People v. Rainey

Decision Date18 March 2021
Docket NumberCourt of Appeals No. 17CA1133
Citation491 P.3d 531
CourtColorado Court of Appeals
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert James RAINEY, Defendant-Appellant.

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE HARRIS

¶ 1 Defendant, Robert James Rainey, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree kidnapping and criminal mischief.

¶ 2 On appeal, one claim is potentially dispositive. Rainey contends that the district court violated his Sixth Amendment right to continued representation when it denied a continuance on grounds of judicial efficiency, thereby forcing him to proceed with a different public defender. We conclude that the district court applied the wrong legal standard in considering the motion to continue, and we therefore reverse and remand for further findings.

I. Background

¶ 3 Rainey was charged with second degree kidnapping, a felony, and several misdemeanor domestic violence offenses following an altercation with the victim. The district court appointed counsel to represent him.

¶ 4 Trial was originally scheduled to begin January 9, 2017, but was thereafter delayed and continued multiple times for reasons not attributable to the defense:

The court delayed trial to January 10 because a storm had damaged the courthouse.
• On January 10, the prosecution moved for a continuance because the victim failed to appear. Over Rainey's objection, the court granted the continuance and rescheduled trial for February 2.
• The jury commissioner did not have enough jurors available on February 2, so the court continued the case to February 23.
• On February 23, the prosecution moved for a second continuance because one of its witnesses was unavailable. The court granted the continuance (again, over Rainey's objection) and reset trial for March 6, 2017, the day before the speedy trial deadline.

¶ 5 At a pretrial hearing on March 3, Rainey, through his public defender, Neil DeVoogd,1 requested a continuance. DeVoogd explained that he would be out of town for the week of March 6, and that when he had accepted that date, the parties had reached an agreement and there was "not any [likelihood] that [the case] was going to be going to trial," but the agreement "ended up not going through." He said that Rainey wanted to continue the representation and was asserting his "right to have [DeVoogd] as his attorney" at trial. DeVoogd told the court that Rainey would agree to waive his right to a speedy trial.

¶ 6 The court recognized that every prior delay or continuance had "either been attributable to the DA or the Court" and that "none of them [we]re attributable to the Defense." The trial judge rejected any notion that the continuance request was a dilatory tactic and indicated that she personally "felt terrible for Mr. Rainey in the midst of all of this" and was "sympathetic" to the request.

¶ 7 Nonetheless, the trial judge denied the continuance, finding, primarily, that it had been difficult to find a substitute judge to hear the case and, due to the nature of the case, it would be difficult to fit the trial back into her docket:

It would have been great to have [DeVoogd] do it and that would have been a little more comfortable, I think for Mr. Rainey. But what the factual [sic] comes down to is that this isn't a [complicated] case. It's not a case that involved anything technical. It's just straight forward witnesses and a victim who doesn't want to cooperate.
....
If I have to reset this case, it's getting reset [in] July, and then even then it's not a high priority case. Every week I have sex assault on a child, I have homicides set, I have [serious] assault cases set, crimes of violence set. There is a darn good chance that if we continue this, he gets bumped again. And I can't do that. I just can't do that for the sake of this case. He is getting his attorney of choice. He's getting the Public Defender and a fine one too. So, I understand where you're coming from, record so noted. But I'm gonna deny the request for a continuance.

¶ 8 Accordingly, in place of DeVoogd, two other public defenders from the same office represented Rainey at trial.

II. Sixth Amendment Right to Counsel

¶ 9 Rainey contends that the district court's denial of his request for a continuance violated his constitutional right to continued representation by DeVoogd, his counsel of choice.

A. Standard of Review

¶ 10 We review the district court's denial of a continuance motion for an abuse of discretion. People v. Brown , 2014 CO 25, ¶ 19, 322 P.3d 214. The court's "failure to understand the ... criteria upon which [its] discretion is to be exercised can amount to an abuse of that discretion." Pierson v. People , 2012 CO 47, ¶ 21, 279 P.3d 1217. And the court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law. People v. Wadle , 97 P.3d 932, 936 (Colo. 2004). Whether the court applied the correct legal standard is a question of law we review de novo. Ronquillo v. People , 2017 CO 99, ¶ 13, 404 P.3d 264.

B. Analysis

¶ 11 The Sixth Amendment guarantees a criminal defendant "the Assistance of Counsel for his defence." U.S. Const. amend. VI ; see also Colo. Const. art. II, § 16. That guarantee has been interpreted to include, among other things, the right to appointed counsel for indigent defendants, Gideon v. Wainwright , 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the right to "select and be represented by one's preferred attorney" for defendants of means, Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

¶ 12 The People argue that because Rainey, as an indigent defendant, had no constitutional right to choose his lawyer, he also had no right to continued representation by his appointed lawyer. That argument cannot be squared with our supreme court's well-settled precedent.

¶ 13 To be sure, an indigent defendant does not have a right to select his appointed counsel. Ronquillo , ¶ 25 ("[A] defendant requesting a free lawyer can't choose which one he's given." (citing United States v. Gonzalez-Lopez , 548 U.S. 140, 151, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) )). But "[t]he right to continued representation by counsel of choice [is distinct] from an asserted right to have particular counsel of choice appointed." People v. Harlan , 54 P.3d 871, 878 (Colo. 2002). "[O]nce counsel is appointed, the attorney-client relationship is no less inviolable than if the counsel had been retained by the defendant." People v. Shari , 204 P.3d 453, 460 (Colo. 2009) (quoting Harlan , 54 P.3d at 878 ). So, "[w]hile there is no Sixth Amendment right for an indigent defendant to choose his appointed counsel, that defendant is ‘entitled to continued and effective representation’ " by court-appointed counsel of choice "in the absence of a demonstrable basis in fact and law to terminate that appointment." Harlan , 54 P.3d at 878 (citation omitted); accord People v. Nozolino , 2013 CO 19, ¶ 17, 298 P.3d 915.

¶ 14 The People's argument, which conflates the right to select counsel with the right to continued representation, was expressly rejected by the supreme court in Harlan . In that case, after the defendant was convicted at trial and while two postconviction motions were pending, the district court disqualified appointed counsel based on an alleged conflict of interest. Harlan , 54 P.3d at 876. On appeal, the prosecution contended that the court's interest in avoiding a potential conflict necessarily outweighed any interest the defendant had in keeping his appointed counsel, noting that an indigent defendant has no right to counsel of his choice. Id. at 878. The court deemed that contention a non sequitur:

[T]he People's contention that indigent defendants are not entitled to choose court-appointed counsel is irrelevant to the issue before us.... As noted above, an indigent defendant has a presumptive right to continued representation by court-appointed counsel absent a factual and legal basis to terminate that appointment. Because the issue presented in this case is whether Harlan may continue to be represented by his current counsel, and not whether he may choose his counsel, this argument by the People, and the case law cited to support the argument, is inapposite.

Id. (citation omitted); see also Nozolino , ¶ 17 ; Shari , 204 P.3d at 460 ; Lane v. State , 80 So. 3d 280, 296-99 (Ala. Crim. App. 2010) (explaining that the right to continued representation applies equally to indigent defendants and collecting state and federal cases applying the rule); State v. McKinley , 860 N.W.2d 874, 879-80 (Iowa 2015) (adopting Harlan ’s view and collecting cases).

¶ 15 In light of this case law, we reject the People's position that if a defendant does not pay for his lawyer, he has no grounds to object to his lawyer's replacement as long as the replacement lawyer handles the case competently. See Lane , 80 So. 3d at 296. "To allow trial courts to remove an indigent defendant's court-appointed counsel with greater ease than a non-indigent defendant's retained counsel would stratify attorney-client relationships based on defendants’ economic backgrounds." Weaver v. State , 894 So. 2d 178, 189 (Fla. 2004).

¶ 16 And the right to continued representation means that an indigent defendant has a right to proceed with his specific appointed lawyer, not just any appointed lawyer from the public defender's office.

¶ 17 We have recognized that non-indigent defendants have this right. In People v. Stidham , 2014 COA 115, ¶ 10, 338 P.3d 504, a division of this court held that a defendant has a Sixth Amendment right to proceed with his specific lawyer, and that the district court erred by denying a motion to...

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3 cases
  • People v. Rainey
    • United States
    • Colorado Supreme Court
    • 10 Abril 2023
    ...once an attorney is appointed, they do have a constitutional right to choose continued representation by that specific attorney. People v. Rainey, 2021 COA 35, ¶¶ 13, 29, 491 P.3d 531, 535, 538. The further concluded that trial courts must therefore apply the test announced in People v. Bro......
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  • People v. Davis
    • United States
    • Colorado Supreme Court
    • 10 Abril 2023
    ... ... CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE ... HOOD, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined ... JUSTICE GABRIEL dissented ...           HART ...           ...          ¶1 ... As we explain in more detail in People v. Rainey, ... 2023 CO 14, a companion case to this one, the Sixth Amendment ... to the United States Constitution does not guarantee a ... criminal defendant continued representation by a particular ... court-appointed attorney. Therefore, a court confronted with ... a request for a continuance in ... ...

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