State v. Romero

• Decision Date: 16 November 2022
• Docket Number: A-1-CA-39265
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. RACHEL ROMERO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. RACHEL ROMERO, Defendant-Appellant.

No. A-1-CA-39265

Court of Appeals of New Mexico

November 16, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Emilio J. Chavez District Judge

Hector H. Balderas, Attorney General

Benjamin L. Lammons, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Joelle N. Gonzales, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

YOHALEM, JUDGE

{¶1} Defendant Rachel Romero was convicted following a jury trial of trafficking a controlled substance (methamphetamine) (possession with intent to distribute), NMSA 1978, § 30-31-20(A)(3)(a) (2006); possession of a controlled substance (heroin), NMSA 1978, § 30-31-23(A), (E) (2011, amended 2021); and possession of drug paraphernalia, NMSA 1978, § 30-31-25.1(A) (2001, amended 2022).

Defendant appeals contending (1) the district court abused its discretion when it denied her request for substitute court-appointed counsel; and (2) the district court erred in concluding that there was no violation of Defendant's right to a speedy trial. We are not persuaded that the district court erred; we therefore affirm.

BACKGROUND

{¶2} On September 28, 2017, Defendant was indicted for trafficking heroin and methamphetamine with intent to distribute and possession of drug paraphernalia, based on an incident that occurred on June 4, 2017. The district court appointed Ray Floersheim, a public defender, to represent Defendant.

{¶3} Due to various delays in the proceedings, which we review in our discussion of Defendant's speedy trial claim, this case did not go to trial until December 10, 2019. On December 3, 2019, a week before the scheduled trial date, a pretrial hearing was held in the district court. At the outset of the hearing, counsel for both parties informed the district court that the State had an outstanding plea offer, which would expire that day if not accepted, and was waiting for a response from Defendant. Defense counsel told the district court that he viewed the plea offer as highly favorable to his client. If Defendant accepted the plea, she would serve no prison time whereas she faced up to eighteen years in prison if convicted on all charges.

{¶4} The district court spoke directly to Defendant, informing her that it was her decision whether to accept the plea offer or go to trial, she had a right to go to trial, and if she chose to go to trial and was convicted, she would not be penalized for refusing the plea deal. Defendant chose to go to trial. Defendant then continued to address the court, stating that she "wanted to see . . . if [she] could get another counselor, another attorney." Defendant then stated, "I just feel like Mr. Floersheim is not going to fight in my favor."

{¶5}The district court attempted to assuage Defendant's worries about defense counsel's willingness to fight for her at trial, telling Defendant that Mr. Floersheim was a seasoned trial attorney who would still fight for her at trial even though he had advised her to take the plea offer. The district court then told Defendant that it was not inclined to grant a request to assign new counsel with trial only a week away, noting that there was no time for another attorney to prepare for trial. The court stated it would consider a motion from defense counsel to withdraw only if there was "some actual impasse where you guys just can't work together."

{¶6} Continuing to speak directly to Defendant, the district court stated, "So Ms. Romero, here's what we are going to do. Call Mr. Floersheim, talk to him. He is saying he is available in his office. As you heard, I called and his assistant got him on the phone pretty quickly. And we'll plan on being here Tuesday morning." Defense counsel then asked the court to remind Defendant to call him, and asked for her phone number so he could return her call if necessary. Defense counsel also restated the district court's offer to consider granting a motion to withdraw if counsel and Defendant reached an impasse in the telephone call. Finally, counsel stated his understanding that any delay in the scheduled trial created by Defendant's request to substitute counsel would be attributed to Defendant for speedy trial purposes.

{¶7} On December 5, 2019, two days later, the district court held a status conference to receive a report from defense counsel on his telephone discussion with Defendant, and to determine whether grounds existed requiring substitute counsel. Defendant was not present, apparently because the hearing was set on short notice. Defense counsel informed the court that Defendant had failed to call him despite the court's direction that she do so. Defense counsel stated that because Defendant did not contact him, he did not know the nature of Defendant's concerns about his representation apart from her disagreement with his advice to accept the State's plea offer. Defense counsel proposed that the best course under the circumstances was that he should file a motion to withdraw because he worried that problems with his client could arise during trial.

{¶8} The court found that "part of the underlying issue appears to be a difficult client that may want to go in directions that aren't either legally permissible or have expectations that are not realistic." The court then stated its view that the case was then more than two years old, it was ready to go to trial, Defendant had already filed a motion to dismiss on speedy trial grounds, and that motion had been denied. The court found that Defendant's request was creating delay and refused to appoint substitute counsel.

{¶9} Defendant did not renew her request between December 5, 2019, and the start of trial five days later, on December 10, 2019, nor does our review of the record show that she raised any concerns about counsel's representation either at the outset or during trial.

DISCUSSION

{¶10} Defendant contends that the district court abused its discretion by denying her motion for the appointment of substitute counsel without conducting an in-depth inquiry into her reasons for wanting new counsel.

I. The District Court Did Not Abuse Its Discretion in Denying Defendant's Request for Substitution of Court-Appointed Counsel

{¶11} We review a district court's denial of a request for substitution of counsel for abuse of discretion. See State v. Salazar, 1970-NMCA-056, ¶ 13, 81 N.M. 512, 469 P.2d 157 ("[W]hether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide." (internal quotation marks and citations omitted)). "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).

{¶12} Although an indigent defendant has the right to appointed counsel, an indigent defendant is not entitled to their choice of counsel. State v. Lucero, 1986-NMCA-085, ¶ 21, 104 N.M. 587, 725 P.2d 266. "Dissatisfaction with trial counsel's tactics or strategy is not sufficient grounds for replacement of counsel." State v. Stallings, 2020-NMSC-019, ¶ 37, 476 P.3d 905 (internal quotation marks and citation omitted). A showing of good cause is required: "Without a showing of good cause, [a] defendant may not insist upon substitution of court-appointed counsel." State v. Lewis, 1986-NMCA-090, ¶ 17, 104 N.M. 677, 726 P.2d 354. We have held that good cause sufficient to warrant substitution of counsel includes a "'conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.'" State v. Castillo, 1990-NMCA-043, ¶ 6, 110 N.M. 54, 791 P.2d 808 (quoting McKee v. Harris, 649 F.2d 927, 931 (2nd Cir. 1981)).

{¶13} Defendant claims that the district court abused its discretion in refusing to substitute counsel because the court failed to engage in an adequate inquiry into Defendant's reasons for seeking substitute counsel. We understand Defendant to argue that such an inquiry might have revealed a complete breakdown of communication or an irreconcilable conflict not otherwise apparent to the district court.

{¶14} "Where a defendant voices a seemingly substantial complaint about counsel, the court should inquire into the reasons for dissatisfaction." Id. (alteration, internal quotation marks, and citation omitted). We do not agree with Defendant that the district court failed to engage in an inquiry sufficient to meet this standard.

{¶15} The record shows that the district court addressed Defendant directly when she asked for substitute counsel following her decision to reject the State's plea offer and go to trial. The district court explained to Defendant that given the late date, just a week before trial, the court would not substitute counsel for any reason other than a total breakdown in communication or an irreconcilable conflict between Defendant and her counsel that was so pervasive it would prevent her from receiving a fair trial.^[1]

{¶16} The district court then told Defendant that it would determine whether there was a breakdown in communication or a...