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                                                         ADVANCE SHEET HEADNOTE
                                                                     October 2, 2017

                                        2017 CO 90

No. 15SC912, People v. Ahuero—Criminal Law—Continuances

       This case requires the supreme court to decide whether a trial court abuses its

discretion when it denies a continuance that defense counsel requested seeking more

time to prepare for trial. At the time defense counsel moved for the continuance, the

trial court was confronted with—and considered—the following: (1) defense counsel

would have three weeks to prepare for a two- or three-day trial involving eight

witnesses and no physical evidence, but defense counsel refused to make specific

arguments on why the additional time was needed; (2) the trial court would have had

to rearrange its docket and possibly hand off the case to a different judge; (3) priority is

given to cases involving the sexual assault of a child; and (4) the victim’s family wanted

to resolve the case promptly.        The supreme court concludes that, under these

circumstances, the trial court’s decision to deny a continuance was not so manifestly

arbitrary, unreasonable, or unfair to constitute an abuse of discretion. Therefore, the

supreme court reverses the court of appeals and remands for proceedings consistent

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


                                       2017 CO 90

                         Supreme Court Case No. 15SC912
                       Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 13CA453
                                        Petitioner:
                         The People of the State of Colorado,
                                            v.
                                       Respondent:
                                  Stephen J. Ahuero.

                                 Judgment Reversed
                                        en banc
                                    October 2, 2017


Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
Kevin E. McReynolds, Assistant Attorney General
 Denver, Colorado

Attorneys for Respondent:
Law Office of Lynn C. Hartfield, LLC
Lynn C. Hartfield
 Denver, Colorado




CHIEF JUSTICE RICE delivered the Opinion of the Court.
JUSTICE GABRIEL does not participate.
¶1       This case requires us to decide whether a trial court abuses its discretion when it

denies a continuance that defense counsel requested seeking more time to prepare for

trial.1 At the time defense counsel moved for the continuance, the trial court was

confronted with—and considered—the following:               (1) defense counsel would have

three weeks to prepare for a two- or three-day trial involving eight witnesses and no

physical evidence, but defense counsel refused to make specific arguments on why the

additional time was needed; (2) the trial court would have had to rearrange its docket

and possibly hand off the case to a different judge; (3) priority is given to cases

involving the sexual assault of a child; and (4) the victim’s family wanted to resolve the

case promptly. We conclude that, under these circumstances, the trial court’s decision

to deny a continuance was not so manifestly arbitrary, unreasonable, or unfair to

constitute an abuse of discretion.      Therefore, we reverse the court of appeals and

remand for proceedings consistent with this opinion.




1   We granted certiorari to review the following issues:
         1. Whether the court of appeals erred by applying the right to counsel of
            choice factors from People v. Brown, 2014 CO 25, 322 P.3d 214, to
            reverse the denial of a continuance request that did not involve the
            right to counsel of choice.
         2. Whether the adequacy of defense counsel’s pretrial investigation is
            properly addressed on direct appeal where counsel made no specific
            record and represented his readiness to proceed.
         3. Whether “actual prejudice” from the denial of a continuance can be
            presumed from the existence of other potential evidence without
            regard to whether the continuance would have revealed it.


                                              2
                            I. Facts and Procedural History

¶2       Defendant, Stephen J. Ahuero, was charged with two counts of sexual abuse of a

child.    On October 12, 2012, approximately one month before Ahuero’s trial was

scheduled to begin on November 13, 2012, his defense counsel moved for a

continuance.     In his motion, Ahuero’s defense counsel stated that he had recently

completed a lengthy homicide trial, was scheduled to start another homicide trial soon,

and would have less than three weeks to prepare for Ahuero’s trial. The motion also

argued that: (1) without a continuance, defense counsel would not be properly prepared

for Ahuero’s trial and would not provide effective assistance of counsel; (2) the

prosecution would not be prejudiced by a continuance; and (3) it was Ahuero’s first

continuance request. The motion sought a new trial date of February or March 2013.

¶3       At the October 15, 2012 motions hearing, the trial court asked if defense counsel

would like to supplement his motion. Defense counsel declined to supplement the

record and stood on his motion. The trial court stated that it was inclined to deny the

continuance because of its own docket concerns and because the prosecution made a

soft objection to the continuance based on the victim’s family’s desire to complete the

case. The trial court then denied Ahuero’s motion for a continuance and kept the trial

date set for November 13, 2012. The trial court reasoned that, although defense counsel

was busy, it too had a busy schedule and moving the trial could cause significant

docketing issues. Further, due to the judge’s upcoming change in courtrooms, changing

the trial date would require a different judge to preside over the case. The trial court

did agree, however, to postpone another motions hearing until October 26 due to a


                                             3
conflict with one of defense counsel’s other trials. At the October 26 motions hearing,

defense counsel appeared without objection and cross-examined the prosecution’s three

outcry witnesses, including the victim’s mother.

¶4     The trial began on November 13, 2012. The trial court asked whether defense

counsel was ready to proceed, and he answered, “Yes.” He did not object to the

beginning of trial nor state that he needed more time to prepare. Defense counsel went

on to address rape shield issues, participate in jury selection, and give an opening

statement. On November 14, defense counsel cross-examined three of the prosecution’s

seven witnesses: the victim, the victim’s mother, and the forensic interviewer. He did

not cross-examine two of the witnesses he had cross-examined on October 26, and he

did not cross-examine the police officers that had summarized the victim’s report and

steps of the investigation.

¶5     During Ahuero’s defense, Ahuero’s girlfriend testified that Ahuero and the

victim had never been alone and that the victim had been drinking, which affected her

memory. On the final day of trial, both parties gave closing arguments, and the jury

convicted Ahuero of two counts of sexual abuse of a child.

¶6     After the final day of trial, but before sentencing, Ahuero filed two motions, one

seeking a mistrial and the other seeking a new trial based on newly discovered

evidence. The motion for a mistrial alleged that his counsel had also been assigned to

defend one of the prosecution’s outcry witnesses in an unrelated assault case. Defense

counsel, however, stated that he had been unaware of this conflict and it had not




                                            4
impacted his defense of Ahuero. The trial court agreed with defense counsel and

denied the motion for a mistrial.

¶7     The motion for a new trial alleged that, several months before Ahuero’s trial, the

victim and her sister had told Ahuero’s nephew and his friend that Ahuero had not

sexually assaulted her. The nephew and his friend stated that the victim told them she

had made up the allegations at the behest of one of the outcry witnesses who did not

like Ahuero (the same witness that defense counsel had been assigned to represent).

The trial court held an evidentiary hearing during which Ahuero’s nephew and his

friend testified consistent with their previous statements. When the nephew was asked

why he had not come forward earlier with the information, he testified that he thought

the victim would come clean, and he did not want his family knowing that he had been

talking to the victim and her sister because their families had longstanding problems

with each other. He also testified that no one had contacted him or tried to interview

him before the trial.

¶8     The victim testified that she had never told Ahuero’s nephew that she had made

up the allegations. She also testified that she had never been pressured into making up

her claims of sexual assault. The victim’s sister testified that she remembered being

around Ahuero’s nephew and his friend several months before trial, but could not hear

the contents of any conversation relating to the allegations against Ahuero. The trial

court denied the motion for a new trial, finding that the victim’s unchanging testimony

was “far more credible” than the testimony by Ahuero’s nephew and his friend.




                                            5
¶9    A division of the court of appeals reversed Ahuero’s conviction, holding that the

trial court abused its discretion when it denied Ahuero’s motion for a continuance.

People v. Ahuero, No. 13CA453, slip op. at 1 (Colo. App. Sept. 17, 2015). Specifically,

the division held that, without the continuance, defense counsel’s lack of time to

prepare violated Ahuero’s Sixth Amendment right to effective assistance of counsel. Id.

at 3. Because the division held that the trial court violated Ahuero’s rights by denying

defense counsel’s motion for a continuance, it declined to reach Ahuero’s other issues

on appeal. Id. at 19. We granted the prosecution’s petition for certiorari.

                                      II. Analysis

¶10   The prosecution argued in its petition that the court of appeals erred by

(1) applying the counsel-of-choice factors from People v. Brown, 2014 CO 25, 322 P.3d

214, to a general continuance denial; (2) addressing the adequacy of defense counsel’s

pretrial investigation on direct appeal rather than waiting for a collateral challenge

alleging ineffective assistance of counsel; and (3) finding actual prejudice from the

denial of a continuance based on the existence of evidence that defense counsel had not

discovered, but without considering whether defense counsel would have discovered

that evidence had the continuance been granted. However, after examining the court of

appeals’ opinion, we conclude that the trial court’s denial of the continuance was not an

abuse of discretion under our totality-of-the-circumstances jurisprudence applicable to

continuances. Therefore, we reverse the court of appeals and decline to reach the

prosecution’s arguments.




                                            6
¶11        A trial court’s ruling on a motion to continue “rests in the sound discretion of

the court, and such ruling will not be disturbed on appellate review in the absence of a

showing of a clear abuse of discretion.” People v. Crow, 789 P.2d 1104, 1106 (Colo.

1990). “To say that a court has discretion in resolving [an] issue means that it has the

power to choose between two or more courses of action and is therefore not bound in

all cases to select one over the other.” Id. (alteration in original) (quoting People v.

Milton, 732 P.2d 1199, 1207 (Colo. 1987)). “In determining whether a court has abused

its discretion in denying a motion for continuance, an appellate court must evaluate the

circumstances confronting the court at the time the motion is made, particularly the

reasons ‘presented to the trial judge at the time the request is denied.’” Id. (quoting

People v. Hampton, 758 P.2d 1344, 1354 (Colo. 1988)). “A court abuses its discretion

only when, based on the particular circumstances confronting it, its ruling on the

motion is manifestly arbitrary, unreasonable, or unfair.” Id.

¶12        “There are no ‘mechanical tests’ for determining whether a trial court abuses its

discretion by denying a continuance.” Brown, ¶ 20, 322 P.3d at 219 (quoting Hampton,

758 P.2d at 1353). “Trial judges necessarily require a great deal of latitude in scheduling

trials.”     Morris v. Slappy, 461 U.S. 1, 11 (1983).    “Not the least of [a trial court’s]

problems is that of assembling the witnesses, lawyers, and jurors at the same place at

the same time, and this burden counsels against continuances except for compelling

reasons.” Id. “Consequently, broad discretion must be granted trial courts on matters

of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in




                                               7
the face of a justifiable request for delay’ violates the right to the assistance of counsel.”

Id. at 11–12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

¶13    Here, defense counsel filed a short motion (less than 180 words) requesting a

continuance, arguing that he would have only three weeks to prepare for a felony trial.

The motion did not state specifically why defense counsel needed additional time to

prepare.   Rather, it based the request for a continuance on conclusory statements

regarding the press of business and the general need for additional time. Moreover, the

parties had estimated that both sides would be done questioning witnesses by the

second day of trial. Further, this was a he-said-she-said trial with eight witnesses all

testifying about a relatively short period of time (one evening) and without any

physical evidence.

¶14    At the hearing on the motion to continue, the trial court expressed its concern

(1) over the impact a continuance would have on its own docket; (2) over the priority

given to cases involving the sexual assault of a child; (3) that the victim’s family wanted

the case resolved promptly; and (4) that the case would likely get pushed back to the

point that a different judge would be required to hear the case. When given a chance to

respond to some of these concerns and supplement his short motion, defense counsel

made no further arguments and stood on his conclusory motion.

¶15    The trial court, however, did grant a continuance for a separate motions hearing

that would have conflicted with another of defense counsel’s trials. Although the trial

court refused to postpone the trial itself, defense counsel alerted the trial court to a

conflict between a motions hearing in Ahuero’s case and another trial that defense


                                              8
counsel was working on. The trial court granted a continuance for that hearing so

defense counsel could adequately prepare and participate—and defense counsel did so,

cross-examining several witnesses at the October 26 hearing.

¶16     Turning to the denial of the continuance for the beginning of trial, we must step

into the shoes of the trial judge and examine “the reasons presented to the trial judge at

the time the request [was] denied.” Hampton, 758 P.2d at 1354 (alteration added)

(quoting Ungar, 376 U.S. at 589). These reasons included, in favor of granting the

continuance, general arguments that defense counsel did not feel that he could

adequately prepare in three weeks for a two- or three-day trial that involved eight

witnesses and no physical evidence. However, defense counsel declined to explain

specifically why he needed more time or how more time could have better prepared

him, and he rested on his motion.       The trial court was left with only conclusory

statements from defense counsel that he would not be ready. On the other hand, the

trial court considered several specific factors that weighed in favor of denying the

continuance: the impact on its own docket, the priority of cases of sexual assault on

children, the victim’s family’s wishes, and that a different judge would have to hear the

case.

¶17     The trial court’s decision to deny defense counsel’s continuance motion was not

“an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a

justifiable request for delay.’” Morris, 461 U.S. at 11–12 (quoting Ungar, 376 U.S. at

589). Two events bolster this conclusion: (1) at the October 26 motions hearing, defense

counsel cross-examined several witnesses and did not state that he was unprepared to


                                            9
do so; and (2) on the first day of trial, the trial court inquired as to whether counsels

were ready to proceed, and both sides affirmed that they were. The trial court did not

err when it weighed several specific factors—including docket management, the

victim’s family’s wishes, and the impact on another judge’s docket—more heavily than

a general, conclusory request for more time without any accompanying arguments as to

why that time was needed.

¶18   Therefore, the trial court did not abuse its discretion when it denied defense

counsel’s motion for a continuance.

                                   III. Conclusion

¶19   We reverse the judgment of the court of appeals and remand for further

proceedings consistent with this opinion.



JUSTICE GABRIEL does not participate.




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