v. Rainey

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 18, 2021
2021COA35
No. 17CA1133, People v. Rainey — Constitutional Law — Sixth
Amendment — Right to Counsel
The defendant in this criminal case requested a continuance
so that he could continue to be represented by his appointed
counsel who could not appear on the scheduled trial date. The
district court, relying primarily on scheduling issues, denied the
request, and the defendant proceeded to trial with new, substitute
counsel. On appeal, he argued that the district court’s denial of his
continuance request violated his Sixth Amendment right to
continued representation by his counsel.
A division of the court of appeals holds that because indigent
defendants have a constitutional right to continued representation
by appointed counsel, the district court must apply the factors
enumerated in People v. Brown, 2014 CO 25, when the defendant
seeks a continuance to enable him to continue the representation
by his appointed counsel. Because the district court did not apply
the Brown factors, the division reverses the judgment and remands
for further proceedings.
COLORADO COURT OF APPEALS 2021COA35
Court of Appeals No. 17CA1133
El Paso County District Court No. 16CR3477
Honorable Robin Chittum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert James Rainey,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE HARRIS
Johnson and Vogt*, JJ., concur
Announced March 18, 2021
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Robert James Rainey, appeals the judgment of
conviction entered on jury verdicts finding him guilty of second
degree kidnapping and criminal mischief.
¶2 On appeal, one claim is potentially dispositive. Rainey
contends that the district court violated his Sixth Amendment right
to continued representation when it denied a continuance on
grounds of judicial efficiency, thereby forcing him to proceed with a
different public defender. We conclude that the district court
applied the wrong legal standard in considering the motion to
continue, and we therefore reverse and remand for further findings.
I. Background
¶3 Rainey was charged with second degree kidnapping, a felony,
and several misdemeanor domestic violence offenses following an
altercation with the victim. The district court appointed counsel to
represent him.
¶4 Trial was originally scheduled to begin January 9, 2017, but
was thereafter delayed and continued multiple times for reasons not
attributable to the defense:
 The court delayed trial to January 10 because a storm had
damaged the courthouse.
1
 On January 10, the prosecution moved for a continuance
because the victim failed to appear. Over Rainey’s
objection, the court granted the continuance and
rescheduled trial for February 2.
 The jury commissioner did not have enough jurors available
on February 2, so the court continued the case to February
23.
 On February 23, the prosecution moved for a second
continuance because one of its witnesses was unavailable.
The court granted the continuance (again, over Rainey’s
objection) and reset trial for March 6, 2017, the day before
the speedy trial deadline.
¶5 At a pretrial hearing on March 3, Rainey, through his public
defender, Neil DeVoogd,1 requested a continuance. DeVoogd
explained that he would be out of town for the week of March 6, and
that when he had accepted that date, the parties had reached an
agreement and there was “not any [likelihood] that [the case] was
1DeVoogd had recently replaced Rainey’s initial public defender,
who, according to Rainey’s wife, had “called [Rainey] an asshole,
had called him stupid at some point,” and did not “communicate
back in a timely manner.”
2
going to be going to trial,” but the agreement “ended up not going
through.” He said that Rainey wanted to continue the
representation and was asserting his “right to have [DeVoogd] as his
attorney” at trial. DeVoogd told the court that Rainey would agree
to waive his right to a speedy trial.
¶6 The court recognized that every prior delay or continuance had
“either been attributable to the DA or the Court” and that “none of
them [we]re attributable to the Defense.” The trial judge rejected
any notion that the continuance request was a dilatory tactic and
indicated that she personally “felt terrible for Mr. Rainey in the
midst of all of this” and was “sympathetic” to the request.
¶7 Nonetheless, the trial judge denied the continuance, finding,
primarily, that it had been difficult to find a substitute judge to hear
the case and, due to the nature of the case, it would be difficult to
fit the trial back into her docket:
It would have been great to have [DeVoogd] do
it and that would have been a little more
comfortable, I think for Mr. Rainey. But what
the factual [sic] comes down to is that this isn’t
a [complicated] case. It’s not a case that
involved anything technical. It’s just straight
forward witnesses and a victim who doesn’t
want to cooperate.
3
....
If I have to reset this case, it’s getting reset [in]
July, and then even then it’s not a high
priority case. Every week I have sex assault on
a child, I have homicides set, I have [serious]
assault cases set, crimes of violence set. There
is a darn good chance that if we continue this,
he gets bumped again. And I can’t do that. I
just can’t do that for the sake of this case. He
is getting his attorney of choice. He’s getting
the Public Defender and a fine one too. So, I
understand where you’re coming from, record
so noted. But I’m gonna deny the request for a
continuance.
¶8 Accordingly, in place of DeVoogd, two other public defenders
from the same office represented Rainey at trial.
II. Sixth Amendment Right to Counsel
¶9 Rainey contends that the district court’s denial of his request
for a continuance violated his constitutional right to continued
representation by DeVoogd, his counsel of choice.
A. Standard of Review
¶ 10 We review the district court’s denial of a continuance motion
for an abuse of discretion. People v. Brown, 2014 CO 25, ¶ 19. The
court’s “failure to understand the . . . criteria upon which [its]
discretion is to be exercised can amount to an abuse of that
discretion.” Pierson v. People, 2012 CO 47, ¶ 21. And the court
4
necessarily abuses its discretion if it bases its ruling on an
erroneous view of the law. People v. Wadle, 97 P.3d 932, 936 (Colo.
2004). Whether the court applied the correct legal standard is a
question of law we review de novo. Ronquillo v. People, 2017 CO 99,
¶ 13.
B. Analysis
¶ 11 The Sixth Amendment guarantees a criminal defendant “the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see
also Colo. Const. art. II, § 16. That guarantee has been interpreted
to include, among other things, the right to appointed counsel for
indigent defendants, Gideon v. Wainwright, 372 U.S. 335, 345
(1963), and the right to “select and be represented by one’s
preferred attorney” for defendants of means, Wheat v. United States,
486 U.S. 153, 159 (1988).
¶ 12 The People argue that because Rainey, as an indigent
defendant, had no constitutional right to choose his lawyer, he also
had no right to continued representation by his appointed lawyer.
That argument cannot be squared with our supreme court’s well-
settled precedent.
5
¶ 13 To be sure, an indigent defendant does not have a right to
select his appointed counsel. Ronquillo, ¶ 25 (“[A] defendant
requesting a free lawyer can’t choose which one he’s given.” (citing
United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006))). But
“[t]he right to continued representation by counsel of choice [is
distinct] from an asserted right to have particular counsel of choice
appointed.” People v. Harlan, 54 P.3d 871, 878 (Colo. 2002).
“[O]nce counsel is appointed, the attorney-client relationship is no
less inviolable than if the counsel had been retained by the
defendant.” People v. Shari, 204 P.3d 453, 460 (Colo. 2009)
(quoting Harlan, 54 P.3d at 878). So, “[w]hile there is no Sixth
Amendment right for an indigent defendant to choose his appointed
counsel, that defendant is ‘entitled to continued and effective
representation’” by court-appointed counsel of choice “in the
absence of a demonstrable basis in fact and law to terminate that
appointment.” Harlan, 54 P.3d at 878 (citation omitted); accord
People v. Nozolino, 2013 CO 19, ¶ 17.
¶ 14 The People’s argument, which conflates the right to select
counsel with the right to continued representation, was expressly
rejected by the supreme court in Harlan. In that case, after the
6
defendant was convicted at trial and while two postconviction
motions were pending, the district court disqualified appointed
counsel based on an alleged conflict of interest. Harlan, 54 P.3d at
876. On appeal, the prosecution contended that the court’s interest
in avoiding a potential conflict necessarily outweighed any interest
the defendant had in keeping his appointed counsel, noting that an
indigent defendant has no right to counsel of his choice. Id. at 878.
The court deemed that contention a non sequitur:
[T]he People’s contention that indigent
defendants are not entitled to choose court-
appointed counsel is irrelevant to the issue
before us. . . . As noted above, an indigent
defendant has a presumptive right to
continued representation by court-appointed
counsel absent a factual and legal basis to
terminate that appointment. Because the
issue presented in this case is whether Harlan
may continue to be represented by his current
counsel, and not whether he may choose his
counsel, this argument by the People, and the
case law cited to support the argument, is
inapposite.
Id. (citation omitted); see also Nozolino, ¶ 17; Shari, 204 P.3d at
460; Lane v. State, 80 So. 3d 280, 296-99 (Ala. Crim. App. 2010)
(explaining that the right to continued representation applies
equally to indigent defendants and collecting state and federal cases
7
applying the rule); State v. McKinley, 860 N.W.2d 874, 879-80 (Iowa
2015) (adopting Harlan’s view and collecting cases).
¶ 15 In light of this case law, we reject the People’s position that if a
defendant does not pay for his lawyer, he has no grounds to object
to his lawyer’s replacement as long as the replacement lawyer
handles the case competently. See Lane, 80 So. 3d at 296. “To
allow trial courts to remove an indigent defendant’s court-appointed
counsel with greater ease than a non-indigent defendant’s retained
counsel would stratify attorney-client relationships based on
defendants’ economic backgrounds.” Weaver v. State, 894 So. 2d
178, 189 (Fla. 2004).
¶ 16 And the right to continued representation means that an
indigent defendant has a right to proceed with his specific
appointed lawyer, not just any appointed lawyer from the public
defender’s office.
¶ 17 We have recognized that non-indigent defendants have this
right. In People v. Stidham, 2014 COA 115, ¶ 10, a division of this
court held that a defendant has a Sixth Amendment right to
proceed with his specific lawyer, and that the district court erred by
denying a motion to continue and thereby requiring the defendant
8
to proceed with another lawyer from the same firm. See also
Gonzales v. State, 970 A.2d 908, 920 (Md. 2009) (trial court erred
by denying the defendant’s request to continue with his own lawyer
and instead requiring him to choose between proceeding to trial
with a different lawyer from the same firm or representing himself).
¶ 18 If, as Harlan says, the attorney-client relationship between an
indigent defendant and his appointed counsel is no less inviolable
than the relationship between a non-indigent defendant and his
retained counsel, then the Sixth Amendment limits the district
court’s power to replace a defendant’s appointed lawyer with
another from the same firm or organization.2 See Stearnes v.
2 People v. Coria, 937 P.2d 386 (Colo. 1997), does not affect our
conclusion. In that case, after noting that an indigent defendant
does not have “an absolute right to demand a particular attorney,”
the supreme court stated that “[t]he substitution of one public
defender with another does not violate the Sixth Amendment right
to counsel, absent evidence of prejudice.” Id. at 389. The question
on appeal, though, was whether a defendant has a right to be
represented by a law student intern. Id. at 387, 388. The supreme
court never purported to address whether an indigent defendant
has a right to continued representation by his appointed counsel.
That precise issue was resolved five years later in People v. Harlan,
54 P.3d 871, 878 (Colo. 2002), which did not mention Coria.
Because the propriety of substituting appointed counsel over a
defendant’s Sixth Amendment-based objection was outside the
scope of the issue decided by the Coria court, the court’s statement
9
Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (“[T]he power
of the trial court to appoint counsel to represent indigent
defendants does not carry with it the concomitant power to remove
counsel at [its] discretionary whim.”); State v. Huskey, 82 S.W.3d
297, 305 (Tenn. Crim. App. 2002) (“[A]ny meaningful distinction
between indigent and non-indigent defendants’ right to
representation by counsel ends once a valid appointment of counsel
has been made.”). To the client — whether indigent or wealthy —
“[a]ttorneys are not fungible, as are eggs, apples and oranges.”
United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979). Once
counsel has been appointed, and the defendant has reposed his
trust and confidence in the attorney assigned to represent him, the
district court may not “rend that relationship by dismissing the
is “mere dictum which is not binding on us.” McCallum Fam. L.L.C.
v. Winger, 221 P.3d 69, 73 (Colo. App. 2009).
The Coria court’s statement was taken from People v.
Gardenhire, 903 P.2d 1165 (Colo. App. 1995), in which a division of
this court held that, absent some showing of prejudice, “the
substitution of one public defender with another does not constitute
a violation of defendant’s Sixth Amendment right to effective
assistance of counsel.” Id. at 1168 (emphasis added). That narrow
proposition is unrelated to the issue in this case. And to the extent
a broader rule was intended, we decline to adopt it. See Chavez v.
Chavez, 2020 COA 70, ¶ 13.
10
originally appointed attorney and then thrusting unfamiliar and
unwelcome counsel upon the defendant.” McKinnon v. State, 526
P.2d 18, 22-23 (Alaska 1974); see also English v. State, 259 A.2d
822, 826 (Md. Ct. Spec. App. 1969) (“[O]nce counsel has been
chosen, whether by the court or the accused, the accused is entitled
to the assistance of that counsel at trial.”) (emphasis added).
¶ 19 The right to counsel of choice, including the right to continued
representation, is not absolute. See Rodriguez v. Dist. Ct., 719 P.2d
699, 706 (Colo. 1986). But, as Harlan recognizes, there is “a
presumption in favor of a defendant’s choice of counsel” that
“extends to indigent defendants: A defendant’s desire for continued
representation by a court-appointed public defender is ‘entitled to
great weight.’” 54 P.3d at 878 (quoting Rodriguez, 719 P.2d at 707);
accord Nozolino, ¶ 17. Only when that presumption is overcome
may a court disregard a defendant’s choice. See Brown, ¶ 21
(refusing to allow the defendant to proceed with his counsel of
choice “is an ‘extreme remedy’ that should not be used absent a
showing of prejudice”) (citation omitted); Harlan, 54 P.3d at 877.
For instance, if the defendant’s choice of counsel has a conflict of
interest, the presumption may be outweighed by the public’s
11
interest in maintaining the integrity of the judicial process and the
defendant’s Sixth Amendment right to conflict-free counsel. See
Nozolino, ¶ 16; Harlan, 54 P.3d at 877. Likewise, if counsel of
choice is unable to appear without a continuance, some
combination of interests including prejudice to the prosecution and
the victim’s rights may overcome the presumption. Brown, ¶ 24.
¶ 20 In determining whether competing interests overcome the
presumption, the court “must 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 process.” Id. at ¶ 22 (quoting Harlan, 54 P.3d at 877). As
noted, when balancing those interests, the court must afford “great
weight” to the defendant’s choice. Nozolino, ¶ 17 (citing Harlan, 54
P.3d at 878); accord Brown, ¶¶ 16, 21.
¶ 21 The People argue that even if, in some circumstances, the
court should consider the defendant’s “desire” to continue with
appointed counsel, no such deference was warranted here.
DeVoogd had no longstanding or “special” relationship with Rainey,
they say, and no substantial history with the case; thus, the court
12
had no obligation to cater to Rainey’s “preference” to keep his
lawyer.
¶ 22 But the argument arises from the faulty premise that Rainey’s
interest in continued representation by his counsel of choice
amounts to no more than a mere “desire” or “preference,” with no
constitutional dimension. The premise is irreconcilable with Harlan
and Nozolino. Contrary to the People’s assertion, an indigent
defendant’s right to continued representation is not based on the
district court’s assessment of the strength or longevity of a
particular attorney-client relationship, but on the recognition that
“respect and deference must be accorded to a defendant’s intelligent
and informed choice of counsel under our justice system.”
Nozolino, ¶ 17; see also Brown, ¶¶ 7, 11, 28 (remanding to consider
whether continuance should have been granted where retained
counsel entered his appearance twelve days before trial).
¶ 23 Accordingly, though the decision whether to grant or deny a
continuance ultimately falls within the sound discretion of the
district court, where constitutional rights are concerned, the court
must consider and weigh additional factors to enable our review of
whether it properly exercised its discretion. See Brown, ¶¶ 19-24;
13
see also People v. Travis, 2019 CO 15, ¶ 12 (“[W]hen the Sixth
Amendment right to counsel of choice is at issue,” a court ruling on
a motion for a continuance “must demonstrate that it weighed the
full range of factors that might affect its exercise of discretion.”).
¶ 24 When ruling on a request for a continuance to allow
representation by counsel of choice, Brown directs the district court
“to consider and make a record of the impact” of eleven factors:
1. the defendant’s actions surrounding the
request and apparent motive for making the
request;
2. the availability of chosen counsel;
3. the length of continuance necessary to
accommodate chosen counsel;
4. the potential prejudice of a delay to the
prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial
system and from the date of the offense;
7. the number of continuances already granted
in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court’s
docket;
14
10. the victim’s position, if the victims’ rights
act applies; and
11. any other case-specific factors
necessitating or weighing against further
delay.
Brown, ¶ 24.
¶ 25 Though Brown involved a request for a continuance to change
counsel, see id. at ¶¶ 7-9, we conclude that the same factors should
guide the district court’s discretion when the defendant seeks a
continuance to continue with his counsel. In both situations, the
defendant’s Sixth Amendment right to counsel of choice is
implicated, and therefore the same interests must be balanced.
¶ 26 Indeed, the division in Stidham, ¶ 17, applied the Brown
factors where the defendant sought a continuance to allow
continued representation by his retained lawyer. Because the right
to continued representation applies equally to indigent defendants,
we hold that the district court was required to weigh the Brown
factors before deciding whether to grant or deny a continuance
necessary for DeVoogd’s continued representation of Rainey at
15
trial.3 See Harlan, 54 P.3d at 878; see also Lane, 80 So. 3d at 295(“With respect to continued representation, however, there is no
distinction between indigent defendants and nonindigent
defendants.”).
¶ 27 It is undisputed that the district court did not consider the
Brown factors on the record. What is more, it mistakenly concluded
that Rainey was still “getting his attorney of choice” — i.e., any
lawyer employed by “the Public Defender.” Cf. Nozolino, ¶ 20;
Stidham, ¶¶ 14-17. And rather than affording “great weight” to
Rainey’s choice to continue the representation, Harlan, 54 P.3d at
878, the court suggested only that Rainey “would have been a little
more comfortable” with DeVoogd as his trial counsel.
¶ 28 As a result, we must remand for the district court to make
findings on the record as to each applicable Brown factor and apply
3 We reject Rainey’s argument, relying on People v. Stidham, 2014
COA 115, that when the right to continued representation is at
issue, as opposed to the right to select counsel of choice, no
balancing test applies, and the district court must simply grant
every request for a continuance. The Stidham division’s analysis in
this regard, see id. at ¶ 14 & n.1, applied only to a situation where
a defendant’s chosen counsel fails to appear, through no fault of,
and without notice to, the defendant.
16
the correct legal standard. See, e.g., Brown, ¶ 29 (remanding for
court to make additional findings and apply the correct standard).
III. Conclusion and Remand Order
¶ 29 The judgment is reversed, and the case is remanded for
further proceedings. On remand, the district court must make
findings on the record as to each applicable Brown factor (and state
on the record why the remaining factors, if any, do not apply). If
the court, after considering those factors and affording great weight
to Rainey’s choice to continue DeVoogd’s representation, concludes
that the presumption of continued representation has been
overcome, it may reinstate the judgment of conviction, from which
Rainey may separately appeal.4 Otherwise, Rainey is entitled to a
new trial. See People v. Cardenas, 2015 COA 94M, ¶ 19 (violation of
a defendant’s right to counsel of choice is structural error).
JUDGE JOHNSON and JUDGE VOGT concur.
4 In light of our disposition, we decline to address Rainey’s
additional contentions. If, after remand, the judgment of conviction
is reinstated and Rainey appeals, he may re-raise his other claims
at that time.
17