Opinion
No. CR 08-947 JB.
September 15, 2008
Norman Cairns, Assistant United States Attorney, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Kenneth Gleria, Albuquerque, New Mexico, Attorney for the Defendant.
Ernesto Ramos-Lopez, Estancia, New Mexico, Defendant.
SEALED MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant's Unopposed Motion to Dismiss Defendant's Counsel, filed August 26, 2008 (Doc. 14) ("Defendant's Motion"); and (ii) Kenneth A. Gleria's Motion to Withdraw as Counsel, filed August 27, 2008 (Doc. 15) ("Motion to Withdraw"). The Court held a hearing on September 11, 2008. The primary issue is whether the Court should grant Defendant Ernesto Ramos-Lopez' request that the Court dismiss his current attorney, Kenneth Gleria, and appoint him a new attorney. Because the Court concludes that Ramos-Lopez has not demonstrated a sufficient rift between him and his attorney, and because it is not in Ramos-Lopez' best interests to receive new counsel, the Court will deny both motions at this time.
PROCEDURAL BACKGROUND
On May 7, 2008, Ramos-Lopez pled guilty to a Criminal Information charging him with a violation of 8 U.S.C. §§ 1326(a) and (b) — Reentry of a Removed Alien. The United States Probation Office disclosed the Presentence Investigation Report ("PSR") on or after June 25, 2008. Ramos-Lopez had no objection to the PSR's contents. The Court scheduled the sentencing for Ramos-Lopez for September 26, 2008.
On August 26, 2008, Ramos-Lopez, proceeding pro se, moved the Court for an order dismissing Mr. Gleria as his counsel. The day after Ramos-Lopez filed his motion, Mr. Gleria moved the Court for its order allowing him to withdraw as counsel for Ramos-Lopez. Mr. Gleria stated in his motion that he thought his communication with Ramos-Lopez was good and that he was willing to continue to represent him, but that he was requesting to withdraw because Ramos-Lopez wanted a different attorney. See Motion to Withdraw ¶ 2, at 1.
At the hearing, the United States did not take a position on the motion, but indicated that it did not believe it was in Ramos-Lopez' best interests to change counsel while plea negotiations were proceeding and while they were proceeding favorably to him. See Transcript of Hearing at 2 (taken September 11, 2008) ("Tr."). After the Court excused the United States from the courtroom to talk to Ramos-Lopez and Mr. Gleria, Ramos-Lopez nonetheless requested that the Court dismiss Mr. Gleria as his attorney and appoint him a different attorney. See id. at 6. Mr. Gleria opposed the motions at the hearing and stated that he believed he should remain as Ramos-Lopez' counsel.
The Court's citations to the transcript of the hearing refer to the Court Reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
ANALYSIS
"To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Vargas, 316 F.3d 1163, 1165-66 (10th Cir. 2003) (internal citations and quotation marks omitted). Determining whether dismissal or substitution of counsel appointed for a criminal defendant is appropriate is ultimately a matter that lies within the district court's discretion. See id. at 1165. The Court does not believe that Ramos-Lopez has met the heavy burden of showing "a complete breakdown of communications" or similarly severe problems with his counsel, or that substitution of counsel would be in Ramos-Lopez' best interests at this time.
While it is not completely clear from his motion why Ramos-Lopez wants new counsel, it appears that there are three reasons. First, Ramos-Lopez appears to suggest that Mr. Gleria is not competent. See Defendant's Motion ¶ 1, at 1 (citing NMRA 16-101 ("Competence. A Lawyer shall provide competent representation to a Client."); Hilliard v. Ins. Co. of Zn. Am., 17 N.M. 664, 132 P. 249 (1993)). Ramos-Lopez states that "so much to do" is not a sufficient excuse. Defendant's Motion at 1. Second, Ramos-Lopez appears to complain about the communication between him and Mr. Gleria. See Defendant's Motion ¶ 2, at 1 (citing NMRA 16-104 ("Communication. (A) A Lawyer shall keep a Client reasonably informed."); In re Reid, 116 N.M. 38, 859 P.2d 1065 (1993)). Ramos-Lopez contends that the lawyer shall provide accurate information to his or her client. Third, Ramos-Lopez complains that Mr. Gleria failed to act with reasonable diligence and promptness. See Defendant's Motion ¶ 3, at 1 (citing NMRA 16-103 ("Diligence. A Lawyer shall act with reasonable diligence and promptness."); In re Darnell, 1997-NMSC-025, 123 N.M. 323, 940 P.2d 171).
At the hearing, the Court inquired whether Ramos-Lopez and Mr. Gleria had been able to come to any agreement after they had filed their motions and after meeting in Court. See Tr. at 3. Ramos-Lopez said that they had not, and asked the Court to grant his unopposed motion to dismiss his counsel and requested that the Court appoint a different attorney to represent him. See id. The Court questioned Ramos-Lopez about why he wanted a new lawyer, about his relationship with Mr. Gleria, about his opinions of the quality of Mr. Gleria's representation, and about what he would have his attorney do differently. See id. at 4-5. Ramos-Lopez' main concern was that he thought he was going to get a sentence that was too long, and he said he was not sure whether his attorney was good or not. See id. He also stated that Mr. Gleria had not given him all his paperwork and had once failed to meet with him as promised. See id. at 5.
Mr. Gleria requested in his motion that he be allowed to withdraw as Ramos-Lopez' counsel, but at the hearing he asked that the Court deny both his and Ramos-Lopez' motions. See id. at 6. He also stated that he was communicating well with Ramos-Lopez and was working especially hard on his behalf because of the severity of the charges he faced. See id. Mr. Gleria stated that he was far along in time-sensitive plea negotiations with the United States on Ramos-Lopez' behalf and that it would be best if he remained as counsel. See id. at 7. Mr. Gleria also noted that he believed the initial PSR overstated Ramos-Lopez' criminal history, but that through informal negotiations he was able to obtain a reduction in Ramos-Lopez' criminal history category that would result in a recommended sentencing range eleven months lower. See id. at 7. Mr. Gleria said he believed that, if new counsel were appointed, the plea agreement with the United States would probably fall apart and Ramos-Lopez would likely face a longer sentence. See id. at 9. Finally, he noted that he did not give Ramos-Lopez a copy of the PSR because it was prohibited, but that he did review it with Ramos-Lopez. See id. at 9.
The Court asked again if Ramos-Lopez was still interested in having his attorney dismissed after hearing from Mr. Gleria, and Ramos-Lopez stated that he still wished for a different lawyer.See id. at 11. While the Court understands Ramos-Lopez' apprehension about the possible sentence he faces, the Court does not see any indication that Mr. Gleria is doing anything other than vigorously and competently advocating for his client. Mr. Gleria says he is communicating well with his client, and Ramos-Lopez has raised only a couple of minor problems with the relationship. There is no indication of any serious breakdown in the relationship between Ramos-Lopez and Mr. Gleria, or any genuine question about Mr. Gleria's competence or devotion in this matter. Given the state of plea negotiations between Mr. Gleria and the United States, the Court also believes that Ramos-Lopez' interests would not be well served by replacing his counsel at this time. The Court will therefore, as it stated at the hearing, deny the motions. The Court will not preclude Ramos-Lopez from renewing his motion at a later date, but will require him to retain his current counsel through Saturday, September 13, 2008, at the least, when they plan to meet at the prison. See id. at 12. If Ramos-Lopez still feels that he requires new counsel at that point, he will be able to renew his motion.
IT IS ORDERED that the Defendant's Unopposed Motion to Dismiss Defendant's Counsel and Kenneth A. Gleria's Motion to Withdraw as Counsel are denied without prejudice.