1998) (“There are no mechanical tests for making this determination, which is uniquely dependent upon the circumstances presented in every case.”); United States v. Mendozar-Salgado, 964 F.2d 993, 1015 (10th Cir.1992) (“In weighing this balance, courts may consider [listed factors]”) (emphasis added).

¶ 44 The majority further requires trial courts to discover and consider the victim’s position on the continuance. Maj. op. ¶24. Although the majority relies on.the victims’ rights act for this requirement, see § 24-4.1-303(3), C.R.S. (2013), this provision requires the court to consider the victim’s position only if: (1) the requested continuance would “substantially delay” the prosecution; (2) the district attorney informs the court of the victim’s position; and (3) the victim actually objects to the delay. Id. In any event, this court has never suggested that the victim’s position on a continuance should outweigh the defendant’s constitutional right to counsel of choice.

¶ 45 The majority’s mechanical test requires trial courts to consider a litany of factors, but it offers no guidance to trial courts on how to use those factors in striking a balance between a defendant’s right to retained counsel of choice and the public’s interest in the orderly administration of justice. Is the presence of a single factor in favor of the efficient administration of justice sufficient to outweigh the defendant’s counsel of choice, or must all of the factors be present? Are all factors weighted equally, or should some factors carry greater weight than others? Most importantly, the majority fails to indicate whether the defendant’s right to retained counsel of choice is entitled to any presumption, or whether concerns about expediency or inconvenience should be presumed to overcome the defendant’s choice.

¶ 46 The problems with the majority’s test become even more apparent in its application to this case. The majority does not examine whether the record before us establishes that the orderly administration of justice outweighed Brown’s Sixth Amendment right to counsel of choice. Instead, after announcing its new mechanical test-requiring trial courts to make a sufficient record showing its consideration of at least ten factors-the majority concludes that here “the record lacks information about other relevant factors the court should have considered when making its decision.” Maj. op. ¶ 28. Thus, the majority remands the case to the trial court “to make sufficient factual findings.” Maj. op. ¶ 29.

¶ 47 Our role on appellate review is to consider whether the record before us supports the trial court’s ruling to deny the continuance in spite of the defendant’s assertion of his right to retained counsel of choice. See People v. Maestas, 199 P.3d 713, 718 (Colo.2009) (reviewing record to determine whether concerns for the administration of justice and integrity of the judicial system outweighed defendant’s right to retained counsel of choice). In my view, unless the public’s interest in the orderly administration of justice outweighs the defendant’s counsel of choice, as reflected by the totality of the circumstances in the record on appeal, the trial court abuses its discretion by denying a continuance.

¶ 48 A trial court’s decision on a motion for continuance necessarily will be based on circumstances that exist at a particular snapshot in time. Where the record on appeal does not support the trial court’s denial of a continuance, I believe that remand is both inappropriate and futile. If certain factors identified by the majority are neither mentioned by the trial court nor otherwise reflected in the record, we can logically conclude that the trial court did not rely on such factors when it made its decision to deny the continuance. It makes little sense to remand for the trial court to revisit such factors post-hoe and “add” findings on factors it did not consider in the first place. Remanding the case for consideration of these additional factors puts the trial court in the awkward position of either reversing itself and granting a new trial, or affirming itself by bootstrapping additional reasons — long after the fact — for its previous denial of a continuance.

¶ 49 This case is particularly ill-suited for remand. According to the majority, the case must be returned to the trial court to make additional factual findings regarding a decision that was made based on circumstances that existed more than eight years ago, on February 8, 2006. Specifically, the trial court must now make findings regarding: (1) how long the continuance would have been; (2) how inconvenient the continuance would have been to the court’s docket and the witnesses; and (3) what the victim’s position regarding a potential continuance would have been. Even assuming that a trial court and other necessary witnesses can readily recall facts as they existed on a particular date in a particular case several years ago, this case is further complicated by the fact that the judge who made the decision to deny the continuance has since retired.

¶ 50 In my view, whether a trial court abuses its discretion in denying a continuance to permit a defendant to be represented by his retained counsel of choice depends on the totality of the circumstances, which necessarily will vary in any given case. Although the majority’s list of factors include legitimate considerations, its test is too mechanical, and I would not require courts to consider or make a record regarding each factor, nor require remand where a court fails to do so.

IV.

¶ 51 Given the futility of remand, I would turn to the presumption in favor of a defendant’s Sixth Amendment right to retained counsel of choice to resolve this case. Consistent with our jurisprudence in the context of a motion to disqualify, I would hold that a trial court abuses its discretion in denying a continuance to permit a defendant to be represented by his retained counsel of choice, unless the record reflects that the defendant’s choice is outweighed by considerations relating to the orderly administration of justice.

¶ 52 In this case, the trial court denied Brown’s motion to continue on grounds that the ease had been continued three times, the witnesses were already subpoenaed, the public defender was ready to proceed, and the court believed that the public defender would “do a very competent job representing Mr. Brown.” In so reasoning, the court ignored the presumption in favor of Brown’s right to retained counsel of choice and instead focused improperly on the perceived effectiveness of appointed counsel.

¶ 53 The record before us does not reflect that Brown’s choice of retained counsel was outweighed by considerations relating to the fair and efficient administration of justice. It is uneontested that Brown’s motive in retaining counsel was not dilatory: Brown was in custody at the time of the request, and his retained counsel stated that Brown’s family had been only recently able to pool sufficient resources for the retainer. The record establishes that Brown’s retained counsel was available to work on the case, had ordered discovery, and had hired an investigator. Though the case had been pending in the judicial system for ten months, Brown offered to waive his right to a speedy trial. Moreover, only one of the previous continuances was attributable to Brown, and even that request was triggered by circumstances beyond his control. The record does not reflect that the continuance would have prejudiced the prosecution or inconvenienced the witnesses, that the continuance would have significantly inconvenienced the court’s docket, or that the victim was opposed to the continuance. Accordingly, I would affirm the judgment of the court of appeals to reverse the trial court and return the case for a new trial.

I am authorized to state that JUSTICE COATS and JUSTICE EID join in the dissent.

1 . The first continuance, although requested by Brown, was caused by a circumstance beyond his control; namely, tests from the Colorado Bureau of Investigation had not been completed. The prosecutor supported Brown’s request because she also ”need[ed] additional time before [the] case goes to trial.” The prosecutor requested the second continuance because the victim was unavailable. Brown requested the third continuance when the trial court reconsidered an earlier ruling and permitted the prosecution to introduce significant new CRE 404(b) evidence. The trial court acknowledged that this request could not necessarily be attributed to Brown because it was based on the court’s new ruling on a motion filed by the prosecution.

2 . Though no right exists for an indigent defendant to choose his court appointed counsel, see Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. 2557, once appointed, the defendant is " ‘entitled to continued and effective representation by court appointed counsel.'” People v. Nozolino, 2013 CO 19, ¶ 17, 298 P.3d 915 (quoting Williams v. Dist. Court, 700 P.2d 549, 555 (Colo.1985)). Thus, an indigent defendant’s choice of continued representation by appointed counsel is "afforded great weight.” Id. (citing Rodriguez v. Dist. Court, 719 P.2d 699, 707 (Colo.1986)).