Opinion
No. 105,858.
2012-08-10
STATE of Kansas, Appellee, v. Donnie Lee RODRIGUEZ, Appellant.
Appeal from Finney District Court, Michael L. Quint, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Eric Fournier, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court, Michael L. Quint, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Eric Fournier, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Donnie Lee Rodriguez appeals his felony conviction and sentence for failing to register under the Kansas Offender Registration Act as required by K.S.A. 22–4904(b). At sentencing, the district court denied Rodriguez' request for probation but granted a downward durational departure sentence of 32 months in prison.
The parties are well acquainted with the facts, so we need not recount them here. The barest of summaries is as follows. Rodriguez was required to register as an offender. He first did so in April 2009. He was obligated to reregister with the sheriff of the county where Rodriguez resided within 10 days following any change in his residence. Rodriguez acknowledged at trial that he understood this obligation. He “knew the rules.”
Rodriguez lived with his grandmother, Sharon Guillen. Guillen planned to sell her home and move out, so Rodriguez had to find a new place to live. In anticipation of the sale, Rodriguez moved out of Guillen's home on April 5, 2010, and moved into the home of his aunt, Wanda Rivera. He told his probation officer, Carlos Murillo, about the move that same day. Rodriguez had 10 days to register with the sheriff showing his aunt's address. He did not register with his new address until April 30, 2010.
At trial Rodriguez claimed he did not move from his grandmother's house until after she sold it. He said he finally moved out on April 20, 2010, and registered in timely fashion 10 days later on April 30, 2010. But the State's rebuttal witness, Richard Salas, testified that he bought the grandmother's house and moved into it on April 9, 2010, not April 20, 2010.
Motion to Withdraw
On appeal Rodriguez claims the district court erred in denying his lawyer's pretrial motion to withdraw or, in the alternative, in denying the motion for a continuance. We consider the withdrawal issue using the abuse of discretion standard. The defendant has the burden of showing an abuse of discretion. State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007).
The day before trial, Rodriguez' defense counsel moved to withdraw, stating that “the attorney-client relationship has deteriorated to a point that the parties can no longer effectively work together.” Counsel stated that her relationship with Rodriguez had “completely deteriorated” and that she was “completely unprepared” for trial. The district court took up the motion on the morning of trial.
Rodriguez had refused to meet with his lawyer on three occasions in the 2 days leading up to trial. Rodriguez told the court that he never had a relationship with his lawyer. He said he refused to meet with her because it “was too late even to start a relationship” or to prepare a strategy.
The district court is not required to appoint new counsel unless the defendant shows “ ‘justifiable dissatisfaction’ “ with counsel. State v. Sykes, 35 Kan.App.2d 517, 525, 132 P.3d 485,rev, denied 282 Kan. 795 (2006). Justifiable dissatisfaction “includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant.” State v. Bryant, 285 Kan. 970, Syl. ¶ 14, 179 P.3d 1122 (2008). In order to establish justifiable dissatisfaction, the defendant must point to specific facts that demonstrate an actual conflict of interest, irreconcilable conflict, or a complete breakdown in communications. See State v. McGee, 280 Kan. 890, 896, 126 P.3d 1110 (2006). “The relationship between a defendant and his or her lawyer can often be strained at times. However, the existence of a strained relationship does not necessarily amount to an irreconcilable conflict or demonstrate a complete breakdown in communications. [Citations omitted.]” State v. Cook, 45 Kan.App.2d 468, 480, 249 P.3d 454 (2011).
Rodriguez claims there was a complete breakdown in communication based on the fact that (1) he did not know whether the witnesses he wanted had been subpoenaed and were available to testify; and (2) he had not been allowed to listen to a redacted recording of a jail phone conversation.
Mike Johnson, the investigator for the Public Defender's Office, advised the court that he had interviewed Rodriguez weeks earlier regarding his testimony and the identity of potential trial witnesses. Rodriguez provided Johnson with the names of several potential witnesses whom Johnson contacted and interviewed. In the course of the hearing, the court then allowed Rodriguez time to visit with his attorney to determine whether the proper witnesses were available to testify on his behalf. After this discussion took place, Rodriguez said he was satisfied that his witnesses were available.
With respect to the issue of the redacted recording of a jail phone call, the district court delayed the start of trial to give Rodriguez and his counsel a chance to review the recorded conversation. Neither the State nor Rodriguez introduced this recording at trial.
We find no complete breakdown in communications between Rodriguez and his lawyer. See Sykes, 35 Kan.App.2d at 530–31. Besides, Rodriguez cannot refuse to cooperate with his lawyer and then claim a complete breakdown of communication. See State v. Ferguson, 254 Kan. 62, 73–76, 864 P.2d 693 (1993). The district court did not abuse its discretion in denying defense counsel's last minute motion to withdraw.
Motion for a Continuance
With respect to Rodriguez' alternative argument, that his motion for a continuance should have been granted, we also apply the abuse of discretion standard of review. See State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007).
Defense counsel's request for a continuance was based on her asserted need to prepare Rodriguez for his testimony. The district court gave Rodriguez a chance to voice his preference as to whether to take time to listen to the recorded jail conversation or to continue the trial. Rodriguez indicated he would prefer to listen to the phone recording at that time. He would then wait until after the State rested its case to decide whether he wanted to testify.
After the State rested its case, Rodriguez decided to testify. The court permitted him to provide a narrative answer regarding his overall situation. Rodriguez testified that he did not move out of his grandmother's house until April 20, 2010.
It is apparent that defense counsel had visited with Rodriguez about this claim because she asked the court to permit Rodriguez to answer in a narrative form so as not to require her to ask specific questions that she believed would cause her to violate her ethical duty of candor to the court. On appeal, Rodriguez argues that a continuance would have permitted him and his counsel to “develop a more cohesive defense.” But he fails to explain what that more cohesive defense would have been. Rodriguez fails to show how the denial of his continuance motion prejudiced him.
Rodriguez relies on State v. Weigand, 204 Kan. 666, 671, 466 P.2d 331 (1970), in which the Supreme Court found the district court abused its discretion in refusing to grant a continuance in order for a newly appointed attorney to prepare for trial. But Rodriguez' counsel was not newly appointed. Her investigator had met with Rodriguez weeks before trial and interviewed witnesses based on the information that Rodriguez had provided. The district court delayed the start of the trial for several hours to give counsel time for final preparations. The issues for trial were rather straightforward. The witnesses and prospective jurors were there and ready to go. “When, as here, a jury trial is involved, there is additional potential inconvenience to jurors and to the court.” United States v. Riveria, 900 F.2d 1462, 1475 (10th Cir.1990). The requested delay was prompted by Rodriguez' own conduct. He has not shown prejudice from the adverse ruling on his motion. Rodriguez has failed to show that the district court abused its discretion in denying the continuance motion which was raised on the morning of trial. See State v. Anthony, 257 Kan. 1003, 1019, 898 P.2d 1109 (1995).
Prosecutorial Misconduct in Closing Argument
Next, Rodriguez claims that the prosecutor inappropriately commented on the credibility of Rivera, Rodriguez' aunt, during closing argument. Rodriguez argues that the comment violated his right to a fair trial.
The standards for evaluating a prosecutor's conduct in situations such as this are well known and are spelled out in detail in State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011), and in State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). Rodriguez complains about the following statement during closing argument:
“Now you can decide. You're allowed to use your common sense. You're allowed to use the bias—look at every bias and including the defendant to decide why they may nor may not be being completely honest with you. What would Mr. Salas' bias be? He doesn't even know the guy. He happened to buy a house. So he was asked to come and say, when did you move into the house. Just basically what I asked. And do you know this guy now. What possible reasons would the defendant have for telling you he lived there until the 20th?
“You can decide that. Neither his grandma or his aunt said he lived at 503 Hudson. You heard that, right? Neither of them said that. His aunt seemed very sketchy about where he lived. His grandma really isn't sure either. But the question is, his address changed. The address the sheriff had—and that's the important thing.” (Emphasis added.)
Rodriguez claims the reference to “sketchy” was an improper comment on the credibility of witness Rivera. See State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). It was not. In Rivera's very short testimony (her direct testimony consisted of one page of the trial transcript), she indicated that Rodriguez lived with her in April 2010. The prosecutor's comment referred to the lack of detail and certitude in Rivera's testimony. Rivera's testimony was more like a sketch rather than a completed rendering. It lacked the fullness and detail of a completed work. A sketch is not untrue, it is just incomplete. Here, the prosecutor's remark was fair comment on the evidence and was not improper.
Denial of Probation
Finally, Rodriguez argues that the district court abused its discretion in denying his motion for probation. The threshold question is whether we have jurisdiction to consider this claim.
Rodriguez did not receive a presumptive sentence. His presumptive disposition was imprisonment, and that is what the court ordered when it denied his motion for probation. But in doing so the court granted Rodriguez' motion for a durational departure and sentenced him to a significantly shorter sentence than provided by the sentencing guidelines.
In State v. Crawford, 21 Kan.App.2d 169, 170, 897 P.2d 1041 (1995), this court held that the Kansas sentencing guidelines bar an appellate court from considering a challenge to a departure sentence by a party who has received a favorable departure, limiting appellate jurisdiction to those instances in which the court has departed adversely to the appealing party. Applying Crawford to the facts now before us, it is apparent that we have no jurisdiction to consider Rodriguez' sentencing issue and, therefore, dismiss it.
Affirmed in part and dismissed in part.