BRASS (DEQUINCY) v. STATE , 2022 NV 23 ( 2022 )

138 Nev., Advance Opinion 2.3
IN THE SUPREME COURT OF THE STATE OF NEVADA
DEQUINCY BRASS, No. 81142
Appellant,
vs.
THE STATE OF NEVADA,
MED
Respondent. - APR 0 7 2022
BY
1EF DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of four counts of lewdness with a child under the age of 14; nine
counts of sexual assault of a minor under 14; one count of child abuse,
neglect, or endangerment; three counts of first-degree kidnapping of a
minor; two counts of preventing or dissuading a witness or victim from
reporting a crime or commencing prosecution; and one count of battery with
the intent to commit sexual assault of a victim under 16. Eighth Judicial
District Court, Clark County; Joseph Hardy, Jr., Judge.
Reversed and remanded.
Darin Imlay, Public Defender, and Deborah L. Westbrook, Chief Deputy
Public Defender, Clark County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Alexander G. Chen, Chief Deputy District Attorney, and John T.
Afshar, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
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OPINION
By the Court, CADISH, J.:
Appellant retained Mitchell Posin as defense counsel in a 22-
count criminal matter. After four continuances over two years at
appellanes request, appellant moved to substitute counsel on the eve of the
trial based on Posin's alleged failure to adequately prepare the defense.
After two hearings, the district court denied appellanes motion even though
a defense investigator testified to various shortcomings in Posin's
preparation—shortcomings that Posin conceded at the hearings. A jury
convicted appellant of most of the counts, and the district court sentenced
him to an aggregate term of 115 years to life in prison. On appeal, appellant
argues that the district coures decision denying his motion to substitute
violated his Sixth Amendment right to counsel.
The Sixth Amendment right to counsel "encompasses two
different rights, namely, the right to effective assistance of counsel and the
right of a non-indigent defendant to be represented by the counsel of his or
her choice." Patterson v. State, 129 Nev. 168, 175, 298 P.3d 433, 438 (2013).
A decision denying a motion to substitute appointed counsel with different
appointed counsel implicates the right to effective assistance of counsel,
while a motion to substitute retained counsel with different counsel
implicates a non-indigent defendanes Sixth Amendment right to counsel of
his or her choice. Separate tests apply to determine whether a court should
grant a motion to substitute depending on whether counsel is appointed or
retained. Here, the district court applied the wrong test in deciding Brass's
motion to substitute counsel because Posin was retained, not appointed.
Under the appropriate test, as set forth in Patterson and clarified in this
opinion, we conclude that the district court abused its discretion by denying
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the motion to substitute counsel, as the record shows that Brass promptly
sought relief after learning of his counsel's inadequate preparation and the
serious concerns raised outweighed the disruption caused by another trial
continuance. Because the error was structural, we reverse the judgment of
conviction and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
In September 2017, the State charged appellant DeQuincy
Brass with five counts of lewdness with a child under the age of 14; ten
counts of sexual assault of a minor under the age of 14; one count of child
abuse, neglect, or endangerment; three counts of first-degree kidnapping of
a minor; two counts of preventing or dissuading a witness or victim from
reporting a crime or commencing prosecution; and one count of battery with
the intent to commit sexual assault of a victim under 16. The charges were
based on allegations that between May 2015 and February 2017, while he
was dating the mother of two children who were eight and three years old
in 2015, Brass kidnapped and sexually assaulted and/or abused those
children, as well as another child who was 13 years old at the time, and then
used intimidation or threats to dissuade the children from reporting his
crimes. The justice court concluded that Brass was indigent and appointed
the Clark County Public Defender's office to represent him. However,
Brass's family retained Mitchell Posin, and the court substituted Posin as
Brass's counsel in January 2018 before Brass's preliminary hearing.
Brass pleaded not guilty and waived his right to a speedy trial
on February 14, 2018. Shortly thereafter, Posin filed an ex-parte motion
requesting that the district court appoint and pay an investigator to
investigate Brass's case. On March 12, 2018, Posin filed a motion to
withdraw as Brass's attorney, alleging that Brass's family had not paid his
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fee. Posin did not inform Brass of his motion to withdraw, and Posin did
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not appear for the hearing on his motion. Posin later withdrew his motion
because Brass's family agreed to pay him.
The district court set trial for April 30, 2018. Brass requested
his first continuance at an April 3, 2018, status check hearing because his
counsel needed more time to prepare. The district court granted the motion
and rescheduled the trial for July 23, 2018. The district court then entered
an order granting Brass's motion for an investigator on June 8, 2018. At a
July 19, 2018, calendar call, Brass requested a second continuance, to which
the State did not object. The district court granted the continuance and
rescheduled the trial for November 13, 2018.
At a November 8, 2018, calendar call, the State announced that
it was ready for trial. Brass, however, requested his third continuance, at
which point Posin stated that he did not "feel that . . . I can provide, um
adequate assistance of counsel understand [sic] the circumstances." Posin
explained that the State "made some discovery ready and available some
time back" but that he did not get that discovery "until recently" due to
"financial reason [s] of my client's family." The district court offered to
reschedule the trial to July 8, 2019, but Posin requested an earlier trial date
in May or June. The district court rescheduled trial for May 13, 2019.
At the May 7, 2019, calendar call, Posin stated that he had an
issue with his investigator, who had, by that point, "sent out some
[subpoenas]," and that Posin was trying to determine the status of those
subpoenas. He asked the court to continue the calendar call until May 9, at
1Following this hearing, the State filed a receipt showing that it had
produced the discovery on July 19, October 9, and October 19, 2018, but
Posin did not pick it up until November 2, 2018—only 11 days before trial
was set to begin.
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which time he would give the court "an updated repore on his readiness for
trial. The State pointed out that Posin had not noticed any witnesses, so it
did not "know what subpoenas hes waiting for." The court continued the
hearing, and when it resumed, Brass requested his fourth continuance.
Posin explained that the initial investigator, who was employed by
Investigator Robert Lawson to work on Brass's case, had "apparently quit"
and had not responded to Posin's phone calls "over the last week or two."
The State opposed the continuance, pointing out that it had issued
subpoenas to the alleged minor victims and their parents four times, and
the State was ready to proceed. The district court denied the motion,
concluding that there was no good reason to grant a continuance and
pointing out that the matter had been pending for over a year after having
granted several continuances at Brass's request.
On May 13, 2019, the first day of trial, Brass renewed his
motion for a continuance. Posin stated that Lawson was now personally
handling the case but was not available to help at that point because he was
working on a murder case. Posin claimed that he received new discovery
from the State on the prior Friday, which included photographs of the motel
where some of the alleged acts occurred, and that he needed time to
investigate. The State argued that Brass was not prejudiced by the
disclosure of photographs because the information regarding the motel was
"available to him by reading the discovery." It further contended that "all
that information has been available to [Posin] since the preliminary
hearing . . . which was almost two years ago."
Brass personally expressed to the district court that he had not
spoken with Posin since "December of last year." He stated, "I don't think
[Posin is] prepared to represent me," and explained that Posin had not
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discussed the case with him in any detail. Posin stated that he had spoken
with Brass on the phone and saw him the previous Friday or Saturday, as
well as at the preliminary hearing ahnost two years earlier. The court
asked the State to comment on the "assistance of counser issue raised by
Brass, to which the State answered that Posin was retained counsel who
had been on the case since the preliminary hearing and there had been no
showing that warranted another continuance. The State further pointed
out that Brass had proffered nothing specific in terms of what he wanted
Posin to do or what Posin had failed to do, and an investigator had been
working on the case as well, who presumably had provided Posin with
information. Posin replied that he had not prepared for the case or
communicated with his client because the investigator who worked for
Lawson, and whose employment had since been terminated, had not
followed up on any assignments or responded to his calls. After asking why
none of these concerns were raised until the day of trial, the court continued
the hearing and instructed Posin to bring Lawson to the hearing later that
day. Before recessing, the court stated that it disagreed with Posin's
statement that another continuance would be only a minor inconvenience
to the State, pointing out that roughly 90 people (potential jurors,
witnesses) were waiting in the hallway, the prosecution was prepared, and
the alleged victims were waiting to testify., having prepared for trial for the
fourth time.
At the continued hearing, Lawson explained that he had fired
the investigator he assigned to Brass's case because the investigator "didn't
do any" investigative work, such as interview witnesses and contact experts.
While he acknowledged that he did not follow up with his investigator,
Lawson did not know why Posin never called him "in [the] three weeks that
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[Posin] tried to get ahold of [the other investigator]." While the State
objected to the continuance, pointing out that the victims, who were now 7,
11, and 15 years old, have had to "rehash this multiple times in preparation
for trial," with every continuance being at the defenses request, the court
continued the trial a fourth time over its concerns that proceeding to trial
at that time would raise an ineffective-assistance-of-counsel issue. Thus,
the court rescheduled the trial for February 24, 2020, which gave the
defense roughly nine additional months to prepare for trial.
Nevertheless, at the August 2019 status check, the State
pointed out that although the defense had raised issues about records and
other items it was investigating and for which it needed the trial
continuance, the defense still had not provided any of that information to
the State. At the October 2019 status check, the court asked Lawson
whether he had communicated with Brass and Posin, and Lawson stated he
had spoken with Posin on several occasions but had yet to meet with Brass,
and that Posin had provided direction on what to investigate. After Posin
stated he would be ready for trial, the court asked Brass if there was any
information he would like to communicate to Posin, privately, or anything
he would like to tell the court on the record, explaining, "I want this to be a
real trial date. I don't want a jury.. . . literally in the hallway, witnesses all
lined up," like last time, with "time and money spent to give you a good
trial," if his defense was not ready. Brass stated that he understood. When
asked if he communicated everything he needed to communicate to Posin,
Brass said, "not completely, but I think that he is supposed to come and visit
me." The court told Posin to make sure to get whatever information Brass
had so that Lawson can complete the investigation, and Posin agreed.
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At the December 2, 2019, status check, the State expressed
concerns that Posin had not prepared because he had not provided any
discoverable material. The State pointed out that seven months earlier, the
court continued the matter at the start of trial after the defense represented
that Brass wanted an investigation into his phone and for the defense to
retain a phone expert. Posin explained that while he had not retained an
expert, he "anticipateIdl on having one shortly." He further explained that
he had consulted with Lawson and reviewed documents related to the case.
The court asked if "shortly" meant by the end of the year, and Posin
responded affirmatively. The court set a status check for two weeks later,
observing that the history of the case and "vagueness and the lack of an
expert in the last seven months" required it to follow up again.
At the December 17 status check, Posin reiterated that he was
"working on" getting an expert and that he had "made inquiriee into
various experts, but he had not yet retained one.2 Posin further explained
that he had prepared for the February trial by meeting with Brass and
Lawson and reviewing the preliminary hearing transcripts. At the January
2020 status check, Posin stated that he no longer believed an expert was
necessary and had been "working diligently" to be ready for trial. The State
confirmed that it had provided all discovery to the defense, including data
2Posin stated that the defense wanted an expert "who can tell us what
a particular program can or cannot do," because he understood that the
State alleged that Brass "remotely deleted information from these cell
phones." The State's attorney stated that she spoke to Lawson, who
confirmed he was speaking to someone about the phones, but it was unclear
why because the State was never in possession of Brass's phone, and
although the victims believed that at certain times Brass remotely
connected to their phones, the State had no evidence to proceed on that and
there was no data for an expert to examine.
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from the victims phones. Posin denied receiving transcripts of certain
recordings, and the State responded that it had a receipt showing the
information was delivered to the defense. Lawson stated that the defense
"might have' the transcripts and that he was going to follow up with the
States attorney, who had been "bending over backward for [the defense]"
and very helpful in providing information. Posin told the court there was
no need for another status check before trial, and the States attorney said
she was counting on Posin's statement that the defense would be ready.
At a February 20, 2020, calendar call, Posin explained that
Brass told Posin that morning that he had mailed a motion to have the court
appoint substitute counsel. Although the district court had not received a
written motion from Brass, it conducted a sealed hearing pursuant to Young
v. State, 120 Nev. 963, 102 P.3d 572 (2004), outside the States presence.
Brass stated that Posin "hasn't done anything in preparation for trial." He
asserted that Posin had not subpoenaed any witnesses, visited with Brass,
or discussed the trial strategy with Brass. According to Brass, his concerns
were prompted by the fact that Lawson visited him one week earlier and
stated that he had been unable to contact Posin to discuss the case or get
subpoenas issued. Brass believed that Posin was "kind of trying to freestyle
at trial with nothing prepared."
When the court asked when Posin last met with Brass, Posin
said "about a month ago," to which Brass agreed, despite having just
claimed that Posin had not visited him. Brass stated that the last time
Posin visited, which lasted "all of about five minutes," Posin suitably
answered a question Brass had, but they "did not discuss the case" or
anything about the trial. When asked what he had done to prepare, Posin
explained that he had met with the investigators several times and
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"extensively" gone over all the documents. Posin stated he had a strategy
but acknowledged that Brass "[did] not seem to feel that [strategy] was
adequately explained to him." When asked why he had not raised these
concerns before, Brass stated that, "as [Posin] does when he comes in for
status checks, he leads me on to believe that hes workine on the case.
While Brass could not identify whom he would call as witnesses beyond his
brother as a character witness, he claimed that Lawson informed him of
individuals who "needed to be subpoenaee and could discuss the victims'
characters, as well as testify as to job records purporting to show where
Brass was at "certain dates and times." Posin explained that he did not
intend to call witnesses and only planned to cross-examine the States
witnesses.3 He did not believe the witnesses Brass wanted to testify should
be called.
The court called the State back into the hearing, and the State
objected to Brass's request for a continuance because it had three minor
victims who had been ready to testify since May 2019, but who had to come
back to court several times because of defense continuances, one of which
was last minute, and the continued delays were stressful to the victims. It
explained that it was prepared for trial and that its witnesses, all of whom
were prepared to testify, included the law enforcement officers, the victims'
mothers, and an out-of-state physician. The State argued that the motion,
which no one had a written copy of, was untimely and suspect considering
the continuance granted on what was supposed to be the first day of trial in
3The district court went off the record for the express purpose of
allowing Posin to explain his strategy to Brass; however, Posin did not do
so because he had previously told Brass what his strategy was generally,
and he did not see how explaining his exact strategy would be "a useful
exercise just now."
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May 2019, and that because this case began in 2017, the length of time
created a risk that the victims memories would fade. The State also argued
that Brass failed to demonstrate why the court should appoint someone
new, especially since Brass had retained Posin as his attorney since the
preliminary hearing over two years earlier.
The district court denied the motion. The court concluded the
motion was untimely because Brass first raised his concerns right before
trial was set to start when he could have raised them at one of the prior
status checks. It concluded that "it appeared [Brass] did not want to
proceed to triar and noted that the only witness Brass identified was his
brother, who would testify without being subpoenaed. It also concluded that
another continuance would be "highly prejudicial" to the State, alleged
victims, witnesses, and "the potential for justice through the trial process,"
as the case was extremely old for a criminal matter and memories fade. The
court stated that the fact that the public defender originally represented
Brass and that Brass chose Posin "weighed against" granting the motion.
On the first day of trial, before voir dire began, the court held a
second sealed Young hearing to consider Brass's renewed oral motion to
substitute counsel. At the hearing, Posin acknowledged he was "concerned
that there may be an issue of whether I'm providing adequate
representation of counsel based on whether perhaps I have dropped the
ball." Specifically, Posin was "increasingly concerned that some of the
subpoenas that fhel perhaps could have and should have sent out may affect
[his] ability to provide that adequate representation of counsel." Because of
his concerns about the adequacy of his investigation after speaking to
Lawson, Posin had asked Lawson to appear and speak to the court.
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Lawson expressed deep and serious concerns about the failure
of Posin to follow up on investigative leads and prepare for trial. As an
experienced investigator in connection with numerous criminal trials,
Lawson stated that during the investigation, "it became apparent to me that
Mr. Posin had literally no knowledge of this case." Lawson noted that he
and Posin had "never done a file review on this case." He informed Posin
that the investigators "developed exculpatory evidence that "Mr. Brass
likel[y] didn't commit this crime," but Posin did not subpoena this evidence.
Specifically, he explained that (1) one of the victim's accounts had not
remained consistent; (2) a coworker could provide tirnesheets showing when
Brass and "the alleged victim's mother worked together and they could
provide us a printout of the times that they were working, where they were
working, and if they're on the computer at the same time; (3) a hotel
employee could confirm that an alleged incident did not occur at "the Palm
Hotel"; (4) "we don't even know ir one of the victims, who Lawson claimed
had a reputation for lying in general, was in Las Vegas at the time of one of
the alleged incidents; (5) the older victim would often dominate one of the
younger victims; and (6) one of the victims had a "substantial CPS history"
that should have been subpoenaed and reviewed in camera. Lawson also
stated that Posin had not talked to Brass about whether Brass would testify
and that "on several occasions" Brass expressed to Lawson and the other
investigator "his dissatisfaction with Mr. Posin." Lawson stated that he
"cannot let this [c]ourt believe for one minute that Mr. Brass is getting any
kind of a defense, let alone a bad defense."4
4The court pointed out that Lawson had been present for numerous
status checks and assured the court that things were on track for trial and
that the issues Lawson now raised were issues that had been dealt with a
12
Posin confirmed that he had not issued any subpoenas, and
while he disagreed with Lawson's characterization that he had done
nothing to prepare, as he had reviewed the evidence provided by the State,
including transcripts and recordings, discussed defense strategy with
Lawson, and prepared opening statements and cross-examinations, Posin
conceded that it was insufficient preparation.5 He confirmed he did not
follow up with Brases employer or the hotel employee. He stated that he
last met with Brass yesterday, and before that, about a month earlier.
Brass agreed that Posin met with him on those occasions but claimed it was
only for about 15 or 20 minutes the first time and an hour the second time.
Posin acknowledged that while he initially focused on defending this case
through cross-examination of the States witnesses as opposed to presenting
his own evidence, he became "more and more convinceT after talking to
Lawson over the past few days "that this is the type of case that some of
our.. . . own evidence in the defense case would have been appropriate. Not
only appropriate but perhaps necessary."
The court took a recess, after which the State was permitted
back in the courtroom. Not knowing what happened during the sealed
hearing, the State opposed the motion. It pointed out that during the
multiple status checks since the fourth continuance, at which Lawson and
year ago. Lawson, after apologizing to the court, explained that he "cannot
write a motion on behalf of Brass or "contact the Eclourt ex parte on behalf'
of Brass.
5Whi1e Posin initially stated that he felt he did not sufficiently
prepare for trial in light of his conversations with Lawson, he affirmed that
he could provide competent representation at trial after the district court
asked if it should refer Posin to the State Bar for potential discipline related
to his conduct in this case.
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Brass were present, no one ever raised the diligence and competence issues
they now claimed warranted a last-minute substitution of an attorney who
had been on the case for over two years, and instead, they had assured the
court that the defense would be ready for the rescheduled trial. The court
denied Brass's motion. It concluded the motion was untimely,6 as Brass
failed to raise these concerns at multiple status checks when he had the
opportunity to do so, and the prejudice to the State and its witnesses was
high. The court also concluded that Posin, Brass, and Lawson had multiple
meetings and communications and the issue between Brass and Posin "boils
down to potential strategy differences," which the court concluded did not
warrant granting the motion. Brass went to trial, the jury convicted him of
20 of the 22 counts, and the district court sentenced Brass to an aggregate
term of 115 years to life. Brass appeals.
DISCUSSION
Brass argues that his motion to substitute counsel was timely
and that the district court's denial of his motion violated his Sixth
Amendment rights.7 Reviewing the district court decision for an abuse of
discretion, Patterson, 129 Nev. at 175, 298 P.3d at 438, we agree.
6The court observed that Brass's written motion, which he apparently
mailed on February 19 (one day before the calendar call), was not received
and filed until after calendar call.
7Whi1e the parties in their briefs focus their attention on whether the
district court's order violates the standards announced in Young v. State,
120 Nev. 963, 102 P.3d 572 (2004), the motion in this case qualifies as one
seeking to substitute retained counsel, so the right to counsel of choice
discussed in Patterson v. State, 129 Nev. 168, 298 P.3d 433 (2013), applies.
Since we have the authority to "address . . . constitutional error sua sponte,”
Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992), we directed
the parties to discuss Patterson's application to this case at oral argument.
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A district court abuses its discretion when it "fails to give due
consideration to the issues at hand." Id. at 176, 298 P.3d at 439, "The Sixth
Amendment right to counsel encompasses two different rights, namely, the
right to effective assistance of counsel and the right of a non-indigent
defendant to be represented by the counsel of his or her choice." Id. at 175,
298 P.3d at 438 (citing United States v. Rivera-Corona, 618 F.3d 976, 979
(9th Cir. 2010)). When a defendant "seeks to replace court-appointed
counsel with privately retained counsel, or previously retained counsel with
newly retained counsel, or privately retained counsel with court-appointed
counselLl . . . the focus is on the right to counsel of ones choice."8 Id.(emphasis added). In general, a defendant can replace his retained lawyer
"for any reason or no reason" at all. Rivera-Corona, 618 F.3d at 979-80.
However, the right to counsel of choice is not absolute, and a district court
has "wide latitude in balancing the right to counsel of choice against the
Because the district court's findings of fact and conclusions of law effectively
addressed the Patterson factors, and the parties had the opportunity to
argue the Patterson factors at oral argument, we apply the Patterson
analysis here.
8We note that Patterson's conclusion that the right to counsel of choice
is implicated when a defendant attempts to discharge retained counsel and
seeks appointed counsel due to the defendant's indigent status is consistent
with most other courts interpretation of the scope of the Sixth Amendment
right to counsel of choice. See, e.g., United States v. Brown, 785 F.3d 1337,
1344 (9th Cir. 2015) (holding that "a defendant's request to substitute
appointed counsel in place of a retained attorney 'implicate [s] the qualified
right to choice of counsel'" (alteration in original) (quoting Rivera-Corona,
618 F.3d at 981)). Thus, while we often refer to "the right of a non-indigent
defendant to be represented by the counsel of his or her choice," Patterson,
129 Nev. at 175, 298 P.3d at 438 (emphasis added), the right is also
implicated if an indigent defendant attempts to replace retained counsel
with appointed counsel.
15
needs of fairness . . . and against the demands of its calendar." Patterson,
129 Nev. at 175, 298 P.3d at 438 (quoting United States v. Gonzalez-Lopez,
548 U.S. 140, 152 (2006)).
Thus, a defendant may substitute his retained counsel at any
time, unless the motion to substitute is "untimely and would result in a
'disruption of the orderly processes of justice unreasonable under the
circumstances of the particular case.'" Id. at 176, 298 P.3d at 438 (quoting
People v. Lara, 103 Cal. Rptr. 2d 201, 211-12 (Ct. App. 2001)); see also People
v. Maciel, 304 P.3d 983, 1010 (Cal. 2013) (explaining that a court must
"consider [1 the totality of the circumstances" when deciding whether a
motion to discharge retained counsel is timely). Because "the defendant's
right to . . . counsel need not always yield to judicial efficiency," Lara, 103
Cal. Rptr. 2d at 212, the evaluating court must "balance the defendant's
interest in new counsel against the disruption, if any, flowing from the
substitution," Patterson, 129 Nev. at 176, 298 P.3d at 438 (quoting Lara,
103 Cal. Rptr. 2d at 212).
9We recognize that, in Patterson, we instructed the evaluating court
to also consider whether denying the motion to substitute would
significantly prejudice the defendant. 129 Nev. at 176, 298 P.3d at 438.
However, Patterson misstated the test from Lara, and we take this
opportunity to clarify that the proper test when evaluating a motion to
substitute retained counsel is whether (1)granting the motion "would cause
'significant prejudice to the defendant, e.g., by forcing him to trial without
adequate representation," or (2) the motion "was untimely and would result
in a 'disruption of the orderly processes of justice unreasonable under the
circumstances of the particular case.'" Lara, 103 Cal. Rptr. 2d at 211-12
(quoting People v Ortiz, 800 P.2d 547, 552 (Cal. 1990)). No party here argues
that granting Brass's motion to substitute counsel would cause him
significant prejudice; thus we only address whether the motion is untimely
and would result in an unreasonable disruption of the orderly processes of
justice.
16
We emphasize that the Patterson analysis is distinct from the
Young analysis, which is used when a defendant seeks to replace appointed
counsel with different appointed counsel. Patterson, 129 Nev. at 175, 298
P.3d at 438 (noting that the Young inquiry "is used to evaluate an attempt
to substitute one appointed attorney for another"). Patterson focuses on the
defendant's right to retained counsel of choice and the court's countervailing
interests in the timely and orderly administration of justice, while Young's
three-part inquiry focuses on "(1) the extent of the conflict [between client
and counsel]; (2) the adequacy of the [district court's] inquiry [into the
conflict]; and (3) the timeliness of the motion." 120 Nev. at 968, 102 P.3d at
576 (quoting United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir.
1998)). The focus is distinct because the Young inquiry "is designed to
determine whether [an] attorney-client conflict is such that it impedes the
adequate representation that the Sixth Amendment guarantees to all
defendants, including those who cannot afford to hire their own attorneys,"
Patterson, 129 Nev. at 175, 298 P.3d at 438 (quoting Rivera-Corona, 618
F.3d at 979), while Patterson "balanc[es] the right to counsel of choice
against the needs of fairness . . . and against the demands of [the district
court's] calendar," id. (quoting Gonzalez-Lopez, 548 U.S. at 152). Thus,
under the Patterson test, a defendant need not show inadequate
representation or an irreconcilable conflict to have his motion granted. See
People v. Ortiz, 800 P.2d 547, 553 (Cal. 1990) ("While we do require an
indigent criminal defendant who is seeking to substitute one appointed
attorney for another to demonstrate either that the first appointed attorney
provided inadequate representation, or that he and the attorney are
embroiled in irreconcilable conflict, we have never required a nonindigent
criminal defendant to make such a showing in order to discharge his
17
retained counsel." (citations omitted)); cf. United States v. Brown, 785 F.3d
1337, 1348 (9th Cir. 2015) (explaining that the defendant's reasons "for
wanting to discharge his retained lawyer were not properly the court's
concern" because the defendant had the right to discharge his counsel "for
any reason or [for] no reason" (alteration in original) (emphasis and internal
quotation marks omitted)).
The district court here erroneously relied on the factors in
Young, 120 Nev. at 968-69, 102 P.3d at 576, rather than Patterson, when it
denied Brass's motion. The district court's misplaced reliance on Young
does not require reversal, however, if its decision effectively addressed the
issues the district court should have considered under Patterson. See Lara,
103 Cal. Rptr. 2d at 214. Because the district court's findings of fact and
conclusions of law did so here, we address whether the district court's
decision to deny the motion was an abuse of discretion under Patterson.
To reiterate, in this case the relevant inquiry under Patterson
is whether the motion to substitute retained counsel is untimely and the
resulting disruption of the orderly processes of justice outweighs the
defendant's right to counsel of choice. Patterson, 129 Nev. at 176, 298 P.3d
at 438. In deciding whether a motion to discharge retained counsel is
timely, the court must "consider H the totality of the circumstances."
Maciel, 304 P.3d at 1010; see also Patterson, 129 Nev. at 176, 298 P.3d at
438 (analyzing whether the motion to substitute retained counsel was
timely "under the circumstances of the particular case" (internal quotation
marks omitted)). Brass first moved to substitute retained counsel at the
calendar call four days before the February 24, 2020, trial date, just seven
days after Lawson visited Brass in jail and informed him that Posin had not
prepared for trial. The district court deemed the motion untimely, finding
18
that both Brass and Lawson could have raised their concerns with Posin's
preparation at one of the numerous pretrial hearings in this case, but we
cannot agree. The record shows that at each status check, Posin
represented that he was diligently preparing for trial and that he would not
need another continuance. Brass was entitled to rely on Posin's in-court
representations that he was preparing for trial. Cf. Oak Grove Inv'rs v. Bell
& Gossett Co., 99 Nev. 616, 622, 668 P.2d 1075, 1078-79 (1983) ("The
rationale for the [discovery rule in legal malpractice cases] is that a client
has the right to rely on the attorney's expertise . . . ."), overruled on other
grounds by Calloway v. City of Reno, 116 Nev. 250, 264, 993 P.2d 1259, 1268
(2000). Brass thus raised his concerns about Posin's competence and
preparation at the first opportunity after discovering those circumstances.1°
See Lara, 103 Cal. Rptr. 2d at 219 (concluding the defendanfs motion to
substitute retained counsel filed on the first day of trial was timely where
the defendant "was unaware of the nature of [his attorney's] preparation
until the moment the trial was finally set to begin"); cf Daniels v. Woodford,
428 F.3d 1181, 1200 (9th Cir. 2005) ("Even if the trial court becomes aware
of a conflict on the eve of trial, a motion to substitute counsel is timely if the
conflict is serious enough to justify the delay.").
10Whi1e Lawson stated that Brass expressed dissatisfaction with
Posin "on several occasions," nothing in the record indicates that Brass
knew Posin was not adequately preparing for trial prior to Lawson's
February visit to Brass. Similarly, the fact that Lawson did not raise his
concerns with Posin's behavior at an earlier status check does not weigh
against the timeliness of Brass's motion because we cannot impute
Lawson's knowledge to Brass when the record does not show that Lawson
had informed Brass of his concerns with Posin's preparation prior to any of
the earlier status checks.
SUPREME COURT
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tO) 141.7A 400
19
Moreover, although a defendant generally can discharge
retained counsel for any reason or no reason at all and therefore does not
have to demonstrate inadequate representation or an irreconcilable conflict,
the court can consider the absence or presence of such circumstances, and
when defendant became aware of them, in deciding whether the motion to
discharge retained counsel is untimely. See Maciel, 304 P.3d at 1010-11
(observing that the trial court "did nothing improper" when it discussed the
concerns the defendant raised about retained counsel during a hearing on
the defendanes motion to discharge retained counsel). At the hearing on
Brass's renewed motion, Posin acknowledged that "there may be an issue of
whether I'm providing adequate representation of counsel based on whether
perhaps I have dropped the ball." He conceded that "this is the type of case
that some of . . . our own evidence in the defense case would have been
appropriate," "[or] perhaps necessary." Despite acknowledging that it was
"necessary" to prepare and produce exculpatory evidence in this case and
noting that Lawson provided several detailed leads on potentially
exculpatory evidence, Posin conceded that he did not "issue a single
subpoene to follow up on that evidence. Further, Lawson—an experienced
investigator appointed by the district court—told the court that "it became
apparent to me that Mr. Posin had literally no knowledge of this case."
After explaining both that "[he and Posin have] never done a file review on
[Brass's] case" and the potentially exculpatory evidence he and his
investigators discovered, Lawson declared that he "cannot let this [c]ourt
believe for one minute that Mr. Brass is getting any kind of a defense, let
alone a bad defense." The district court correctly noted the inadequacy of
Posin's preparations when it discussed referring him to the State Bar for
potential discipline, assuming the truth of "a substantial portion" of
20
Lawson's testimony." The record thus shows ample evidence that Posin
did not adequately prepare for trial in this case.1-2 Few derelictions by
counsel are more significant than inadequate preparation for trial. Cf.
Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970) ("Adequate
preparation for trial often may be a more important element in the effective
assistance of counsel to which a defendant is entitled than the forensic skill
exhibited in the courtroom. The careful investigation of a case and the
thoughtful analysis of the information it yields may disclose evidence of
which even the defendant is unaware and may suggest issues and tactics at
trial which would otherwise not emerge."). In other words, this is not a
situation where a defendant arbitrarily sought to discharge retained
"While a potential conflict between Brass and Posin, who undertook
Brass's case during a stayed 18-month bar suspension, In re Discipline of
Posin, No. 69417, 2016 WL 1213354, at *1 (Nev. Mar. 25, 2016), is not a
required consideration under Patterson, Posin's desire to avoid any
potential bar discipline ties into the timeliness inquiry, as Posin initially
expressed concern that he did not adequately prepare for trial yet
immediately stated he could go to trial once the district court indicated it
was considering referring him to the State Bar for potential discipline.
Thus, Posin apparently gave false assurances when convenient for his own
purposes at the status hearings and even at the hearing on Brass's renewed
motion held on the day trial was set to begin.
'2A1though the district court found that Brass's complaints amounted
to a disagreement with Posin's trial strategy, this finding is not supported
by the record. Brass contended that Posin was not adequately prepared to
represent him at trial because he did not adequately investigate the case,
and Posin conceded that further review of the record convinced him that he
should have issued subpoenas to follow up on the potentially exculpatory
evidence Lawson identified. Thus, at the renewed motion hearing, there
was no disagreement in strategy, as Posin conceded that his prior trial
strategy to rely on cross-examination of the State's witnesses was
inadequate.
21
counsel on the first day of trial. Cf People v. Keshishian, 75 Cal. Rptr. 3d
539, 542 (Ct. App. 2008) (concluding that the trial court did not abuse its
discretion in denying a defendant's motion to discharge retained counsel
where the case had been pending for 21/2 years; the defendant made a "last-
minute" request on the day set for trial based solely on having "inexplicably
lost confidence in his experienced and fully prepared counser; and
granting the request would have required an "indefinite continuance").
We recognize that granting the motion would have disrupted
the orderly processes of justice. In particular, it would have necessitated
another continuance in the trial of a case that had been pending for more
than two years and inconvenienced the State, victims, witnesses, and
potential jurors. But that disruption was not unreasonable considering the
totality of the circumstances: Brass promptly moved to discharge retained
counsel after learning that counsel had not adequately prepared for trial;
he faced going to trial with admittedly unprepared counsel in a 22-count
felony case; and he was indigent and requested appointed counsel to replace
Posin, not an indefinite delay to find new retained counsel.
Accordingly, while the district court understandably and
appropriately had concerns about the prejudice to the State, as well as to
the victims, witnesses, and potential jurors from the multiple defense-
instigated trial continuances, it abused its discretion here because the
motion was timely under the circumstances and any disruption to the
orderly process of justice was reasonable under the unique facts of this
case." As this error is structural, Gonzalez-Lopez, 548 U.S. at 150;
13The district court also erred in concluding that the fact Brass
retained Posin weighed against granting Brass's motion to substitute
counsel. See Rivera-Corona, 618 F.3d at 979-80 ("Unless the substitution
22
Patterson, 129 Nev. at 177-78, 298 P.3d at 439, we reverse the judgment of
conviction and remand for a new trial.m
Further, Posin's conduct in this case may violate the Rules of
Professional Conduct. Consequently, we refer Posin to the State Bar of
Nevada for such disciplinary investigations or proceedings as are deemed
warranted. See SCR 104(1)(a). Accordingly, we direct the clerk of this court
to provide a copy of this opinion to the State Bar of Nevada.15 Bar counsel
shall, within 90 days of the date of this opinion, inform this court of the
status or results of the investigation and any disciplinary proceedings in
this matter.
would cause significant delay or inefficiency or run afoul of the other
considerations we have mentioned, a defendant can fire his retained or
appointed lawyer and retain a new attorney for any reason or no reason."
(emphasis omitted)). Indeed, the fact that Brass retained Posin gave him a
greater ability to substitute counsel in recognition of his right to counsel of
his choice. See Patterson, 129 Nev. at 175-76, 298 P.3d at 438. It is issues
with Posin's representation, not Brass's manipulation, that results in the
need to conduct a new trial here, and Posin's retention and payment as
private counsel may not be held against Brass.
mIn light of our disposition, we need not consider and express no
opinion on Brass's remaining arguments, including his challenges to the
sufficiency of the evidence. See Buchanan v. State, 130 Nev. 829, 833, 335
P.3d 207, 210 (2014) ("Because we reverse the district court's decision on
the independent grounds of structural error, we decline to consider
Buchanan's challenge to the sufficiency of the evidence supporting his
convictions.").
15Whi1e our decision is based solely on the pretrial motion to
substitute counsel, the State Bar's review of Posin's conduct may take into
consideration Posin's actions at trial—many of which are raised in the
appellate briefing herein—as well.
23
CONCLUSION
The Sixth Amendment right to counsel includes the right of a
non-indigent defendant to the retained counsel of his or her choice. When
a defendant moves to substitute retained counsel, the evaluating court
analyzes whether the motion is timely and whether the defendant's right to
counsel of choice outweighs countervailing interests in the efficient and
orderly administration of justice. Here, the motion was timely under the
circumstances, given retained counsel's assurances at the status checks
about his trial preparation compared to his last-minute concession that he
was not prepared, given that his choices not to subpoena records or
witnesses were not strategy-based, and given that Brass did not become
aware of these deficiencies until a week before calendar call. Brass's right
to counsel of choice outweighs the disruption and inconvenience of a further
trial continuance, as the record shows retained counsel took no steps to
follow up on potentially exculpatory evidence his investigator identified and
Brass raised these issues at the first opportunity after learning about them.
Because the erroneous denial of a motion to substitute counsel at the trial
level is structural error, we reverse the judgment of conviction and remand
for a new trial. e-
, J.
Cadish
We concur:
Pieku tuf J.
Pickering
(74-'45 J.
Herndon
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