Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Dec 18 2013, 7:01 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FREDERICK M. DIAL, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1301-CR-15
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1107-FB-24
December 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Following a jury trial, Frederick Dial was convicted of dealing in
methamphetamine and maintaining a common nuisance and was sentenced to twenty
years. On appeal, Dial raises one issue which we expand and restate as two: 1) whether
the trial court interfered with his right to counsel of choice; and 2) whether the trial court
abused its discretion by denying his motion to continue the trial. Concluding Dial was
afforded ample opportunity to hire counsel of his choice and the trial court did not abuse
its discretion in denying an untimely motion to continue, we affirm.
Facts and Procedural History
On July 13, 2011, the State charged Dial with dealing in methamphetamine, a
Class B felony, and maintaining a common nuisance, a Class D felony. 1 The trial court
held an initial hearing and upon finding Dial to be indigent, appointed Fay Schwartz, a
public defender, to represent him. A jury trial was scheduled for December 19, 2011.
On November 3, 2011, Dial requested that the scheduled trial be continued to
allow him to complete his discovery. The trial court granted Dial’s motion. During a
February 2, 2012, pretrial conference, the parties agreed to a jury trial date of May 21,
2012. However, on May 10, 2012, the State filed a motion to continue the jury trial due
to court congestion. The trial court granted the motion. When the parties appeared on
June 28, 2012, for a pretrial conference, Dial indicated he wished to hire private counsel
and requested a continuance of the conference so that his new counsel could appear and
help determine a trial date. Dial stated he was planning to meet with private counsel
within the week. The court, over the State’s objection, granted the motion to continue the
1
A charge of possession of a controlled substance, a Class D felony, was dismissed prior to trial.
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pretrial conference to July 19, 2012. The trial court stated that whether or not private
counsel had entered an appearance by that time, a date for trial would be set at that
conference.
During the July 19, 2012, pretrial conference, Schwartz again appeared on Dial’s
behalf. Dial indicated that he still wished to hire private counsel and had already spoken
with one attorney but would like to speak to another attorney prior to setting the trial
date. The court, however, stated that it was unwilling to delay setting the trial date any
longer because it did not “want to lose track of a case and have it fall through the cracks.
So as long as I keep setting cases for dates certain, I guard against that problem.”
Transcript at 10. Dial and his attorney stated on record that they understood the trial
court’s reasoning and agreed to a November 12, 2012, trial date. Dial was also instructed
that if he hired private counsel, counsel should file an appearance as soon as possible and
the court would then address any motions to change the trial date.
On November 7, 2012, five days prior to the start of trial, Dial again filed a motion
to continue, indicating that his family had hired private counsel for him. On November 8,
the trial court held a hearing on Dial’s motion. Attorney William Cohen was present
during the hearing, although he had not yet formally filed an appearance on Dial’s behalf.
Schwartz argued to the trial court that Dial “does have a Sixth Amendment right to retain
private counsel” and noted that he was filing for a continuance several days in advance of
the trial date. Tr. at 15. She also noted that she and Dial “have come to kind of a
stalemate with our interaction with one another.” Id. at 17. Cohen explained to the court
that he had been contacted by Dial and was willing to represent him but had a prior
commitment that would take him out of the state for the scheduled trial date. Therefore,
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his representation of Dial was conditioned on the trial court granting the motion to
continue. The State objected to the motion, arguing that Cohen had ample time to
reschedule prior commitments in order to represent Dial at trial set for November 12.2
The State also posited that the motion to continue was another attempt to delay the
proceedings.
The court noted that Dial’s motion for continuance was filed on Wednesday for a
trial scheduled the following Monday, and further noted that all other cases set for
November 12 had been resolved, so if Dial’s motion was granted, no case would be heard
that day. The court took the matter under advisement and alerted the parties to be ready
for the November 12 trial in the event that it denied the motion. On November 12, 2012,
the trial court denied Dial’s motion, stating “I have said nothing nor have I done anything
which would prevent Mr. Cohen from entering his appearance as counsel for [Dial]. I told
Mr. Cohen and [the prosecuting attorney] that the trial would proceed as scheduled.” Id.
at 27. Schwartz agreed that the court had not ruled that Cohen could not appear in this
case. Dial again requested that the trial court grant his motion to continue, and the State
objected. The trial court denied the renewed motion, and the jury trial began as
scheduled. The jury found Dial guilty on both counts, and on December 12, 2012, the
trial court sentenced Dial to twenty years for dealing in methamphetamine, to be served
concurrently with a three year sentence for maintaining a common nuisance. Dial now
appeals.
2
It appears an off-the-record conversation between Cohen, the State, and the trial court occurred sometime
in late October regarding Cohen’s proposed representation of Dial at which time Cohen informed the court that he
was willing to appear on Dial’s behalf if the trial date was continued, and the trial court advised that it was not going
to continue the trial. See Tr. at 18, 21-22.
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Discussion and Decision
Dial contends the trial court denied his Sixth Amendment right to counsel of his
choice and abused its discretion in denying his motion to continue. These are two
closely-related but separate issues, and we will address each in turn.
I. Sixth Amendment Right to Counsel
The Sixth Amendment guarantees a criminal defendant’s right “to have the
Assistance of Counsel for his defence.” U.S. Const., amend. VI. A criminal defendant
has the right to choose counsel when he is financially able to do so, “and a defendant
should be afforded a fair opportunity to secure counsel of his own choice.” Washington
v. State, 902 N.E.2d 280, 286 (Ind. Ct. App. 2009), trans. denied. However, the right to
counsel of choice is not absolute, and it is well-settled that the right must be exercised at
an appropriate stage of the proceedings. Lewis v. State, 730 N.E.2d 686, 688-89 (Ind.
2000). Continuances sought shortly before trial to hire new counsel “are disfavored
because they cause substantial loss of time for jurors, lawyers, and the court.” Perry v.
State, 638 N.E.2d 1236, 1241 (Ind. 1994). When a trial court denies a defendant’s
continuance for the purpose of obtaining private counsel of his choice, we review the trial
court’s decision to determine whether it acted unreasonably and arbitrarily. Lewis, 730
N.E.2d at 689-90. A conviction obtained when a court unreasonably and arbitrarily
interferes with the right to retain counsel of choice “cannot stand, irrespective of whether
the defendant has been prejudiced.” Washington, 902 N.E.2d at 287 (quoting U.S. v.
Collins, 920 F.2d 619, 625 (10th Cir. 1990)).
Dial argues that the denial of his motion to continue resulted in a de facto denial of
his right to counsel of his choosing. In support of this claim, he cites Barham v. State,
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641 N.E.2d 79 (Ind. Ct. App. 1994), where a week before trial, the defendant had
indicated in a pro se motion requesting new counsel that he was unhappy with his public
defender. The following day, the defendant told the court that he had hired private
counsel, and the court told him she was free to enter her appearance but needed to be
prepared to try the case as scheduled. The trial court also noted, however, that counsel
could file a motion to continue. Private counsel promptly entered an appearance and
filed a motion to continue five days prior to the scheduled trial date. Without holding a
hearing, the trial court denied both the appearance offered by Barham’s private counsel
and the motion to continue. We held the trial court unreasonably and arbitrarily
interfered with the defendant’s right to retain counsel of his choice. Id. at 83-84. In
reaching our conclusion, we noted that despite the motion to continue, there was no
showing that private counsel could not be prepared for the scheduled trial, and in fact, she
had offered to serve as co-counsel when her appearance and continuance were denied.
Id. at 84. In addition, the defendant had caused no prior delays, had not requested a
speedy trial, had expressed dissatisfaction with his public defender, and was in jail so a
continuance was of no benefit to him personally. Id.
There are similarities between Barham and this case. For instance, Dial had
previously indicated he wished to hire private counsel, private counsel had contacted the
court in advance of the trial date, and a motion to continue was filed several business
days in advance of the trial date. In addition, Dial was in jail awaiting trial. However,
unlike the defendant in Barham, Dial had indicated several months in advance of the trial
date that he wished to hire private counsel and yet did not do so until just days before his
trial, private counsel had contacted the court several weeks in advance of the trial but had
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conditioned his appearance for Dial on the court granting a motion to continue, and Dial
had previously requested several continuances of the trial or pre-trial conferences.
Private counsel did not enter an appearance for Dial and indicated to the trial court at the
time the motion to continue was made that he would be unable to represent Dial on the
scheduled trial date. Dial did not wait until the literal eve of trial to hire private counsel
and request a continuance. However, given the time that lapsed between when he first
indicated at a pretrial conference in June 2012 that he wished to do so and when he
conditionally procured counsel in early November 2012 and filed a motion to continue,
Dial did not exercise his right to counsel of choice at an appropriate time in the
proceedings. See Washington, 902 N.E.2d at 287 (holding that in waiting until the
morning of trial to request a continuance for the purpose of hiring private counsel,
defendant failed to exercise his right to hire counsel of his choice at an appropriate stage);
cf. Lewis, 730 N.E.2d at 688-89 (holding there was neither a Sixth Amendment violation
nor an abuse of discretion in denying defendant’s day-of-trial motion for continuance
because defendant had indicated eight months prior to trial that he intended to hire private
counsel but did not do so, his appointed public defender was ready for trial and private
counsel’s appearance was contingent on a continuance, and all other cases for that date
had been continued because defendant’s was the oldest case with an incarcerated
defendant and continuing his trial would have meant no case would have been tried that
day); McCollum v. State, 582 N.E.2d 804, 810 (Ind. 1991) (in addressing alleged abuse
of discretion in denying continuance, the court noted that defendant had at least five
months to hire private counsel but failed to do so until eight days before trial). The trial
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court did not unreasonably and arbitrarily interfere with Dial’s right to counsel of choice
by denying the continuance.
II. Abuse of Discretion
We use an abuse of discretion standard when reviewing a trial court’s ruling on a
motion to continue for the purpose of hiring private counsel. Washington, 902 N.E.2d at
286. An abuse of discretion occurs where the court’s decision is clearly against the logic
and effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). “To demonstrate an abuse of discretion, the record must reveal that the defendant
was prejudiced by the court’s failure to grant the continuance.” Dickson v. State, 520
N.E.2d 101, 105 (Ind. 1988).
“Where a defendant is given an opportunity to secure counsel of his own choosing
but fails to do so he cannot complain on appeal that he was compelled to go forward with
court-appointed counsel.” McCollum, 582 N.E.2d at 810. Dial had several months to
hire private counsel and was in fact granted a continuance of a pretrial conference for that
specific purpose after informing the court that he was going to hire private counsel,
would do so within a week, and wanted private counsel to be a part of setting a trial date.
When Dial failed to acquire private counsel by the next pretrial conference, the trial court
set a trial date four months hence but told Dial if he hired private counsel, counsel could
file a motion to continue that trial date. Still, Dial waited nearly the full four months
before finding private counsel – counsel who was not prepared to file an immediate
appearance on his behalf. In this respect, this case is akin to Dickson, in which our
supreme court held the denial of a continuance filed the day before trial was not an abuse
of discretion when the defendant sought to replace his public defender with private
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counsel who would only represent the defendant on the condition that the motion was
granted. 520 N.E.2d at 105.
Additionally, Dial has not shown that he was prejudiced by the denial. Although
Schwartz indicated when the motion to continue was argued that she and Dial had
reached “a stalemate” with regard to her representation of him, tr. at 17, Dial has not
alleged any particular problems with Schwartz’s representation, and she was prepared
and ready for trial.
As the trial court made clear, granting Dial’s motion to continue five days prior to
the start of trial would have resulted in valuable court resources being wasted. See Perry,
638 N.E.2d at 1241. As Dial was given a reasonable opportunity to hire private counsel
and has not shown any prejudice from the denial of his motion to continue, the trial court
did not abuse its discretion.
Conclusion
The trial court did not unreasonably and arbitrarily interfere with Dial’s Sixth
Amendment right to counsel of choice and did not abuse its discretion in denying his
motion to continue filed just days before trial for the purpose of hiring private counsel.
The judgment of the trial court is affirmed.
Affirmed.
RILEY, J., and KIRSCH, J., concur.
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