Opinion
NO. 2011-CA-001110-MR
10-12-2012
KEVIN D. JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 10-CR-00208
OPINION
REVERSING AND REMANDING
BEFORE: DIXON, MOORE AND THOMPSON, JUDGES. DIXON, JUDGE: Appellant, Kevin Johnson, was convicted in the Muhlenberg Circuit Court of two counts of first-degree complicity to trafficking in a controlled substance, and of being a first-degree persistent felony offender. He was sentenced to a total of fifteen years' imprisonment and appeals to this Court as matter of right.
On November 19, 2010, a Muhlenberg County Grand Jury indicted Appellant on two counts of first-degree trafficking in a controlled substance, one count of receiving stolen property under $10,000, and for being a first-degree persistent felony offender. Appellant failed to appear at the hearing on his indictment and it was discovered that he was incarcerated in Hopkins County on unrelated charges. Subsequently, on December 6, 2010, Appellant appeared with private counsel and entered a plea of not guilty to all charges.
Over the next month, Appellant failed to appear at several court hearings and, as a result, a warrant was issued for his arrest. Appellant again appeared in Court on February 4, 2011, at which time private counsel moved to withdraw and the trial court appointed Appellant a public defender. A pretrial conference date was scheduled for March 7, 2011, but later continued to March 14, 2011, by agreement of the parties. Thereafter, a trial date was scheduled for May 18, 2011.
On May 15, 2011, Attorney Fred Partin filed an entry of appearance and a motion to continue the trial. During a telephonic hearing on May 16, 2011, Partin explained that he had been contacted by Appellant's family several weeks earlier but that they had only just been able to pay him the necessary retainer funds. Partin requested a continuance so that he would have time to adequately prepare for trial. The Commonwealth attorney responded that he understood Appellant had a right to retain private counsel but that the Commonwealth had a "superior right" to have the case proceed. The trial court denied a continuance on the grounds that Appellant had appointed counsel who was prepared to go to trial and a delay would inconvenience the court and parties.
The motion indicated that service was intended for May 13, 2011.
No specific time frame was set forth by Partin or elicited by the trial court. However, the hearing was held telephonically because Partin was hospitalized the weekend prior to the hearing.
--------
On the morning of trial, appointed counsel renewed the motion for a continuance to allow private counsel to represent Appellant, arguing that Appellant's Sixth Amendment right to counsel was being violated. Further, appointed counsel moved to withdraw on the basis that if Appellant had the funds to retain private counsel, it was improper under KRS Chapter 31 for the Department of Public Advocacy to represent him. Both motions were denied and the trial proceeded. Appellant was convicted of two counts of complicity to first-degree trafficking in a controlled substance and for being a first-degree persistent felony offender. He was sentenced to a total of fifteen years' imprisonment and appeals to this Court as a matter of right.
Appellant has raised numerous claims of error pertaining to the denial of his motion for a continuance, as well as the substance of his trial. After reviewing the record and applicable law, we conclude that the trial court erred in denying private counsel's request for a continuance of the trial. As such, we necessarily do not reach the other issues presented herein.
The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall be entitled to the assistance of counsel. The United States Supreme Court has held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). See also Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). "[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-625, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). Consequently, a court cannot arbitrarily or unreasonably deny a defendant the right to retain chosen counsel.
Nevertheless, the right to engage the counsel of one's choosing is not absolute, and the trial court retains broad discretion to grant or deny a continuance for the purposes of obtaining new counsel. United States v. Gonzalez-Lopez, 548 U.S. 140,152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). As recently noted by the Seventh Circuit Court of Appeals in United States v. Sellers, 645 F.3d 830, 835-36 (7th Cir. 2011):
A . . . court, after all, has a legitimate interest in ensuring that parties abide by scheduling orders to ensure prompt, orderly, and fair litigation. Even where Sixth Amendment rights are at stake, a . . . court legitimately can balance the right to counsel of choice against the demands of its calendar and make scheduling and other decisions that effectively exclude chosen counsel. Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557. The key, however, is whether the court has indeed balanced those interests, or instead has acted arbitrarily. (Citation omitted).
In Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds in Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001), the Kentucky Supreme Court held that factors a trial court is to consider in exercising its discretion are: length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice. See also Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985). The Commonwealth herein defends that the trial court properly relied on the factors set forth in Snodgrass to determine, within its discretion, that a continuance was not warranted.
We find the circumstances in Snodgrass to be quite different from those present herein. In Snodgrass, the defendant moved for a continuance to retain private counsel on the morning of trial, after the jury was impaneled and all witnesses were present. Further, despite the defendant's assertion that he intended to retain counsel, the record reflected that he did not have the necessary funds to do so. The trial court denied the motion and the case proceeded to trial with appointed counsel. On appeal, our Supreme Court upheld the lower court, noting:
Under all the circumstances, including the fact that there had been four previous continuances by agreement of counsel, we believe the trial court did not abuse its discretion in denying this additional delay, especially on the strength of appellant's representation that he somehow finally had acquired the means of employing the specified private attorney who had indicated otherwise to the Commonwealth's Attorney.Snodgrass, 814 S.W.2d at 581. See also Shegog v. Commonwealth, 142 S.W.3d 101, 105 (Ky. 2004) ("[T]he trial court did not deprive Appellant of the right to secure private counsel of his own choosing . . . . The trial court merely ruled that such counsel, if obtained, was required to enter an appearance prior to the scheduled trial date.").
In denying Appellant's motion for a continuance, the trial court herein commented generally about how such would unduly burden the parties' and the court's calendar. Yet, it is interesting to note that Appellant's May trial date was scheduled only two months prior, indicating that the court's calendar was certainly not overloaded or backlogged. The fact that the court did not even inquire of Partin as to how long he would need to adequately prepare for trial evidences a failure to actually balance the right to choice of counsel against the needs of fairness to all parties involved. See Sellers, 645 F.3d at 830. It is obvious that the trial court viewed any delay as unacceptable, which we must conclude was unreasonable and arbitrary under the circumstances.
Unlike Snodgrass, Appellant's trial date had not previously been continued, private counsel was, in fact, retained, and the motion for a continuance was made several days prior to trial. We simply cannot agree with the Commonwealth that under these circumstances, it had a "superior right" to proceed with the case, effectively denying Appellant the right to the counsel of his choice.
Furthermore, we find no merit in the Commonwealth's contention that Appellant was not prejudiced by the denial of a continuance because well-prepared and competent appointed counsel represented him at trial. In Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct. at 2564-2565, the United States Supreme Court observed:
We have little trouble concluding that erroneous deprivation of the right to counsel of choice, "with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error.' " Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the "framework within which the trial proceeds," Fulminante, supra, at 310, 111 S.Ct. 1246—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all.
Indeed, it is impossible to know what different choices Partin would have made at trial and how such might have affected the outcome of the proceedings. Notwithstanding appointed counsel's competence, which we do not question herein, the fact that Appellant was denied a reasonable request for a continuance to permit retained counsel to prepare for trial warrants reversal of his conviction and entitles him to a new trial.
For the reasons set forth herein, the judgment and sentence of the Muhlenberg Circuit Court are reversed and this matter is remanded for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky