Brandon Engstrom v. Commonwealth of Kentucky

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0665-MR
BRANDON ENGSTROM APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 21-CR-00697
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
THOMPSON, CHIEF JUDGE: Brandon Engstrom appeals from his conviction
and argues that the trial court should have granted a continuance to allow him to
hire private counsel. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant was indicted for trafficking in marijuana between eight
ounces and five pounds,1 driving while under the influence of a controlled
substance,2 and two counts of possession of drug paraphernalia.3 Appellant was
appointed an attorney from the Public Defender’s Office to represent him at trial.
On the day of trial, Appellant informed the court that he wished to hire new
counsel. He stated that he did not believe his public defender had his best interests
in mind. He also stated that he had spoken to a private attorney and was going to
hire him when he received his tax refund. Appellant did not specifically ask for a
continuance. Defense counsel stated that he was prepared for trial and that this
request was the first he had heard about potential new counsel. The trial court
denied Appellant’s motion and the case proceeded to trial.
Appellant was convicted of the trafficking and drug paraphernalia
charges. He was acquitted of the driving under the influence charge. Appellant
was sentenced to two years in prison. This appeal followed.
1
Kentucky Revised Statute (KRS) 218A.1421(3).
2
KRS 189A.010(1)(c).
3
KRS 218A.500(2).
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ANALYSIS
Appellant argues on appeal that the trial court should have granted a
continuance to allow him to hire private counsel. Appellant concedes that he did
not specifically ask for a continuance; therefore, he requests that we review this
issue for palpable error.
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
Kentucky Rules of Criminal Procedure (RCr) 10.26. “To discover manifest
injustice, a reviewing court must plumb the depths of the proceeding . . . to
determine whether the defect in the proceeding was shocking or jurisprudentially
intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
Whether a continuance is appropriate in a particular case
depends upon the unique facts and circumstances of that
case. Factors the trial court is to consider in exercising
its discretion are: length of delay; previous continuances;
inconvenience to litigants, witnesses, counsel and the
court; whether the delay is purposeful or is caused by the
accused; availability of other competent counsel;
complexity of the case; and whether denying the
continuance will lead to identifiable prejudice. To
warrant substitution of counsel, appellant must show: (1)
complete breakdown of communications between
counsel and himself, (2) a conflict of interest, or (3) that
his legitimate interests are being prejudiced.
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Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (citations
omitted), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d
534 (Ky. 2001). The decision to grant a continuance is within the trial judge’s
discretion. Id. “[A] defendant should be afforded a fair opportunity to secure
counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58,
77 L. Ed. 158 (1932).
Here, when we examine the Snodgrass factors through the lens of
palpable error, we conclude that the trial court made no error. Weighing in
Appellant’s favor is the fact that there had been no prior continuance requests.
Also, the only inconveniences would be the usual inconveniences of rescheduling a
trial. Further, the only witnesses to testify were those for the Commonwealth.
Those witnesses were all employees of the state which suggests there would be
little inconvenience to them if the trial were rescheduled.
On the other hand, the case was not very complex and would not
require a specialized defense attorney. Also, the evidence of trafficking was
overwhelmingly against Appellant; therefore, there is no evidence of prejudice to
Appellant.4 The police found over eight ounces of marijuana after searching
Appellant’s car. Appellant also made statements incriminating himself in
4
The trafficking charge was the only felony for which Appellant was on trial. The other charges
were misdemeanors. As it was the only felony, and was the cause of his two-year sentence, we
are primarily focusing on it.
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trafficking activities. Further, the police found a digital scale, a grinder, and plastic
baggies inside the car. Appellant also had over three thousand dollars in his
possession. All of this points to trafficking in marijuana.
As for the availability of other counsel, while Appellant stated he
wanted to hire private counsel, he had yet to do so and was relying on a speculative
amount of money to do so. Had Appellant already had new counsel, or even had
the tax refund money in his possession, maybe this factor would have been in his
favor. Furthermore, because Appellant did not ask for a continuance, we do not
know how long of a delay would have been reasonable to hire this new attorney.
CONCLUSION
Based on the foregoing, we affirm. The trial court did not err in
failing to grant Appellant a continuance or the chance to hire a private attorney.
There was no palpable error or manifest injustice in the failure to grant a
continuance.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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