State v. Dias, 76-272-C

• Decision Date: 29 June 1977
• Docket Number: No. 76-272-C,76-272-C
• Citation: 374 A.2d 1028,118 R.I. 499
• Parties: STATE v. Anthony J. DIAS. A.
• Court: Rhode Island Supreme Court

Page 1028

374 A.2d 1028

118 R.I. 499

STATE v. Anthony J. DIAS.

No. 76-272-C.A.

Supreme Court of Rhode Island.

June 29, 1977.

[118 R.I. 505] Julius C. Michaelson, Atty. Gen., Judith Romney Wegner, Special Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst and John A. MacFadyen III, Asst. Public Defenders, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a judgment of the Superior Court revoking the defendant's probation and sentencing him to 4 years at the Adult Correctional Institutions (A.C.I.). The defendant was charged on May 10, 1976, with having violated probation by selling a controlled substance, and he was held without bail to await a violation hearing scheduled for May 25, 1976. At his first appearance on May 10, 1976, the defendant informed the court that he was represented by private counsel who was not present at the arraignment. The matter was tentatively referred to the public defender's office after the defendant alleged indigency.

At a subsequent hearing to determine attorney on May 17, defendant, still unrepresented, continued to express to the court his intention to retain private counsel and told the court he could afford a private attorney. Apparently, his family was attempting to retain counsel for him. Nonetheless, the trial justice at this time, May 17, ordered the public defender to enter an appearance for defendant with the understanding that if private counsel entered an appearance before May 25, the public defender could withdraw.

On May 25, the date of the violation hearing, defendant continued to object to going forward with the public defender as his attorney, informing the court that he had a private attorney who had visited him the previous week and told him that he would be out of town on the date of the hearing but that his associate would come into court. The record indicates that on May 21 the attorney who had visited defendant had examined the case and informed the clerk that he would be away the week of the hearing.

Prior to the taking of any testimony the public defender moved for a continuance, arguing that in reliance upon defendant's assertion that private counsel would represent him, there had been no investigation or other preparation for the hearing.

A further motion for a continuance was made during the course of the hearing so as to afford defense counsel an opportunity to locate an expert witness who could rebut portions of the state's case. The court denied any continuance which would extend longer than the next morning. After the hearing, the trial justice adjudged defendant a violator and committed him to the A.C.I. to serve 4 years. The defendant now appeals.

The issue before us is whether the trial justice abused his discretion in denying defendant a further opportunity to retain counsel of his own choice to represent him at the violation hearing. ¹

The defendant contends that he must be afforded a reasonable opportunity to secure counsel of his own. This principle of law is not disputed. The right to the opportunity to obtain counsel of one's choice is as much a part of due process requirements as the right to be represented by counsel at every critical stage of the proceedings. Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4, 10 (1954); United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213-14 (3d Cir. 1969).

On both the federal and state level, the courts have consistently supported this position. In United States v. Inman, 483 F.2d 738, 739-40 (4th Cir. 1973) the court stated:

"The Sixth Amendment right to counsel includes not only an indigent's right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing. Included also is the right of any defendant to a reasonable opportunity to obtain counsel of his own choosing."

Accord, United States v. Pigford, 461 F.2d 648 (4th Cir. 1972); United States ex rel. Carey v. Rundle, supra; People v. Morris, 30 Ill.App.3d 1075, 333 N.E.2d 29 (1975); State v. Monteiro, 108 R.I. 569, 277 A.2d 739 (1971).

In State v. Monteiro, supra, this court held that:

"Where * * * a person (charged with a crime) is able to obtain counsel, he must be given a reasonable time and a fair opportunity to secure counsel of his own choice." Id. at 575, 277 A.2d at 742.

However, the question of a continuance is traditionally within the discretion of the trial justice. State v. Levitt, R.I., 371 A.2d 596 (1977). Not every denial of a request for more time violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 931 (1964); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). "Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice." United States ex rel. Carey v. Rundle, supra at 1214. On the other hand, "myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with couns...