Quijada v. State

• Decision Date: 08 September 2021
• Docket Number: No. CR-20-522,CR-20-522
• Citation: Quijada v. State, 2021 Ark. App. 321, 633 S.W.3d 797 (Ark. App. 2021)
• Parties: Derrick QUIJADA, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2021 Ark. App. 321

633 S.W.3d 797

Derrick QUIJADA, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-522

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered September 8, 2021

Beth Wright, for appellant.

Leslie Rutledge, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Judge

Appellant Derrick Quijada appeals from an order of the Logan County Circuit Court revoking his probation and sentencing him to seven years’ imprisonment. For his sole argument on appeal, he contends that the circuit court erred in denying his motion for continuance in light of the ongoing COVID-19 pandemic. We affirm.

On March 4, 2019, appellant entered a negotiated plea of guilty to third-degree escape (Class C felony) and was sentenced to forty-eight months’ probation and ordered to pay fines, fees, and costs to be paid in $50 monthly installments to begin within sixty days of his release from the county jail. A petition to revoke was filed on September 17, 2019, alleging that appellant had violated the terms and conditions of his probation by committing residential burglary on July 16, 2019; testing positive for illegal drugs on March 28, April 16, and August 12, 2019; associating with others engaging in criminal activity on July 16, 2019; failing to comply with an order to attend substance-abuse class; and failing to pay fines, costs, and fees as directed. The petition to revoke was amended on December 12, 2019, adding that appellant committed the offense of failure to appear on December 9, 2019.

On February 14, 2020, the court released the assigned public defender due to a conflict and substituted a new one, who was representing appellant in another case in Booneville. The court granted appellant a continuance from that date until March 13 on the ground that additional time was needed to prepare because of the substitution of counsel. The court directed appellant to "get with" his new attorney, indicating that appellant had the attorney's contact information due to an appointment in another pending case. On March 13, appellant's substituted counsel asked for a continuance on the basis of her recent appointment. The court granted the continuance until April 13 but noted that "it can't move them anymore" because the next date would be the "third setting." The court stated, "So you have got to be here, and you have got to be ready. If you have an agreement fine, but if not then it will be trial on that day; okay?" Appellant agreed, and the court told counsel that it was granting her the courtesy because she was helping out other lawyers and was "spread thin" as a result. The court told appellant again to stay in touch with his lawyer.

Following the April 13 hearing, the court continued the revocation until May 8 due to COVID-19 noting the per curiam of the Arkansas Supreme Court. See In re Response to the COVID-19 Pandemic , 2020 Ark. 125, 2020 WL 1328794 (extending the previous suspension of in-person proceedings in Arkansas's courts to Friday, April 17, 2020). On May 8, the court again continued the case until June 15, also based on COVID-19. See In re Response to COVID-19 Pandemic , 2020 Ark. 163, 2020 WL 1952831 (per curiam) (extending the previous suspension of all in-person proceedings in Arkansas's courts through May 15, 2020).

At the June 15 revocation hearing, appellant's counsel informed the court that appellant "instructed" her to ask for a continuance. She stated that they had not had court in three months due to the coronavirus and needed more time to prepare. The court denied the request:

This case started -- it looks like the arraignment was December 9, 2019. We have had court dates of February 14, 2020, March 13, 2020, April 13, 2020, May 8, 2020, and now, today. There has been plenty of time to be prepared. The virus in no way would prevent him to be talking to his attorney. He could call and do whatever he needed to do so that will be denied.

Counsel reminded the court that appellant was indigent and asserted that it is harder for an indigent defendant to speak to his lawyer. The court again denied the request. At the conclusion of the revocation hearing, the court elaborated on its earlier ruling noting that it had followed all the safety guidelines set by the supreme court regarding the pandemic. In re Response to COVID-19 Pandemic , 2020 Ark. 249, 2020 WL 3146248 (per curiam).

The court revoked appellant's probation finding that he had violated multiple conditions thereof including committing an offense punishable by incarceration as a result of his failure to appear for court on December 9, 2019, and residential burglary; failing to make payments as directed; and failing to report to his probation officer. Appellant was sentenced to seven years’ imprisonment and timely appealed from the June 15, 2020 sentencing order.

Appellant does not challenge the sufficiency of the evidence to support the revocation but instead argues only that the circuit court abused its discretion in denying his motion for continuance in light of the ongoing COVID-19 pandemic.

Rule 27.3 of the Arkansas Rules of Criminal procedure provides that the "court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case." Ark. R. Crim. P. 27.3 (2020). The grant or denial of a motion for continuance is within the sound discretion of the circuit court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Williams v. State , 2016 Ark. App. 601, at 4, 509 S.W.3d 677, 679. The abuse-of-discretion standard is a high threshold and requires the appellant to make a showing that the circuit court acted improvidently, thoughtlessly, or without due consideration. Staggs v. State , 2021 Ark. App. 259, at 10, 2021 WL 2132734. When a motion is based on a lack of time to prepare, we will consider the totality of the circumstances; prejudice from denial of...