                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 124

                                                                 OCTOBER TERM, A.D. 2013


                                                                           October 9, 2013


ROBERT STEVEN HANKINS,

Appellant
(Defendant),

v.                                                                  No. S-12-0160

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                       Appeal from the District Court of Albany County
                          The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:

        Anthony C. Gold, Law Office of Anthony C. Gold, Laramie, Wyoming.

Representing Appellee:

        Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney
        General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student
        Intern.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Mr. Hankins appeals his convictions on charges of burglary and attempted sexual
assault. He claims that the district court infringed on his constitutional right to be
represented by counsel of his choice. We will affirm.

                                         ISSUE

[¶2] The issue in this appeal is whether Mr. Hankins was denied a fair opportunity to
secure counsel of his own choice.

                                         FACTS

[¶3] In February, 2011, Mr. Hankins was charged with burglary and attempted sexual
assault. He engaged an attorney to defend him. Trial was scheduled to begin on
September 7, 2011. In July, 2011, Mr. Hankins’ counsel was severely injured in a
motorcycle accident, and was unable to continue representing Mr. Hankins. At the
request of the State, the district court convened a status conference on August 2, 2011, to
assess the situation.

[¶4] Because this status conference is at the heart of this case, we set forth in full the
discussion between the district court and Mr. Hankins:

                    THE COURT: All right. So, Mr. Hankins, here’s
             where things stand right now. We have trial set on September
             the 7th, just over a month from today. We have pretrial
             motions pending that need to be resolved within the next two
             weeks, at least; sooner, if possible. And I know you’ve
             known about this situation, at least for a while.

                    You have three options at this point. You can either
             submit an affidavit to the Court – a financial affidavit and
             request assignment of a public defender, which assuming you
             qualify, I will be happy to do.

                   You can go find another attorney for yourself, if that’s
             what you would prefer to do.

                    Or I guess [you could] be representing yourself.

                   But we have a trial scheduled, and that trial is going
             ahead as scheduled, as far as I’m concerned right now. So
             what’s it going to be?


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       THE DEFENDANT: Your Honor, I’ve only known of
[my attorney’s] disposition for about two weeks now. I have
been in touch with [another attorney], and he’s informed me
of [my attorney’s] situation and the probability that he would
not be able to have the capacity to represent me.

       I have been in search for better than a week for
alternative counsel, and that’s the route I wish to take at this
moment.

        THE COURT: Here’s the problem we have. Every
day that goes by makes it that much harder to hire a private
attorney. As we get closer to trial, that difficulty increases
geometrically. You are probably to the point right now where
it is going to be very, very difficult to find somebody on a
month’s notice to try a case like this. You’re welcome to try
if you’d like, but I’m telling you now, the odds are not good,
and we are going to trial on this. I am not going to move this.

        So if you want to continue to do that, that’s fine, but
were I you, I would suggest very, very strongly that you
complete a financial affidavit and that you let me see if you
qualify for appointment of a public defender. If you find
somebody after that, great. The public defender’s office can
step out. But I am not going to put this date off because you
can’t find a lawyer. And I can see that coming right now.

       THE DEFENDANT: Yes, sir.

       THE COURT: So I would strongly suggest that you
do that. Quite frankly, the public defender’s people here have
more trial experience in court than anybody you are likely to
find anyway. That’s what they do. So it’s not like you’re
getting some lesser degree of representation by any means.
[One lawyer] in the public defender’s office had two
acquittals in jury trials last week. So these people know what
they’re about.

        But it is going to be very difficult. I mean, I have been
in this business for a long time, and I’m telling you . . . trying
to find a good trial attorney on one month’s notice is almost
impossible. So I’m not ordering you to but I am strongly


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suggesting, very strongly suggesting that you make the
application for appointment of a public defender, because
otherwise, we are going to come right up to this trial date, and
you are going to be standing there without a lawyer, and we
are going to be ready to go to trial. You do not want to be in
that situation.

       THE DEFENDANT: Yes, sir.

        THE COURT: So it’s your choice. As I say, it’s your
call, but what do you want to do?

       THE DEFENDANT: I have run into difficulty of
trying to find a short-term counsel. I was quite optimistic that
I would receive some notice from counsel that I had been in
touch with today, and pending their decision on whether they
were willing to accept the case, I suppose it would be
influential to my decision hereafter.

      THE COURT: So you want the rest of the day to
decide?

       THE DEFENDANT: Yes, sir.

       THE COURT: Okay. Here’s the deal, then: By noon
tomorrow, I want notification in writing, either an entry of
appearance by your new lawyer or an application and
affidavit from you for appointment of a public defender, one
or the other. Because I am not going to allow you to dither on
this choice until it’s too late. And you’re just about there
now.

       THE DEFENDANT: Yes, sir.

       THE COURT: So you can pick up an affidavit on the
way out. You can pick it up in my office. Fill it out before
you leave. Leave it with my office. I won’t act on it until –
until I hear something, but I’ll have it here and I can take
action as appropriate. You let me know one way or the other
by noon tomorrow.

       THE DEFENDANT: Yes, sir.



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                     THE COURT: Call my office.

                     THE DEFENDANT: Yes, sir.

                     THE COURT: All right?

                     THE DEFENDANT: Yes, sir.

[¶5] On the following day, in compliance with the district court’s instructions, a new
attorney delivered his entry of appearance to the court. At the same time, the substitute
counsel also filed a motion to continue the trial and reschedule pretrial deadlines. The
district court granted that motion and rescheduled Mr. Hankins’ trial to begin on
November 1, 2011.

[¶6] Trial was held as rescheduled. Mr. Hankins was convicted on both counts. On
appeal, he contends that his constitutional right to counsel was violated because the
district court allowed him only one day to make his choice of a new attorney.

                                       DISCUSSION

[¶7] Mr. Hankins invokes his constitutional right to be represented by counsel in a
criminal trial.

              The Sixth Amendment provides that “[i]n all criminal
              prosecutions, the accused shall enjoy the right . . . to have the
              Assistance of Counsel for his defence.” We have previously
              held that an element of this right is the right of a defendant
              who does not require appointed counsel to choose who will
              represent him. See Wheat v. United States, 486 U.S. 153,
              159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Cf. Powell v.
              Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)
              (“It is hardly necessary to say that, the right to counsel being
              conceded, a defendant should be afforded a fair opportunity
              to secure counsel of his own choice”).

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d
409 (2006). Whether Mr. Hankins’ constitutional right to counsel of his choice was
violated is a question of law that we review de novo. Schaeffer v. State, 2012 WY 9,
¶ 12, 268 P.3d 1045, 1053 (Wyo. 2012).

[¶8] Mr. Hankins contends that the district court interfered with his right to be
represented by his chosen counsel when it gave him one day to decide between a public
defender or private counsel. He asserts that, if a trial court maintains a litigation schedule


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that unreasonably prevents chosen counsel from participating, it violates a defendant’s
right to be represented by counsel of his choice. He cites, as one example, a case in
which a trial court insisted that a trial be held ten days following the arraignment, and
refused defense counsel’s request for a three-week delay. Linton v. Perini, 656 F.2d 207,
208 (6th Cir. 1981) (superseded on other grounds by statute, Antiterrorism and Effective
Death Penalty Act of 1996, as recognized in Burton v. Renico, 391 F.3d 764, 773 n.2 (6th
Cir. 2004)). The appeals court found that the defendant “was denied the right to employ
counsel of his own choosing without a sufficient reason.” Linton, 656 F.2d at 208. It
explained that “a trial court, acting in the name of calendar control, cannot arbitrarily and
unreasonably interfere with a client’s right to be represented by the attorney he has
selected.” Id., 656 F.2d at 209. Mr. Hankins contends that his right to counsel of his
choice was similarly denied.

[¶9] Mr. Hankins’ contention is deficient in at least two respects. First, he has not
demonstrated that the district court’s imposition of a one-day deadline for choosing
counsel was unfair. Although the district court gave Mr. Hankins a short time to make
his choice, the reasonableness of that time period must be considered in context.
Mr. Hankins told the district court he had known for about two weeks that his original
attorney was unavailable. He indicated that he had been in contact with other counsel,
and was “quite optimistic” about hearing from new counsel that day. In response to this
statement, the district court asked, “So you want the rest of the day to decide?”
Mr. Hankins replied, “Yes, sir.” Mr. Hankins did not request additional time to select
counsel and his new counsel entered his appearance the next day, as the district court had
ordered.

[¶10] Second, Mr. Hankins has failed to show, or even to argue, that the district court
prevented him from being represented by his counsel of choice. It is true that he could
not be represented by his first counsel, but that was because his first counsel was injured,
not because of any decision or action by the district court. There is nothing in the record
to suggest that the replacement counsel who represented Mr. Hankins at trial was not his
counsel of choice.

[¶11] We conclude that the district court did not deprive Mr. Hankins of a fair
opportunity to secure counsel of his own choice. Affirmed.




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