                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1162
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY CORTEZ MARSHALL JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Gary Cortez Marshall Jr. appeals the district court’s denial of his request

to fire his privately retained counsel. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       We must decide whether the district court violated a defendant’s right to

private counsel.

I.     Background Proceedings

       Gary Cortez Marshall Jr. hired an attorney to represent him in a criminal

matter.      Five months later, the attorney moved to withdraw, alleging

“irreconcilable differences . . . which ha[d] caused the irretrievable breakdown of

the attorney/client relationship.” Following a hearing, the district court denied the

motion, and the case proceeded to trial.

       On the second day of trial, Marshall withdrew his plea of not guilty and

pled guilty to first-degree robbery, second-degree sexual abuse, second-degree

kidnapping, and first-degree burglary.          He later filed what the district court

construed as a motion in arrest of judgment claiming he “informed the [plea

taking] judge that there wasn’t any attorney client communication going on,” and

he was “forced to go to trial with a lawyer that didn’t want to represent [him.]”

The court permitted counsel to withdraw and appointed the State Public

Defender to represent Marshall. At the sentencing hearing, Marshall withdrew

his motion, and the district court imposed sentence. Marshall appealed.

II.    Analysis

          Marshall contends the district court “denied [him] his constitutional right to

retained counsel of his choice when it refused to allow [him] to fire” the law firm.

In his view, the denial amounted to “a structural error that rendered his guilty plea

invalid.”
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        Because Marshall alleges a structural error, his withdrawal of the motion in

arrest of judgment did not amount to a waiver of error, as the State claims. See

United Sates v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (“We have little

trouble concluding that erroneous deprivation of the right to counsel of choice,

‘with consequences that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as “structural error.”’” (citation omitted)); United States v.

Sanchez Guerrero, 546 F.3d 328, 332 (5th Cir. 2008) (“[E]ven in cases where a

defendant has pled guilty, we must consider whether the district court

erroneously denied a defendant the right to his counsel of choice, and waiver will

not apply.”). Accordingly, we proceed to the merits.

        “The Sixth Amendment to the Federal Constitution requires that ‘[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.’” State v. Watson, 620 N.W.2d 233, 235

(Iowa 2000).     “[A]n element of [the Sixth Amendment right] is the right of a

defendant who does not require appointed counsel to choose who will represent

him.”    State v. Smith, 761 N.W.2d 63, 69 (Iowa 2009).             But this right is

circumscribed.    Id.   A district court may “disqualify counsel if necessary to

preserve the integrity, fairness, and professionalism of trial court proceedings.”

Id. (quoting State v. Vanover, 559 N.W.2d 618, 626 (Iowa 1997)).                “[T]he

essential aim of the Amendment is to guarantee an effective advocate for each

criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S.

153, 159 (1988). This court has endorsed the following test for the discharge of

privately retained counsel: “[T]he defendant ha[s] the right to discharge his
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counsel at will, unless a showing of significant prejudice to defendant, undue

delay, or disruption of the orderly processes of justice [i]s made.”       State v.

Benson, No. 04-1036, 2006 WL 1229992, at *8 (Iowa Ct. App. Apr. 26, 2006).

      Our de novo review of this constitutional issue reveals the following facts.

The law firm Marshall hired represented him for five months. The firm filed a

motion to withdraw seven days before the scheduled trial date. At a hearing on

the motion, Marshall’s attorney stated he was “able to discuss things” with

Marshall “in a very even level” for “the vast majority” of the time he represented

him. However, he “recently” received instructions from Marshall that the firm was

“fired” and Marshall did “not want to do business” with the firm anymore.

According to counsel, Marshall threatened to file a disciplinary complaint against

an associate at the firm.        Given the “breakdown in the attorney-client

relationship,” counsel sought a postponement of trial, an order allowing the firm

to withdraw, and the appointment of the public defender as substitute counsel.

      Marshall agreed with the comments made by his attorney and confirmed

his desire to fire the law firm. He stated he told the firm three weeks earlier that

he wanted new counsel, he began “working on” getting a new lawyer, and his

mother retained an attorney for him, who had yet to file an appearance. At the

same time, he did not object to his attorney’s request for appointment of the state

public defender.

      The State vehemently resisted counsel’s motion to withdraw, citing the

twenty-one trial subpoenas issued for the following week, the arrangements out-

of-state family members of one of the victims had made to attend trial, the fact
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that—just eight days earlier—the defense stated it was ready to proceed to trial,

and the fact that one of the victims would be leaving the country soon.

        The State established Marshall unduly delayed his right to discharge

counsel. See Benson, 2006 WL 1229992, at *9 (“[D]efendant does not have to

justify his discharge of privately-retained attorney. Instead, the burden is on the

State in such instances to make a showing that defendant is attempting to cause

undue delay or disruption by discharging privately-retained counsel.”).         After

informing his attorney he was fired, Marshall allowed the firm to represent him at

a hearing on two motions eight days before the withdrawal hearing.           At that

hearing, he voiced no dissatisfaction with counsel’s services and, indeed, stood

silent as his attorney agreed the upcoming trial date was “still solid to everybody.”

And, although he later claimed to have retained new counsel, the attorney had

not filed an appearance at the time of the withdrawal hearing despite the

scheduled trial date four days later.

        The State also established that Marshall’s delay in discharging counsel

would disrupt “the orderly processes of justice.” See Benson, 2006 WL 1229992,

at *8. The United States Supreme Court has cautioned against “ignor[ing] the

concerns of victims” “in the administration of criminal justice.” Morris v. Slappy,

461 U.S. 1, 14 (1983). Those concerns were legion. According to the State, the

woman who the State asserted was sexually abused and kidnapped

“anticipate[d] a traumatic experience . . . at trial.” People coming to support her

lived as far away as Washington. She was also scheduled to leave the country

soon.
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      In short, countervailing circumstances overrode Marshall’s right to

discharge his private attorney.   Accordingly, we conclude the district court

appropriately denied his retained attorney’s motion to withdraw. See State v.

Dixon, No. 12-1873, 2013 WL 6405781, at *6 (Iowa Ct. App. Dec. 5, 2013)

(stating defendant “did not have the absolute right to seek new counsel as a

means to disrupt the orderly process of the case or to delay the sentencing

proceedings”).

      We affirm Marshall’s judgment and sentences.

      AFFIRMED.
