Opinion
Case No. 20050445-CA.
Filed June 15, 2006. (Not For Official Publication).
Appeal from the Second District, Ogden Department, 031905969 The Honorable Michael D. Lyon.
Dee W. Smith, Ogden, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Defendant appeals from four convictions of rape of a child, first degree felonies, see Utah Code Ann. § 76-5-402.1 (2003), and three convictions of sodomy upon a child, first degree felonies, see id. § 76-5-403.1 (2003). We affirm.
The applicable statutes have remained the same for all times relevant to this appeal. We therefore cite to the current codification of the applicable statutes as a convenience to the reader.
This appeal arises out of the trial court's refusal to grant Defendant's request to substitute counsel. Although Defendant had "a right to have counsel appointed to represent him, he [did] not have a constitutional right to a lawyer other than the one appointed, absent good cause." State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.App. 1987) (internal citation omitted). We review for correctness the trial court's determination that Defendant did not have good cause and, therefore, had no constitutional right to substitute counsel. See State v. Valencia, 2001 UT App 159, ¶ 9, 27 P.3d 573 ("We first consider whether the Sixth Amendment required the trial court to appoint substitute counsel. Issues of constitutional interpretation are questions of law, which we review for correctness." (internal citations omitted)). Even if Defendant failed to show good cause, and therefore did not have a constitutional right to substitute counsel, the trial court had discretion to appoint substitute counsel. See id. at ¶ 12. We review the trial court's refusal to do so for abuse of discretion. See id. at ¶ 10; see also State v. Scales, 946 P.2d 377, 381 (Utah Ct.App. 1997) ("Whether to allow an indigent defendant's attorney to withdraw after the attorney has expressed concern about his or her relationship with the defendant is a matter committed to the trial court's sound discretion and will be reversed only for an abuse of discretion. However, courts, of course, have no discretion to allow a violation of a defendant's constitutional right to counsel." (internal citations omitted)).
It should be noted that Defendant moved to substitute counsel on the morning that trial was set to begin. Courts are "aware of the propensity for manipulation of the process by criminal defendants and some have cautioned that `requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.'" State v. Pursifell, 746 P.2d 270, 273 (Utah Ct.App. 1987) (citation omitted). Therefore, "motions for substitute counsel are less likely to be granted when they would result in a significant delay or mistrial or would otherwise impede the prompt administration of justice."Id.; see also State v. Vessey, 967 P.2d 960, 962 n. 1 (Utah Ct. App. 1998) ("Numerous jurisdictions have held that if a defendant makes . . . a motion at the threshold of the trial to substitute counsel, the trial court is accorded particularly broad deference to reject motions that it concludes are merely bad faith delaying tactics.").
Here, the trial court believed that Defendant was "playing games" and trying to "manipulat[e] the system" and use his motion to substitute counsel "as a ruse to further delay the proceedings hoping to gain some advantage." The trial court therefore determined that, "in the interest of justice, this case needs to go forward" and denied the motion because it was untimely, meritless, and "calculated just to further delay the proceedings . . . to the prejudice of the victim in this case."
Defendant argues that the trial court committed reversible error when it did not inquire into the complaint that Defendant allegedly filed against his attorney with the Utah State Bar (Bar Complaint). When a defendant expresses dissatisfaction with appointed counsel, the trial court
must make some reasonable, non-suggestive efforts to determine the nature of the defendant's complaints and to apprise itself of the facts necessary to determine whether the defendant's relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution or even to such an extent that his or her Sixth Amendment right to counsel would be violated but for substitution.
Pursifell, 746 P.2d at 273; see also Valencia, 2001 UT App 159 at ¶ 13. "Even when the trial judge suspects that the defendant's requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial, perfunctory questioning is not sufficient." Pursifell, 746 P.2d at 273.
Regardless of a trial court's duty to "make some reasonable, non-suggestive efforts to determine the nature of the defendant's complaints," id., a trial court's failure to investigate a defendant's substitution request does not warrant a reversal until good cause for substitute counsel is actually established,see State v. Vessey, 967 P.2d 960, 962-63 (Utah Ct.App. 1998); accord Valencia, 2001 UT App 159 at ¶¶ 13-14. "Good cause for substitute counsel includes conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict."Valencia, 2001 UT App 159 at ¶ 12 (quotations, citations, and alteration omitted). "To successfully show `good cause' for rejecting court-appointed counsel, a defendant must meet a heavy burden," Scales, 946 P.2d at 382, and "good cause for substitution of counsel cannot be determined solely according to the subjective standard of what the defendant perceives,"Pursifell, 746 P.2d at 274 (quotations and citations omitted);see also Scales, 946 P.2d at 382 (stating that good cause "may not be based solely on the defendant's illegitimate complaints or subjective perception of events").
The trial court did not commit reversible error when it failed to inquire into the purported Bar Complaint. In State v. Pursifell, 746 P.2d 270 (Utah Ct.App. 1987), defendant sought substitute counsel because he had not received certain discovery motions and had met with his attorney only once. See id. at 272. However, defendant "focused his remarks on the discovery matter," and
[a]s a result, the court's follow-up questions of defendant and counsel were exclusively devoted to that matter. It clearly would have been preferable had the court inquired further into the other concern alluded to by defendant. . . . Failure to do so, however, was not reversible error in view of the emphasis defendant placed on his other concern and since a single, face-to-face meeting before trial is not, in itself, indicative of a lack of preparation in cases like the instant one.
Id. at 273-74.
Similarly here, in support of his motion to substitute counsel, Defendant alleged that his attorney lost alibi information and had not contacted certain alibi witnesses. Defendant did not even raise the issue of his purported Bar Complaint until after the trial court denied his motion to substitute counsel. Moreover, nothing in the record implies that the information contained in the purported Bar Complaint rose to the level of good cause. Indeed, on appeal, Defendant does not argue as such, but instead contends that he had a conflict of interest with his attorney — and therefore good cause existed — simply because he allegedly filed the Bar Complaint.
However, we have held that an indigent defendant does not have a constitutional right to substitute counsel simply because he lodged a complaint against his appointed attorney with the Utah State Bar. See, e.g., State v. Scales, 946 P.2d 377, 381-383 (Utah Ct.App. 1997). Furthermore, "we do not agree with [Defendant] that the filing of a bar complaint against a public defender automatically entitles a defendant to new counsel. If such were the case, trial delays due to counsel substitutions would be endless." Shegog v. Commonwealth, 142 S.W.3d 101, 105-06 (Ky. 2004). Instead, we believe that
[a]s a matter of public policy, a defendant's filing of a bar complaint against his attorney should not [automatically] mandate removal of that attorney. A ruling to the contrary would encourage the filing of groundless bar complaints by defendants whose only motivation is to delay their own day of reckoning.
State v. Michael, 778 P.2d 1278, 1280-81 (Ariz.Ct.App. 1989); see also Carter v. Armontrout, 929 F.2d 1294, 1300 (8th Cir. 1991) ("We recognize that a pending lawsuit between a defendant and his attorney may give rise to a conflict of interest requiring appointment of new counsel. However, a defendant who files a lawsuit against his attorney does not necessarily create such a conflict." (internal citation omitted)); People v. Johnson, 592 N.E.2d 345, 355 (Ill.Ct.App. 1992) (recognizing "the danger of any holding implying that defendants can manufacture conflicts of interest by initiating lawsuits against their attorneys" and stating that "a patently frivolous lawsuit brought by a defendant against his or her counsel may not, alone[,] constitute cause for appointment of new counsel" (quotations and citation omitted)); State v. Sinclair, 730 P.2d 742, 744 (Wash.Ct.App. 1986) ("[Defendant] argues that, since he had filed a formal complaint against his lawyer with the State Bar Association, her continued representation would have created a conflict of interest. . . . Were that sufficient to disqualify court-appointed counsel, however, a defendant could force the appointment of a new attorney simply by filing such a complaint, regardless of its merit."). Because nothing in the record implies that the information contained in the purported Bar Complaint constituted good cause, Defendant did not have a constitutional right to substitute counsel simply because he lodged a complaint against his appointed attorney with the Utah State Bar.
Quite simply, it "would have been preferable" had the trial court inquired into Defendant's purported Bar Complaint.Pursifell, 746 P.2d at 273. However, failure to do so did not constitute reversible error "in view of the emphasis [D]efendant placed on his other concern[s]." Id. at 274. Furthermore, just like counsel's failure to meet with a client beyond "a single, face-to-face meeting before trial" does not, in itself, constitute good cause, id., Defendant's purported Bar Complaint did not, in itself, constitute good cause. We therefore hold that the trial court did not err or abuse its discretion by denying Defendant's motion to substitute counsel, and we affirm Defendant's convictions.
Affirmed.
WE CONCUR: Pamela T. Greenwood, Associate Presiding Judge and William A. Thorne Jr., Judge.