State of Minnesota v. Robert Lee Crum ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1372
State of Minnesota,
Respondent,
vs.
Robert Lee Crum,
Appellant.
Filed August 22, 2016
Affirmed
Reilly, Judge
Olmsted County District Court
File No. 55-CR-14-3840
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Toussaint,
Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REILLY, Judge
Appellant argues that he is entitled to a new trial because the district court erred by
refusing to grant his request for a brief continuance to hire private counsel. Because the
district court did not abuse its discretion when it denied appellant’s request for a
continuance on the first day of trial, we affirm.
FACTS
Appellant Robert Lee Crum sold cocaine four times to a confidential informant
working with the Rochester Police Department during May and June 2014. Officers then
executed a search warrant at appellant’s residence and found 17 baggies containing a white
powdery substance that was later determined to be cocaine. Based on these events the state
charged appellant with controlled-substance crimes. The district court appointed a public
defender to represent appellant and counsel appeared with him at all of his pretrial hearings.
On the day trial was scheduled to begin, before the start of jury selection, appellant
moved for a continuance to hire private counsel. Appellant could not identify who he
wanted to hire, but informed the court his fiancée was attempting to retain private counsel
on his behalf. Appellant was present with his public defender at multiple hearings, but told
the court he had “never been able to get in contact with anybody from the Public Defender’s
Office.” Appellant also stated he informed his public defender he “didn’t like the way
things were going.” The public defender asked for a one day continuance on behalf of
appellant so appellant could retain private counsel. The district court denied the request,
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reasoning it “appear[ed] to be a last minute effort to obtain a continuance for . . . really no
reason other than to just simply have the matter continued.”
The case proceeded to trial, and appellant was found guilty as charged and sentenced
to prison for his first-degree sale conviction. This appeal follows.
DECISION
Appellant argues the district court erred by denying his request for a brief
continuance to hire private counsel. A criminal defendant has the right to have the
assistance of counsel, which includes “a fair opportunity to secure counsel of his own
choice.” State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970). However,
the right to counsel of one’s choosing is not “unbridled.” Id. at 299, 176 N.W.2d at 264.
“A defendant may not obtain a continuance by discharging his counsel for purposes of
delay or by arbitrarily choosing to substitute counsel at the time of trial.” Id. A request for
substitution of counsel will be “granted only if exceptional circumstances exist and the
demand is timely and reasonably made.” State v. Vance, 254 N.W.2d 353, 358 (Minn.
1977). The district court has discretion to grant or deny a request for a continuance, and
the decision should be based on the “facts and circumstances surrounding the request.” Id.
“[A] conviction will not be reversed for denial of a motion for a continuance except when
such denial is a clear abuse of discretion.” State v. Rainer, 411 N.W.2d 490, 495 (Minn.
1987).
Appellant requested a continuance to hire private counsel on the day of trial.
Minnesota appellate courts have repeatedly rejected claims that a district court abused its
discretion when it denied a motion for continuance shortly before trial. See, e.g., State v.
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Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (finding no abuse of discretion where district
court denied a motion for a continuance a few days before trial and defendant did not have
good cause to dismiss court-appointed attorney); Vance, 254 N.W.2d at 358-59 (finding no
abuse of discretion where district court denied a motion for a continuance a few days before
trial where the “defendant was provided with a competent and able public defender who
had thoroughly investigated the facts and was prepared for trial”); State v. Ahearn, 292
Minn. 449, 450, 194 N.W.2d 256, 256 (1972) (finding no abuse of discretion where district
court denied a motion for a continuance the day before trial when there was “no substantial
basis” for “dissatisfaction” or “distrust” with the defendants’ appointed counsel); State v.
Huber, 275 Minn. 475, 478-79, 148 N.W.2d 137, 140-41 (1967) (finding no abuse of
discretion where district court denied a motion for a continuance the day before trial when
there was no indication he was denied the opportunity to find private counsel in the time
leading up to trial).
The facts of the instant case are similar to those of Worthy, Vance, Fagerstrom,
Ahearn, and Huber. Appellant requested a continuance to hire private counsel shortly
before trial, and there is no record that appellant’s court-appointed counsel was deficient
or that appellant was dissatisfied with his representation prior to that morning. The sole
reason appellant gave for his decision to seek new representation was he “didn’t like the
way things were going.”
In his brief, appellant cites to cases that discuss a defendant’s right to employ
counsel of his or her choosing, United States v. Mendoza-Salgado, 964 F.2d 993, 1014-15
(10th Cir. 1992); United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir. 1985); and the
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importance of the relationship between a defendant and his or her attorney, United States
v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 2044 (1984); Morris v. Slappy, 461 U.S. 1,
20-21, 103 S. Ct. 1610, 1621 (1983). Absent in those cases is a determination that a district
court abused its discretion when it denied a request for a continuance. To the contrary, in
Mendoza-Salgado the court determined the trial court’s denial of the defendant’s motion
for a continuance was not reversible error because it did not “unreasonably or arbitrarily
interfere[]” with the defendant’s right to counsel. 964 F.2d at 1016-17.
The sole case relied upon by appellant where a conviction was reversed based on
the violation of a defendant’s right to counsel of choice is factually distinct from the instant
case. In Gonzalez-Lopez, the defendant retained private counsel from a different state
shortly after arraignment and the magistrate judge denied the attorney’s motion for
admission pro hac vice. United States v. Gonzalez-Lopez, 548 U.S. 140, 143, 126 S. Ct.
2557, 2560-61 (2006). The trial court only allowed the defendant to speak with his counsel
of choice once during the trial. Id. The facts of Gonzalez-Lopez are dissimilar from the
instant case because Gonzalez-Lopez had actually retained private counsel significantly in
advance of trial. Here, appellant had not retained counsel and sought to do so on the day
trial was scheduled to begin. Appellant’s request for a continuance was not timely, and a
review of the facts and circumstances surrounding the request does not reveal the presence
of “exceptional circumstances” such that the district court abused its discretion. Vance,
254 N.W.2d at 358. Thus, the district court did not abuse its discretion when it denied
appellant’s request for a continuance.
Affirmed.
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