      MEMORANDUM DECISION
                                                                       Jul 08 2015, 9:01 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Lawrence D. Newman                                        Gregory F. Zoeller
      Noblesville, Indiana                                      Attorney General of Indiana
                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rumaldo M. Juarez                                         July 8, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                29A04-1410-CR-508
              v.                                                Appeal from the Hamilton Superior
                                                                Court

      State of Indiana                                          The Honorable Steven R. Nation,
                                                                Judge
      Appellee-Petitioner.
                                                                Trial Court Case No.
                                                                29D01-1309-FB-8078




      Mathias, Judge.

[1]   Rumaldo Juarez (“Juarez”) appeals his convictions for Class B felony sexual

      misconduct with a minor and Class C felony sexual misconduct with a minor.

      On appeal, Juarez raises one issue, which we restate as: whether the trial court



      Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 1 of 6
      abused its discretion in denying counsel's motion to withdraw and in not

      allowing Juarez to discharge his counsel.

[2]   We affirm.


                                     Facts and Procedural History

[3]   From January 2012 through the summer of 2013, Juarez lived with his cousin,

      his cousin’s husband, and their two daughters in Westfield, Indiana. At some

      point shortly after he moved in with the family, twenty-four-year-old Juarez

      began a sexual relationship with his cousin’s daughter, thirteen-year-old S.S.

      Juarez moved out of the home during the summer of 2013 but continued his

      sexual relationship with S.S. In September of 2013, S.S.’s mother discovered

      the relationship after finding text messages from Juarez on S.S.’s cell phone.

      Juarez later admitted to another family member that he and S.S. had been

      having sexual intercourse.


[4]   On September 30, 2013, the State charged Juarez with Class B felony sexual

      misconduct with a minor and Class C felony sexual misconduct with a minor.

      The trial court appointed a public defender to represent Juarez in January 2014,

      after Juarez’s retained counsel withdrew his appearance. A jury trial was

      scheduled and rescheduled several times, and eventually set for August 11,

      2014.


[5]   On July 17, 2014, Juarez filed a “Motion for Immediate Dismissal of State

      Provided Counsel.” In his motion, he asked that the trial court dismiss his

      counsel and appoint a new public defender. He claimed that he did not trust his

      Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 2 of 6
      counsel; that counsel had disclosed to Juarez confidential information related to

      two of counsel’s other clients; and that counsel “was disrespectful” and

      “revealed aspects or scenarios of [Juarez’s] case” when he made a statement off

      the record to Juarez that Juarez was “a lover not a fighter.” Appellant’s App. p.

      42. The trial court held a hearing on Juarez’s motion on January 23, 2014. At

      the hearing, counsel stated that he would join in Juarez’s motion because

      Juarez’s motion itself “indicates that there has been a substantial breakdown.”

      Tr. p. 12.


[6]   The State objected to Juarez’s motion, arguing that appointment of yet another

      attorney would result in further delay of the case, that Juarez failed to show that

      the relationship with his counsel had broken down to the extent that counsel

      could not make competent representation of Juarez, and that no manifest

      necessity existed. The State also argued that the court should consider the

      adverse effect of further delay in the proceedings on the victim, S.S., who was

      younger than sixteen years old at the time.

              After hearing argument, the trial court denied Juarez’s motion,
              stating [Counsel] is the second attorney involved in this case.
              The trial has been scheduled first on February 3rd, again on April
              14th, again on June 9th, then I believe it was reset for a July date,
              yes, the 14th, and then finally for a jury trial on August 11th. A
              considerable amount of time has passed since the original filing
              in this case and I am concerned about the manifest injustice that
              might be done concerning both the Defendant and of course the
              allegations of the victim here that need to be brought to trial.

      Tr. p. 18.


      Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 3 of 6
[7]    A jury trial was held on August 11, 2014. The jury found Juarez to be guilty as

       charged, and the trial court sentenced him to an aggregate sentence of twelve

       years, with eight years executed and four years suspended to probation.


[8]    Juarez now appeals.

                                         Discussion and Decision

[9]    Juarez contends that the trial court abused its discretion when it denied his

       motion to discharge his appointed counsel and his counsel’s motion to

       withdraw. An indigent defendant has the right to representation by counsel;

       however, he has no right to representation by court-appointed counsel of his

       choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Whether to allow

       counsel to withdraw is within the trial court’s discretion, and we will reverse

       only “when denial constitutes a clear abuse of discretion and prejudices the

       defendant’s right to a fair trial.” Strong v. State, 633 N.E.2d 296, 300 (Ind. Ct.

       App. 1994). A trial court may refuse a motion to withdraw if it determines

       withdrawal will result in a delay in the administration of justice. Moore v. State,

       557 N.E.2d 665, 668 (Ind. 1990). Further, a defendant must demonstrate that

       he was prejudiced before we may reverse on this issue. Bronaugh v. State, 942

       N.E.2d 826, 830 (Ind. Ct. App. 2011), trans. denied.


[10]   Indiana Code section 35-36-8-2(b) provides that a trial court shall allow counsel

       for the defendant to withdraw from the case if there is a showing that:

               1) counsel for the defendant has a conflict of interest in continued
               representation of the defendant;

       Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 4 of 6
               (2) other counsel has been retained or assigned to defend the
               case, substitution of new counsel would not cause any delay in
               the proceedings, and the defendant consents to or requests
               substitution of the new counsel;
               (3) the attorney-client relationship has deteriorated to a point
               such that counsel cannot render effective assistance to the
               defendant;
               (4) the defendant insists upon self representation and the
               defendant understands that the withdrawal of counsel will not be
               permitted to delay the proceedings; or
               (5) there is a manifest necessity requiring that counsel withdraw
               from the case.

[11]   Juarez argues that the trial court abused its discretion in denying his motion

       because “both he and his counsel advised the trial court that Juarez would be

       harmed by trial counsel continuing his representation of Juarez.” Appellant’s

       Br. at 14. He contends that his counsel’s disclosure of information about two of

       counsel’s clients and counsel’s statement that Juarez is a “lover, not a fighter,”

       caused Juarez to believe that he could not trust counsel to keep information

       about his case confidential. Id.


[12]   However, Juarez has failed to demonstrate that any of the information his

       counsel relayed to him about counsel’s other two clients was confidential.

       Furthermore, the record does not support Juarez’s claim that counsel called

       him “a lover, not a fighter.” Even if the record did support this assertion, we

       cannot see how this statement would erode the attorney-client relationship to

       the extent that counsel could no longer competently represent Juarez. We

       therefore conclude that Juarez has failed to demonstrate that he was prejudiced

       by defense counsel’s continued representation.

       Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 5 of 6
[13]   We further note that on the date Juarez filed his motion, July 16, 2014, the case

       had been pending for ten months and his jury trial was set for August 11, 2014,

       less than a month later. The trial court was within its discretion in determining

       that defense counsel’s withdrawal would delay the administration of justice.

       See Schmid v. State, 804 N.E.2d 174, 178 (Ind. Ct. App. 2004) (finding that the

       defendant failed to exercise her right to counsel of choice at the appropriate

       stage of the proceeding and noting that it is generally neither appropriate nor

       advisable to hire new counsel for a case that has been pending for seventeen

       months with a jury trial set in just over thirty days), trans. denied.


[14]   For all of these reasons, we conclude the trial court did not abuse its discretion

       by denying defense counsel’s motion to withdraw his appearance. See Moore,

       557 N.E.2d at 668 (denial of motion to withdraw not abuse of discretion where

       motion arose within three weeks of trial and appellant did not demonstrate that

       continued representation prejudiced him); Bronaugh, 942 N.E.2d at 830 (denial

       of motion to withdraw not abuse of discretion where hearing on motion was

       one month before trial and appellant did not demonstrate that continued

       representation prejudiced him).


[15]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 29A04-1410-CR-508 | July 8, 2015   Page 6 of 6
