McCall v. District Court for Twenty-First Judicial Dist.

• Decision Date: 04 December 1989
• Docket Number: TWENTY-FIRST,No. 89SA76,89SA76
• Citation: 783 P.2d 1223
• Parties: Donnie Ray McCALL, Petitioner, v. The DISTRICT COURT FOR theJUDICIAL DISTRICT, State of Colorado, and the Honorable Charles A. Buss, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1223

783 P.2d 1223

Donnie Ray McCALL, Petitioner, v. The DISTRICT COURT FOR the TWENTY-FIRST JUDICIAL DISTRICT State of Colorado, and the Honorable Charles A Buss, one of the Judges thereof, Respondents.

No. 89SA76.

Supreme Court of Colorado En Banc.

Dec. 4, 1989.

David F. Vela, Colo. State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for petitioner.

Stephen K. ErkenBrack, Dist. Atty., Janis E. Chapman, Deputy Dist. Atty., Grand Junction, for respondents.

Justice LOHR delivered the Opinion of the Court.

In this original proceeding under C.A.R. 21, we issued a rule directing the respondent, Mesa County District Court, ¹ to show cause why the Colorado State Public Defender should not be permitted to withdraw from representing defendant Donnie Ray McCall on appeal from the denial of his motion for post-conviction review of a judgment and sentence for second-degree murder. The public defender had moved to withdraw based upon a conflict of interest. The asserted conflict arose because McCall's pro se motion for post-conviction review alleged ineffective assistance of counsel in the district court by a deputy public defender based in the public defender's regional office in Grand Junction. The district court denied the motion to withdraw, ruling that appellate counsel, who was a deputy public defender in the appellate division of the public defender's office located in Denver, and the deputy public defender in Grand Junction who had represented the defendant in the district court were not related to each other in such a way as to require that appellate counsel be disqualified. We disagree with the trial court's decision and make the rule absolute.

I.

The defendant, Donnie Ray McCall, was originally charged in Mesa County District Court with first-degree murder. As a result of plea negotiations, he entered a plea of guilty to second-degree murder, an offense defined by section 18-3-103, 8B C.R.S. (1986). The court accepted the plea and on October 8, 1982, sentenced the defendant to the custody of the department of corrections for a twenty-four year term. Throughout the plea negotiations and during the entry of his plea, the defendant was represented by a deputy public defender on the staff of the Grand Junction regional office of the Colorado State Public Defender.

In May of 1984, the defendant filed a pro se motion for post-conviction review in the district court, alleging that he was a first-time felony offender and had received a sentence twice as long as the average sentence for second-degree murder "because of an erroneous plea-bargain arrangement." The defendant further alleged that he had been ineffectively represented by counsel in that the deputy public defender had failed to disclose favorable information to the district court and had coerced him into pleading guilty to a reduced charge. The court appointed the deputy public defender who had represented the defendant throughout the earlier proceedings to represent him on his motion for post-conviction review.

Soon afterward, the deputy public defender requested the district court's permission to withdraw from representation of the defendant on the motion for post-conviction review. In his motion to withdraw, the attorney pointed out that the defendant's allegation that he had received ineffective representation during plea negotiations and entry of his plea created a conflict of interest because it challenged the adequacy of the attorney's own professional conduct. The trial court agreed and appointed substitute private counsel on June 18, 1984.

Three years later the trial court denied the defendant's motion for post-conviction review. By order dated August 2, 1987, the court then appointed the Colorado State Public Defender to represent the defendant in his appeal from the denial of the motion.

The appellate division of the state public defender's office ("appellate division") filed a motion in the Colorado Court of Appeals shortly thereafter, requesting leave to withdraw from representation of the defendant because of a conflict of interest. The court of appeals remanded the matter to the district court to consider the appellate division's request.

Without holding an evidentiary hearing, the district court denied the request to withdraw, citing People v. Botham, 629 P.2d 589 (Colo.1981), in support of the proposition that as a matter of law, the local deputy public defender who had represented the defendant in the district court and the deputy public defender in the appellate division who was representing the defendant on appeal were "not related" and therefore no conflict of interest existed.

After recertification of the case to the court of appeals, that court denied a second request by the appellate division to withdraw as counsel for the defendant. ² The appellate division then filed this original proceeding, and we issued a rule to show cause why the Colorado State Public Defender should not be permitted to withdraw from representation of the defendant. We now make the rule absolute.

II.

Relief under C.A.R. 21 is an extraordinary remedy limited in purpose and in availability. White v. District Court, 695 P.2d 1133, 1135 (Colo.1984). A rule to show cause under C.A.R. 21 is authorized to test whether the trial court is proceeding without or in excess of its jurisdiction or to review a serious abuse of discretion when an appellate remedy would not be adequate. People in Interest of Clinton, 762 P.2d 1381, 1385 (Colo.1988); Coquina Oil v. District Court, 623 P.2d 40, 41 (Colo.1981). Although the remedy permits early correction of a trial court's rulings for these purposes, it is not to be used as a substitute for an appeal. White, 695 P.2d at 1135. The granting of relief under C.A.R. 21 is within the discretion of this court. Id.

In the present case, the appellate division contends that the district court seriously abused its discretion by denying the appellate division's motion to withdraw as counsel for the defendant on appeal. Denial of relief, the appellate division asserts, would place appellate counsel in the untenable position of attempting to represent a defendant on appeal from a conviction for second degree murder in circumstances requiring the deputy public defender in the appellate division to argue that another deputy public defender provided ineffective assistance to the defendant during district court proceedings. We conclude that we should exercise our discretion to determine whether the district court correctly denied the appellate division's motion to withdraw.

III.

A motion by an attorney for leave to withdraw from representation based on a conflict of interest is addressed to the sound discretion of the court, and will not be reversed unless clear error or abuse of discretion is shown. Riley v. District Court, 181 Colo. 90, 93, 507 P.2d 464, 465 (1973). Recognizing that "genuine conflicts of interest must be scrupulously avoided," Allen v. District Court, 184 Colo. 202, 206, 519 P.2d 351, 353 (1974), this court has ruled that "[w]henever a motion to withdraw is filed on the grounds that a conflict of interest may exist or may arise in the future, the trial judge must conduct a hearing to determine if a conflict of interest, or a potential conflict of interest, requires that counsel withdraw." Id. The district court in the present case considered the issue posed by the appellate division's motion for withdrawal to present a question of law only and denied the motion without conducting an evidentiary hearing. ³

The district court based its denial of the appellate division's request to withdraw upon People v. Botham, 629 P.2d 589 (Colo.1981). Botham concerned the disqualification of a trial judge on grounds of bias or prejudice against the defendant. The trial judge in that case denied a defense motion for substitution of judge as untimely filed because Rollie Rogers, then the Colorado State Public Defender, knew of the alleged grounds for disqualification within the period for timely filing the motion. ⁴ The trial court reasoned that the local public defender, although not himself aware of this information before the expiration of the time prescribed for filing a motion to disqualify the judge, was "bound by the knowledge of Rollie Rogers, Esq., who is a member and director of their office." Id. at 594. We reversed the ruling that the motion was not timely. Id. at 595.

According to the district court in the present case, Botham

held by implication that Rollie Rogers, the Colorado State Public Defender, was not the same as the defendant's counsel where the defendant was represented by a locally based attorney of the Colorado State Public Defender's Office when that court determined that knowledge held by Rollie Rogers, the Colorado State Public Defender, about reasons that would require a judge to disqualify himself was not knowledge of his agents, the locally based public defenders who were representing the defendant.

Applying its interpretation of Botham to the facts before it, the district court then ruled that appellate and local public defenders are "not related ... and therefore no conflict of interest exists." We believe this extends Botham beyond its natural and appropriate limits.

In reversing the trial court in Botham and holding that the motion for substitution of judge had been timely filed, this court did not directly address the trial judge's reasoning that knowledge held by the Colorado State Public Defender is imputed to local public defenders. We merely stated that because local defense counsel informed the trial court as soon as possible after learning of the disqualifying facts forming the basis of the motion for substitution, the motion was timely. Id. at 595.

Although in Botham we reversed the trial judge's ruling dismissing the motion for substitution of judge as untimely filed, we did not hold that for all purposes the Colorado State Public...