  / F I"C"E"
       IN CLERKS OFFICE          '
IUPREME COV!~T, STATE OF WASHINGTON

       ~-::::: NOV 1~015
     D..
~--
-~···-:(   __l._." '
     CHIEJ=l.JUSTIC •




                IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  STATE OF WASHINGTON,                                     )
                                                           )
                       Petitioner,                         )              No. 90811-7
                                                           )
           v.                                              )               EnBanc
                                                           )
  MATTHEW ALEXANDER HAMPTON,                               )
                                                           )    Filed      NOV 1 9 2015
                                                                        ------~--~~----
                       Respondent.                         )
  --------------------------~)

            OWENS, J. -               On the eve of Matthew Hampton's trial, Hampton moved to

  replace his appointed counsel with a new private attorney on the condition that the

  trial be continued so his new counsel could prepare. The trial court denied the

  continuance, so Hampton proceeded with his previously appointed counsel. He was

  ultimately convicted of third degree rape. The Court of Appeals reversed his

  conviction, holding that the trial court's decision violated Hampton's constitutional

  right to his choice of counsel because it considered Hampton's reasons for wanting a

  new attorney. State v. Hampton, 182 Wn. App. 805,332 P.3d 1020 (2014). The

   Court of Appeals relied on a United States Supreme Court opinion that held that when

   a defendant's right to choice of counsel is erroneously denied, a defendant need not
State v. Hampton
No. 90811-7


show prejudice in order to obtain relief. I d. at 810 (quoting United States v. Gonzalez-

Lopez, 548 U.S. 140, 146, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)).

       We reverse the Court of Appeals. A trial court has wide latitude to grant or

deny a motion to delay trial related to a defendant's request to change counsel. State

v. Aguirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010). In making such a decision,

trial courts should consider the factual context for the motion, which can include-

among other factors-a defendant's reasons for dissatisfaction with existing counsel.

The United States Supreme Court explained that its Gonzalez-Lopez decision did not

affect or undermine its previous rulings to that effect. 548 U.S. at 151. In this case,

the trial court did not abuse its discretion when it denied Hampton's request to delay

trial to allow him to replace his counsel given that (1) he did not make his request

until the day his trial was scheduled to start, (2) his trial had already been continued

once, (3) the victim/witness opposed the continuance, and (4) he did not explain his

dissatisfaction with appointed counsel.

                                          FACTS

       For an incident that occurred with an 18-year-old female friend of his son, the

State charged Hampton with indecent liberties, which charge was later amended to

rape in the second degree. His trial was originally set for July 13, 2012, but the

parties jointly moved for a continuance until August 31, 2012.




                                             2
State v. Hampton
No. 90811-7


       On August 31, 2012, Hampton moved to replace his appointed counsel with a

new private attorney. The replacement was contingent on the trial court granting a

continuance to allow the new private attorney to prepare for trial. Hampton explained

that he had not had a good relationship with his court-appointed counsel and that he

had recently obtained funds to hire a private attorney. The State opposed the motion,

contending that it was untimely and would delay the trial. The State also indicated

that the victim opposed the continuance and that the State had concerns about the

defendant interfering with a witness.

       The trial judge indicated that she would allow the substitution of counsel but

not the continuance. She explained, "I don't think that a compelling record has been

made as to why the Court essentially on the day of trial should grant a continuance of

a case that has already been continued." Verbatim Report ofProceedings (VRP)

(Aug. 31, 20 12) at 8. She indicated that Hampton's appointed counsel was "a very

capable attorney" and that she was not "being given much reason other than

apparently some other source decided to provide the funds today." Id. at 7-8. She

also noted that the court was being asked to take the victim's position on the

continuance into account. She concluded, "I'm not inclined to grant this continuance

at this late of stage when there is competent counsel who is prepared to go forward."

Id. at 9.




                                            3
State v. Hampton
No. 90811-7


       Hampton proceeded to trial with his original appointed counsel and was

convicted of third degree rape. The Court of Appeals reversed his conviction, holding

that the trial court's decision violated Hampton's right to his choice of counsel.

Hampton, 182 Wn. App. at 825-26. The Court of Appeals relied on Gonzalez-Lopez

for the proposition that when a trial court is deciding whether to delay trial to allow a

defendant to choose different counsel, it cannot consider a defendant's reasons for

desiring new counsel. Id. at 822 (citing Gonzalez-Lopez, 548 U.S. at 144).

       The State petitioned for review, which we granted. 1 State v. Hampton, 182

Wn.2d 1002, 342 P.3d 327 (2015).

                                         ISSUE

       Did the trial court's decision to deny Hampton's motion for continuance violate

Hampton's right to his choice of counsel?

                                       ANALYSIS

       The right to the assistance of counsel under the Sixth Amendment to the United

States Constitution generally includes the defendant's right to his or her choice of

private counsel. Aguirre, 168 Wn.2d at 365. However, a defendant's choice has

limitations, particularly when a defendant's desire to choose new counsel affects "the

public's interest in the prompt and efficient administration of justice." !d. The




1
 Hampton cross petitioned for review of a jury instruction on a lesser included charge,
but we denied review of that issue.

                                             4
State v. Hampton
No. 90811-7


balancing of a defendant's right to choice of counsel with a trial court's need to

efficiently administer justice "falls squarely within the discretion of the trial court."

I d. The Court of Appeals held that the trial court abused its discretion because it

considered, among other factors, Hampton's reasons for desiring new counsel. The

Court of Appeals based its decision on a United States Supreme Court case, Gonzalez-

Lopez. As explained below, that reliance is misplaced. As many other courts have

held, Gonzalez-Lopez did not affect the factors that a trial court can consider when

deciding whether to grant a defendant's request to replace his or her attorney. Thus,

we reverse the Court of Appeals and hold that the trial court did not abuse its

discretion by considering Hampton's reasons for wanting new counsel.

    1. Overview of the Right to Counsel of Choice

       As part of the Sixth Amendment right to the assistance of counsel, defendants

with private attorneys generally have the right to the counsel of their choice. I d.;

Gonzalez-Lopez, 548 U.S. at 144. In contrast, indigent defendants with appointed

counsel do not have the right to their counsel of choice. Gonzalez-Lopez, 548 U.S. at

 151 ("the right to counsel of choice does not extend to defendants who require counsel

to be appointed for them"). Instead, indigent defendants can move to substitute

counsel when there is an "irreconcilable conflict" with appointed counsel. In re Pers.

Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001). As noted by the

Court of Appeals, that "irreconcilable conflict" standard relates only to defendants



                                              5
State v. Hampton
No. 90811-7


with appointed counsel and does not apply to defendants retaining private attorneys.

Hampton, 182 Wn. App. at 821 n.13.

       However, even for defendants with private attorneys, the right to counsel of

choice is not absolute. Gonzalez-Lopez, 548 U.S. at 151. For instance, a defendant

does not have the right to be represented by a person who is not a licensed attorney.

!d. at 151-52. Relevant to this case, the United States Supreme Court has explained

that one of the basic limits on the right to counsel of choice is "a trial court's wide

latitude in balancing the right to counsel of choice ... against the demands of its

calendar." !d. at 152. We have characterized that balancing by the trial court as

"weigh[ing] the defendant's right to choose his counsel against the public's interest in

the prompt and efficient administration of justice." Aguirre, 168 Wn.2d at 365. "The

resolution of this balancing exercise falls squarely within the discretion of the trial

court." !d.

       This balancing often occurs in cases like this, where a defendant desires new

counsel but requires a continuance to do so. The United States Supreme Court has

explained that we review a trial court's denial of a continuance to determine whether

it was "so arbitrary as to violate due process." Ungar v. Sarqfite, 376 U.S. 575, 589,

84 S. Ct. 841, 11 L. Ed. 2d 921 (1964). At issue in this case is what factors a trial

court can consider when deciding whether to grant a continuance to allow substitution




                                             6
State v. Hampton
No. 90811-7


of counsel and, in particular, whether a trial court can consider a defendant's reasons

for wanting a different attorney.

   2. Factors That Trial Courts Can Consider When Ruling on a Continuance
      Related to a Defendant's Choice of Counsel

       We have not previously addressed what factors a trial court can or should

consider when deciding whether to grant a continuance related to a defendant's choice

of counsel. As described below, the Court of Appeals previously identified four

factors a trial court should consider, but it overruled that precedent in this case.

Hampton, 182 Wn. App. at 820-24. The Court of Appeals held that two of those

previously identified factors conflicted with a subsequent United States Supreme

Court case (Gonzalez-Lopez) and should no longer be considered by trial courts. !d.

We reverse the Court of Appeals. Like most other courts that have considered this

issue, we hold that Gonzalez-Lopez did not limit the factors that trial courts can

consider when balancing a defendant's right to choice of counsel and a trial court's

need to manage its calendar.

       A. The Court ofAppeals' Previously Adopted Four-Factor Roth Test

       In 1994, the Court of Appeals reviewed a trial court's denial of a defendant's

second motion to continue the trial to allow his lead counsel to be present during jury

selection. State v. Roth, 75 Wn. App. 808, 823, 881 P.2d 268 (1994). To help it

determine whether the trial court had abused its discretion, the Court of Appeals

turned to a prominent treatise, Criminal Procedure, by Wayne R. LaFave and


                                              7
State v. Hampton
No. 90811-7


Jerold H. Israel, which described the wide variety of factors courts have used in

making such a determination. See id. at 825 (citing 2 WAYNE R. LAFAVE & JEROLD

H. ISRAEL, CRIMINAL PROCEDURE§ 11.4, at 39-40 (1984)). The treatise listed 11

factors that courts across the country have used. The Court of Appeals noted that four

of those factors were present and applicable in that particular case:

       (1) whether the court had granted previous continuances at the
       defendant's request; (2) whether the defendant had some legitimate
       cause for dissatisfaction with counsel, even though it fell short of likely
       incompetent representation; (3) whether available counsel is prepared to
       go to trial; and (4) whether the denial of the motion is likely to result in
       identifiable prejudice to the defendant's case of a material or substantial
       nature.

!d. The Court of Appeals concluded that those factors strongly supported the trial

court's exercise of discretion and affirmed its ruling. !d. at 825-27.

       Unfortunately, the Roth decision was later interpreted by the Court of Appeals

as selecting those four factors as the only factors that Washington courts can consider

when deciding a defendant's motion to continue the trial based on a desire to seek

new private counsel. State v. Price, 126 Wn. App. 617, 631-32, 109 P.3d 27 (2005).

This decision was an incorrect interpretation of Roth. Roth noted the 11 factors from

Lafave's Criminal Procedure but applied only the 4 factors relevant in that case. !d.

at 632.




                                             8
State v. Hampton
No.90811-7


       B. The Gonzalez-Lopez Decision Did Not Limit the Factors Trial Courts Can
          Consider When Deciding Choice of Counsel Issues

       In this case, the Court of Appeals concluded that under Gonzalez-Lopez, trial

courts cannot consider the reasons why a defendant wants to change counsel when

evaluating a motion to continue for purposes of replacing counsel. Hampton, 182 Wn.

App. at 822-23. But in Gonzalez-Lopez, the State conceded that the judge had

erroneously denied the defendant's right to his choice of counsel when it incorrectly

denied his attorney's application for admission pro hac vice. Gonzalez-Lopez, 548

U.S. at 143-44. The United States Supreme Court held only that when there is an

erroneous deprivation of a defendant's right to choice of counsel, the defendant need

not make an additional showing of prejudice. !d. at 150-52.

       However, the Court did not provide any guidance as to how courts should

determine when a defendant's right to choice of counsel has been violated. !d. 151-

52. The Court specifically limited its holding to situations where it has already been

determined that the defendant's right to choice of counsel was erroneously denied. Id.

The Court explained that "[t]his is not a case about a court's power to ... make

scheduling and other decisions that effectively exclude a defendant's first choice of

counsel" and that "[n]othing we have said today casts any doubt or places any

qualification upon our previous holdings that limit the right to counsel of choice." !d.

at 152, 151. The Court reiterated that a trial court has "wide latitude in balancing the




                                            9
State v. Hampton
No. 90811-7


right to counsel of choice against the needs of fairness and against the demands of its

calendar." !d. at 152 (citation omitted).

       Nonetheless, the Court of Appeals in this case interpreted Gonzalez-Lopez as

limiting the factors that trial courts can consider when determining whether to grant a

continuance related to a defendant's choice of counsel. Specifically, the Court of

Appeals held that two of the four Roth factors were "incompatible" with Gonzalez-

Lopez. Hampton, 182 Wn. App. at 822. The Court of Appeals held that after

Gonzalez-Lopez, trial courts cannot consider whether the defendant has a legitimate

dissatisfaction with appointed counsel nor whether the denial of the defendant's

motion will likely result in material or substantial prejudice. Id. The Court of

Appeals held that considering either factor would conflict with the statements in

Gonzalez-Lopez that a defendant has the right to be defended by counsel that "'he

believes to be best.'" !d. at 823 (emphasis omitted) (quoting Gonzalez-Lopez, 548

U.S. at 146).

       The Court of Appeals' interpretation of Gonzalez-Lopez was overbroad. The

Gonzalez-Lopez Court explicitly stated that it was not ruling on a court's power to

make scheduling decisions that affect a defendant's choice of counsel and that its

ruling did not "cast[] any doubt or place[] any qualification" on previous holdings

that limited the right to counsel of choice, including a trial court's wide latitude in

balancing the right to counsel of choice against the demands of its calendar. 548 U.S.



                                             10
State v. Hampton
No.90811-7


at 151-52 (emphasis added). Gonzalez-Lopez addressed whether a defendant must

additionally show prejudice once it has already been established that his or her right to

choice of counsel was "wrongfully denied." I d. at 150 (emphasis added). The Court

explained that it was not addressing how to determine when a person's denial of

counsel of choice was erroneous or what factors courts can consider when deciding a

choice of counsel issue.

       As described below, we agree with the many courts that have continued to

consider the factors that the Court of Appeals believed were incompatible with

Gonzalez-Lopez, including the Seventh, Eighth, and Tenth Circuit Courts of Appeals.

       The Tenth Circuit Court of Appeals has directly addressed Gonzalez-Lopez's

impact and held that it applies only if the continuance was "'wrongly denied.'"

United States v. Flanders, 491 F.3d 1197, 1216 (lOth Cir. 2007) (quoting Gonzalez-

Lopez, 548 U.S. at 148, and citing cases from other jurisdictions that had come to the

same conclusion). The court then continued to apply the same pre-Gonzalez-Lopez

factors to determine whether a continuance was wrongly denied, including whether

"rejecting the request would materially prejudice or substantially harm the defendant's

case." Id.

       Similarly, the Seventh Circuit Court of Appeals recently rejected a defendant's

argument that a trial judge had inappropriately focused on the competence of his

public defender when evaluating a motion to continue to allow the defendant to



                                            11
State v. Hampton
No.90811-7


substitute a new private attorney. United States v. Sinclair, 770 F.3d 1148, 1156 (7th

Cir. 2014), cert. denied, No. 14-9255 (U.S. Nov. 2, 2015). In fact, the Sinclair court

held that it was often important for the trial court to inquire into the reasons that a

defendant desired a new attorney so that the court could properly weigh all of the

factors and determine whether to grant the continuance. !d. The court noted that it

had previously found that a trial court had abused its discretion by not considering the

reasons for the defendant's dissatisfaction with appointed counsel, including that

appointed counsel was unprepared for trial and that all communication between the

appointed counsel and the defendant had broken down. !d. (citing United States v.

Sellers, 645 F.3d 830, 838-39 (7th Cir. 2011)).

       The Eighth Circuit Court of Appeals has come to the conclusion that even after

Gonzalez-Lopez, trial judges can take into consideration a defendant's dissatisfaction

with his appointed attorney and how promptly he reports that dissatisfaction. United

States v. Cordy, 560 F.3d 808, 815-16 (8th Cir. 2009) (noting that the defendant's

"dissatisfaction with counsel was neither sudden nor unforeseeable" and affirming the

trial court's denial of a continuance to allow the defendant's newly retained attorney

to prepare).

       The Ninth Circuit Court of Appeals has similarly recognized that trial courts

have wide latitude in balancing the rights of defendants to choose their own counsel

with the demands of the court's calendar. See, e.g., United States v. Brown, 785 F.3d



                                             12
State v. Hampton
No. 90811-7


1337, 1347-50 (9th Cir. 2015) (holding that a district court abused its discretion in

part because the record did not indicate that the trial court denied the defendant's

motion because of the demands of its calendar); Miller v. Blacketter, 525 F.3d 890,

896-98 (9th Cir. 2008) (holding that trial judges should inquire into problems between

a defendant and appointed counsel and consider the appointed counsel's ability to

provide effective representation when deciding whether to grant a continuance to

allow the defendant to obtain a new, private attorney).

       Those courts are correct. The United States Supreme Court expressly stated in

Gonzalez-Lopez that its decision did not limit a trial court's ability to balance a

defendant's right to choice of counsel with the public's interest in the prompt and

efficient administration of justice. 548 U.S. at 151-52. We accept those statements by

the United States Supreme Court limiting the scope of its own holding.

       C. Factors for Washington Trial Courts To Consider Going Forward

       As explained above, the Court of Appeals' adoption of a four- factor test was

based on an erroneous interpretation of Roth, which identified and applied only the

four factors that applied in the specific factual circumstances of that case. The Court

of Appeals now rejects two of those factors based on an erroneous interpretation of

Gonzalez-Lopez. In light of these issues, we realize it would be helpful to trial courts

to provide guidance on what factors can be considered when deciding a motion to

continue for the purposes of substituting counsel. We have previously indicated that



                                            13
State v. Hampton
No. 90811-7


these decisions require a trial court to "weigh the defendant's right to choose his

counsel against the public's interest in the prompt and efficient administration of

justice." Aguirre, 168 Wn.2d at 365. As the United States Supreme Court has

observed, these situations are highly fact dependent and "[t]here are no mechanical

tests" that can be used. Ungar, 376 U.S. at 589. Instead, the judge must decide based

on "the circumstances present." Id. Therefore, we hold that trial courts can consider

all relevant information, including the 11 factors described in the most recent edition

of the LaFave Criminal Procedure treatise:

     (1) whether the request came at a point sufficiently in advance of trial to permit
         the trial court to readily adjust its calendar;

     (2) the length of the continuance requested;

     (3) whether the continuance would carry the trial date beyond the period
         specified in the state speedy trial act;

     (4) whether the court had granted previous continuances at the defendant's
         request;

     ( 5) whether the continuance would seriously inconvenience the witnesses;

     (6) whether the continuance request was made promptly after the defendant first
         became aware of the grounds advanced for discharging his or her counsel;

     (7) whether the defendant's own negligence placed him or her in a situation
         where he or she needed a continuance to obtain new counsel;

     (8) whether the defendant had some legitimate cause for dissatisfaction with
         counsel, even though it fell short of likely incompetent representation;

     (9) whether there was a "rational basis" for believing that the defendant was
         seeking to change counsel "primarily for the purpose of delay";


                                            14
State v. Hampton
No. 90811-7




     ( 10) whether the current counsel was prepared to go to trial;

     ( 11) whether denial of the motion was likely to result in identifiable prejudice to
           the defendant's case of a material or substantial nature.

3 WAYNER.LAFAVEET AL., CRIMINALPROCEDURE § 11.4(c) at718-20 (3d ed.

2007). Not all factors will be present in all cases, and thus a trial court need not

evaluate every factor in every case, but we will not prohibit a trial court from

considering relevant information.

       D. The Trial Court in This Case Did Not Abuse Its Discretion

       Hampton contends that the trial court abused its discretion when it denied his

motion for a continuance to allow his newly retained private attorney to prepare for

trial. As described above, we review such decisions for abuse of discretion. Aguirre,

168 Wn.2d at 365. A trial court abuses its discretion when its decision "is manifestly

unreasonable, or is exercised on untenable grounds, or for untenable reasons." State

v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993); State v. Michielli, 132

Wn.2d 229, 240, 937 P.2d 587 (1997). "A decision is based 'on untenable grounds'

or made 'for untenable reasons' if it rests on facts unsupported in the record or was

reached by applying the wrong legal standard." State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d

922 (1995)). "A decision is 'manifestly unreasonable' if the court, despite applying

the correct legal standard to the supported facts, adopts a view 'that no reasonable



                                             15
State v. Hampton
No. 90811-7


person would take,' and arrives at a decision 'outside the range of acceptable

choices.'" ld. (citation omitted) (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797

P.2d 1141 (1990); Rundquist, 79 Wn. App. at 793).

       In this case, the trial court did not actually apply the four-factor Roth test (nor

was Roth or Price cited to the trial court by trial counsel). However, it did consider,

among other factors, the readiness of Hampton's existing counsel, as evidenced by its

statement, "I'm not inclined to grant this continuance at this late of stage when there is

competent counsel who is prepared to go forward." VRP (Aug. 31, 2012) at 9. The

trial court also appeared to consider whether Hampton's desire for different counsel

was justified, noting:

       I know [the appointed defense counsel] is a very capable attorney. It
       wouldn't be the first time he's represented someone who may not have
       always been happy with [him]. I think that happens for most of the
       defense attorneys that they occasionally have a client who would rather
       have a different attorney appointed. I don't think that would in any way
       impair his ability to represent his client zealously and capably, and I
       don't think there's any question that [the appointed defense counsel] is a
       highly qualified criminal defense attorney.

ld. at 7-8. As described above, the Gonzalez-Lopez decision does not prohibit trial

courts from considering a defendant's reasons for desiring a different attorney or other

relevant factors when considering a motion to continue for purposes of replacing

counsel. Other courts considering the issue have come to that same conclusion. The

trial court in this case did not err by considering the defendant's reasons for

dissatisfaction with his appointed attorney in addition to the other circumstances, such


                                             16
State v. Hampton
No. 90811-7


as the lateness of the request, the previous continuance granted by the court, and the

victim/witness's opposition to further delay. The decision was within the discretion

of the trial court, and we affirm.

                                     CONCLUSION

       We reverse the Court of Appeals and hold that when ruling on a motion to

continue trial for purposes of substituting defense counsel, the trial court did not abuse

its discretion when it considered-among other factors-the defendant's reasons for

his dissatisfaction with his appointed counsel.




                                            17
State v. Hampton
No.90811-7




WE CONCUR:




                   18
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)




                                     No. 90811-7

      GORDON McCLOUD, J. (dissenting)-"[T]he Sixth Amendment right to

counsel of choice . . . . commands, not that a trial be fair, but that a particular

guarantee of fairness be provided-to wit, that the accused be defended by the

counsel he believes to be best." United States v. Gonzalez-Lopez, 548 U.S. 140,

146, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006); U.S. CONST. amend. VI. This

right to retain counsel of choice is distinct from the Sixth Amendment right to

effective assistance of counsel:

      Deprivation of the right [to retain counsel of choice] is "complete"
      when the defendant is erroneously prevented from being represented
      by the lawyer he wants, regardless of the quality of the representation
      he received. To argue otherwise is to confuse the right to counsel of
      choice-which is the right to a particular lawyer regardless of
      comparative effectiveness-with the right to effective counsel-
      which imposes a baseline requirement of competence on whatever
      lawyer is chosen or appointed.

Gonzalez-Lopez, 548 U.S. at 148.        The majority conflates these two rights by

upholding the trial court's decision to deny counsel of choice based largely on its

impression of the quality of the public defender's representation and by adopting a

list of factors that permits trial courts to consider this in the future. Because I agree
                                            1
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



with the United States Supreme Court that the constitutional right to counsel of

choice applies separately from and in addition to the right to effective assistance of

counsel, I respectfully dissent.

                                    ANALYSIS

      The Sixth Amendment to the United States Constitution guarantees the right

to retained counsel of choice. In fact, the Supreme Court originally understood the

Sixth Amendment right to counsel of choice as a guaranty of the right to retain

counsel, rather than a right to gain appointed counsel.       See generally Bute v.

Illinois, 333 U.S. 640, 660-66, 68 S. Ct. 763, 92 L. Ed. 986 (1948); Betts v. Brady,

316 U.S. 455, 468, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), overruled on other

grounds by Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799

(1963). When the Court recognized the latter right in 1932, it regarded the creation

of that right not as the primary purpose of the Sixth Amendment, but as "a logical

corollary from the constitutional right to be heard by counsel." Powell v. Alabama,

287 U.S. 45, 72, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Thus, a defendant who retains

his own attorney has a right to the lawyer that he chooses. Gonzalez-Lopez, 548

U.S. at 147-48 ("The right to select counsel of one's choice ... has been regarded

as the root meaning of the [Sixth Amendment's] constitutional guarantee."); State




                                          2
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



v. Aguirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010) (citing State v. Roth, 75 Wn.

App. 808, 824, 881 P.2d 268 (1994)).

      To be sure, there are some limits on this right. A defendant who retains

counsel has no right to representation that he or she cannot afford, representation

by someone who declines to represent him or her, or representation by someone

who has an actual or serious potential for conflict of interest.    Wheat v. United

States, 486 U.S. 153, 158, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988); Aguirre, 168

Wn.2d at 365 (citing Roth, 75 Wn. App. at 824; State v. Roberts, 142 Wn.2d 471,

516, 14 P.3d 713 (2000)).

      But providing appointed counsel does not satisfy the right to retain counsel

of choice. See United States v. Unit No. 7 & Unit No. 8, 853 F.2d 1445, 1451 (8th

Cir. 1988) ("[W]e reject the government's argument that even if its action should

push Kiser into indigency, the Sixth Amendment would be fully vindicated by

offering him appointed counsel. ... This is an extraordinarily impoverished view

of the non-indigent's right. In essence it collapses the two distinct rights into one,

the lesser."), rev'd, 890 F.2d 82 (8th Cir. 1989).

       We must therefore review the denial of a motion for a continuance that

effectively denies a defendant the right to retain counsel of choice against this

backdrop. Aguirre, 168 Wn.2d at 365 (citing State v. Chase, 59 Wn. App. 501,

                                           3
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



506, 799 P.2d 272 (1990)). When ruling on a motion for a continuance, "the trial

court must weigh the defendant's right to choose his counsel against the public's

interest in the prompt and efficient administration of justice." !d. (citing Roth, 75

Wn. App. at 824-25). Trial courts certainly exercise discretion when making such

decisions on continuances sought to obtain new counsel.

      Following Gonzalez-Lopez, however, the fundamental constitutional right to

retain counsel of choice does not balance equally with other rules and

inconveniences. Otherwise, Gonzalez-Lopez would likely have lost his appeal: the

trial court rejected his chosen counsel's motion for admission pro hac vice to

enforce its interpretation of a local rule. Instead, Gonzalez-Lopez won.

      The majority's new 11-factor rule conflicts with Gonzalez-Lopez.           The

majority holds that a trial court "can consider all relevant information, including

the 11 factors described in the most recent edition of the LaFave Criminal

Procedure treatise" when ruling on a motion for a continuance to permit a

defendant's preferred counsel to prepare.      Majority at 14 (emphasis added); 3

WAYNE R. LAP AVE ET AL., CRIMINAL PROCEDURE § 11.4(c) at 718-20 (3d ed.

2007). But LaFave's factors 6, 8, 10, and 11 overvalue the right to appointed

counsel at the expense of the right to retained counsel and therefore violate the rule

that the right to appointed counsel is a corollary of the Constitution's principal

                                          4
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



right to retain counsel of choice. Additionally, LaFave's "convenience" factors 1,

3, and 4 are incomplete unless we combine them with the rule that slight

inconvenience alone cannot outweigh the fundamental constitutional right to retain

counsel of choice.

      The trial court in this case committed both errors.      First, the trial court

improperly focused on the public defender's qualifications and ability to represent

Hampton, which were irrelevant to Hampton's right to retain his own attorney

under the Supreme Court's holding in Gonzalez-Lopez.            In denying retained

counsel's request for a continuance, the trial court stated,

      I know [appointed counsel] is a very capable attorney. It wouldn't be
      the first time he's represented someone who may not have always
      been happy with [appointed counsel]. I think that happens for most of
      the defense attorneys that they occasionally have a client who would
      rather have a different attorney appointed. I don't think that would in
      any way impair his ability to represent his client zealously and
      capably, and I don't think there's any question that [appointed
      counsel] is a highly qualified criminal defense attorney.

Verbatim Report ofProceedings (VRP) (Aug. 31, 2012) at 7-8. 1




       1
         Although I think that this constitutes error, I certainly understand that the
trial court followed prior Washington precedent in its approach. In both Roth, 75
Wn. App. at 825, and State v. Price, 126 Wn. App. 617, 632, 109 P.3d 27 (2005),
the Court of Appeals held that a trial court may inquire about the legitimacy of the
defendant's satisfaction with appointed counsel and whether the denial of the
defendant's motion will result in material or substantial prejudice.
                                           5
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting) .



      Second, the trial court relied on the fact that a continuance would be

inconvenient, even though the court never determined the length of the requested

continuance and it granted the public defender a short continuance while denying

the same accommodation to retained counsel. Nothing in the record shows the

length of the requested continuance, whether it would be longer than the

continuance the trial court gave to appointed counsel, whether witnesses or victims

could adjust to a shorter continuance, or whether a continuance would interfere

with the court's calendar. In fact, both parties had agreed to the court's only prior

continuance and fewer than four months passed between Hampton's arraignment

and the hearing on his motions. The only concern that the trial court expressed

about its calendar was that "we have a lot of cases that are even older," VRP (Aug.

31, 2012) at 8, which seems irreconcilable with the notion that continuing

Hampton's case would cause unusual or undue delay.

      To support its argument that a trial court can evaluate the defendant's

dissatisfaction with an attorney and abbreviate its inquiry into the length of the

requested continuance when ruling on a motion to continue, the majority cites the

Ninth Circuit's decision in United States v. Brown, 785 F.3d 1337 (9th Cir. 2015).

The majority asserts that Brown holds, "[T]rial courts have wide latitude in




                                          6
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



balancing the rights of defendants to choose their own counsel with the demands of

the court's calendar." Majority at 12.

      That case, however, actually rejected the majority's broad holding and

instead endorses the rule that the constitutional right to counsel of choice weighs

very heavily in the balance. In Brown, the district court denied retained counsel's

motion to withdraw to permit the defendant to obtain a public defender, who would

have required a continuance to prepare for trial. 785 F.3d at 1341-43. The Ninth

Circuit reversed, criticizing the district court for "focus[ing] on considerations

pertinent to the right to constitutionally adequate counsel, rather than to the right to

choice of counsel Brown actually enjoyed." Id. at 1347. The Ninth Circuit then

held, in contrast to the majority's holding here, "Brown's reasons for wanting to

discharge his retained lawyer were not properly the court's concern at all." Id. at

1348. Additionally, the Ninth Circuit in Brown cited three indications that the trial

court did not deny the motion to discharge counsel because of the demands of its

calendar: (1) the court did not indicate that it denied the motion because of concern

for its calendar, (2) the court offered to continue the case for the retained attorney

for "'whatever time he need[ ed] before we finally go to trial,"' and continued the

trial for one month after the hearing, and (3) the court never determined how long a

continuance would be necessary to allow Brown's newly appointed attorney to

                                           7
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



prepare. Id. at 1349 (alteration in original). Finally, nothing in the record showed

that it would be unfair to grant the motion.        Id. at 1350.    The Ninth Circuit

concluded that the erroneous denial of the defendant's right to counsel of choice

constituted structural error. Id.

       The same analysis leads to the conclusion that the trial court improperly

denied the right to counsel of choice here. In denying the continuance in this case,

the trial court also failed to determine the length of the requested continuance,

continued the case for a few days for the lawyer already on the case, and made no

finding about inability to accommodate any further continuance. The trial court in

· this case also cited the appointed attorney's readiness and qualifications and stated,

"I'm not really being given much reason other than apparently some other source

 decided to provide the funds today when it was still a serious case." VRP (Aug.

 31, 2012) at 8. But under Brown-and Gonzalez-Lopez-that's all that is relevant;

 the trial court's satisfaction with existing counsel is not. Other courts following

 Gonzalez-Lopez have reached the same conclusion in the same context. E.g.,

 People v. Brown, 2014 CO 25, ~ 2, 322 P.3d 214 (2014) (when deciding whether to

 grant a continuance to allow a defendant to change counsel, trial court must

 conduct a multifactor balancing test and assess whether the public's interest in the

 efficiency and integrity of the judicial system outweighs the defendant's right to

                                            8
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



counsel of choice; remand for trial court to make findings about factors court

should have considered, including how long it would take retained counsel to

prepare for trial, length of any requested continuance, and the court's docket and

whether the continuance would cause significant inconvenience for witnesses).

      A trial court abuses its discretion when it bases its ruling on an erroneous

view of the law or applies the wrong legal standard. State v. Rafay, 167 Wn.2d

644, 655, 222 P.3d 86 (2009). The trial court applied the wrong legal standard,

and therefore abused its discretion, when it considered Hampton's appointed

lawyer's positive performance and failed to assess or even ascertain the length of

the continuance requested, or whether such a continuance would cause undue

delay. This improper denial of Hampton's request for a continuance denied him

his right to retain his chosen attorney. This erroneous deprivation of the right to

counsel of choice constitutes structural error requiring automatic reversal.

Gonzalez-Lopez, 548 U.S. at 149-50 (citing Sullivan v. Louisiana, 508 U.S. 275,

282, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)).

                                  CONCLUSION

       Gonzalez-Lopez makes clear that the right to retain counsel of choice is

fundamental, constitutional, and weighty.      It also prohibits trial courts from

evaluating the defendant's satisfaction with his appointed attorney when ruling on

                                         9
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)



a continuance to retain counsel of choice. The trial court and the majority here,

however, do exactly that. The majority compounds the error by adopting a test that

( 1) instructs trial courts to continue considering appointed counsel's positive

performance when deciding whether to grant a continuance to retain counsel of

choice and (2) fails to clarify that slight inconvenience cannot outweigh the right to

retain counsel of choice. I therefore respectfully dissent.




                                           10
State v. Hampton (Matthew Alexander), No. 90811-7
(Gordon McCloud, J., Dissenting)




                                         11
