     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 11, 2019

                               2019COA106

No. 17CA1184, People v. Sifuentes — Constitutional Law —
Sixth Amendment — Right to Counsel; Criminal Law — Counsel
of Choice

     Considering People v. Brown, 2014 CO 25, and People v.

Travis, 2019 CO 15, a division of the court of appeals examines

whether a defendant invoked his Sixth Amendment right to counsel

of choice when he moved to continue his trial so that he could

replace his public defender with “identified” but unnamed private

counsel whom he had saved nearly enough money to retain.

     The majority concludes that the record is insufficient to

determine whether defendant invoked the right, and it remands to

the district court for further findings.
     The dissent concludes that the appellate record is sufficient to

determine that defendant did not invoke his right to counsel of

choice.
COLORADO COURT OF APPEALS                                       2019COA106


Court of Appeals No. 17CA1184
Adams County District Court No. 16CR142
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ruben Jesus Sifuentes,

Defendant-Appellant.


                         ORDER OF LIMITED REMAND

                                  Division V
                         Opinion by JUDGE RICHMAN
                               Tow, J., concurs
                           Rothenberg*, J., dissents

                           Announced July 11, 2019


Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Law Offices of M. Colin Bresee, M. Colin Bresee, Denver, Colorado; The Blair
Law Office, LLC, David Blair, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    The court, sua sponte, having considered the briefs in this

 case orders that the case is remanded to the district court for the

 limited purposes of (1) determining whether defendant invoked his

 Sixth Amendment right to counsel of choice when he moved to

 continue; and, if so, (2) weighing the judicial efficiency and integrity

 factors articulated in People v. Brown, 2014 CO 25, ¶ 24, against

 the defendant’s right to counsel of choice, which shall be done with

 all due speed.

                             I. Background

¶2    Defendant, Ruben Jesus Sifuentes, was charged with first

 degree criminal trespass, aggravated sexual assault on a child, and

 sexual assault on a child. He was tried on the latter two charges,

 and the trial ended with a hung jury. In a separate proceeding, he

 pleaded guilty to second degree criminal trespass and the

 prosecution dismissed the first degree trespass charge.

¶3    Sifuentes was retried on the sex assault charges. Six days

 before his second trial, he asked for a continuance. His appointed

 attorney told the district court:

            His family has been in touch with a private
            attorney that they would like to hire. My
            understanding is they have most of the


                                     1
            retainers saved, there’s just a very small
            amount of money, just 100 or couple hundred
            dollars, that needs to be saved to hire that
            private attorney. That is the attorney that he
            wants to represent him at the trial.

 The court, noting that (1) the case was “very old”; (2) “a lot of people

 on both sides” needed resolution; and (3) it had not heard from an

 attorney wanting to enter an appearance, denied the request.

¶4    Sifuentes then spoke for himself in the following exchange:

            SIFUENTES: Can the attorneys show up on
            the trial date?

            THE COURT: No, sir.

            SIFUENTES: So I just have to go with the
            public defender’s office?

            THE COURT: At this point in time I’m not
            granting the motion to continue.

            SIFUENTES: I don’t want this — this is the
            representation I want — representation I want.
            I want the attorney I want to hire.

            THE COURT: Well, you should have done that
            a long time ago. This case has been pending
            for more than a year.

            SIFUENTES: Okay.

¶5    Sifuentes raised the issue again on the first day of trial. He

 told the district court that he was not happy with his public

 defender and that he thought there was a conflict with his


                                    2
 representation because he did not agree with the attorney’s tactical

 decisions. The court found that there was no conflict, noted that no

 other counsel was present, and stated that it would not continue

 the case. Sifuentes’s choices were to represent himself or to

 proceed with appointed counsel.

¶6       On appeal, Sifuentes contends that the district court abused

 its discretion when it denied his motion to continue based entirely

 on expedience, without balancing the factors outlined in Brown,

 ¶ 24.

                            II. Applicable Law

¶7       The Sixth Amendment of the United States Constitution

 affords a criminal defendant the right to be represented by the

 retained counsel of his or her choice. See U.S. Const. amend. VI;

 Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo. 1986). This right

 “commands . . . that the accused be defended by the counsel he

 believes to be best” and is entitled to great deference. United States

 v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006); see Rodriguez, 719

 P.2d at 705. “A trial court must therefore recognize a presumption

 in favor of a defendant’s choice of retained counsel.” Ronquillo v.

 People, 2017 CO 99, ¶ 17.


                                     3
¶8    When a continuance is requested for substitution of counsel,

 the court “abuses its discretion by basing its decision to deny a

 continuance on expediency alone.” Brown, ¶ 15; see Morris v.

 Slappy, 461 U.S. 1, 11-12 (1983) (“[A]n unreasoning and arbitrary

 ‘insistence upon expeditiousness in the face of a justifiable request

 for delay’ violates the right to the assistance of counsel.” (quoting

 Ungar v. Sarafite, 376 U.S. 575, 589 (1964))).

¶9    Brown dictates that, when deciding whether to grant a motion

 to continue a criminal trial for substitution of defense counsel, a

 trial court must weigh the following eleven factors pertaining to

 judicial efficiency and integrity against the defendant’s Sixth

 Amendment right to counsel of choice:

            1. the defendant’s actions surrounding the
            request and apparent motive for making the
            request;

            2. the availability of chosen counsel;

            3. the length of continuance necessary to
            accommodate chosen counsel;

            4. the potential prejudice of a delay to the
            prosecution beyond mere inconvenience;

            5. the inconvenience to witnesses;

            6. the age of the case, both in the judicial
            system and from the date of the offense;

                                    4
             7. the number of continuances already granted
             in the case;

             8. the timing of the request to continue;

             9. the impact of the continuance on the court’s
             docket;

             10. the victim’s position, if the victims’ rights
             act applies; and

             11. any other case-specific factors
             necessitating or weighing against further
             delay.

  Brown, ¶ 24. The court must “make a sufficient record that it

  conducted the appropriate balancing test” and “determine whether

  the public’s interest in the efficiency and integrity of the judicial

  system outweighs the defendant’s Sixth Amendment right to

  counsel of choice.” Id. at ¶¶ 25, 30. When conducting the

  balancing test, the court must accord the defendant’s right to

  counsel of choice significant weight. Id. at ¶ 21.

¶ 10   Our supreme court recently made clear, however, that Brown

  does not apply in every case. See People v. Travis, 2019 CO 15,

  ¶ 14. Unless the Sixth Amendment right to counsel of choice is at

  issue, the findings articulated in Brown are not required. Id. at

  ¶ 12. The right does not, for instance, extend to a defendant who

  requests replacement counsel to be appointed for him, id. at ¶ 8,

                                      5
  but it extends to a defendant who seeks to discharge retained

  counsel in favor of appointed counsel, see Ronquillo, ¶ 27.

                              III. Application

¶ 11   The Travis decision did not delineate what circumstances are

  necessary to invoke the right to counsel of choice, thereby triggering

  a Brown analysis. It is clear that Brown applies when counsel of

  choice has “entered an appearance, filed a motion for a

  continuance, and appeared before the [district] court.” Travis, ¶ 14.

  And it does not apply when “the defendant expresses a general

  interest in retaining counsel, but has not identified replacement

  counsel or taken any steps to retain any particular lawyer.” Id. It

  is not clear, however, whether Brown applies where, as here, a

  defendant has selected unnamed private counsel that he cannot yet

  afford to retain.

¶ 12   When a defendant would like to replace his counsel with

  private counsel, the crux is the definiteness of the retention. A

  defendant’s right to counsel of choice is invoked when the

  defendant’s retention of private counsel is substantially definite, in

  name and in funds.




                                     6
¶ 13   When replacement counsel enters an appearance and shows

  up in court, it is clear that the counsel intends to represent the

  defendant — the retention is substantially definite. In that

  circumstance, the court must conduct a Brown analysis, and each

  factor may be addressed without speculation. Id. But when a

  defendant requests to “look for and pay for an attorney,” as Travis

  did, it is unclear whether the defendant would be able to afford to

  retain counsel or that any counsel would be willing to represent the

  defendant. See id. at ¶ 6. In that circumstance, the retention is not

  substantially definite, the Sixth Amendment right to counsel of

  choice is not at issue, and at least two of the Brown factors are

  impossible to evaluate. Id. at ¶ 15.

¶ 14   Here, the district court denied Sifuentes’s motion for a

  continuance after the supreme court’s Brown opinion but before

  Travis. Even so, it did not consider the Brown factors nor inquire

  into the definiteness of the retainer of chosen counsel. Unlike the

  defendant in People v. Flynn, decided by the same division on this

  date, Sifuentes suggested that his representation was substantially

  definite when he asked if the “attorneys [could] show up on the trial




                                     7
  date” and said that he had chosen a particular attorney and that

  his family had saved nearly all the funds required for a retainer.

¶ 15   But the district court told Sifuentes that his chosen attorney

  could not show up on the trial date, and it did not inquire into the

  name of his chosen attorney, his level of contact with the attorney,

  or whether he had paid a retainer. As a result, the record is

  insufficient to indicate (1) whether Sifuentes’s retention of his

  counsel of choice was substantially definite and thus sufficient to

  invoke the right; or (2) whether, if invoked, his right to counsel of

  choice outweighed the public’s interest in the efficiency and

  integrity of the judicial system. Consequently, we remand for

  further findings.

                                IV. Remand

¶ 16   On remand, we direct the district court to make findings

  regarding the definiteness of Sifuentes’s retention of chosen

  counsel. In making such findings, the court should, at a minimum,

  inquire as to (1) the identity of Sifuentes’s proposed private counsel,

  (2) whether counsel had agreed to represent him if a continuance

  was granted, (3) whether counsel had accepted any money on his




                                     8
  behalf, and (4) how much more money had counsel required before

  he or she would agree to represent him.

¶ 17   If the court finds that his proposed retention of private counsel

  was not substantially definite before the denial of a continuance, it

  need not conduct an analysis of the Brown factors.

¶ 18   But if the court finds that his proposed retention of private

  counsel was substantially definite before the denial of a

  continuance, the court must also make findings regarding each of

  the Brown factors and make a record balancing the public’s interest

  in the efficiency and integrity of the judicial system (as reflected in

  the Brown factors) against Sifuentes’s Sixth Amendment right to

  counsel of choice. If the court finds that the balance weighed in

  favor of granting a continuance, it should so state in its order.

¶ 19   The court may conduct a hearing, if it deems it necessary.

¶ 20   After the proceedings have been resolved, Sifuentes must

  immediately forward a certified copy of the district court’s order to

  this court, and the case shall be recertified. The order entered shall

  be made a part of the record on appeal.

¶ 21   The court further orders Sifuentes to notify this court in

  writing of the status of the district court proceedings in the event


                                     9
that this matter is not concluded within forty-nine days from the

date of this order, and that he must do so every forty-nine days

thereafter until the district court rules on the motion.

     JUDGE TOW concurs.

     JUDGE ROTHENBERG dissents.




                                  10
       JUDGE ROTHENBERG, dissenting.

¶ 22   The majority concludes a remand is required for the trial court

  to weigh the factors addressed in People v. Brown, 2014 CO 25. I

  respectfully dissent. I conclude the record supports the trial court’s

  ruling denying defendant’s last minute request for a continuance to

  obtain his own attorney.

¶ 23   On December 16, 2015, while he was on parole for another

  felony, defendant committed a sexual assault on a young girl in the

  presence of two witnesses. On the same day, he followed another

  young girl into her house, but was observed and chased from the

  house by the girl’s father. Defendant pleaded guilty to the first

  degree criminal trespass and went to trial on the sex-related

  offenses.

¶ 24   Defendant was represented by the public defender and tried

  on January 23, 2017. The jury hung, a mistrial was declared, and

  the case was reset for March 6, 2017. Six days before the second

  jury trial, defendant’s public defender informed the court that

  defendant’s “family has been in touch with a private attorney that

  they would like to hire.”




                                    11
¶ 25   Unlike in Brown, where a private defense attorney filed an

  entry of appearance and written motion for continuance on the

  defendant’s behalf, here there was no representation by defendant

  or his public defender that a private attorney was ready and willing

  to take defendant’s case. Nor am I persuaded otherwise by

  defendant’s question to the trial court asking if his chosen attorney

  could “show up on the trial date.” His “chosen attorney” was never

  identified and never filed a single document purporting to establish

  a relationship with defendant.

¶ 26   Unlike in Brown, where the prosecution failed to show any

  prejudice resulting from the continuance, this case involved an

  alleged sexual assault on a young female victim that was witnessed

  by another young female and the witness’s mother. At the time of

  defendant’s motion for a continuance, the victim and the witnesses

  had already testified once and had undergone cross-examination at

  defendant’s earlier jury trial.

¶ 27   The trial court here did not make specific findings about the

  prejudice that would have been visited upon the victim and

  witnesses, but it can easily be inferred from the nature of the case.




                                    12
  Indeed, in the presentence report, the mother of the young victim

  explained the trauma to her daughter resulting from the case:

            [The victim] has missed multiple days of
            school. . . . The event impacted her
            friendships, as people talked [and the victim]
            had to deal with people at school finding out.
            She retreated within herself. She became
            angry. She lost trust in people. . . . It
            impacted her grades, both last year when it
            happened and this year re-living it twice for
            trial. I have missed work for the trial, to meet
            with officers, DA and to care for my distraught
            daughter . . . . She fought hard and testified
            and made sure he wouldn’t hurt another little
            girl.

  (Emphasis added.)

¶ 28   In Brown, ¶¶ 17-23, the Colorado Supreme Court recognized

  that there were no “mechanical tests” for determining whether a

  trial court abuses its discretion by denying a continuance, and that

  “a defendant may not use the right to counsel of choice to delay the

  trial or impede judicial efficiency.” The court admonished appellate

  courts to “consider the totality of the circumstances of the case

  when determining whether a trial court has abused its discretion by

  denying a continuance.” Id. at ¶ 20.

¶ 29   Later, in People v. Travis, 2019 CO 15, ¶¶ 13-15, the

  defendant informed the court on the morning of trial that she


                                    13
  wanted a continuance so that she could “look for and pay for an

  attorney.” The supreme court concluded that she had not triggered

  the assessment required by Brown because she had expressed a

  general interest in retaining counsel but did not identify

  replacement counsel or take any steps to retain a particular lawyer.

  The supreme court stated that “[t]he inapplicability of Brown to this

  circumstance can be demonstrated by the fact that at least two of

  the Brown factors — availability of chosen counsel and amount of

  time needed for that counsel to prepare for trial — cannot even be

  speculated about in this instance.” Id. at ¶15.

¶ 30   Similarly, here, the same two Brown factors required

  speculation by the trial court: namely, the vagueness of defendant’s

  last minute representation that he “intended” to hire his own

  counsel as soon as he (or his family) obtained the rest of the money

  needed for a retainer and the amount of time that would have been

  needed for new counsel to prepare for trial.

¶ 31   It is therefore reasonable to infer from this record, as the trial

  court obviously did, that (1) a significant motivation for defendant’s

  last minute request was to delay his second jury trial; (2) his

  purported counsel was not identified, and had not actually been


                                    14
  retained; (3) if counsel were retained, he or she would have required

  a lengthy postponement of the trial to obtain a transcript of the first

  trial and to prepare for another one; (4) the child victim and

  witnesses would have suffered considerable anxiety, inconvenience,

  and prejudice if the case had been further delayed; and (5) as the

  trial court observed, the case already had been pending over a year.

¶ 32   I therefore perceive no reason to remand this case back to the

  trial court for additional findings pursuant to Brown. Moreover, the

  trial judge in this case retired in 2018, and so we are asking

  another district court judge to glean from a written record what we

  are equally capable of perceiving. See Brown, ¶ 49 (Marquez, J.,

  dissenting) (observing that “[t]his case is particularly ill-suited for

  remand . . . to the trial court to make additional factual findings

  regarding a decision that was made based on circumstances that

  existed more than eight years ago . . . [and] is further complicated

  by the fact that the judge who made the decision to deny the

  continuance has since retired”).

¶ 33   For these reasons, I respectfully submit that the requirements

  of Brown and Travis have been satisfied and that a remand to the

  trial court is not required in this case.


                                     15
