v. Sifuentes , 2019 COA 106 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 11, 2019
2019COA106
No. 17CA1184, People v. Sifuentes — Constitutional Law —
Sixth Amendment — Right to Counsel; Criminal Law — Counsel
of Choice
Considering People v. Brown, 2014 CO 25, and People v.
Travis, 2019 CO 15, a division of the court of appeals examines
whether a defendant invoked his Sixth Amendment right to counsel
of choice when he moved to continue his trial so that he could
replace his public defender with “identified” but unnamed private
counsel whom he had saved nearly enough money to retain.
The majority concludes that the record is insufficient to
determine whether defendant invoked the right, and it remands to
the district court for further findings.
The dissent concludes that the appellate record is sufficient to
determine that defendant did not invoke his right to counsel of
choice.
COLORADO COURT OF APPEALS 2019COA106
Court of Appeals No. 17CA1184
Adams County District Court No. 16CR142
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ruben Jesus Sifuentes,
Defendant-Appellant.
ORDER OF LIMITED REMAND
Division V
Opinion by JUDGE RICHMAN
Tow, J., concurs
Rothenberg*, J., dissents
Announced July 11, 2019
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law Offices of M. Colin Bresee, M. Colin Bresee, Denver, Colorado; The Blair
Law Office, LLC, David Blair, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 The court, sua sponte, having considered the briefs in this
case orders that the case is remanded to the district court for the
limited purposes of (1) determining whether defendant invoked his
Sixth Amendment right to counsel of choice when he moved to
continue; and, if so, (2) weighing the judicial efficiency and integrity
factors articulated in People v. Brown, 2014 CO 25, ¶ 24, against
the defendant’s right to counsel of choice, which shall be done with
all due speed.
I. Background
¶2 Defendant, Ruben Jesus Sifuentes, was charged with first
degree criminal trespass, aggravated sexual assault on a child, and
sexual assault on a child. He was tried on the latter two charges,
and the trial ended with a hung jury. In a separate proceeding, he
pleaded guilty to second degree criminal trespass and the
prosecution dismissed the first degree trespass charge.
¶3 Sifuentes was retried on the sex assault charges. Six days
before his second trial, he asked for a continuance. His appointed
attorney told the district court:
His family has been in touch with a private
attorney that they would like to hire. My
understanding is they have most of the
1
retainers saved, there’s just a very small
amount of money, just 100 or couple hundred
dollars, that needs to be saved to hire that
private attorney. That is the attorney that he
wants to represent him at the trial.
The court, noting that (1) the case was “very old”; (2) “a lot of people
on both sides” needed resolution; and (3) it had not heard from an
attorney wanting to enter an appearance, denied the request.
¶4 Sifuentes then spoke for himself in the following exchange:
SIFUENTES: Can the attorneys show up on
the trial date?
THE COURT: No, sir.
SIFUENTES: So I just have to go with the
public defender’s office?
THE COURT: At this point in time I’m not
granting the motion to continue.
SIFUENTES: I don’t want this — this is the
representation I want — representation I want.
I want the attorney I want to hire.
THE COURT: Well, you should have done that
a long time ago. This case has been pending
for more than a year.
SIFUENTES: Okay.
¶5 Sifuentes raised the issue again on the first day of trial. He
told the district court that he was not happy with his public
defender and that he thought there was a conflict with his
2
representation because he did not agree with the attorney’s tactical
decisions. The court found that there was no conflict, noted that no
other counsel was present, and stated that it would not continue
the case. Sifuentes’s choices were to represent himself or to
proceed with appointed counsel.
¶6 On appeal, Sifuentes contends that the district court abused
its discretion when it denied his motion to continue based entirely
on expedience, without balancing the factors outlined in Brown,
¶ 24.
II. Applicable Law
¶7 The Sixth Amendment of the United States Constitution
affords a criminal defendant the right to be represented by the
retained counsel of his or her choice. See U.S. Const. amend. VI;
Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo. 1986). This right
“commands . . . that the accused be defended by the counsel he
believes to be best” and is entitled to great deference. United States
v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006); see Rodriguez, 719
P.2d at 705. “A trial court must therefore recognize a presumption
in favor of a defendant’s choice of retained counsel.” Ronquillo v.
People, 2017 CO 99, ¶ 17.
3
¶8 When a continuance is requested for substitution of counsel,
the court “abuses its discretion by basing its decision to deny a
continuance on expediency alone.” Brown, ¶ 15; see Morris v.
Slappy, 461 U.S. 1, 11-12 (1983) (“[A]n unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable request
for delay’ violates the right to the assistance of counsel.” (quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964))).
¶9 Brown dictates that, when deciding whether to grant a motion
to continue a criminal trial for substitution of defense counsel, a
trial court must weigh the following eleven factors pertaining to
judicial efficiency and integrity against the defendant’s Sixth
Amendment right to counsel of choice:
1. the defendant’s actions surrounding the
request and apparent motive for making the
request;
2. the availability of chosen counsel;
3. the length of continuance necessary to
accommodate chosen counsel;
4. the potential prejudice of a delay to the
prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial
system and from the date of the offense;
4
7. the number of continuances already granted
in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court’s
docket;
10. the victim’s position, if the victims’ rights
act applies; and
11. any other case-specific factors
necessitating or weighing against further
delay.
Brown, ¶ 24. The court must “make a sufficient record that it
conducted the appropriate balancing test” and “determine whether
the public’s interest in the efficiency and integrity of the judicial
system outweighs the defendant’s Sixth Amendment right to
counsel of choice.” Id. at ¶¶ 25, 30. When conducting the
balancing test, the court must accord the defendant’s right to
counsel of choice significant weight. Id. at ¶ 21.
¶ 10 Our supreme court recently made clear, however, that Brown
does not apply in every case. See People v. Travis, 2019 CO 15,
¶ 14. Unless the Sixth Amendment right to counsel of choice is at
issue, the findings articulated in Brown are not required. Id. at
¶ 12. The right does not, for instance, extend to a defendant who
requests replacement counsel to be appointed for him, id. at ¶ 8,
5
but it extends to a defendant who seeks to discharge retained
counsel in favor of appointed counsel, see Ronquillo, ¶ 27.
III. Application
¶ 11 The Travis decision did not delineate what circumstances are
necessary to invoke the right to counsel of choice, thereby triggering
a Brown analysis. It is clear that Brown applies when counsel of
choice has “entered an appearance, filed a motion for a
continuance, and appeared before the [district] court.” Travis, ¶ 14.
And it does not apply when “the defendant expresses a general
interest in retaining counsel, but has not identified replacement
counsel or taken any steps to retain any particular lawyer.” Id. It
is not clear, however, whether Brown applies where, as here, a
defendant has selected unnamed private counsel that he cannot yet
afford to retain.
¶ 12 When a defendant would like to replace his counsel with
private counsel, the crux is the definiteness of the retention. A
defendant’s right to counsel of choice is invoked when the
defendant’s retention of private counsel is substantially definite, in
name and in funds.
6
¶ 13 When replacement counsel enters an appearance and shows
up in court, it is clear that the counsel intends to represent the
defendant — the retention is substantially definite. In that
circumstance, the court must conduct a Brown analysis, and each
factor may be addressed without speculation. Id. But when a
defendant requests to “look for and pay for an attorney,” as Travis
did, it is unclear whether the defendant would be able to afford to
retain counsel or that any counsel would be willing to represent the
defendant. See id. at ¶ 6. In that circumstance, the retention is not
substantially definite, the Sixth Amendment right to counsel of
choice is not at issue, and at least two of the Brown factors are
impossible to evaluate. Id. at ¶ 15.
¶ 14 Here, the district court denied Sifuentes’s motion for a
continuance after the supreme court’s Brown opinion but before
Travis. Even so, it did not consider the Brown factors nor inquire
into the definiteness of the retainer of chosen counsel. Unlike the
defendant in People v. Flynn, decided by the same division on this
date, Sifuentes suggested that his representation was substantially
definite when he asked if the “attorneys [could] show up on the trial
7
date” and said that he had chosen a particular attorney and that
his family had saved nearly all the funds required for a retainer.
¶ 15 But the district court told Sifuentes that his chosen attorney
could not show up on the trial date, and it did not inquire into the
name of his chosen attorney, his level of contact with the attorney,
or whether he had paid a retainer. As a result, the record is
insufficient to indicate (1) whether Sifuentes’s retention of his
counsel of choice was substantially definite and thus sufficient to
invoke the right; or (2) whether, if invoked, his right to counsel of
choice outweighed the public’s interest in the efficiency and
integrity of the judicial system. Consequently, we remand for
further findings.
IV. Remand
¶ 16 On remand, we direct the district court to make findings
regarding the definiteness of Sifuentes’s retention of chosen
counsel. In making such findings, the court should, at a minimum,
inquire as to (1) the identity of Sifuentes’s proposed private counsel,
(2) whether counsel had agreed to represent him if a continuance
was granted, (3) whether counsel had accepted any money on his
8
behalf, and (4) how much more money had counsel required before
he or she would agree to represent him.
¶ 17 If the court finds that his proposed retention of private counsel
was not substantially definite before the denial of a continuance, it
need not conduct an analysis of the Brown factors.
¶ 18 But if the court finds that his proposed retention of private
counsel was substantially definite before the denial of a
continuance, the court must also make findings regarding each of
the Brown factors and make a record balancing the public’s interest
in the efficiency and integrity of the judicial system (as reflected in
the Brown factors) against Sifuentes’s Sixth Amendment right to
counsel of choice. If the court finds that the balance weighed in
favor of granting a continuance, it should so state in its order.
¶ 19 The court may conduct a hearing, if it deems it necessary.
¶ 20 After the proceedings have been resolved, Sifuentes must
immediately forward a certified copy of the district court’s order to
this court, and the case shall be recertified. The order entered shall
be made a part of the record on appeal.
¶ 21 The court further orders Sifuentes to notify this court in
writing of the status of the district court proceedings in the event
9
that this matter is not concluded within forty-nine days from the
date of this order, and that he must do so every forty-nine days
thereafter until the district court rules on the motion.
JUDGE TOW concurs.
JUDGE ROTHENBERG dissents.
10
JUDGE ROTHENBERG, dissenting.
¶ 22 The majority concludes a remand is required for the trial court
to weigh the factors addressed in People v. Brown, 2014 CO 25. I
respectfully dissent. I conclude the record supports the trial court’s
ruling denying defendant’s last minute request for a continuance to
obtain his own attorney.
¶ 23 On December 16, 2015, while he was on parole for another
felony, defendant committed a sexual assault on a young girl in the
presence of two witnesses. On the same day, he followed another
young girl into her house, but was observed and chased from the
house by the girl’s father. Defendant pleaded guilty to the first
degree criminal trespass and went to trial on the sex-related
offenses.
¶ 24 Defendant was represented by the public defender and tried
on January 23, 2017. The jury hung, a mistrial was declared, and
the case was reset for March 6, 2017. Six days before the second
jury trial, defendant’s public defender informed the court that
defendant’s “family has been in touch with a private attorney that
they would like to hire.”
11
¶ 25 Unlike in Brown, where a private defense attorney filed an
entry of appearance and written motion for continuance on the
defendant’s behalf, here there was no representation by defendant
or his public defender that a private attorney was ready and willing
to take defendant’s case. Nor am I persuaded otherwise by
defendant’s question to the trial court asking if his chosen attorney
could “show up on the trial date.” His “chosen attorney” was never
identified and never filed a single document purporting to establish
a relationship with defendant.
¶ 26 Unlike in Brown, where the prosecution failed to show any
prejudice resulting from the continuance, this case involved an
alleged sexual assault on a young female victim that was witnessed
by another young female and the witness’s mother. At the time of
defendant’s motion for a continuance, the victim and the witnesses
had already testified once and had undergone cross-examination at
defendant’s earlier jury trial.
¶ 27 The trial court here did not make specific findings about the
prejudice that would have been visited upon the victim and
witnesses, but it can easily be inferred from the nature of the case.
12
Indeed, in the presentence report, the mother of the young victim
explained the trauma to her daughter resulting from the case:
[The victim] has missed multiple days of
school. . . . The event impacted her
friendships, as people talked [and the victim]
had to deal with people at school finding out.
She retreated within herself. She became
angry. She lost trust in people. . . . It
impacted her grades, both last year when it
happened and this year re-living it twice for
trial. I have missed work for the trial, to meet
with officers, DA and to care for my distraught
daughter . . . . She fought hard and testified
and made sure he wouldn’t hurt another little
girl.
(Emphasis added.)
¶ 28 In Brown, ¶¶ 17-23, the Colorado Supreme Court recognized
that there were no “mechanical tests” for determining whether a
trial court abuses its discretion by denying a continuance, and that
“a defendant may not use the right to counsel of choice to delay the
trial or impede judicial efficiency.” The court admonished appellate
courts to “consider the totality of the circumstances of the case
when determining whether a trial court has abused its discretion by
denying a continuance.” Id. at ¶ 20.
¶ 29 Later, in People v. Travis, 2019 CO 15, ¶¶ 13-15, the
defendant informed the court on the morning of trial that she
13
wanted a continuance so that she could “look for and pay for an
attorney.” The supreme court concluded that she had not triggered
the assessment required by Brown because she had expressed a
general interest in retaining counsel but did not identify
replacement counsel or take any steps to retain a particular lawyer.
The supreme court stated that “[t]he inapplicability of Brown to this
circumstance can be demonstrated by the fact that at least two of
the Brown factors — availability of chosen counsel and amount of
time needed for that counsel to prepare for trial — cannot even be
speculated about in this instance.” Id. at ¶15.
¶ 30 Similarly, here, the same two Brown factors required
speculation by the trial court: namely, the vagueness of defendant’s
last minute representation that he “intended” to hire his own
counsel as soon as he (or his family) obtained the rest of the money
needed for a retainer and the amount of time that would have been
needed for new counsel to prepare for trial.
¶ 31 It is therefore reasonable to infer from this record, as the trial
court obviously did, that (1) a significant motivation for defendant’s
last minute request was to delay his second jury trial; (2) his
purported counsel was not identified, and had not actually been
14
retained; (3) if counsel were retained, he or she would have required
a lengthy postponement of the trial to obtain a transcript of the first
trial and to prepare for another one; (4) the child victim and
witnesses would have suffered considerable anxiety, inconvenience,
and prejudice if the case had been further delayed; and (5) as the
trial court observed, the case already had been pending over a year.
¶ 32 I therefore perceive no reason to remand this case back to the
trial court for additional findings pursuant to Brown. Moreover, the
trial judge in this case retired in 2018, and so we are asking
another district court judge to glean from a written record what we
are equally capable of perceiving. See Brown, ¶ 49 (Marquez, J.,
dissenting) (observing that “[t]his case is particularly ill-suited for
remand . . . to the trial court to make additional factual findings
regarding a decision that was made based on circumstances that
existed more than eight years ago . . . [and] is further complicated
by the fact that the judge who made the decision to deny the
continuance has since retired”).
¶ 33 For these reasons, I respectfully submit that the requirements
of Brown and Travis have been satisfied and that a remand to the
trial court is not required in this case.
15