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Colorado Court of Appeals Opinions || July 16, 2015 Colorado Court of Appeals -- July 16, 2015
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Court of Appeals No. 12CA1536 The People of the State of Colorado, Plaintiff-Appellee, v. Israel P. Cardenas, Defendant-Appellant.
JUDGMENT REVERSED, SENTENCE VACATED,
Division IV Announced July 16, 2015 Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas Wilson, Colorado State Public Defender, Mark Evans, Deputy 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. 2014.
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¶1       Defendant, Israel P. Cardenas, appeals the judgment of conviction entered on jury verdicts finding him guilty of five counts of second degree burglary of a dwelling, one count of second degree burglary of a building, one count of attempted second degree burglary of a dwelling, five counts of theft ($1000-$20,000), and one count of theft ($500-$1000). We reverse and remand for a new trial. I. Background ¶2       According to the Peopleâs evidence, a plumber saw defendant leaving the area of a home for sale, taking the lockbox for the home with him. The plumber gave the homeowner the license plate number of the truck that defendant was driving, and the homeowner contacted police. The next day, the police began surveillance of defendant and watched as he drove around the Highlands neighborhood of Denver looking through the windows of many houses. Severаl days later, police saw defendant drive the truck to a home and then to a storage unit, where he unloaded a stove from the truck. ¶3       Defendant was arrested and admitted stolen property was in his apartment and in the storage unit. He also admitted to having burglarized nine residences in the Highlands neighborhood by taking appliances and show furniture from homes for sale. II. Right to Counsel of Choice ¶4       Defendant primarily contends, and we agree, that the courtâs failure to include him in a hearing on his attorneyâs motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions. A. Facts ¶5       Defendant was originally represented a public defender, but Douglas L. Romero (defense counsel) replaced the public defender on May 9, 2011. On November 22, 2011, defense counsel filed a motion to withdraw, stating: COMES NOW, Douglas L. Romero Esq., a Member of the Bar of the State of Colorado, moves this Court for an Order allowing Douglas L. Romero to withdraw as counsel of record for this Defendant and/or set a hearing on the matter. As grounds therefore, counsel states as follows: AS GROUNDSTHEREFORE [sic], counsel states as follows: 1. Also, [sic] substantial and irrecоncilable differences of opinion concerning the course of scope of representation have arisen between the Defendant and Counsel. 2. The differences are of a nature and at a level such that Counsel seeks to withdraw as Counsel in this matter. WHEREFORE, the undersigned requests that this Court grant his Motion to Withdraw from any further representation of the Defendant in this matter. ¶6       At а hearing on December 16, 2011, the trial court conducted a brief bench conference with defense counsel and the prosecutor on the motion to withdraw. The Court: My -- I donât know if new counsel can be prepared by the trial (indistinguishable -- parties talking over each other). [Prosecutor]: Okay. The Court: I would hope so. The motion to withdraw is, I guess, characteristically vague. I -- I can tell you that if this is rеally a financial issue and he objects, Iâm not sure I will grant the motion to withdraw. Is there something else going on? [Defense Counsel]: It isnât. This was initially filed by [defense counsel] so the issue heâs having is not only a violation of the terms of the retainer agreement but also just the -- the absence of any communication anymore -Âmaybe nonresponsiveness of -- of [defendant] to contact him and stay in communication. The Court: All right. Back in open court, the judge asked: The Court: [Defеndant], your attorney has asked to withdraw from representation in this case. Do you have any objection to that motion? [Defendant]: Yes, I do. But I donât -- I donât know what else to do. The Court: Well, when we were at the -- the bench I tried to get some sense of the scope of -- of the issues that were raised in the motion. There may be financial issues for which I would not necessarily release counsel, but [defense counsel] indicated that there were difficulties in -- in communication as well. Do you think thatâs a fair statement? [Defendant]: I -- I guess. The Court: You -- you wonât be unrepresented. Youâd be -- youâd qualify for the public defender since youâre in custody and youâd certainly have counsel in this case, and I would expect that counsel could be prepared by a -- a March 12th trial date. I wonder if it would make sense, if the People didnât object, to make some further record about the issues that have arisen between counsel and [defendant] outside the presence of the prosecutor in an in camera hearing. The court then set a further hearing in order to allow the parties to make a complete record on the motion to withdraw. However, the nеxt hearing would be in front of a new judge because the current judge was rotating to a civil docket. ¶7       At the next hearing before a new judge, the following occurred: The Court: All right. We set a review for this. There was a motion filed regarding withdrawal and quite frankly, I believe the in camera review was accomplished by [the prior judge]. Has he indicated to any of you the outcome of that in camera review, because I donât have any in camera records, and -- [Defense Counsel]: What -- The Court: -- looked all over for them. [Defense Counsel]: -- and what happened was [the prior judge] stated that he wanted to set a hearing for today. I believe today would have been the in camera review. The Court: Understood. [Defense Counsel]: So thereâs never been a previous in camera review. The Court: Okay. [Prosecutor]: And that was my understanding too. The Court: All right. All right. Well, [defense counsel], how do yоu intend to -- how -- how would you like to proceed on this? We certainly can go back in chambers, but your client canât come, so I -- I donât know who -- who it is you want me to talk to at this point -Âoff the record. [Defense Counsel]: In -- Iâve never dealt with this type of situation -- meaning with a motion to withdraw having to do an in camera hearing on it, so that was something that was requested by [the previous judge] and nоt by us, so certainly if youâve adopted this case, I guess we would just defer to how you wish to proceed on this. I mean I -- I have no specific method that I wish to operate on. I -- Iâve never dealt with it as just an in camera issue. The Court: Well the motion to withdraw was filed in essence by your office. [Defense Counsel]: Correct. The Court: And youâd stated in there in paragraph 2 that there was a difference of a nature аnd a level that counsel -- counsel seeks to withdraw. Iâm sure what [the prior judge] wanted to do was find out what those reasons were outside the presence of the district attorney. It doesnât necessarily have to be outside the presence of your client, but the way this courthouse is set up, thereâs not a lot we can do about it, I think. So at the moment, I guess I would ask you to join me back in chambers and weâll discuss some of the reasons that you were having and then I can rule on your motion. If I need to talk to your client, Iâll figure out a way to do that, so why donât we take a few minutes and you come back with me. (Whereupon the above proceedings concluded at 1:47 p.m. and the matter was recommenced in open court at 1:52 p.m.) The Court: The Court has heard things in chambers in support of the motion to withdraw as counsel and the Court has been able to substantiate what was placed in paragraph 2 - - that was pretty much what weâre going with. So therefore the motion to withdraw as counsel of record is granted at this point. [Defense counsel] will be allowed to withdraw from this case. Despite defendant being in the courtroom, the court madе no inquiry of him before granting the motion. The court then continued the case for an entry of appearance by the public defenderâs office. A public defender represented defendant throughout trial. B. Standard of Review
¶8       Crim. P. 44 governs an attorneyâs withdrawal in a criminal case. âAppellate courts review a trial courtâs ruling on an attorneyâs motion to withdraw for an abuse of discretion.â People v. DeAtley, C. The Right to Counsel and Crim. P. 44
¶9       âThe right to counsel is guaranteed by the Sixth Amendment to the U.S. Constitution.â Id. at ¶14 (citing U.S. Const. amend. VI); see People v. Alengi,
¶10       âThe right to select an attorney of choice whom the defendant trusts is considered central to the adversary system and of substantial importance to the judicial process.â Id. at ¶15 (citing People v. Brown,
¶11       âWhen a retained defense attorney files a motion to withdraw under Crim. P. 44(c), the trial court necessarily must make an inquiry into the foundation for the motion when balancing âthe need for orderly administration of justice with the facts underlying the request.ââ DeAtley, ¶15 (quoting Crim. P. 44(c)); cf. People v. Edebohls, ¶12       Pursuant to Crim. P. 44(d)(2), â[n]o hearing shall be conducted without the presence of the defendant unless the motion [to withdraw] is made subsequent to the failure of the defendant to appear in court as scheduled.â D. Analysis
¶13       It is undisputed that defendant was not present in chambers when his attorney spoke to the new judge about withdrawal. Because defendantâs presencе was required by the rules of criminal procedure, we conclude that this judge abused his discretion in granting the motion without including defendant in the proceedings. See Crim. P. 44(d)(2); see also Pearson v. Dist. Court, ¶14       Nevertheless, while acknowledging that defendant was not present at the meeting with defense counsel in chambers, the People argue that the courtâs statement when it came back on the record that it âhas been able to substantiate what was placed in paragraph 2 [of the motion to withdraw]â can âonlyâ be read to confirm that the court must also have spoken with defendant. We disagree. ¶15       This statement could likewise be interpreted to mean that the court, speaking only with defense counsel in chambers, âsubstantiate[d]â counselâs belief that âirreconcilable differences of opinion concerning the course of scope of representationâ necessitated his withdrawal. This alternate conclusion is supported by the brevity of the in camera hearing â merely five minutes â an unlikely amount of time for the court to have left the courtroom, discussed the motion with defense counsel, returned to the courtroom, and discussed with defendant his attorneyâs reasons for withdrawal, all before going back on the record.
¶16       Further, Crim. P. 44(c) requires that prior to allowing an attornеy to withdraw, the court âshall balance the need for orderly administration of justice with the facts underlying the request.â See also DeAtley, ¶15. Because the record is devoid of any analysis by the court balancing the need for orderly administration and the facts underlying the request, we also conclude the court abused its discretion for this reason. See DeAtley, ¶15; Pearson,
¶17       The People contend that the lack of record should be held against defendant. See, e.g., In re Marriage of Rivera,
¶18       Crim. P. 44 does not provide a remedy for a violation of its mandate. Harmless error analysis generally applies to violations of statutory rights. See People v. Martinez,
¶19       However, violation of a defendantâs right to counsel of choice is structural error. See Anaya, ¶20       We conclude that structural error applies here, where defendantâs counsel was allowed to withdraw in violation of Crim. P. 44(d)(2) and Crim. P. 44(c), because permitting counsel to withdraw over defendantâs objection, based on information provided to the court outside of his presence and without balancing the need for orderly administration of justice with the facts underlying the request, denied him his counsel of choice. Accordingly, we must reverse his convictions. III. Right to Be Present
¶21       Additionally, â[a] defendant has a right to be present at every critical stage of his or her criminal trial.â Ragusa,
¶22       A critical stage of criminal proceedings is one where there exists more than a minimal risk that the absence of the defendant might impair his or her right to a fair trial. Cf. Key v. People,
¶23       We review allegations of a denial of the right to be present at a critical stage under the constitutional harmless error standard. Key,
¶24       Without knowing what communication occurred between counsel and the court, defendantâs absence created a risk that his right to a fair trial was impaired. His inability to hear the discussion between his counsel and the court, and the courtâs subsequent immediate grant of counselâs motion to withdraw, convinces us that the proceeding in chambers was âcriticalâ and that defendantâs absence was not harmless beyond a reasonable doubt. Cf. People v. Delgadillo, IV. Conclusion ¶25       We need not address dеfendantâs other assertions of error because they are unlikely to arise again on remand. ¶26       The judgment of conviction is reversed, defendantâs sentence is vacated, and his case is remanded for a new trial. JUDGE WEBB and JUDGE PLANK concur.
1 We reject the Peopleâs contention that any error by the trial court should be reviewed for plain error because defendantâs objection gave âno indication the objection was based on his right to counsel of choice.â Because defendantâs attorney was requesting withdrawal, defendant was placed in the untenable position of having counsel but essentially representing himself. Under these circumstances, we believe the defendantâs objection sufficiently alerted the trial court to his concern that counsel of his choice was at issue. See, e.g., People v. Pahl, These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here. Colorado Court of Appeals Opinions || July 16, 2015 Back |
2015 COA 94
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