Linton v. Perini

• Decision Date: 24 July 1981
• Docket Number: No. 80-3764,80-3764
• Citation: 656 F.2d 207
• Parties: Jack L. LINTON, Petitioner-Appellant, v. E. P. PERINI, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 207

656 F.2d 207

Jack L. LINTON, Petitioner-Appellant, v. E. P. PERINI, Superintendent, Respondent-Appellee.

No. 80-3764.

United States Court of Appeals, Sixth Circuit.

Argued April 16, 1981.

Decided July 24, 1981.

Elizabeth Manton, Asst. Public Defender, Columbus, Ohio, for petitioner-appellant.

David E. Stocker, Asst. Atty. Gen., Lianne Santellani, Columbus, Ohio, for respondent-appellee.

Before WEICK and MERRITT, Circuit Judges, and GILMORE, District judge. ^*

GILMORE, District Judge.

This is an appeal from the denial of a habeas corpus petition. Petitioner-appellant claims he was denied the right to select counsel of his own choice in a criminal trial, and also was denied effective assistance of counsel. We find that he was denied the right to employ counsel of his own choosing without a sufficient reason, and therefore reverse.

Appellant was arraigned in the Ohio Common Pleas Court on five felony counts (one of kidnapping and four of rape) on May 8, 1978. He was represented by retained counsel, Angelo A. Fanelly, and pled not guilty. Pretrial was scheduled for May 15, 1978, and trial for May 18, 1978. At the arraignment, Fanelly, appellant's retained counsel, requested that the trial judge schedule trial for early June rather than May 18. He stated he had other obligations and could not properly prepare for trial on May 18. ¹ The trial judge refused to reschedule the trial date over appellant's objections. At that point, Fanelly withdrew. The Court allowed the withdrawal and instructed appellant to hire another lawyer for the trial ten days hence, on May 18.

On the same day, appellant stated that he could not obtain counsel and the trial court appointed Robert Bulford to represent him. Bulford immediately moved for a continuance, claiming he needed more time to prepare the case for trial. This motion was denied by the Court. On the morning of trial, May 18, Bulford again requested a continuance so that appellant's original retained counsel could resume his representation. This motion was denied, but the court did move the trial date to May 22 because of the court's own scheduling problems. Trial commenced with Bulford as counsel on May 22, and on May 24 the jury returned a verdict of guilty on four of the five charges. Appellant was eventually sentenced to a period of incarceration of from seven to 25 years. The Ohio Court of Appeals affirmed the judgment on December 29, 1978, and the Supreme Court of Ohio denied leave to appeal on April 26, 1979.

Appellant then brought this habeas corpus proceeding in the United States District Court for the Northern District of Ohio. That Court's Magistrate made a detailed report on September 19, 1980, recommending that the petition be dismissed. This recommendation was adopted by the District Court on October 22, 1980, and the matter is here on appeal.

In his opinion, the District Court Magistrate held that the State had not met its burden of showing that the denial of the continuance was reasonable, and that appellant had established a denial of his constitutional right to be represented by counsel of his own choice. The Magistrate, citing Giacalone v. Lucas, 445 F.2d 1238 (CA6 1971), however, concluded that appellant had not met his burden of establishing prejudice as a result of the trial court's deprivation of his right to representation of counsel of his choice, and therefore recommended that the writ be denied. This recommendation was adopted by the District Court.

It is axiomatic that in all criminal prosecutions the accused enjoys the right to have assistance of counsel for his defense, ² and implicit in this guarantee is the right to be represented by counsel of one's own choice. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), the Court said:

defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.... By denying petitioner any opportunity whatever to obtain counsel in the habitual criminal accusation, the trial court deprived him of due process of law as guaranteed by the Fourteenth Amendment." Id. at 10, 75 S.Ct. at 5.

The right to choose one's own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut.

It is also true that a trial court, acting in the name of calendar control, cannot arbitrarily and unreasonably interfere with a client's right to be represented by the attorney he has selected. On the other hand, the right to counsel of choice may not be used to unreasonably delay trial.

When a defendant's chosen counsel represents that he cannot meet a set trial date and requests a continuance, a trial court considering such a request must be sensitive to the defendant's right to counsel of his choice, as well as the public's interest in prompt and efficient administration of justice. If the court finds that the delay is an attempt to manipulate a trial, or causes prejudice to the prosecution, or creates difficulties for the trial court, the trial court may interfere with the defendant's right to counsel of his own choice and require the case to proceed. On the other hand, where the request is reasonable, where there have been no prior adjournments, where the length of delay is moderate, and where the adjournment seems to be for legitimate reasons, the court should allow a reasonable adjournment to permit a defendant to have retained counsel of his own choice.

This does not mean that a trial court cannot tightly control its own docket, or that its assignment of cases can be manipulated by defense counsel and defendants. A court must always keep control of its own docket, but in doing so it must be reasonable and consider the constitutional right of a defendant to have retained counsel of his choice.

A leading case on the subject is United States v. Burton, 584 F.2d 485 (CA D.C.1978). There the court held that the right to retain counsel of one's own choosing is not absolute, and where a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. It also held that what is a reasonable delay for securing additional counsel, once adequate counsel has been obtained, depends upon all of the surrounding facts and circumstances. The Court said, inter alia:

"... An essential element of the Sixth Amendment's protection of the right to assistance of counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. As the Supreme Court stated in Powell v. Alabama, 287 U.S. 45, 53 S(up). Ct. 55; 77 L.Ed. 158 (1932) '(I)t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.' 287 U.S. at 53; 53 S(up). Ct. at 582. An accused who is financially able to retain counsel must not be deprived of the opportunity to do so.

"Yet the right to retain counsel of one's own choice is not absolute. The right 'cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.' The public has a strong interest in the prompt, effective, and efficient administration of justice; the public's interest in the dispensation of justice that is not unreasonably delayed has great force." Id. at 488, 489.

The Court went on to point out that the right of choice of counsel is related to the right to adequate time to prepare for trial. It emphasized that counsel is not entitled to unlimited preparation time, but only to reasonable preparation time. It also found a due process right to counsel of one's choice, as well as a Sixth Amendment right.

Commenting on the factors to be considered in determining reasonable delay, the Court held:

"What is a reasonable delay necessarily depends on all the surrounding facts and circumstances. Some of the factors to be considered in the balance include: the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether defendant has other competent counsel prepared to try the case, including the consideration of whether other counsel was retained as lead or associate counsel; whether denying the continuance will result in an identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case." Id. at 490, 491.

Burton found the existence of prejudice as only one of a number of factors to be considered in balancing the interests of the criminal defendant with other considerations such as the interest in orderly procedure and the interest in avoiding manipulation of the judicial process.

"The question ... is whether appellant was afforded his constitutional right to select his own counsel. In determining whether the right was violated, the existence of prejudice is only one of the factors to consider. The existence of prejudice to the case is not a prerequisite to a constitutional violation in this context ..." (Emphasis added) Id. at 498.

In Ungar v. Sarafite, 376 U.S. 575, 84 S.ct. 841, 11 L.Ed.2d 921 (1964), the Court considered the matter...