People v. Ruch
| Decision Date | 20 June 2013 |
| Docket Number | Court of Appeals No. 10CA2436 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Carl Daniel RUCH, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Douglas K. Wilson, Colorado State Public Defender, Michael C. Mattis, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant
Opinion by JUDGE TAUBMAN
¶ 1 Defendant, Carl Daniel Ruch, appeals the trial court's judgment revoking his probation for his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive prior approval from his probation officer before changing his residence, (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team, and (4) attend, actively participate in, and successfully complete a sex offender treatment program approved by his probation officer. We conclude that there was sufficient evidence upon which the trial court could find that Ruch violated his probation with respect to the first three violations and that the trial court did not violate Ruch's right to counsel. However, we conclude that the fourth probation requirement violated Ruch's Fifth Amendment right against self-incrimination. Accordingly, we remand the case to the trial court to determine whether Ruch's probation would have still been revoked, and the same sentence imposed, based only on the first three violations.
¶ 2 In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking.1
¶ 3 The trial court sentenced Ruch to six years of intensive supervised probation. However, in January 2010, Ruch's probation officer filed a special report in the trial court requesting Ruch be ordered to comply with additional terms of probation typically imposed on sex offenders.2
¶ 4 In March 2010, Ruch filed a written objection to the probation officer's special report, asserting, among other things, that the requested additional terms of probation would violate his Fifth Amendment right to remain silent.
¶ 5 In April 2010, the trial court held a hearing on the special report. At the hearing, Ruch objected to the modification of the terms of his probation, but he did not invoke his Fifth Amendment right. At the conclusion of the hearing, the trial court granted the probation officer's request, and amended the terms of Ruch's probation to include, among other things, the above listed requirements.
¶ 6 In June 2010, Ruch's probation officer moved the trial court to revoke Ruch's probation, alleging that Ruch had violated the amended conditions of his probation.
¶ 7 In August 2010, the trial court held a hearing on Ruch's alleged violations, at which it found that Ruch had violated the terms of his probation. At the conclusion of the hearing, the trial court left the terms of Ruch's probation in place until the sentencing hearing at which Ruch's probation would be revoked.
¶ 8 In October 2010, the trial court held a hearing to revoke Ruch's probation and sentence him accordingly. At the hearing, Ruch again invoked his Fifth Amendment right, asserting that revocation of his probation would violate that right. Nevertheless, the trial court revoked Ruch's probation, and sentenced him to four years in the Department of Corrections.
¶ 9 This appeal followed.
¶ 10 Ruch asserts that the trial court violated his right to counsel when it required him to choose between continuing with his appointed counsel or proceeding pro se to renew his request for a continuance to allow him to seek private counsel. We disagree.
¶ 11 Leading up to the hearing on Ruch's violations of his probation, between June 9 and July 1, 2010, the trial court granted Ruch three continuances to allow him to obtain private counsel. On July 1, Ruch appeared before the court with a public defender who explained that he had been provisionally appointed for the purposes of the hearing. However, he explained that Ruch still intended to hire a private attorney, but had been having trouble doing so because of the prison's phone system. The trial court granted Ruch a fourth continuance, but explained that if he did not find counsel by July 12, it would “either appoint the public defender's office or conduct the Arguello3 advisement and then set it for revocation hearing at that time.”
¶ 12 On July 12, Ruch appeared before the court represented by the public defender's office, and without a private attorney. He explained that he had contacted a private attorney, but there was a conflict of interest. Thus, he requested another continuance to contact other private attorneys to whom he had been referred. The court granted a fifth continuance, noting that if Ruch did not secure private counsel by July 22, he would be forced either to continue with representation by the public defender's office or to represent himself. On July 22, Ruch still had not secured private counsel. Accordingly, at the public defender's request, the court appointed him to represent Ruch, and set the revocation hearing for August 19.
¶ 13 On August 19, the public defender informed the court that Ruch wished to terminate his services “due to ineffective assistance of counsel claims.” The public defender explained that he was unaware of any conflicts in his representation. He added that Ruch did not wish to represent himself in the hearing, and thus, he “wish[ed] to have some extra time to obtain counsel.” The trial court explained to Ruch the procedure applicable because he was seeking to terminate his present counsel without replacement counsel present:
The first step in the process is for me to conduct this advisement to determine if you want to represent yourself, because by terminating the services of [the public defender], you are telling me that you want to represent yourself. I'll finish my advisement of you, and then you'll be representing yourself, and then you can certainly request of the Court a continuance.
¶ 14 The trial court then allowed Ruch to speak privately with the public defender to discuss his options. Upon returning, the public defender informed the court that Ruch “would ask the court to make a further record as to what he believes the conflict in this matter possibly is.” The court granted Ruch's request, and Ruch began to explain that he believed exculpatory evidence existed, which the public defender had not pursued. The trial court warned Ruch that by discussing his conversations with the public defender in front of the prosecution, he could potentially waive his attorney-client privilege. Ruch conferred with the public defender, and then advised the court that he did not wish to waive his attorney-client privilege, and thus, he had nothing more to add.
¶ 15 The trial court responded:
Mr. Ruch can certainly terminate [the services of the public defender] at any time he wishes if he wants to represent himself, but he does not get to pick and choose which lawyer represents him.... I've appointed counsel. I've heard nothing that would lead me to believe [counsel has] been ineffective. I wouldn't terminate [counsel's] services on those grounds. I have to terminate them on Mr. Ruch's desire to terminate them himself.
Ruch conferred with the public defender, and then informed the court that he wished to proceed with the public defender's representation.
¶ 16 “The freedom of a defendant to choose his own counsel is central to our adversarial judicial system.” People v. Maestas, 199 P.3d 713, 716 (Colo.2009). “It long has been recognized that ‘an accused who desires and is financially able should be afforded a fair opportunity to secure counsel of his own choice.’ ” Anaya v. People, 764 P.2d 779, 781 (Colo.1988) (quoting Powell v. A labam a, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ). However, this right is not unfettered. “Terminating counsel in order to ... switch[ ] to new counsel during a trial, for example, is subject to court approval.” Maestas, 199 P.3d at 716–17. Similarly, “a defendant cannot utilize his right to counsel of choice for improper purposes, such as attempting to delay proceedings or to ‘impede [the] efficient administration of justice.’ ” Id . at 717 (quoting People v. Mogul, 812 P.2d 705, 708 (Colo.App.1991) ).
¶ 17 Ruch asserts that the trial court impermissibly conditioned consideration of his request for a continuance on the waiver of his right to counsel. We disagree.
¶ 18 Defendants may discharge their attorneys at will. People v. Munsey, 232 P.3d 113, 126 (Colo.App.2009). However, a request for a continuance to seek new counsel will be granted only if it is timely and not made for improper purposes, as noted above. Id . ; see also People v. Brown, 328 P.3d 187 (Colo.App.2011) (cert. granted Apr. 23, 2012). We review a trial court's decision whether to grant a continuance in these circumstances for an abuse of discretion. People v. Denton, 757 P.2d 637, 638 (Colo.App.1988). There is no precise test to determine whether a trial court abuses its discretion by denying a request for a continuance. People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). Instead, “[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id . at 1353–54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) ). “Further, although a trial court's denial of a continuance to discharge or substitute counsel may implicate the Sixth Amendment right to counsel, no abuse of discretion will be found unless the denial is so arbitrary as to deny the accused due...
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