                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 44383

STATE OF IDAHO,                         )
                                        )
                                                             Boise, February 2017 Term
    Plaintiff-Respondent,               )
                                        )
                                                             2017 Opinion No. 31
v.                                      )
                                        )
                                                             Filed: April 12, 2017
JAMES GREER DALY,                       )
                                        )
                                                             Stephen Kenyon, Clerk
    Defendant-Appellant.                )
_______________________________________ )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

        The judgment of the district court is affirmed.

        Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis A.
        Benjamin argued.

        Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
        Kenneth K. Jorgensen argued.
                                     _____________________

BRODY, Justice
        This case reviews a district court’s denial of a defendant’s motions to substitute counsel
and to continue his sentencing.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
        In May 2012, James Greer Daly was charged with six felony counts of Lewd and
Lascivious Conduct with a Minor Under Sixteen. Pursuant to a plea agreement, Daly pleaded
guilty to one count. At the beginning of the sentencing hearing, Daly moved to substitute
counsel. The district court denied the motion. Daly then moved to continue the hearing, so that
new counsel could be present for sentencing. The district court also denied this motion,
indicating “[w]e have already continued the sentencing in this case for a month to get an
additional mental health evaluation, and I don’t think that would be a sensible course of action.”
The district court then sentenced Daly to twenty years, with three years fixed, and retained
jurisdiction.
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       Daly filed a timely notice of appeal. In February 2013, his appeal was dismissed for
failure to pay the required $100 fee. In November 2013, Daly initiated post-conviction
proceedings, asserting, among other things, ineffective assistance of counsel. Nearly all of Daly’s
claims were dismissed with prejudice. The district court did find that counsel was ineffective in
failing to notify Daly of the $100 appeal fee, and on that claim only, granted post-conviction
relief. To enable Daly to appeal his conviction, instead of amending the judgment, the district
court re-entered judgment nunc pro tunc. Daly again filed a timely notice of appeal, and the case
was assigned to the Court of Appeals.
       The Court of Appeals reviewed the case and held that: (1) it had jurisdiction over Daly’s
claims under the nunc pro tunc judgment because it related back to the original judgment and
enabled Daly to appeal any issues in the original judgment; and (2) Daly did not receive the “full
and fair” hearing he should have received on his motion to substitute counsel. Accordingly, the
Court of Appeals remanded for a hearing on the motion to substitute counsel and the motion for
a continuance. The State petitioned this Court for review of the Court of Appeals decision,
specifically on the question of whether the duty to inquire into the reasons for requesting
substitute counsel applies to retained counsel. This Court granted the State’s petition for review.
Prior to hearing before this Court, Daly moved to dismiss his appeal and vacate the Court of
Appeals decision because he had been granted parole. The State concurred in the motion,
provided the Court of Appeals decision was vacated in the dismissal. This Court denied the
motion and heard oral argument.
                             II. ISSUES PRESENTED ON APPEAL
   1. Whether this Court has jurisdiction to hear Daly’s appeal.
   2. Whether the district court erred in denying Daly’s motion to substitute counsel and his
       motion to continue the sentencing hearing so he could retain different counsel.
                                  III. STANDARD OF REVIEW
       “When reviewing a case on petition for review from the Court of Appeals this Court
gives due consideration to the decision reached by the Court of Appeals, but directly reviews the
decision of the trial court.” State v. Schmierer, 159 Idaho 768, 770, 367 P.3d 163, 165 (2016).
“Constitutional issues are pure questions of law over which this Court exercises free review.”
Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). A trial court’s decision to grant
or deny a motion to substitute counsel is reviewed for an abuse of discretion. State v. Nath, 137
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Idaho 712, 714–15, 52 P.3d 857, 860–61 (2002). Similarly,“[t]he decision to grant or deny a
continuance rests within the sound discretion of the trial court.” State v. Tapia, 127 Idaho 249,
255, 899 P.2d 959, 965 (1995). Abuse of discretion review entails a three-part inquiry: “(1)
whether the lower court rightly perceived the issue as one of discretion; (2) whether the court
acted within the boundaries of such discretion and consistently with any legal standards
applicable to specific choices; and (3) whether the court reached its decision by an exercise of
reason.” Schwan’s Sales Enters., Inc. v. Idaho Transp. Dept., 142 Idaho 826, 831, 136 P.3d 297,
302 (2006).
                                          IV. ANALYSIS
A. This Court’s jurisdiction is proper.
       The State asserts that this Court does not have jurisdiction to hear this case because the
relevant Notice of Appeal was not filed within 42 days of the original judgment as required by
Idaho Appellate Rule 14(a), but only within 42 days of the re-entered judgment. According to the
State, because the errors alleged by Daly related to matters underlying the original judgment,
timeliness as to the re-entered judgment was insufficient. However, the State also acknowledged
(in a footnote) that “if Daly prevailed in a post-conviction action, and if the remedy ordered in
that case was restoration of appeal rights through re-entry of judgment” then this Court’s
jurisdiction over his claims is proper. As noted above, in the post-conviction proceeding, the
district court held that Daly’s counsel had been ineffective in allowing his timely appeal to be
dismissed and re-entered judgment nunc pro tunc with the express purpose of allowing Daly to
appeal from the original judgment. Thus, given the State’s acknowledgement of this Court’s
jurisdiction under the circumstances stated, this contention is deemed waived.
B. The district court did not abuse its discretion in denying Daly’s motion to substitute
   counsel and the subsequent motion to continue.

       1.     The district court’s denial of Daly’s motion to substitute counsel did not
              infringe upon his Sixth Amendment right to counsel of choice.

       Daly’s chief contention is that the district court erroneously denied his Sixth Amendment
right to counsel of choice when it denied his motion for substitute counsel and the connected
motion to continue. Because this is a constitutional question, this Court exercises free review.
State v. Abdullah, 158 Idaho 386, 417, 348 P.3d 1, 32 (2015).


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       The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” In Idaho, this right is also protected by Article I, section 13 of the Idaho Constitution.
For indigent defendants, the right to counsel includes the right to appointed counsel. Gideon v.
Wainwright, 372 U.S. 335 (1963); State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980). It also
includes the effective assistance of that counsel. Clayton, 100 Idaho at 897, 606 P.2d at 1001. If
a defendant is dissatisfied with appointed counsel, he may move for substitute counsel. Upon
such a motion, the trial court must “afford defendant a full and fair opportunity to present the
facts and reasons in support of his motion for substitution of counsel.” Id. at 898, 606 P.2d at
1002. The decision to grant or deny the motion is then within the discretion of the trial court. Id.
at 897, 606 P.2d at 1001.
       Another element of the right to counsel “is the right of a defendant who does not require
appointed counsel to choose who will represent him.” U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006). Indeed, “the right to counsel of choice does not extend to defendants who require counsel
to be appointed for them.” Id. at 151. Instead, when the defendant can afford to pay his own
attorney, the right to counsel “commands . . . that the accused be defended by the counsel he
believes to be the best.” Id. at 146. However, this right is not unlimited. Wheat v. U.S., 486 U.S.
153, 159 (1988) (“The Sixth Amendment right to choose one’s own counsel is circumscribed in
several important respects. . . . an advocate who is not a member of the bar may not represent
clients (other than himself) in court. Similarly, a defendant may not insist on representation by an
attorney he cannot afford or who for other reasons declines to represent the defendant.”). The
United States Supreme Court has also recognized “a trial court’s wide latitude in balancing the
right to counsel of choice against the needs of fairness . . . and against the demands of its
calendar.” Gonzalez-Lopez, 548 U.S. at 152 (internal citations omitted).
       Here, Daly exercised his right to choice of counsel by retaining his attorney. His motion
for substitution of counsel at the sentencing hearing was the first intimation of dissatisfaction
with his representation. In fact, in the colloquy with the district court prior to its acceptance of
his guilty plea, Daly indicated that he understood the terms of his plea, that he had had enough
time to discuss them with his attorney, and that there was nothing that he wanted his attorney to
do that had not been done. This exchange, when viewed together with the fact that Daly’s
sentencing hearing had previously been delayed for a month at his request, strongly suggests that
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Daly’s request for substitute counsel evinced a desire to delay sentencing rather than
dissatisfaction with counsel. Regardless of the actual motive for the motion to substitute counsel,
the district court acted within the boundaries of its discretion in denying the request. The court’s
response to the request—“I’m not going to let counsel be shifted at this stage,”— indicates that
the court correctly perceived the issue as discretionary. Further, although Daly claims his motion
was summarily denied, the court (as explained below) was not required to inquire into his
reasons for wishing to replace his retained counsel. The district court’s reasoning was further
explained after Daly’s connected motion to continue when the court indicated that the hearing
had already been delayed for a month at defendant’s request and that further delay would not be
sensible. The decision to grant or deny this motion was within the district court’s discretion.
Daly’s guilty plea was accepted by the Court on August 2nd. Sentencing was originally
scheduled on September 17th, but was continued to October 15th. At any time during the two
months between when the plea was entered and sentencing was undertaken, Daly could have
moved to substitute counsel. Instead, he waited until the beginning of the sentencing hearing to
communicate his dissatisfaction with counsel. The court acted well within its discretion in
deciding the motion, including appropriate consideration of the needs of fairness and the
demands of its calendar. Thus, the district court rightly perceived the issue as one of discretion,
applied correct legal standards to the choices before it and acted within the boundaries of its
discretion. There was no abuse of discretion.
       2. The district court did not abuse its discretion in denying Daly’s motion to
          continue.

       After denial of his motion to substitute counsel, Daly immediately moved to continue the
hearing so alternative counsel could represent him. The court also denied this motion, indicating
that further delay would not be sensible.
       As a general rule, “broad discretion [is] granted [to] trial courts on matters of
continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of
justifiable request for delay violates the right to assistance of counsel.” Morris v. Slappy, 461
U.S. 1, 11–12 (1983) (internal quotations omitted). In Idaho, “[t]he motion for continuance is
addressed to the sound discretion of the trial court, and the action of the court will be upheld
unless there has been a clear abuse of discretion.” State v. Laws, 94 Idaho 200, 202, 485 P.2d
144, 146 (1971).
                                                 5
       Daly did not indicate other counsel he preferred to retain nor did he indicate any steps he
had taken in the time between trial and sentencing to retain new counsel. In short, he did not
have other counsel ready to proceed. Thus, the district court acted well within its discretion in
denying the motion.
C. The district court was not required to conduct a hearing on Daly’s motion to substitute
   counsel.

       Daly argues that the district court should have inquired into his reasons for seeking new
counsel, as required by Clayton. The State responds that a defendant is entitled to a hearing on a
motion to substitute court-appointed counsel because he must show “good cause” before
substitute counsel can be appointed, and that extending this requirement to retained counsel
would be a “blatant infringement” on the defendant’s right to counsel of choice. We agree.
       Clayton and Nath require that the defendant have a “full and fair” opportunity to discuss
with the court reasons for wanting to substitute appointed counsel. Clayton, 100 Idaho at 898,
606 P.2d at 1002; Nath, 137 Idaho at 715, 52 P.3d at 860. But because Daly had retained
counsel, he was free to substitute counsel at any time during the proceedings, so long as the
change did not substantially interfere with the efficient administration of justice and the need for
fairness to all parties. The court does not have a duty to inquire into a defendant’s reasons for
wishing to substitute retained counsel. Daly was free to offer the reasons for his motion, but did
not take that opportunity. The court was available to listen to any reasoning Daly wished to put
forth. It did not cut him off or interrupt. Daly had the opportunity—at the time of the motion—to
set forth his reasoning, if he wished to do so. But the court was not under a duty to inquire into
his reasons for terminating retained counsel. Requiring inquiry or a separate hearing with
sufficient reasoning before a motion to substitute retained counsel was granted would infringe
upon Daly’s constitutional right to counsel of choice.
       We see good reason to differentiate between retained and appointed counsel in motions to
substitute counsel. Appointed counsel is employed at public expense and should not be dismissed
for reasons that would serve little purpose but to add to taxpayer cost. Retained counsel, on the
other hand, is employed at the defendant’s expense. The defendant is thus free to dispense with
retained counsel at any time and for any reason, so long as the change does not substantially
interfere with the efficient administration of justice and the need for fairness to all parties.
Requiring courts to inquire into a defendant’s reasons for wishing to substitute retained counsel
                                                 6
would constitute an unconstitutional infringement on defendants’ Sixth Amendment right to
counsel of choice.
                                      V. CONCLUSION
        For the foregoing reasons, we affirm the judgment of conviction and sentence of the
district court.


        Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON CONCUR.




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