¶ 2 According to the People's evidence, a plumber saw defendant leaving the area of a home for sale, taking the lockbox for the home with him. The plumber gave the homeowner the license plate number of the truck that defendant was driving, and the homeowner contacted police. The next day, the police began surveillance of defendant and watched as he drove around the Highlands neighborhood of Denver looking through the windows of many houses. Several days later, police saw defendant drive the truck to a home and then to a storage unit, where he unloaded a stove from the truck.
¶ 3 Defendant was arrested and admitted stolen property was in his apartment and in the storage unit. He also admitted to having burglarized nine residences in the Highlands neighborhood by taking appliances and show furniture from homes for sale.
II. Right to Counsel of Choice¶ 4 Defendant primarily contends, and we agree, that the court's failure to include him in a hearing on his attorney's motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions.
¶ 5 Defendant was originally represented a public defender, but Douglas L. Romero (defense counsel) replaced the public defender on May 9, 2011. On November 22, 2011, defense counsel filed a motion to withdraw, stating:
COMES NOW, Douglas L. Romero Esq., a Member of the Bar of the State of Colorado, moves this Court for an Order allowing Douglas L. Romero to withdraw as counsel of record for this Defendant and/or set a hearing on the matter. As grounds therefore, counsel states as follows:
AS GROUNDSTHEREFORE [sic], counsel states as follows:
1. Also, [sic] substantial and irreconcilable differences of opinion concerning the course of scope of representation have arisen between the Defendant and Counsel.
2. The differences are of a nature and at a level such that Counsel seeks to withdraw as Counsel in this matter.
WHEREFORE, the undersigned requests that this Court grant his Motion to Withdraw from any further representation of the Defendant in this matter.
¶ 6 At a hearing on December 16, 2011, the trial court conducted a brief bench conference with defense counsel and the prosecutor on the motion to withdraw.
The Court: My—I don't know if new counsel can be prepared by the trial (indistinguishable—parties talking over each other).
[Prosecutor]: Okay.
The Court: I would hope so. The motion to withdraw is, I guess, characteristically vague. I—I can tell you that if this is really a financial issue and he objects, I'm not sure I will grant the motion to withdraw.
Is there something else going on?
[Defense Counsel]: It isn't. This was initially filed by [defense counsel] so the issue he's having is not only a violation of the terms of the retainer agreement but also just the—the absence of any communication anymore—maybe nonresponsiveness of—of [defendant] to contact him and stay in communication.
The Court: All right.
Back in open court, the judge asked:
The Court: [Defendant], your attorney has asked to withdraw from representation in this case. Do you have any objection to that motion?
[Defendant]: Yes, I do. But I don't—I don't know what else to do.
The Court: Well, when we were at the—the bench I tried to get some sense of the scope of—of the issues that were raised in the motion. There may be financial issues for which I would not necessarily release counsel, but [defense counsel] indicated that there were difficulties in—in communication as well. Do you think that's a fair statement?
[Defendant]: I—I guess.
The Court: You—you won't be unrepresented. You'd be—you'd qualify for the public defender since you're in custody and you'd certainly have counsel in this case, and I would expect that counsel could be prepared by a—a March 12th trial date.
I wonder if it would make sense, if the People didn't object, to make some further record about the issues that have arisen between counsel and [defendant] outside the presence of the prosecutor in an in camera hearing.
The court then set a further hearing in order to allow the parties to make a complete record on the motion to withdraw. However, the next hearing would be in front of a new judge because the current judge was rotating to a civil docket.
¶ 7 At the next hearing before a new judge, the following occurred:
The Court: All right. We set a review for this. There was a motion filed regarding withdrawal and quite frankly, I believe the in camera review was accomplished by [the prior judge].
Has he indicated to any of you the outcome of that in camera review, because I don't have any in camera records, and—
[Defense Counsel]: What—
The Court: —looked all over for them.
[Defense Counsel]: —and what happened was [the prior judge] stated that he wanted to set a hearing for today. I believe today would have been the in camera review.
The Court: Understood.
[Defense Counsel]: So there's never been a previous in camera review.
The Court: Okay.
[Prosecutor]: And that was my understanding too.
The Court: All right. All right. Well, [defense counsel], how do you intend to—how—how would you like to proceed on this? We certainly can go back in chambers, but your client can't come, so I—I don't know who—who it is you want me to talk to at this point—off the record.
[Defense Counsel]: In—I've never dealt with this type of situation—meaning with a motion to withdraw having to do an in camera hearing on it, so that was something that was requested by [the previous judge] and not by us, so certainly if you've adopted this case, I guess we would just defer to how you wish to proceed on this.
I mean I—I have no specific method that I wish to operate on. I—I've never dealt with it as just an in camera issue.
The Court: Well the motion to withdraw was filed in essence by your office.
[Defense Counsel]: Correct.
The Court: And you'd stated in there in paragraph 2 that there was a difference of a nature and a level that counsel—counsel seeks to withdraw.
I'm sure what [the prior judge] wanted to do was find out what those reasons were outside the presence of the district attorney. It doesn't necessarily have to be outside the presence of your client, but the way this courthouse is set up, there's not a lot we can do about it, I think. So at the moment, I guess I would ask you to join me back in chambers and we'll discuss some of the reasons that you were having and then I can rule on your motion. If I need to talk to your client, I'll figure out a way to do that, so why don't we take a few minutes and you come back with me.
(Whereupon the above proceedings concluded at 1:47 p.m. and the matter was recommenced in open court at 1:52 p.m.)
The Court: The Court has heard things in chambers in support of the motion to withdraw as counsel and the Court has been able to substantiate what was placed in paragraph 2—that was pretty much what we're going with. So therefore the motion to withdraw as counsel of record is granted at this point.
[Defense counsel] will be allowed to withdraw from this case.
Despite defendant being in the courtroom, the court made no inquiry of him before granting the motion. The court then continued the case for an entry of appearance by the public defender's office. A public defender represented defendant throughout trial.
¶ 8 Crim. P. 44 governs an attorney's withdrawal in a criminal case. "Appellate courts review a trial court's ruling on an attorney's motion to withdraw for an abuse of discretion." People v. DeAtley, 2014 CO 45, ¶ 13, 333 P.3d 61. "To constitute an abuse of discretion, the trial court's decision must be manifestly arbitrary, unreasonable, or unfair." Id. "A trial court also commits an abuse of discretion by misapplying the law." People v. Maestas, 199 P.3d 713, 716 (Colo. 2009). "Whether the trial court applied the correct legal standard in ruling on defense counsel's motion to withdraw is a question for de novo appellate review." DeAtley, ¶ 13.
C. The Right to Counsel and Crim. P. 44 ¶ 9 "The right to counsel is guaranteed by the Sixth Amendment to the U.S. Constitution." Id. at ¶ 14 (citing U.S. Const. amend. VI ); see People v. Alengi, 148 P.3d 154, 159 (Colo.2006). "This right encompasses both the right to a retained attorney for a defendant who is financially able to pay for legal representation and the right to a court-appointed counsel for an indigent defendant faced with the prospect of incarceration." DeAtley, ¶ 14 (citing King v. People, 728 P.2d 1264, 1268 (Colo.1986) ).
¶ 10 "The right to select an attorney of choice whom the defendant trusts is considered central to the adversary system and of substantial importance to the judicial process." Id. at ¶ 15 (citing People v. Brown, 2014 CO 25, ¶ 16, 322 P.3d 214 ); see Anaya v. People, 764 P.2d 779, 781 (Colo.1988) (" ‘A defendant's right to be represented by counsel of choice is grounded in the jurisprudence of the sixth amendment to the United States Constitution and is entitled to great deference. This guarantee reflects the substantial...
