Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court en banc reversed a judgment connected to the Sixth Amendment.
Robert Rainey was charged with nine counts connected to alleged domestic violence. A trial date was set for January 2017, and Sara Schaefer was assigned as his public defender. The trial was delayed. In February 2017, Rainey appeared with another public defender, Neil DeVoogd, who took over Rainey’s case. There was another delay in the trial and the court reset it for March 6, 2017.
At a pretrial readiness conference March 3, DeVoogd said he wouldn’t be available March 6 due to pre-existing vacation plans. He said he accepted the March 6 date because a plea deal was being negotiated, and he didn’t anticipate the case going to trial. Rainey offered to waive the speedy-trial deadline to get a continuance so DeVoogd could represent him.
The court refused to grant the continuance contending it had a tough time getting a judge to cover Rainey’s trial and observed the proper time for DeVoogd to raise his vacation plans was when it set the trial date two weeks earlier. It noted, if the court had to reset Rainey’s trial again, it wouldn’t be until July because of docket congestion.
The trial court did observe Rainey’s case was factually simple and counsel wouldn’t need a lot of time to prepare. DeVoogd concluded he couldn’t think of any reason why another public defender couldn’t adequately prepare over the weekend.
The trial took place March 6 after Rainey’s two new attorneys announced they were ready. Rainey was convicted by a jury on two of the nine counts, second-degree kidnapping and criminal mischief, with a further finding the crimes constituted acts of domestic violence.
Rainey appealed, arguing the trial court violated his Sixth Amendment right to continued representation of appointed counsel when the court denied his request for a continuance, forcing him to proceed with public defenders other than DeVoogd.
The Colorado Court of Appeals reversed the trial court’s judgment, holding that while defendants don’t have an initial right to choose their appointed counsel, once an attorney is appointed, they have a constitutional right to choose continued representation by a specific attorney.
Prosecutors petitioned the Colorado Supreme Court for review, which it granted. The high court held indigent defendants have an interest in continuity of counsel that needs to be considered by a court, but it isn’t a right guaranteed by the Sixth Amendment. The Colorado Supreme Court contended any Sixth Amendment right to continuity of counsel is a component of a right to choose counsel and it’s settled law that a defendant doesn’t have a right to choose a particular appointed attorney.
The high court further found a court considering a requested continuance to allow appointed counsel to represent a defendant at trial, should consider whether the denial of a continuance and substitution of counsel would prejudice the defendant. Given the record, the Colorado Supreme Court found Rainey wasn’t prejudiced by the fact he was represented by counsel other than DeVoogd.
The Colorado Supreme Court reversed the appeals court’s decision and remanded for more proceedings consistent with the opinion.
Colorado Supreme Court Justice Richard Gabriel dissented, arguing the state high court has continuously recognized a criminal defendant’s Sixth Amendment right to continuity of representation by court-appointed counsel.
Gabriel noted the high court sent a message that court-appointed defense counsel are fungible and can be substituted in lieu of granting a reasonable continuance whenever a court decides a substitution will be more convenient for the court.
The Colorado Supreme Court en banc reversed another judgment in a companion case to Rainey.
In April 2017, William Davis was charged with vehicular eluding, reckless driving, and driving under restraint after being accused of failing to yield to a Parks and Wildlife officer at Golden Gate Canyon State Park. Garen Gervey was appointed as Davis’ public defender, and a trial date was set for November of that year.
In October 2017, Davis, through counsel, moved for a continuance on multiple grounds including because Gervey had another trial set for the same day, but the court denied the motion.
Davis filed another motion to continue the trial, asserting a right to continued representation by counsel of choice under the 2002 Colorado Supreme Court case People v. Harlan. The court denied the motion after a hearing where it emphasized the scheduling difficulties it was having setting a trial date, and it was essentially a traffic case that would likely be tried in a day.
In the denial of the motion, the court also observed from the 1997 Colorado Supreme Court case People v. Coria, that the substitution of one public defender for another doesn’t violate the Sixth Amendment right to counsel, absent evidence of prejudice. The court found it perceived no prejudice because it wouldn’t take a competent attorney any time to prepare and denied Davis’ motion.
On the morning of the trial, Davis, through a new substituted counsel, asked for another continuance. The court denied the motion. A jury convicted Davis of vehicular eluding, reckless driving and driving under restraint.
Davis appealed, asserting the trial court should have granted his continuance because he had a right to be represented by his previous public defender. The appeals court adopted the Colorado Court of Appeals holding from People v. Rainey, finding indigent defendants have a constitutional right to continued representation by appointed counsel.
The appeals court reversed Davis’ conviction and remanded for more proceedings.
Prosecutors petitioned the Colorado Supreme Court for review, which it granted. The high court followed some of the same reasoning in its decision in People v. Rainey and reversed the Colorado Court of Appeals decision. It remanded the case for further proceedings consistent with the opinion.
Justice Gabriel dissented again, with some of his arguments being similar to his dissent in Rainey.