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                                                        ADVANCE SHEET HEADNOTE
                                                                     March 4, 2019

                                       2019 CO 15

No. 16SC584, People v. Travis—Sixth Amendment—Counsel of Choice—Motion to
Continue—Abuse of Discretion.

      The People challenge the decision of a division of the court of appeals that

concluded that Travis’s request to “look for and pay for a lawyer” was an invocation of

her Sixth Amendment right to be represented by counsel of her choice. The supreme

court holds that Travis’s request did not implicate her Sixth Amendment right to counsel

of her choice and that the trial court’s decision to deny Travis’s request to continue her

trial to “look for and pay for a lawyer” was not an abuse of discretion. Accordingly, the

supreme court reverses the division’s decision and remands for proceedings consistent

with this opinion.
                    The Supreme Court of the State of Colorado
                    2 East 14th Avenue • Denver, Colorado 80203

                                     2019 CO 15

                        Supreme Court Case No. 16SC584
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 13CA1431

                                     Petitioner:

                        The People of the State of Colorado,

                                          v.

                                    Respondent:

                                 April Rose Travis.

                                Judgment Reversed
                                     en banc
                                   March 4, 2019


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
       Denver, Colorado

Attorneys for Respondent:
Megan A. Ring, Public Defender
Kamela Maktabi, Deputy Public Defender
      Denver, Colorado




JUSTICE HART delivered the Opinion of the Court.
¶1    On the day her trial was set to begin, April Travis told the court that she was

hoping she could have more time “to look for and pay for an attorney.” The trial court

denied the request to continue the case, noting that the trial had previously been

continued and Travis was already being represented by a public defender. Travis

appealed that decision, arguing that her request to look for a lawyer was an invocation

of her Sixth Amendment right to be represented by counsel of her choice. A division of

the court of appeals agreed, concluding that because Travis had invoked that right, the

trial court was required to make a record that it had reviewed each of the factors

elaborated in our decision in People v. Brown, 2014 CO 25, 322 P.3d 214.

¶2    The right to be represented by counsel of the defendant’s choosing is not

implicated by a bare request to “look for and pay for” a new lawyer. The trial court was

therefore not obligated to review the Brown factors, and its decision to deny Travis’s

trial-day continuance request was not an abuse of discretion. Accordingly, we reverse

the decision of the court of appeals and remand for proceedings consistent with this

opinion.

                           I. Facts and Procedural History

¶3    On November 20, 2011, Travis and her roommate, a disabled woman for whom

Travis was acting as a caregiver, got into a fight. Travis punched her roommate in the

face, hit her with a mop handle multiple times, tore out clumps of her hair, and stabbed

her in the arm with a kitchen knife. Travis was charged with two counts of assault in the

second degree and felony menacing.



                                            2
¶4     On January 19, 2012, the public defender filed an entry of appearance. On June 4,

2012, Travis entered a not guilty plea as to all charges, and the court set Travis’s case for

trial on November 26, 2012. Prior to the November 2012 trial date, Travis requested a

continuance so that she could investigate what she described as issues regarding the

victim’s character. The People objected to this request for a continuance, but the trial

court found good cause and continued the jury trial. The case was reset for trial on April

15, 2013.

¶5     At the pretrial conference, which was held five days before the rescheduled trial,

Travis’s counsel explained to the court that they had been unsuccessful in their attempts

to serve the witness who was the basis for Travis’s previous motion to continue. The

witness was not an eyewitness to the events that formed the basis for the charges, but

would, apparently, have spoken to the victim’s character and credibility. The trial court

told Travis that even if she was unable to secure this witness for trial, he would not grant

an additional continuance.

¶6     On the morning of trial, Travis made the following request: “My request was that

I was going to look for and pay for an attorney. I don’t feel this case is fair regarding [the

victim]. There’s a lot of stuff that needs to come out about her. I don’t think it’s fair to

me.” The court then stated:

              Well, Ms. Travis, I understand that. This case has been
              pending for a very long time. You have had plenty of time to
              decide if you were wanting to hire counsel. [Your public
              defenders] are extremely experienced and careful attorneys.
              They have filed all of the appropriate motions. They have
              worked very hard on your case.


                                              3
              There are rulings that the Court makes that are the Court’s
              responsibility. [Your public defenders] filed motions and
              made requests, some of which I granted and some of which I
              denied. Regardless of who the attorney is standing in front of
              me, I make legal decisions. I don’t base them on personalities.

              The Court is not going to continue this case. If you are
              dissatisfied with their representation because you think that
              they are not adequately representing you and you wish to
              proceed to trial on your own today, I can advise you and you
              can do that.

              It is not something that I advise anybody who is faced,
              certainly not with a felony that carries a mandatory prison
              sentence, to do. It is always a person’s right. I can advise
              someone of that right but having presided over this case for
              as long as I have, I know how hard [your public defenders]
              have been working on your behalf.

              There’s nothing apparent to me that would indicate that
              they’re providing you with inadequate or ineffective
              assistance of counsel.

              ...

              If you want to make a record, Ms. Travis, that’s up to you.
              . . . Are there other things you wanted to present to me
              today?

Travis responded, “No.” The court next asked whether Travis wanted to proceed with

her appointed counsel, to which Travis responded, “Yes.” The case then proceeded to

trial, and the jury convicted Travis.

¶7     On appeal, Travis argued that her statement that she wanted “to look for and pay

for” an attorney was an invocation of her Sixth Amendment right to counsel of her choice.

The court of appeals agreed, concluding that our decision in Brown required the trial court

to make a record that it had reviewed the eleven factors set out in that decision even when


                                            4
there is no suggestion that new counsel has been identified or retained. We granted the

People’s petition for certiorari.1

                                     II. Applicable Law

¶8       The Sixth Amendment to the United States Constitution has long been interpreted

to afford a criminal defendant the right to be represented by counsel of his or her choice.

U.S. Const. amend. VI. We recently recognized that the “right to hire counsel of choice

includes the right to fire that counsel.” Ronquillo v. People, 2017 CO 99, ¶ 4, 404 P.3d 264,

266. This right, however, is not absolute. It does not, for example, “extend to a defendant

who requires counsel to be appointed for him.” Id. at ¶ 18, 404 P.3d at 268. Indigent

defendants have a right to effective assistance of counsel, but not to counsel of their

choice. Id. Further, there are times when “judicial efficiency or ‘the public’s interest in

maintaining the integrity of the judicial process,’ may be deemed more important than




1   We granted certiorari to review the following issues:
         1. Whether the eleven-factor balancing test in People v. Brown, 2014 CO 25,
            322 P.3d 214, applies when a defendant does not invoke her right to
            counsel of choice, but rather requests additional time only to decide
            whether to look for replacement counsel and possibly invoke her right
            to counsel of choice.
         2. If People v. Brown, 2014 CO 25, 322 P.3d 214, applies in this case, whether
            reversal is required only if the defendant can show prejudice and that
            the prejudice could have been cured by a continuance.
         3. Whether the court of appeals erred in concluding that any error in
            denying the continuance cannot be harmless.

                                               5
the defendant’s interest in being represented by a particular attorney.” Brown, ¶ 17, 322

P.3d at 219 (quoting Rodriguez v. Dist. Court, 719 P.2d 699, 706 (Colo. 1986)).

¶9     In Brown, we considered how a defendant’s right to be represented by the counsel

of his choice should be balanced against the public’s interest in the fairness and efficiency

of the judicial system when a defendant asks for a continuance to allow a newly retained

lawyer to prepare to represent him at trial. Brown had retained a private attorney who

entered an appearance, filed a written motion for continuance, and appeared in court

with Brown several days before the trial was set to begin to argue that he needed

additional time to prepare. The court denied the requested continuance. We held that

when a defendant appears in court, even on the eve of trial, and asks for a continuance to

allow newly retained counsel to prepare, the trial court must conduct a multi-factor

balancing test to determine whether to grant the continuance. See id. at ¶ 24, 322 P.3d at

221.

¶10    The Brown “counsel of choice” factors are: (1) the defendant’s actions surrounding

the request and apparent motive for making the request; (2) the availability of chosen

counsel; (3) the length of continuance necessary to accommodate chosen counsel; (4) the

potential prejudice of a delay to the prosecution beyond mere inconvenience; (5) the

inconvenience to witnesses; (6) the age of the case, both in the judicial system and from

the date of the offense; (7) the number of continuances already granted in the case; (8) the

timing of the request to continue; (9) the impact of the continuance on the court’s docket;

(10) the victim’s position, if the Victims’ Rights Act applies; and (11) any other

case-specific factors necessitating or weighing against further delay. Id.

                                             6
¶11    A few years later, we held in Ronquillo that “the right to counsel of choice includes

the right to fire retained counsel” and to do so without a showing of good cause. ¶ 27,

404 P.3d at 269–70. In that case, Ronquillo had been represented by retained counsel, but

the lawyer-client relationship had broken down to such an extent that Ronquillo wanted

to fire his attorney and seek representation from the public defender. The trial court

found that Ronquillo could only seek a continuance to fire his attorney and seek public

representation if he could demonstrate “good cause” for the firing. We held that the right

to retain counsel of choice encompasses a right to fire that attorney without any showing

of good cause. If a defendant desires to terminate his chosen counsel and seek appointed

counsel, we concluded that “the court should determine whether the defendant is entitled

to a continuance under the test we set out in Brown.” Id. at ¶ 35, 404 P.3d at 270.

¶12    Trial courts have broad discretion in deciding whether to grant or deny a

continuance. In Brown and Ronquillo, we explained that a trial court making that decision

when the Sixth Amendment right to counsel of choice is at issue must demonstrate that

it weighed the full range of factors that might affect its exercise of discretion. When the

right to counsel of choice is not at issue, the specific findings set forth in Brown are not

required. Instead, a reviewing court will look at the “total circumstances manifested by

the record in [the] case” and “‘particularly [at] the reasons presented to the trial judge at

the time the request [was] denied.’” People v. Hampton, 758 P.2d 1344, 1353–54 (Colo.

1988) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). A trial court’s decision to grant

or deny a continuance will only be disturbed on appeal if the decision was “manifestly



                                              7
arbitrary, unreasonable, or unfair.” People v. Crow, 789 P.2d 1104, 1106 (Colo. 1990); see

also Brown, ¶ 19, 322 P.3d at 219.

                                      III. Analysis

¶13    This case presents a different factual situation than either Brown or Ronquillo, and

the factual differences are dispositive. When Travis informed the court on the morning

of trial that she wanted a continuance so that she could “look for and pay for an attorney,”

she did not trigger the assessment required by Brown.

¶14    While we decline to limit Brown to its precise circumstances—where a lawyer had

entered an appearance, filed a motion for continuance, and appeared before the trial

court—we can certainly say that Brown does not apply where, as here, the defendant

expresses a general interest in retaining counsel, but has not identified replacement

counsel or taken any steps to retain any particular lawyer.

¶15    The inapplicability of Brown to this circumstance can be demonstrated by the fact

that at least two of the Brown factors—availability of chosen counsel and amount of time

needed for that counsel to prepare for trial—cannot even be speculated about in this

instance. True, in Ronquillo we observed that, in the absence of a specifically identified

new counsel, the district court could still conduct the analysis required by Brown,

drawing “on its own experience to make assumptions about when counsel will likely be

available and how long counsel will likely need to prepare.” Ronquillo, ¶ 36, 404 P.3d at

271. In that case, however, Ronquillo sought to proceed with appointed counsel and his

eligibility to be represented by appointed counsel was uncontested. Thus, while the

precise identity of the court-appointed counsel who would take on his case was not

                                             8
known, the fact that he would be represented by appointed counsel was known. 2 The

circumstances here are far more uncertain and would require an unrealistic level of

speculation by the trial court. Travis’s vague request to “look for and pay for an attorney”

did not identify any such lawyer or even demonstrate her ability to retain that lawyer.

¶16    Because the specific on-the-record findings required by Brown are not required in

the circumstances presented here, the trial court’s decision to deny the continuance

should be reviewed to determine whether the decision was “a clear abuse of discretion.”

Crow, 789 P.2d at 1106. In denying Travis’s requested continuance, the trial court

considered the fact that the case had already been continued once before as well as the

fact that the case had been pending “for a very long time.” The court also noted that

Travis’s request to continue her case seemed to be based upon her disappointment with

the court’s evidentiary rulings. The court assured Travis that these rulings were made

not based upon the identity of her attorney but rather upon the law. And the court

informed Travis that she had a right to represent herself if she no longer wanted to be

represented by her public defenders. See Ronquillo, ¶ 38, 404 P.3d at 271. Nothing in the

trial court’s consideration of the circumstances here reflects an abuse of discretion.

                                    IV. Conclusion

¶17    Because the right to be represented by counsel of the defendant’s choosing is not

implicated by a vague request to “look for and pay for an attorney” and because the trial




2And, recall, a defendant who receives court-appointed counsel is not entitled to choose
specifically who that counsel will be. See Ronquillo, ¶ 18, 404 P.3d at 268.

                                             9
court’s decision to deny Travis’s trial-day continuance request was not an abuse of

discretion, we reverse the decision of the court of appeals.




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