v. Sifuentes

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

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 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

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 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.

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¶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;

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 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,

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 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.

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¶ 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

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 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

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 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

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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.

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 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.”

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¶ 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.

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 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

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 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

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 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.

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