                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1372

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Robert Lee Crum,
                                     Appellant.

                                Filed August 22, 2016
                                      Affirmed
                                    Reilly, Judge

                            Olmsted County District Court
                              File No. 55-CR-14-3840

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Toussaint,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant argues that he is entitled to a new trial because the district court erred by

refusing to grant his request for a brief continuance to hire private counsel. Because the

district court did not abuse its discretion when it denied appellant’s request for a

continuance on the first day of trial, we affirm.

                                          FACTS

       Appellant Robert Lee Crum sold cocaine four times to a confidential informant

working with the Rochester Police Department during May and June 2014. Officers then

executed a search warrant at appellant’s residence and found 17 baggies containing a white

powdery substance that was later determined to be cocaine. Based on these events the state

charged appellant with controlled-substance crimes. The district court appointed a public

defender to represent appellant and counsel appeared with him at all of his pretrial hearings.

       On the day trial was scheduled to begin, before the start of jury selection, appellant

moved for a continuance to hire private counsel. Appellant could not identify who he

wanted to hire, but informed the court his fiancée was attempting to retain private counsel

on his behalf. Appellant was present with his public defender at multiple hearings, but told

the court he had “never been able to get in contact with anybody from the Public Defender’s

Office.” Appellant also stated he informed his public defender he “didn’t like the way

things were going.” The public defender asked for a one day continuance on behalf of

appellant so appellant could retain private counsel. The district court denied the request,




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reasoning it “appear[ed] to be a last minute effort to obtain a continuance for . . . really no

reason other than to just simply have the matter continued.”

         The case proceeded to trial, and appellant was found guilty as charged and sentenced

to prison for his first-degree sale conviction. This appeal follows.

                                       DECISION

         Appellant argues the district court erred by denying his request for a brief

continuance to hire private counsel. A criminal defendant has the right to have the

assistance of counsel, which includes “a fair opportunity to secure counsel of his own

choice.” State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970). However,

the right to counsel of one’s choosing is not “unbridled.” Id. at 299, 176 N.W.2d at 264.

“A defendant may not obtain a continuance by discharging his counsel for purposes of

delay or by arbitrarily choosing to substitute counsel at the time of trial.” Id. A request for

substitution of counsel will be “granted only if exceptional circumstances exist and the

demand is timely and reasonably made.” State v. Vance, 254 N.W.2d 353, 358 (Minn.

1977). The district court has discretion to grant or deny a request for a continuance, and

the decision should be based on the “facts and circumstances surrounding the request.” Id.

“[A] conviction will not be reversed for denial of a motion for a continuance except when

such denial is a clear abuse of discretion.” State v. Rainer, 411 N.W.2d 490, 495 (Minn.

1987).

         Appellant requested a continuance to hire private counsel on the day of trial.

Minnesota appellate courts have repeatedly rejected claims that a district court abused its

discretion when it denied a motion for continuance shortly before trial. See, e.g., State v.


                                              3
Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (finding no abuse of discretion where district

court denied a motion for a continuance a few days before trial and defendant did not have

good cause to dismiss court-appointed attorney); Vance, 254 N.W.2d at 358-59 (finding no

abuse of discretion where district court denied a motion for a continuance a few days before

trial where the “defendant was provided with a competent and able public defender who

had thoroughly investigated the facts and was prepared for trial”); State v. Ahearn, 292

Minn. 449, 450, 194 N.W.2d 256, 256 (1972) (finding no abuse of discretion where district

court denied a motion for a continuance the day before trial when there was “no substantial

basis” for “dissatisfaction” or “distrust” with the defendants’ appointed counsel); State v.

Huber, 275 Minn. 475, 478-79, 148 N.W.2d 137, 140-41 (1967) (finding no abuse of

discretion where district court denied a motion for a continuance the day before trial when

there was no indication he was denied the opportunity to find private counsel in the time

leading up to trial).

       The facts of the instant case are similar to those of Worthy, Vance, Fagerstrom,

Ahearn, and Huber. Appellant requested a continuance to hire private counsel shortly

before trial, and there is no record that appellant’s court-appointed counsel was deficient

or that appellant was dissatisfied with his representation prior to that morning. The sole

reason appellant gave for his decision to seek new representation was he “didn’t like the

way things were going.”

       In his brief, appellant cites to cases that discuss a defendant’s right to employ

counsel of his or her choosing, United States v. Mendoza-Salgado, 964 F.2d 993, 1014-15

(10th Cir. 1992); United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir. 1985); and the


                                             4
importance of the relationship between a defendant and his or her attorney, United States

v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 2044 (1984); Morris v. Slappy, 461 U.S. 1,

20-21, 103 S. Ct. 1610, 1621 (1983). Absent in those cases is a determination that a district

court abused its discretion when it denied a request for a continuance. To the contrary, in

Mendoza-Salgado the court determined the trial court’s denial of the defendant’s motion

for a continuance was not reversible error because it did not “unreasonably or arbitrarily

interfere[]” with the defendant’s right to counsel. 964 F.2d at 1016-17.

       The sole case relied upon by appellant where a conviction was reversed based on

the violation of a defendant’s right to counsel of choice is factually distinct from the instant

case. In Gonzalez-Lopez, the defendant retained private counsel from a different state

shortly after arraignment and the magistrate judge denied the attorney’s motion for

admission pro hac vice. United States v. Gonzalez-Lopez, 548 U.S. 140, 143, 126 S. Ct.

2557, 2560-61 (2006). The trial court only allowed the defendant to speak with his counsel

of choice once during the trial. Id. The facts of Gonzalez-Lopez are dissimilar from the

instant case because Gonzalez-Lopez had actually retained private counsel significantly in

advance of trial. Here, appellant had not retained counsel and sought to do so on the day

trial was scheduled to begin. Appellant’s request for a continuance was not timely, and a

review of the facts and circumstances surrounding the request does not reveal the presence

of “exceptional circumstances” such that the district court abused its discretion. Vance,

254 N.W.2d at 358. Thus, the district court did not abuse its discretion when it denied

appellant’s request for a continuance.

       Affirmed.


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