v. Rainey

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
March 18, 2021

2021COA35

No. 17CA1133, People v. Rainey — Constitutional Law — Sixth
Amendment — Right to Counsel

The defendant in this criminal case requested a continuance

so that he could continue to be represented by his appointed

counsel who could not appear on the scheduled trial date. The

district court, relying primarily on scheduling issues, denied the

request, and the defendant proceeded to trial with new, substitute

counsel. On appeal, he argued that the district court’s denial of his

continuance request violated his Sixth Amendment right to

continued representation by his counsel.

A division of the court of appeals holds that because indigent

defendants have a constitutional right to continued representation

by appointed counsel, the district court must apply the factors

enumerated in People v. Brown, 2014 CO 25, when the defendant
seeks a continuance to enable him to continue the representation

by his appointed counsel. Because the district court did not apply

the Brown factors, the division reverses the judgment and remands

for further proceedings.
COLORADO COURT OF APPEALS 2021COA35

Court of Appeals No. 17CA1133
El Paso County District Court No. 16CR3477
Honorable Robin Chittum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert James Rainey,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE HARRIS
Johnson and Vogt*, JJ., concur

Announced March 18, 2021

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, 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. 2020.
¶1 Defendant, Robert James Rainey, appeals the judgment of

conviction entered on jury verdicts finding him guilty of second

degree kidnapping and criminal mischief.

¶2 On appeal, one claim is potentially dispositive. Rainey

contends that the district court violated his Sixth Amendment right

to continued representation when it denied a continuance on

grounds of judicial efficiency, thereby forcing him to proceed with a

different public defender. We conclude that the district court

applied the wrong legal standard in considering the motion to

continue, and we therefore reverse and remand for further findings.

I. Background

¶3 Rainey was charged with second degree kidnapping, a felony,

and several misdemeanor domestic violence offenses following an

altercation with the victim. The district court appointed counsel to

represent him.

¶4 Trial was originally scheduled to begin January 9, 2017, but

was thereafter delayed and continued multiple times for reasons not

attributable to the defense:

 The court delayed trial to January 10 because a storm had

damaged the courthouse.

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 On January 10, the prosecution moved for a continuance

because the victim failed to appear. Over Rainey’s

objection, the court granted the continuance and

rescheduled trial for February 2.

 The jury commissioner did not have enough jurors available

on February 2, so the court continued the case to February

23.

 On February 23, the prosecution moved for a second

continuance because one of its witnesses was unavailable.

The court granted the continuance (again, over Rainey’s

objection) and reset trial for March 6, 2017, the day before

the speedy trial deadline.

¶5 At a pretrial hearing on March 3, Rainey, through his public

defender, Neil DeVoogd,1 requested a continuance. DeVoogd

explained that he would be out of town for the week of March 6, and

that when he had accepted that date, the parties had reached an

agreement and there was “not any [likelihood] that [the case] was

1DeVoogd had recently replaced Rainey’s initial public defender,
who, according to Rainey’s wife, had “called [Rainey] an asshole,
had called him stupid at some point,” and did not “communicate
back in a timely manner.”

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going to be going to trial,” but the agreement “ended up not going

through.” He said that Rainey wanted to continue the

representation and was asserting his “right to have [DeVoogd] as his

attorney” at trial. DeVoogd told the court that Rainey would agree

to waive his right to a speedy trial.

¶6 The court recognized that every prior delay or continuance had

“either been attributable to the DA or the Court” and that “none of

them [we]re attributable to the Defense.” The trial judge rejected

any notion that the continuance request was a dilatory tactic and

indicated that she personally “felt terrible for Mr. Rainey in the

midst of all of this” and was “sympathetic” to the request.

¶7 Nonetheless, the trial judge denied the continuance, finding,

primarily, that it had been difficult to find a substitute judge to hear

the case and, due to the nature of the case, it would be difficult to

fit the trial back into her docket:

It would have been great to have [DeVoogd] do
it and that would have been a little more
comfortable, I think for Mr. Rainey. But what
the factual [sic] comes down to is that this isn’t
a [complicated] case. It’s not a case that
involved anything technical. It’s just straight
forward witnesses and a victim who doesn’t
want to cooperate.

3
....

If I have to reset this case, it’s getting reset [in]
July, and then even then it’s not a high
priority case. Every week I have sex assault on
a child, I have homicides set, I have [serious]
assault cases set, crimes of violence set. There
is a darn good chance that if we continue this,
he gets bumped again. And I can’t do that. I
just can’t do that for the sake of this case. He
is getting his attorney of choice. He’s getting
the Public Defender and a fine one too. So, I
understand where you’re coming from, record
so noted. But I’m gonna deny the request for a
continuance.

¶8 Accordingly, in place of DeVoogd, two other public defenders

from the same office represented Rainey at trial.

II. Sixth Amendment Right to Counsel

¶9 Rainey contends that the district court’s denial of his request

for a continuance violated his constitutional right to continued

representation by DeVoogd, his counsel of choice.

A. Standard of Review

¶ 10 We review the district court’s denial of a continuance motion

for an abuse of discretion. People v. Brown, 2014 CO 25, ¶ 19. The

court’s “failure to understand the . . . criteria upon which [its]

discretion is to be exercised can amount to an abuse of that

discretion.” Pierson v. People, 2012 CO 47, ¶ 21. And the court

4
necessarily abuses its discretion if it bases its ruling on an

erroneous view of the law. People v. Wadle, 97 P.3d 932, 936 (Colo.

2004). Whether the court applied the correct legal standard is a

question of law we review de novo. Ronquillo v. People, 2017 CO 99,

¶ 13.

B. Analysis

¶ 11 The Sixth Amendment guarantees a criminal defendant “the

Assistance of Counsel for his defence.” U.S. Const. amend. VI; see

also Colo. Const. art. II, § 16. That guarantee has been interpreted

to include, among other things, the right to appointed counsel for

indigent defendants, Gideon v. Wainwright, 372 U.S. 335, 345

(1963), and the right to “select and be represented by one’s

preferred attorney” for defendants of means, Wheat v. United States,

486 U.S. 153, 159 (1988).

¶ 12 The People argue that because Rainey, as an indigent

defendant, had no constitutional right to choose his lawyer, he also

had no right to continued representation by his appointed lawyer.

That argument cannot be squared with our supreme court’s well-

settled precedent.

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¶ 13 To be sure, an indigent defendant does not have a right to

select his appointed counsel. Ronquillo, ¶ 25 (“[A] defendant

requesting a free lawyer can’t choose which one he’s given.” (citing

United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006))). But

“[t]he right to continued representation by counsel of choice [is

distinct] from an asserted right to have particular counsel of choice

appointed.” People v. Harlan, 54 P.3d 871, 878 (Colo. 2002).

“[O]nce counsel is appointed, the attorney-client relationship is no

less inviolable than if the counsel had been retained by the

defendant.” People v. Shari, 204 P.3d 453, 460 (Colo. 2009)

(quoting Harlan, 54 P.3d at 878). So, “[w]hile there is no Sixth

Amendment right for an indigent defendant to choose his appointed

counsel, that defendant is ‘entitled to continued and effective

representation’” by court-appointed counsel of choice “in the

absence of a demonstrable basis in fact and law to terminate that

appointment.” Harlan, 54 P.3d at 878 (citation omitted); accord

People v. Nozolino, 2013 CO 19, ¶ 17.

¶ 14 The People’s argument, which conflates the right to select

counsel with the right to continued representation, was expressly

rejected by the supreme court in Harlan. In that case, after the

6
defendant was convicted at trial and while two postconviction

motions were pending, the district court disqualified appointed

counsel based on an alleged conflict of interest. Harlan, 54 P.3d at

876. On appeal, the prosecution contended that the court’s interest

in avoiding a potential conflict necessarily outweighed any interest

the defendant had in keeping his appointed counsel, noting that an

indigent defendant has no right to counsel of his choice. Id. at 878.

The court deemed that contention a non sequitur:

[T]he People’s contention that indigent
defendants are not entitled to choose court-
appointed counsel is irrelevant to the issue
before us. . . . As noted above, an indigent
defendant has a presumptive right to
continued representation by court-appointed
counsel absent a factual and legal basis to
terminate that appointment. Because the
issue presented in this case is whether Harlan
may continue to be represented by his current
counsel, and not whether he may choose his
counsel, this argument by the People, and the
case law cited to support the argument, is
inapposite.

Id. (citation omitted); see also Nozolino, ¶ 17; Shari, 204 P.3d at

460; Lane v. State, 80 So. 3d 280, 296-99 (Ala. Crim. App. 2010)

(explaining that the right to continued representation applies

equally to indigent defendants and collecting state and federal cases

7
applying the rule); State v. McKinley, 860 N.W.2d 874, 879-80 (Iowa

2015) (adopting Harlan’s view and collecting cases).

¶ 15 In light of this case law, we reject the People’s position that if a

defendant does not pay for his lawyer, he has no grounds to object

to his lawyer’s replacement as long as the replacement lawyer

handles the case competently. See Lane, 80 So. 3d at 296. “To

allow trial courts to remove an indigent defendant’s court-appointed

counsel with greater ease than a non-indigent defendant’s retained

counsel would stratify attorney-client relationships based on

defendants’ economic backgrounds.” Weaver v. State, 894 So. 2d

178, 189 (Fla. 2004).

¶ 16 And the right to continued representation means that an

indigent defendant has a right to proceed with his specific

appointed lawyer, not just any appointed lawyer from the public

defender’s office.

¶ 17 We have recognized that non-indigent defendants have this

right. In People v. Stidham, 2014 COA 115, ¶ 10, a division of this

court held that a defendant has a Sixth Amendment right to

proceed with his specific lawyer, and that the district court erred by

denying a motion to continue and thereby requiring the defendant

8
to proceed with another lawyer from the same firm. See also

Gonzales v. State, 970 A.2d 908, 920 (Md. 2009) (trial court erred

by denying the defendant’s request to continue with his own lawyer

and instead requiring him to choose between proceeding to trial

with a different lawyer from the same firm or representing himself).

¶ 18 If, as Harlan says, the attorney-client relationship between an

indigent defendant and his appointed counsel is no less inviolable

than the relationship between a non-indigent defendant and his

retained counsel, then the Sixth Amendment limits the district

court’s power to replace a defendant’s appointed lawyer with

another from the same firm or organization.2 See Stearnes v.

2 People v. Coria, 937 P.2d 386 (Colo. 1997), does not affect our
conclusion. In that case, after noting that an indigent defendant
does not have “an absolute right to demand a particular attorney,”
the supreme court stated that “[t]he substitution of one public
defender with another does not violate the Sixth Amendment right
to counsel, absent evidence of prejudice.” Id. at 389. The question
on appeal, though, was whether a defendant has a right to be
represented by a law student intern. Id. at 387, 388. The supreme
court never purported to address whether an indigent defendant
has a right to continued representation by his appointed counsel.
That precise issue was resolved five years later in People v. Harlan,
54 P.3d 871, 878 (Colo. 2002), which did not mention Coria.
Because the propriety of substituting appointed counsel over a
defendant’s Sixth Amendment-based objection was outside the
scope of the issue decided by the Coria court, the court’s statement

9
Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (“[T]he power

of the trial court to appoint counsel to represent indigent

defendants does not carry with it the concomitant power to remove

counsel at [its] discretionary whim.”); State v. Huskey, 82 S.W.3d

297, 305 (Tenn. Crim. App. 2002) (“[A]ny meaningful distinction

between indigent and non-indigent defendants’ right to

representation by counsel ends once a valid appointment of counsel

has been made.”). To the client — whether indigent or wealthy —

“[a]ttorneys are not fungible, as are eggs, apples and oranges.”

United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979). Once

counsel has been appointed, and the defendant has reposed his

trust and confidence in the attorney assigned to represent him, the

district court may not “rend that relationship by dismissing the

is “mere dictum which is not binding on us.” McCallum Fam. L.L.C.
v. Winger, 221 P.3d 69, 73 (Colo. App. 2009).
The Coria court’s statement was taken from People v.
Gardenhire, 903 P.2d 1165 (Colo. App. 1995), in which a division of
this court held that, absent some showing of prejudice, “the
substitution of one public defender with another does not constitute
a violation of defendant’s Sixth Amendment right to effective
assistance of counsel.” Id. at 1168 (emphasis added). That narrow
proposition is unrelated to the issue in this case. And to the extent
a broader rule was intended, we decline to adopt it. See Chavez v.
Chavez, 2020 COA 70, ¶ 13.

10
originally appointed attorney and then thrusting unfamiliar and

unwelcome counsel upon the defendant.” McKinnon v. State, 526

P.2d 18, 22-23 (Alaska 1974); see also English v. State, 259 A.2d

822, 826 (Md. Ct. Spec. App. 1969) (“[O]nce counsel has been

chosen, whether by the court or the accused, the accused is entitled

to the assistance of that counsel at trial.”) (emphasis added).

¶ 19 The right to counsel of choice, including the right to continued

representation, is not absolute. See Rodriguez v. Dist. Ct., 719 P.2d

699, 706 (Colo. 1986). But, as Harlan recognizes, there is “a

presumption in favor of a defendant’s choice of counsel” that

“extends to indigent defendants: A defendant’s desire for continued

representation by a court-appointed public defender is ‘entitled to

great weight.’” 54 P.3d at 878 (quoting Rodriguez, 719 P.2d at 707);

accord Nozolino, ¶ 17. Only when that presumption is overcome

may a court disregard a defendant’s choice. See Brown, ¶ 21

(refusing to allow the defendant to proceed with his counsel of

choice “is an ‘extreme remedy’ that should not be used absent a

showing of prejudice”) (citation omitted); Harlan, 54 P.3d at 877.

For instance, if the defendant’s choice of counsel has a conflict of

interest, the presumption may be outweighed by the public’s

11
interest in maintaining the integrity of the judicial process and the

defendant’s Sixth Amendment right to conflict-free counsel. See

Nozolino, ¶ 16; Harlan, 54 P.3d at 877. Likewise, if counsel of

choice is unable to appear without a continuance, some

combination of interests including prejudice to the prosecution and

the victim’s rights may overcome the presumption. Brown, ¶ 24.

¶ 20 In determining whether competing interests overcome the

presumption, the court “must balance the defendant’s right to

counsel of choice against the public’s interest in both the ‘efficient

administration of justice’ and maintaining the integrity of the

judicial process.” Id. at ¶ 22 (quoting Harlan, 54 P.3d at 877). As

noted, when balancing those interests, the court must afford “great

weight” to the defendant’s choice. Nozolino, ¶ 17 (citing Harlan, 54

P.3d at 878); accord Brown, ¶¶ 16, 21.

¶ 21 The People argue that even if, in some circumstances, the

court should consider the defendant’s “desire” to continue with

appointed counsel, no such deference was warranted here.

DeVoogd had no longstanding or “special” relationship with Rainey,

they say, and no substantial history with the case; thus, the court

12
had no obligation to cater to Rainey’s “preference” to keep his

lawyer.

¶ 22 But the argument arises from the faulty premise that Rainey’s

interest in continued representation by his counsel of choice

amounts to no more than a mere “desire” or “preference,” with no

constitutional dimension. The premise is irreconcilable with Harlan

and Nozolino. Contrary to the People’s assertion, an indigent

defendant’s right to continued representation is not based on the

district court’s assessment of the strength or longevity of a

particular attorney-client relationship, but on the recognition that

“respect and deference must be accorded to a defendant’s intelligent

and informed choice of counsel under our justice system.”

Nozolino, ¶ 17; see also Brown, ¶¶ 7, 11, 28 (remanding to consider

whether continuance should have been granted where retained

counsel entered his appearance twelve days before trial).

¶ 23 Accordingly, though the decision whether to grant or deny a

continuance ultimately falls within the sound discretion of the

district court, where constitutional rights are concerned, the court

must consider and weigh additional factors to enable our review of

whether it properly exercised its discretion. See Brown, ¶¶ 19-24;

13
see also People v. Travis, 2019 CO 15, ¶ 12 (“[W]hen the Sixth

Amendment right to counsel of choice is at issue,” a court ruling on

a motion for a continuance “must demonstrate that it weighed the

full range of factors that might affect its exercise of discretion.”).

¶ 24 When ruling on a request for a continuance to allow

representation by counsel of choice, Brown directs the district court

“to consider and make a record of the impact” of eleven factors:

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;

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;

14
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.

¶ 25 Though Brown involved a request for a continuance to change

counsel, see id. at ¶¶ 7-9, we conclude that the same factors should

guide the district court’s discretion when the defendant seeks a

continuance to continue with his counsel. In both situations, the

defendant’s Sixth Amendment right to counsel of choice is

implicated, and therefore the same interests must be balanced.

¶ 26 Indeed, the division in Stidham, ¶ 17, applied the Brown

factors where the defendant sought a continuance to allow

continued representation by his retained lawyer. Because the right

to continued representation applies equally to indigent defendants,

we hold that the district court was required to weigh the Brown

factors before deciding whether to grant or deny a continuance

necessary for DeVoogd’s continued representation of Rainey at

15
trial.3 See Harlan, 54 P.3d at 878; see also Lane, 80 So. 3d at 295

(“With respect to continued representation, however, there is no

distinction between indigent defendants and nonindigent

defendants.”).

¶ 27 It is undisputed that the district court did not consider the

Brown factors on the record. What is more, it mistakenly concluded

that Rainey was still “getting his attorney of choice” — i.e., any

lawyer employed by “the Public Defender.” Cf. Nozolino, ¶ 20;

Stidham, ¶¶ 14-17. And rather than affording “great weight” to

Rainey’s choice to continue the representation, Harlan, 54 P.3d at

878, the court suggested only that Rainey “would have been a little

more comfortable” with DeVoogd as his trial counsel.

¶ 28 As a result, we must remand for the district court to make

findings on the record as to each applicable Brown factor and apply

3 We reject Rainey’s argument, relying on People v. Stidham, 2014
COA 115, that when the right to continued representation is at
issue, as opposed to the right to select counsel of choice, no
balancing test applies, and the district court must simply grant
every request for a continuance. The Stidham division’s analysis in
this regard, see id. at ¶ 14 & n.1, applied only to a situation where
a defendant’s chosen counsel fails to appear, through no fault of,
and without notice to, the defendant.

16
the correct legal standard. See, e.g., Brown, ¶ 29 (remanding for

court to make additional findings and apply the correct standard).

III. Conclusion and Remand Order

¶ 29 The judgment is reversed, and the case is remanded for

further proceedings. On remand, the district court must make

findings on the record as to each applicable Brown factor (and state

on the record why the remaining factors, if any, do not apply). If

the court, after considering those factors and affording great weight

to Rainey’s choice to continue DeVoogd’s representation, concludes

that the presumption of continued representation has been

overcome, it may reinstate the judgment of conviction, from which

Rainey may separately appeal.4 Otherwise, Rainey is entitled to a

new trial. See People v. Cardenas, 2015 COA 94M, ¶ 19 (violation of

a defendant’s right to counsel of choice is structural error).

JUDGE JOHNSON and JUDGE VOGT concur.

4 In light of our disposition, we decline to address Rainey’s
additional contentions. If, after remand, the judgment of conviction
is reinstated and Rainey appeals, he may re-raise his other claims
at that time.

17