Peo v. Felsher

24CA0026 Peo v Felsher 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0026
Douglas County District Court No. 21CR694
Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lyndie J. Felsher,

Defendant-Appellant.

SENTENCE REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SULLIVAN
Welling and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lyndie J. Felsher, appeals the district court’s

denial of her motion to continue her resentencing hearing so that

her counsel of choice could represent her. We reverse the sentence

and remand with directions.

I. Background

¶2 In August 2021, the prosecution charged Felsher with driving

under the influence as a fourth or subsequent offense and careless

driving. See §§ 42-4-1301(1)(a), 42-4-1402(1), C.R.S. 2025. Felsher

pleaded guilty with sentencing left open to the court. In February

2023, the district court sentenced Felsher to three years in

community corrections.

¶3 Two months later, Jesse Glassman, a private attorney, entered

his appearance on behalf of Felsher and moved for reconsideration

of her sentence under Crim. P. 35(b). The district court denied the

motion.

¶4 In October 2023, the community corrections program where

Felsher was serving her sentence discharged her due to an

unauthorized absence. Law enforcement arrested Felsher the

following month.

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¶5 The day after her arrest, November 17, 2023, Felsher appeared

before the district court with a deputy public defender. The deputy

public defender informed the court that Felsher wanted her private

counsel to represent her. The court set a resentencing hearing for

November 22, 2023, and said that Felsher had to hire counsel

before then because it wouldn’t “reset further beyond that date.”

¶6 At the resentencing hearing, the deputy public defender again

appeared with Felsher. He informed the court that Felsher’s private

attorney, Glassman, had entered his appearance in April; that

Felsher wanted Glassman to continue representing her; and that

Felsher’s boyfriend had learned from Glassman’s office that he was

currently out of the country on vacation. As a result, the deputy

public defender requested a continuance of the resentencing

hearing.

¶7 The district court denied the continuance request, finding it

was “appropriate” to “get [Felsher’s] resentencing done today.” After

hearing from Felsher directly, the court converted her three-year

community corrections sentence to a three-year Department of

Corrections sentence.

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¶8 Felsher appeals, arguing that the district court (1) violated her

Sixth Amendment right to counsel of choice by denying her

continuance request; (2) violated section 18-1.3-301(1)(g), C.R.S.

2025, by supposedly refusing to hold a new sentencing hearing

after her discharge from community corrections; and (3) abused its

discretion by sentencing her to three years in the Department of

Corrections. We agree with Felsher’s first contention and, because

we conclude it is dispositive, need not reach her second or third

contentions.

II. Choice of Counsel

¶9 Felsher contends that the district court violated her Sixth

Amendment right to counsel of choice by denying her continuance

request at the resentencing hearing and proceeding in the absence

of her private counsel, Glassman. We agree.

A. Applicable Law and Standard of Review

¶ 10 The Sixth Amendment affords a criminal defendant who

doesn’t request appointment of counsel the right to be represented

by counsel of choice. See U.S. Const. amend. VI; People v. Brown,

2014 CO 25, ¶ 16; People v. Stidham, 2014 COA 115, ¶ 7. But the

right to counsel of choice isn’t absolute. Brown, ¶ 17.

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Considerations such as judicial efficiency or the public’s interest in

maintaining the integrity of the judicial process may, in some

situations, outweigh the defendant’s interest in being represented

by a particular attorney. Id. A defendant may not, for example, use

the right to counsel of choice to delay the trial or impede judicial

efficiency. Id.; accord People v. Gilbert, 2022 CO 23, ¶ 20.

¶ 11 In Brown, our supreme court announced a multi-factor

balancing test that the district court must use to balance the

defendant’s Sixth Amendment right to counsel of choice against the

demands of fairness and efficiency. Brown, ¶ 20. Specifically, the

district court must consider the following:

(1) the defendant’s actions surrounding the request for the

continuance 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;

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(6) the age of the case, both in the judicial system and from

the date of the offense;

(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.

Id. at ¶ 24. No single factor is dispositive, and the weight accorded

to each factor will vary depending on the specific facts of the case.

Id. The court need not make findings on each factor, Gilbert, ¶ 26,

but it must give “significant weight” to the defendant’s right to

counsel of choice, Brown, ¶ 21.

¶ 12 When, as here, the record contains the relevant information,

we may review the district court’s ruling on the motion to continue

under the Brown balancing test and need not remand the case for

the district court to make more express findings. Gilbert, ¶ 27.

¶ 13 We review a district court’s ruling on a motion for a

continuance for an abuse of discretion. Id. at ¶ 18. But a violation

of a defendant’s Sixth Amendment right to counsel of choice is a

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structural error that requires automatic reversal. Id. at ¶ 38 (citing

United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006)).

B. Analysis

¶ 14 We begin with a presumption in favor of Felsher’s Sixth

Amendment right to counsel of choice. See id. at ¶ 30. While this

presumption may be overcome, the record here doesn’t reflect that

“the demands of fairness and efficiency” outweighed Felsher’s Sixth

Amendment right to the counsel of her choice. Brown, ¶ 20.

¶ 15 First, Felsher’s actions surrounding the continuance request

didn’t suggest that she sought to delay the proceedings. Felsher

appeared in court one day after her arrest. Three business days

later, she asked to continue the resentencing hearing so that her

counsel of choice, Glassman, could represent her once he returned

from vacation. Moreover, Glassman had already entered his

appearance seven months earlier, so Felsher wasn’t seeking

additional time to “look for” and retain a new attorney. People v.

Travis, 2019 CO 15, ¶ 13. And although Felsher was initially

charged two years earlier, the case proceeded quickly once

community corrections discharged her from the program. See

Gilbert, ¶ 34.

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¶ 16 Second, any delay would likely have been minimal. Glassman

was temporarily out of the country on vacation. He hadn’t sought

to withdraw from representing Felsher, and nothing suggested that

he was otherwise unavailable for a long-term period. Nor did

anything indicate that Glassman couldn’t have been prepared to

proceed following a short continuance. See id. at ¶ 33. While the

public defender said that Felsher’s attorney would need some time

to collect information on Felsher’s violations and write-ups at

community corrections, nothing suggested that the process would

have been overly time consuming.

¶ 17 Third, the prosecution didn’t assert that it would suffer any

prejudice, beyond mere inconvenience, if the district court granted

Felsher’s request for a continuance. See id. at ¶ 36. The

prosecution also didn’t allege that witnesses would be

inconvenienced by a short continuance or that the victims’ rights

act applied. See id. On appeal, the People again don’t identify any

prejudice or inconvenience to either the prosecution or any

witnesses or victims. See id. (concluding trial court violated the

defendant’s right to counsel of choice even though continuing the

trial may have “inconvenienced the witnesses and victims”).

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¶ 18 Fourth, any impact from a brief continuance on the district

court’s docket would likely have been minor. The court was able to

schedule the resentencing hearing a mere three business days after

Felsher first appeared following her discharge from community

corrections, suggesting that rescheduling the resentencing hearing

further out to accommodate Glassman’s schedule wouldn’t have

proved difficult. And unlike a lengthy multiday trial that may have

been more challenging to schedule, Felsher’s resentencing hearing

would have been relatively short.

¶ 19 We recognize that the trial court had already granted two other

continuances at earlier stages in this case. But those continuances

weren’t lengthy, and the case proceeded quickly during the

resentencing phase. See id. at ¶¶ 34-35 (determining the trial court

should have granted the defendant’s request for a continuance

despite delays earlier in the case). In all, we can’t say on this record

that “the demands of fairness and efficiency” outweighed Felsher’s

Sixth Amendment right to counsel of choice. Brown, ¶ 20.

Accordingly, we reverse Felsher’s sentence and remand the case to

the district court for further proceedings.

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¶ 20 As noted at the outset, Felsher raises two additional

contentions on appeal — namely, that the district court (1) violated

section 18-1.3-301(1)(g) by supposedly refusing to hold a new

sentencing hearing after her discharge from community corrections

and (2) abused its discretion by imposing a three-year prison

sentence. Rather than address the merits of these additional

contentions, which may or may not arise on remand, we reverse the

sentence and remand the case so that Felsher may proceed to

resentencing with her counsel of choice. We offer no opinion

regarding the nature of proceedings Felsher is entitled to on remand

or the scope of the district court’s discretion regarding the sentence

it imposes. Instead, counsel of choice may present those

arguments to the district court in the first instance.

III. Disposition

¶ 21 We reverse the sentence and remand the case to the district

court for further proceedings consistent with this opinion.

JUDGE WELLING and JUDGE GOMEZ concur.

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