People v. Kelling, No. 04CA1079.

• Decision Date: 30 November 2006
• Docket Number: No. 04CA1079.
• Citation: 151 P.3d 650
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffery Joe KELLING, Defendant-Appellant.
• Court: Colorado Court of Appeals

151 P.3d 650

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffery Joe KELLING, Defendant-Appellant.

No. 04CA1079.

Colorado Court of Appeals, Division V.

November 30, 2006.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Martinez Law, LLC, Esteban A. Martinez, Northglenn, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Jeffery Joe Kelling, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree assault on a peace officer and attempted second degree assault on a peace officer. He also appeals his adjudication as an habitual criminal. We remand for further proceedings.

I.

Defendant was charged with second degree assault on a peace officer and four counts of attempted second degree assault on a peace officer arising from an altercation in the county jail where he was an inmate. He was also charged with four habitual criminal counts.

Defendant's trial was initially scheduled for April 8, 2003. On January 7 and 21, 2003, and on March 25, 2003, defendant sent letters to the trial court, arguing that he had no memory of the incident, that he had medical problems and had not received the right medication while in custody, and that his attorney, a public defender, was ineffective for not investigating a mental condition defense. The trial court marked them as "received."

On March 27, 2003, defendant filed a pro se "Motion to dismiss public defender, and request for new counsel," arguing that counsel failed to interview witnesses, explain potential defenses to him, or even meet with him (except for one time when counsel tried to get him to take a plea), before the upcoming trial. Again, the trial court marked the motion "received."

Trial was thereafter rescheduled for August 26, 2003. At a hearing on May 5, 2003, the trial court informed defendant it would not rule on any of his motions because it would not rule on pro se motions while he was represented by counsel.

On or about July 15, 2003, defendant filed a pro se motion to dismiss the case because his right to speedy trial had been violated. In that motion, defendant continued to complain about counsel's representation, even blaming some of the "delays" on counsel.

The trial scheduled for August 26, 2003 was again continued, first, to December 2, 2003, and then to January 2004. Following a jury trial in January 2004, defendant was convicted of one count of second degree assault on a peace officer and one count of attempted second degree assault on a peace officer. The habitual criminal hearing was set for March 19, 2004.

At the March 19 hearing, defense counsel informed the court that defendant had expressed dissatisfaction with counsel's representation. The court asked whether there was a conflict that would prevent counsel from proceeding. Counsel stated that defendant had expressed a desire for a different attorney and that, in defendant's opinion, there was a conflict. However, counsel felt that if he could talk with defendant, the matter could be resolved.

The following discussion took place between the court and defendant:

THE COURT: [Defendant], is there anything that you wanted to say?

DEFENDANT: I'm not sure what I am allowed to say, Your Honor.

THE COURT: Well, let me say a few things, [defendant]. And I think you know exactly what is going on here, and it is my feeling that you are simply trying to delay these proceedings. I'm not inclined to let you do that. However, I'm not going to force [defense counsel] to violate his ethical considerations and proceed, if there is a conflict that prevents him from doing so. If you do not want [defense counsel] to represent you, and because of that conflict he can't represent you, I'm willing to relieve him of his duties. I'll tell you right now, I'll not appoint other counsel.

DEFENDANT: That's fine.

THE COURT: I think regardless of what [defense counsel] or anybody else would have done at trial, you would have found fault with it. So I'm going to continue this one time. I am going to reschedule it for a hearing, and there will be no further continuances; either [defense counsel] represents you, or you have other counsel that you've hired to represent you, or you represent yourself. We're going on this thing the next time it is set. Is that clear to you, [defendant]? Is that clear, [defendant]?

DEFENDANT: Yes, sir.

On April 4, 2004, defendant sent the court a letter arguing that he was entitled to a new trial because trial counsel's assistance, before and during trial, was ineffective. At a hearing on April 12, defense counsel referred to the letter as a possible Crim. P. 35(c) motion and asked whether private counsel should be appointed. The court declined to appoint new counsel, stating, "I already told [defendant] that if he wants to hire somebody he can do that. We are proceeding on the hearing that's set for Friday on the habitual criminal charges."

At the start of the habitual criminal hearing, defense counsel informed the court that he was prepared to proceed but that defendant was renewing his request that alternate defense counsel be appointed. Defendant proceeded "under protest" with counsel after the court indicated that it would not continue the matter further.

Following the hearing, the court found defendant guilty of three of the habitual criminal counts and sentenced him to the Department of Corrections for concurrent terms of twenty-four years for second degree assault on a peace officer and twelve years for attempted second degree assault on a peace officer.

II.

Defendant contends that his Sixth Amendment right to counsel was violated at trial and at the habitual criminal hearing when the trial court failed to inquire into his pro se complaints about counsel and instead told defendant that, even if a conflict of interest existed, he would have to proceed with current counsel or represent himself. We conclude that a remand is necessary with regard to defendant's pretrial complaints about counsel.

While an indigent defendant is entitled to effective appointed counsel, the defendant is not entitled to new counsel without first demonstrating good cause to require substitute counsel. People v. Jenkins, 83 P.3d 1122, 1125-26 (Colo.App.2003).

When a defendant objects to court-appointed counsel, the trial court must inquire into the reasons for the dissatisfaction. If the defendant establishes good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict that may lead to an apparently unjust verdict, the court must appoint substitute counsel. However, before substitute counsel is warranted, the court must verify the defendant has "some well founded reason for believing that the appointed attorney cannot or will not competently represent him." 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 11.4(b), at 555 (2d ed.1999); see People v. Arguello, 772 P.2d 87, 94 (Colo.1989) (quoting prior edition of this treatise); People v. Garcia, 64 P.3d 857, 863 (Colo.App.2002).

Disagreements pertaining to matters of trial preparation, strategy, and tactics do not establish good cause for substitution of counsel. People v. Arko, ___ P.3d ___, ___, 2006 WL 2828868 (Colo.App. No. 04CA1050, Oct. 5, 2006).

With these principles in mind, we examine defendant's contention, first as it relates to trial (part A), and then as it relates to the habitual criminal hearing (part B).

A.

Initially, we reject the People's assertion that defendant abandoned his pretrial objections to his public defender. In this regard, the People point to certain of defendant's statements indicating that he "reinstated," and "recanted" his motion to "fire," his public defender. However, when considered in their totality, the statements reveal that defendant accepted the assistance of counsel only because he believed he "really didn't have a choice" and "was ultimately d[u]ressed in[to] rehiring him." Given that the trial court had not responded to any of defendant's earlier entreaties, we conclude that defendant's choice to "reinstate" the public defender did not constitute an abandonment of his complaints.

Here, before trial, the trial court was repeatedly put on notice of various issues defendant had with counsel. Yet, instead of inquiring into these issues, the trial court disregarded them.

A court's failure to inquire into the reasons for a defendant's objections to court-appointed counsel does not require reversal in every instance. People v. Hodges, 134 P.3d 419, 426 (Colo.App.2005) (cert. granted Apr. 24, 2006).

A court's failure to inquire does not require reversal when a defendant has otherwise placed in the record his or her reasons for dissatisfaction with counsel, those reasons would not qualify as good cause for substituting counsel, and the defendant has not identified any other reason for dissatisfaction that would have been elicited through a formal inquiry. See McKee v. Harris, 649 F.2d 927, 933 (2d Cir.1981)(court's failure to inquire was harmless where defendant had volunteered the grounds for dissatisfaction, the grounds would not have warranted relief, and defendant had suggested no other reason that would have been elicited through a formal inquiry); cf. People v. Arko, supra, ___ P.3d at ___ ("[T]he trial court was not obligated to inquire further as to defendant's dissatisfaction with his counsel because defendant had fully articulated the disputes with his counsel in his pro se motions and at the pretrial conference. Those disputes pertained to trial preparation and other matters of strategy and tactics.... And defendant has not identified any previously undisclosed matters that would have been revealed upon further inquiry.").

Here, in letters and motions filed with the court months after his arrest and, in some instances, as scheduled trial dates approached, d...