State v. Rodriguez

Decision Date10 August 2012
Docket NumberNo. 105,858.,105,858.
Citation281 P.3d 1146
PartiesSTATE of Kansas, Appellee, v. Donnie Lee RODRIGUEZ, Appellant.
CourtKansas Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Finney District Court, Michael L. Quint, Judge.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Eric Fournier, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Donnie Lee Rodriguez appeals his felony conviction and sentence for failing to register under the Kansas Offender Registration Act as required by K.S.A. 22–4904(b). At sentencing, the district court denied Rodriguez' request for probation but granted a downward durational departure sentence of 32 months in prison.

The parties are well acquainted with the facts, so we need not recount them here. The barest of summaries is as follows. Rodriguez was required to register as an offender. He first did so in April 2009. He was obligated to reregister with the sheriff of the county where Rodriguez resided within 10 days following any change in his residence. Rodriguez acknowledged at trial that he understood this obligation. He “knew the rules.”

Rodriguez lived with his grandmother, Sharon Guillen. Guillen planned to sell her home and move out, so Rodriguez had to find a new place to live. In anticipation of the sale, Rodriguez moved out of Guillen's home on April 5, 2010, and moved into the home of his aunt, Wanda Rivera. He told his probation officer, Carlos Murillo, about the move that same day. Rodriguez had 10 days to register with the sheriff showing his aunt's address. He did not register with his new address until April 30, 2010.

At trial Rodriguez claimed he did not move from his grandmother's house until after she sold it. He said he finally moved out on April 20, 2010, and registered in timely fashion 10 days later on April 30, 2010. But the State's rebuttal witness, Richard Salas, testified that he bought the grandmother's house and moved into it on April 9, 2010, not April 20, 2010.

Motion to Withdraw

On appeal Rodriguez claims the district court erred in denying his lawyer's pretrial motion to withdraw or, in the alternative, in denying the motion for a continuance. We consider the withdrawal issue using the abuse of discretion standard. The defendant has the burden of showing an abuse of discretion. State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007).

The day before trial, Rodriguez' defense counsel moved to withdraw, stating that “the attorney-client relationship has deteriorated to a point that the parties can no longer effectively work together.” Counsel stated that her relationship with Rodriguez had “completely deteriorated” and that she was “completely unprepared” for trial. The district court took up the motion on the morning of trial.

Rodriguez had refused to meet with his lawyer on three occasions in the 2 days leading up to trial. Rodriguez told the court that he never had a relationship with his lawyer. He said he refused to meet with her because it “was too late even to start a relationship” or to prepare a strategy.

The district court is not required to appoint new counsel unless the defendant shows ‘justifiable dissatisfaction’ with counsel. State v. Sykes, 35 Kan.App.2d 517, 525, 132 P.3d 485,rev, denied 282 Kan. 795 (2006). Justifiable dissatisfaction “includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant.” State v. Bryant, 285 Kan. 970, Syl. ¶ 14, 179 P.3d 1122 (2008). In order to establish justifiable dissatisfaction, the defendant must point to specific facts that demonstrate an actual conflict of interest, irreconcilable conflict, or a complete breakdown in communications. See State v. McGee, 280 Kan. 890, 896, 126 P.3d 1110 (2006). “The relationship between a defendant and his or her lawyer can often be strained at times. However, the existence of a strained relationship does not necessarily amount to an irreconcilable conflict or demonstrate a complete breakdown in communications. [Citations omitted.] State v. Cook, 45 Kan.App.2d 468, 480, 249 P.3d 454 (2011).

Rodriguez claims there was a complete breakdown in communication based on the fact that (1) he did not know whether the witnesses he wanted had been subpoenaed and were available to testify; and (2) he had not been allowed to listen to a redacted recording of a jail phone conversation.

Mike Johnson, the investigator for the Public Defender's Office, advised the court that he had interviewed Rodriguez weeks earlier regarding his testimony and the identity of potential trial witnesses. Rodriguez provided Johnson with the names of several potential witnesses whom Johnson contacted and interviewed. In the course of the hearing, the court then allowed Rodriguez time to visit with his attorney to determine whether the proper witnesses were available to testify on his behalf. After this discussion took place, Rodriguez said he was satisfied that his witnesses were available.

With respect to the issue of the redacted recording of a jail phone call, the district court delayed the start of trial to give Rodriguez and his counsel a chance to review the recorded conversation. Neither the State nor Rodriguez introduced this recording at trial.

We find no complete breakdown in communications between Rodriguez and his lawyer. See Sykes, 35 Kan.App.2d at 530–31. Besides, Rodriguez cannot refuse to cooperate with his lawyer and then claim a complete breakdown of communication. See State v. Ferguson, 254 Kan. 62, 73–76, 864 P.2d 693 (1993). The district court did not abuse its discretion in denying defense counsel's last minute motion to withdraw.

Motion for a Continuance

With respect to Rodriguez' alternative argument, that his motion for a continuance should have been granted, we also apply the abuse of discretion standard of review. See State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007).

Defense counsel's request for a continuance was based on her asserted need to prepare Rodriguez for his testimony. The district court gave Rodriguez a chance to voice his preference as to whether to take time to listen to the recorded jail conversation or to continue the trial. Rodriguez indicated he would prefer to listen to the phone recording at that time. He would then wait until after the State rested its case to decide whether he wanted to testify.

After the State rested its case, Rodriguez decided to testify. The court permitted him to provide a narrative answer regarding his overall situation. Rodriguez testified that he did not move out of his grandmother's house until April 20, 2010.

It is apparent that defense counsel had visited with Rodriguez about this claim because she asked the court to permit Rodriguez to answer in a narrative form so as not to require her to ask specific questions that she believed would cause her to violate her ethical duty of candor to the court. On appeal, Rodriguez argues that a continuance would have permitted him and his counsel to “develop a more cohesive defense.” But he fails to explain what that more cohesive defense would have been. Rodriguez fails to show how the denial of his continuance motion prejudiced him.

Rodriguez relies on State v. Weigand, 204 Kan. 666, 671, 466 P.2d 331 (1970), in which the Supreme Court found the district court abused its discretion in refusing to grant a continuance in order for a newly appointed attorney to prepare for trial. But Rodriguez' counsel was not newly appointed. Her investigator had met with Rodriguez weeks before trial and interviewed witnesses based on the information that Rodriguez had provided. The district court delayed the start of the trial for...

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