State v. Garcia

No. 01-631

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 211

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JASON NEFTALI GARCIA,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. ADC 97-286,
The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest, Appellate Defender Office, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

Brant Light, Susan Weber, Cascade County Attorneys, Great Falls, Montana

Submitted on Briefs: February 27, 2003

Decided: August 12, 2003
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 In 1998, a jury found the Appellant, Jason Garcia, guilty of sexual intercourse without

consent. We reversed the conviction and remanded for a new trial due to an unconstitutional

juror summoning process. On remand, approximately eighteen days prior to trial, Garcia

moved the Eighth Judicial District Court, Cascade County, to continue the trial as his

prospective private counsel needed more time to prepare for trial. The District Court denied

Garcia’s motion and a jury subsequently convicted him of sexual intercourse without

consent. We reverse and remand for a new trial.

¶2 Garcia raises three issues on appeal. However, the dispositive issue is whether the

District Court abused its discretion when it denied Garcia’s motion to continue.

BACKGROUND

¶3 On August 14, 1997, the State charged Garcia, by information, with one count of

aggravated burglary, a felony, in violation of § 45-6-204(2)(b), MCA (1995), and one count

of sexual intercourse without consent, a felony, in violation of § 45-5-503(3)(a), MCA

(1995). The State alleged that at approximately 5:00 a.m. on July 26, 1997, Garcia broke

into the victim’s apartment and forced the victim to have sexual intercourse with him. Garcia

pled not guilty to both offenses. Garcia acknowledged that he had intercourse with the

victim but maintained that the encounter was consensual.

¶4 On January 30, 1998, a jury found Garcia not guilty of aggravated burglary and guilty

of sexual intercourse without consent. Garcia appealed his conviction to this Court arguing

that the District Court should have stricken the entire jury panel because the juror

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summoning process did not comply with § 3-15-505, MCA (1997). The State conceded that

Garcia was entitled to a new trial pursuant to State v. LaMere, 2000 MT 45, 298 Mont. 358,

2 P.3d 204, a case decided after Garcia’s conviction. Therefore, on July 25, 2000, we

reversed the sexual intercourse without consent conviction and remanded the matter to the

District Court for a new trial.

¶5 On September 28, 2000, Garcia appeared with his court-appointed counsel for

arraignment and pled not guilty to the charge of sexual intercourse without consent. The

District Court scheduled the second trial for January 29, 2001. In December 2000, Garcia

contacted private counsel, Steve Hudspeth, about representing him at trial. Hudspeth agreed

to represent Garcia for $3000 subject to two conditions: (1) Garcia had to obtain a

continuance so Hudspeth could adequately prepare for trial and (2) Hudspeth would not

represent Garcia on appeal. Hudspeth informed Garcia that he would not perform any work

on the case until Garcia transmitted the money to him. Due to the holidays, over which

Hudspeth left town on vacation, and Garcia’s incarceration, Garcia did not transmit the

$3000 to Hudspeth until January 11, 2001. That same day, Garcia filed a motion to continue

the trial. The motion simply stated that “Defendant’s counsel needs more time to prepare for

trial.” The motion made no mention of substituting counsel.

¶6 On January 12, 2001, with the State’s consent, Hudspeth informed the court that

Garcia acquired the necessary funds to retain private counsel. Hudspeth acknowledged his

willingness to represent Garcia at trial subject to the two conditions. The State objected to

Garcia’s motion to continue but stated that “should private counsel be retained and make a

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motion to continue, the State would reconsider their position depending on the circumstances

at that time.” On January 16, 2001, during a telephone conference on the motion, Garcia

agreed to waive his right to speedy trial should the court grant his motion. Nevertheless, the

District Court denied Garcia’s motion to continue.

¶7 On January 19, 2001, Garcia filed a Renewed Motion to Continue Jury Trial.

Therein, Garcia stated that he wished to replace his court-appointed counsel with private

counsel. However, ten days would not suffice for Garcia’s private counsel to prepare for

trial. Garcia insisted that a denial of his motion to continue “would result in a denial of

Defendant’s right to counsel and would deny the Defendant Due Process.” On January 22,

2001, following a hearing on the motion, the District Court denied Garcia’s renewed motion

to continue for the following reasons: retention of trial counsel two weeks prior to trial is not

a sufficient reason to grant a continuance; Garcia’s court-appointed counsel was competent

to represent Garcia at trial; should the court grant the motion, Garcia would remain in jail

for a lengthy period of time given his inability to post bail; and given the court’s congested

docket, the court could not schedule a new trial for several months.

¶8 The case proceeded to trial on January 29, 2001. On February 1, 2001, the jury found

Garcia guilty of sexual intercourse without consent. The District Court sentenced Garcia to

one hundred years in the Montana State Prison for the offense and conditioned parole

eligibility on the completion of Phase I and II of the prison’s sexual offender program.

Garcia filed a Notice of Appeal from the conviction on June 4, 2001.

¶9 On appeal, aside from the continuance issue, Garcia cites two additional assignments

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of error. Garcia argues that the District Court erred when it (1) denied his challenge for

cause regarding prospective juror Waldenberg and (2) permitted the State to read Dr. Bibby’s

former testimony into evidence over Garcia’s objection. Based on our resolution of the

continuance issue, we need not belabor the facts surrounding Garcia’s additional assignments

of error.

STANDARD OF REVIEW

¶10 A ruling on a motion to continue is subject to the district court’s discretion. State v.

Borchert (1997), 281 Mont. 320, 324, 934 P.2d 170, 173. We review discretionary district

court rulings to determine whether the court abused its discretion. Borchert, 281 Mont. at

324, 934 P.2d at 173.

DISCUSSION

¶11 Did the District Court abuse its discretion when it denied Garcia’s motion to

continue?

¶12 The Sixth Amendment to the United States Constitution and Article II, Section 24 of

the Montana Constitution guarantee the fundamental right to assistance of counsel. State v.

Craig (1995), 274 Mont. 140, 148, 906 P.2d 683, 688. This right to counsel contemplates

the right to the “effective assistance” of counsel. Craig, 274 Mont. at 148, 906 P.2d at 688.

In turn, the right to the effective assistance of counsel encompasses the right to retain counsel

of one’s own choosing. See Chandler v. Fretag (1954), 348 U.S. 3, 9-10, 75 S.Ct. 1, 5, 99

L.Ed. 4 (“Regardless of whether petitioner would have been entitled to the appointment of

counsel, his right to be heard through his own counsel was unqualified. . . . [A] defendant

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must be given a reasonable opportunity to employ and consult with counsel; otherwise, the

right to be heard by counsel would be of little worth.”).

¶13 Within the context of appointed counsel, a defendant may not insist upon appointment

of specific counsel or demand dismissal or substitution of counsel so long as appointed

counsel renders effective assistance. Craig, 274 Mont. at 148-49, 906 P.2d at 688.

However, this prohibition does not similarly apply to pecunious defendants. For those

individuals with the means to secure private representation, the right to retain counsel of

one’s own choosing derives from the notion that “chosen representation is the preferred

representation. Defendant’s confidence in his lawyer is vital to his defense. His right to

decide for himself who best can conduct the case must be respected wherever feasible.”

Maxwell v. Superior Court of Los Angeles Cty. (Cal. 1982), 639 P.2d 248, 253. Finally,

“[t]he rule which gives [a defendant] the right to counsel also means that counsel shall be

given a reasonable time to prepare before trial.” State v. Blakeslee (1957), 131 Mont. 47, 54,

306 P.2d 1103, 1106. Failure to respect these rights constitutes a denial of due process.

Chandler, 348 U.S. at 10, 75 S.Ct. at 5.

¶14 With these principles as a backdrop, § 46-13-202, MCA, governs a court’s

consideration of a motion to continue as follows:

Motion for continuance. (1) The defendant or the prosecutor may
move for a continuance. If the motion is made more than 30 days after
arraignment or at any time after trial has begun, the court may require that it
be supported by affidavit.

(2) The court may upon the motion of either party or upon the court’s
own motion order a continuance if the interests of justice so require.

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 (3) All motions for continuance are addressed to the discretion of the
trial court and must be considered in the light of the diligence shown on the
part of the movant. This section must be construed to the end that criminal
cases are tried with due diligence consonant with the rights of the defendant
and the prosecution to a speedy trial.

Therefore, pursuant to § 46-13-202, MCA, a district court must consider a motion for

continuance in a criminal trial in light of the diligence shown by the moving party and may

grant the continuance, in its discretion, if the interests of justice so require. State v. Fields,

2002 MT 84, ¶ 20, 309 Mont. 300, ¶ 20, 46 P.3d 612, ¶ 20.

¶15 As indicated above, the District Court denied Garcia’s motion based on the timeliness

of the request, competence of his court-appointed counsel, speedy trial concerns, and docket

considerations. We will analyze the timeliness issue pursuant to the diligence standard in

§ 46-13-202, MCA. We will examine the other considerations within the “interests of

justice” framework.

Diligence

¶16 The District Court did not engage in a lengthy analysis of Garcia’s diligence in

obtaining retained counsel and a continuance. In a written order, dated January 16, 2001,

the court stated, “While Defendant is entitled to retain counsel of his choice, the retention

of counsel two weeks before the scheduled trial date is not a sufficient reason to grant a

continuance of the trial date.” After entertaining argument at the hearing on January 22,

2001, the court stated, “I am going to deny the request, deny the renewed motion. I am doing

it . . . for the same reasons that this Court set forth in its order of January [16] . . . .” The

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court then seemingly contradicted its written order in stating:

As to the issues of Mr. Garcia’s diligence in seeking new counsel and
in seeking a motion to continue, only hindsight tells us it would have been
better when the issue of new counsel first came up, someone would notify the
Court. But I believe that is not a relevant consideration given the lack of
evidence of any problem with the current counsel.

Nevertheless, we must review Garcia’s diligence as prescribed in § 46-13-202, MCA.

¶17 In People v. Courts (Cal. 1985), 693 P.2d 778, the California Supreme Court

addressed a continuance issue in a case virtually identical to the one at bar, both factually

and legally. In Courts, California charged the defendant with murder and the use of a

firearm. The defendant pled not guilty, the trial court appointed counsel for the defendant,

and the court scheduled the case for trial on October 26, 1982. In September 1982, the

defendant contacted a local attorney to retain his services for trial. However, the defendant

needed time to raise sufficient funds for the retainer.

¶18 On October 18, 1982, the defendant sought a continuance in order to hire private

counsel. However, the defendant had not secured the representation to that point based on

some unfinished financial arrangements. The court denied the request. On October 21,

1982, the defendant conveyed the requisite funds to the private attorney and the attorney

agreed to take the case if the defendant obtained a continuance. The defendant attempted

unsuccessfully to calendar the motion for continuance before trial.

¶19 On the day of trial, the defendant’s public defender renewed the motion for

continuance. The private attorney appeared and testified as to his willingness to represent

the defendant. However, the private attorney conditioned the representation on a

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continuance in order to prepare for trial. The trial court denied the defendant’s motion and

a jury subsequently convicted him of involuntary manslaughter.

¶20 On appeal, the California Supreme Court reversed. Courts, 693 P.2d at 785. In so

doing, it undertook an analysis similar to that required by § 46-13-202, MCA. As for the

diligence component to the inquiry, the court concluded:

The record establishes that appellant engaged in a good faith, diligent
effort to obtain the substitution of counsel before the scheduled trial date.
Nearly two months before trial, appellant contacted [private counsel] and
discussed representation and the fee. During the weeks that followed,
appellant attempted to raise the necessary funds. He conscientiously informed
the court of his efforts as early as October 18th and made a motion for
continuance on that date.

Moreover, as [private counsel’s] testimony revealed, a lawyer-client
relationship had been established–certainly by October 21st, if not before.
Thus, by the time of the October 26th motion, the court was not confronted
with the “uncertainties and contingencies” of an accused who simply wanted
a continuance to obtain private counsel. . . .

Furthermore, appellant cannot be faulted for lack of diligence in failing
to conclude arrangements with [private counsel] while [private counsel] was
on vacation. As Crovedi teaches, the “reasonable efforts” required of the
courts to ensure that a financially able individual be represented by counsel of
his choice assume greater importance where the accused is not responsible for
the absence of retained counsel.

....

The continuance request made on October 18th was only the second
request by appellant for a continuance. (The first was a request for discovery
which was denied.) Contrast this set of facts with those found in . . . Reaves.
There, the accused “previously and successfully obtained numerous
continuances without indicating that there existed any reason to change
attorneys.”

The October 18th motion represented a timely assertion of appellant’s

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 intentions. That motion was made more than a week before trial–at a time
when it appeared that a retainer arrangement was imminent. Even if the
motion were premature on the ground that no retainer had actually been paid,
the court’s reasoning that it was “last minute” and “too late” to substitute
counsel was not a correct reading of the law. [Citations omitted.]

Courts, 693 P.2d at 781-82.

¶21 As in Courts, we conclude that Garcia made a good faith, diligent effort to obtain

substitution of counsel before the scheduled trial date. Garcia was not arraigned on remand

until the end of September 2000. By December 2000, nearly two months before trial, Garcia

contacted Hudspeth. In the ensuing weeks, Garcia attempted to secure Hudspeth’s

representation. However, Garcia’s incarceration and Hudspeth’s vacation delayed the

arrangement.

¶22 On January 12, 2001, seventeen days prior to trial, Hudspeth informed the court of

his willingness to represent Garcia, subject to the two conditions. Thus, as in Courts, the

District Court was not confronted with the “uncertainties and contingencies” of a dubious

request for continuance. Further, Garcia’s January 11, 2001, motion to continue was his first

such request, a fact which rebuts any suggestion of dilatory intent.

¶23 As indicated above, the California Supreme Court approved of the foregoing conduct

which culminated in a first motion to continue eight days prior to trial and a second motion

on the day of trial. Garcia undertook actions virtually identical to those of the defendant in

Courts. Yet, Garcia filed his first motion to continue eighteen days prior to trial and his

second motion ten days prior to trial. We find the rationale offered and result reached in

Courts compelling and, on that basis, hold that Garcia exercised sufficient diligence in

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acquiring independent representation and seeking a continuance.

Interests of Justice

A. Competent Representation

¶24 At the hearing on Garcia’s motion, the District Court inquired about court-appointed

counsel’s fitness for trial. It appears the court examined the competence of court-appointed

counsel issue based on Craig:

[B]earing in mind the analysis that State v. Craig indicates the Court must
follow, I find no basis to conclude that Mr. Garcia is not receiving effective
counsel, competent counsel from the Public Defender’s Office.

Mr. Jensen from the Public Defender’s Office has informed the Court
today he is ready to go to trial, that while Mr. Hudspeth is a trial attorney and
Mr. Garcia might feel more comfortable with Mr. Hudspeth representing him,
the Court has nothing in front of it to indicate that Mr. Jensen is not capable
of providing competent counsel.

Therefore, I don’t believe that Mr. Garcia’s Sixth Amendment right
under the United States Constitution, nor his right under the Montana
Constitution, is compromised by denying the request for a continuance.

[W]ithout a fact basis to conclude that current counsel is somehow not
competent to try this case at this point in time, is not providing effective
assistance of counsel, I don’t believe there’s a sound basis for this Court to
grant the continuance.

¶25 In Craig, the state charged the defendant with robbery, the defendant pled not guilty,

and the court appointed counsel from the public defender’s office to represent the defendant.

Shortly thereafter, the defendant moved to substitute his court-appointed counsel, not with

privately retained counsel but with another court-appointed counsel. The court denied the

defendant’s motion.

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¶26 On appeal, we affirmed and stated the following:

If appointed counsel renders effective assistance, the defendant may not
demand his appointed counsel’s dismissal or substitution, nor may the
defendant demand that certain counsel be appointed. In other words, the right
to assistance of counsel does not grant defendants the right to counsel of their
choice.

Craig, 274 Mont. at 148-49, 906 P.2d at 688. It is important to note the context in which we

stated the above, i.e., the discharge of court-appointed counsel in favor of substitute

court-appointed counsel. Neither the Sixth Amendment, nor Article II, Section 24 of the

Montana Constitution confer such a right upon criminal defendants absent a showing of

ineffective assistance of counsel. See Caplin & Drysdale, Chartered v. United States (1989),

491 U.S. 617, 624, 109 S.Ct. 2646, 2652, 105 L.Ed.2d 528 (“The Amendment guarantees

defendants in criminal cases the right to adequate representation, but those who do not have

the means to hire their own lawyers have no cognizable complaint so long as they are

adequately represented by attorneys appointed by the courts.”).

¶27 The case at bar presents an entirely different situation than that contemplated in

Craig. Here, Garcia sought to substitute court-appointed counsel with a privately retained

attorney. As such, questions of competency or effective assistance of his court-appointed

counsel proved irrelevant and the District Court should not have considered this issue in

ruling on the motion. See Courts, 693 P.2d at 785 n.11 (“When the state erroneously

infringes an accused’s right to appear and defend with retained counsel, considerations as

to whether the accused was competently represented by an advocate of the court’s own

choosing become irrelevant.”); Foster v. Florida (Fla. Dist. Ct. App. 1997), 704 So.2d 169,

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172 (“[A]ppellant was not seeking different court-appointed counsel–he sought only to be

represented by the attorney retained privately by his family on his behalf. Thus, it was not

relevant to determine whether appellant would be entitled to other court-appointed

counsel.”).

B. Speedy Trial Concerns

¶28 Admittedly, we are uncertain whether the speedy trial concerns would have

independently moved the court to deny the continuance. Nonetheless, as indicated by the

following, the record suggests that the issue was one factor which contributed to the court’s

determination:

Mr. Garcia has been . . . incarcerated since 1997 with respect to this
charge, and the Court is very concerned about . . . [that], even if he were to
waive speedy trial. I think that’s a concern that is clear from reading the
decisions of the Montana Supreme Court regarding speedy trial and possible
prejudice. In other words, this Court must consider the fact that the Defendant
has been incarcerated and will continue to be incarcerated up to any trial date.

....

While Mr. Garcia may be willing to waive speedy trial, what that means
is he is going to be sitting in jail until this Court can find a trial date. . . . I
am . . . acutely aware of the concerns that have been expressed by the Montana
Supreme Court with regard to speedy trial issues where a defendant is sitting
in jail.

¶29 Both the Sixth Amendment to the United States Constitution and Article II, Section

24 of the Montana Constitution guarantee criminal defendants the right to a speedy trial. The

right to a speedy trial was primarily designed to protect defendants from oppressive tactics

by the prosecution. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d 532, 538. Thus,

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case law demonstrates that it is the defendant’s prerogative to assert or waive the prescribed

right. See, e.g., State v. Weeks (1995), 270 Mont. 63, 72, 891 P.2d 477, 483; State v. Fife

(1981), 193 Mont. 486, 490, 632 P.2d 712, 715.

¶30 We commend the District Court on its concern for Garcia’s welfare. However,

Garcia, on more than one occasion, agreed to waive his right to a speedy trial to secure

private counsel. Implicit in this waiver was the voluntary assumption of the consequences.

Further, neither party calls into question the validity of the proposed relinquishment. As

such, the waiver’s implications should not have factored into the District Court’s

deliberations on Garcia’s motion to continue.

C. Docket Considerations

¶31 Much like the speedy trial concerns, the District Court referenced its congested docket

in denying Garcia’s motion to continue. In its January 2001, order, the District Court stated:

If a continuance were granted, given the docket of the undersigned
District Judge, sitting by substitution in this matter, a new trial date would not
be likely until October or November, 2001. . . .

As the trial date approached, and based upon assurances received from
counsel at a bail reduction hearing on November 9, 2000, that the matter
would proceed to trial on January 29, 2001, the undersigned District Judge
vacated and rescheduled other matters pending for trial on January 29, 2001.

At the January 22, 2001, hearing, the court reiterated the above concerns:

[W]hile I would make every effort to try to locate a date . . . earlier than
October . . . I am still not comfortable that’s going to be . . . any sooner than
120 days, 180 days down the road, given the calendaring that I have to do . . .
to give priority to those cases over which I have jurisdiction. And that’s just
a fact of life. That’s a fact that is inherent in our current system in Montana
that allows for substitution of judges, the risk that any party runs when they

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 ask for a new judge–it is going to delay the process.

¶32 When presented with the same issue, the Sixth Circuit Court of Appeals offered the

following:

[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. On the other hand, the right to counsel of choice may not be
used to unreasonably delay trial.

When a defendant’s chosen counsel represents that he cannot meet a set
trial date and requests a continuance, a trial court considering such a request
must be sensitive to the defendant’s right to counsel of his choice, as well as
the public’s interest in prompt and efficient administration of justice. If the
court finds that the delay is an attempt to manipulate a trial, or causes
prejudice to the prosecution, or creates difficulties for the trial court, the trial
court may interfere with the defendant’s right to counsel of his own choice and
require the case to proceed. On the other hand, where the request is
reasonable, where there have been no prior adjournments, where the length of
delay is moderate, and where the adjournment seems to be for legitimate
reasons, the court should allow a reasonable adjournment to permit a
defendant to have retained counsel of his own choice.

This does not mean that a trial court cannot tightly control its own
docket, or that its assignment of cases can be manipulated by defense counsel
and defendants. A court must always keep control of its own docket, but in
doing so it must be reasonable and consider the constitutional right of a
defendant to have retained counsel of his choice.

Linton v. Perini (6th Cir. 1981), 656 F.2d 207, 209.

¶33 Similarly, the Florida District Court of Appeal concluded:

While the Sixth Amendment affords criminal defendants a “presumption in
favor of counsel of choice,” . . . “where ‘considerations of judicial
administration’ supervene, the presumption in favor of counsel of choice is
rebutted and the right must give way . . . .” Our supreme court has agreed that
“a defendant does not have an absolute right to a particular lawyer and that it
is within a trial court’s discretion to deny a defendant’s request for particular
counsel when there is a ‘countervailing public interest in the fair and orderly

15
 administration of justice.’” [Citations omitted.]

Foster, 704 So.2d at 173.

¶34 We certainly appreciate the import of efficient docket management and the day to day

toil which accompanies the task. Yet, here, nothing in the record suggests that Garcia’s right

to chosen counsel should have yielded to the “administration of justice.” Garcia did not seek

any continuances prior to January 2001 and nothing in the record indicates that a dilatory

motive precipitated the request. In short, the record is simply devoid of any evidence

indicating an intent to subvert the judicial proceedings.

¶35 Further, the record fails to show that a continuance would have significantly

inconvenienced the court. As for prejudice to the State, the State indicated that it had “an

excruciating trial calendar between last week and the end of March” and “getting this trial

out of the way would certainly be preferable for the State.” Nevertheless, after questioning

by the court, the State conceded that a later trial date would not jeopardize the attendance of

its witnesses. A review of the record simply does not persuade us that the “administration

of justice” warranted denial of a justifiable request for continuance.

¶36 On appeal we typically afford trial courts greater latitude on discretionary matters.

However, discretionary rulings which purport to deprive litigants of constitutional

protections demand close scrutiny. The United States Supreme Court poignantly

summarized an appellate court’s charge in reviewing matters such as this:

The matter of continuance is traditionally within the discretion of the
trial judge, and it is not every denial of a request for more time that violates
due process even if the party fails to offer evidence or is compelled to defend

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 without counsel. Contrariwise, a myopic insistence upon expeditiousness in
the face of a justifiable request for delay can render the right to defend with
counsel an empty formality. There are no mechanical tests for deciding when
a denial of a continuance is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied. [Citations
omitted.]

Ungar v. Sarafite (1964), 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921. We

presume that such an indefinite standard often plagues discretionary contemplations.

Nevertheless, courts should be mindful that “close questions” regarding motions to continue

should be resolved in favor of the defendant to ensure a fair trial. Borchert, 281 Mont. at

326, 934 P.2d at 174 (citing State v. Fife (1980), 187 Mont. 65, 71, 608 P.2d 1069, 1072-73).

¶37 “The right to choose one’s own counsel is an essential component of the Sixth

Amendment.” Linton, 656 F.2d at 209. Despite the Sixth Amendment’s extensive

protections, we have held that the right to counsel afforded by Article II, Section 24 of the

Montana Constitution is broader than the rights afforded by the United States Constitution.

State v. Spang, 2002 MT 120, ¶ 22, 310 Mont. 52, ¶ 22, 48 P.3d 727, ¶ 22. In light of the

constitutional protections and foregoing analysis, we conclude that the above considerations

do not suffice, independently or collectively, to deprive Garcia of his constitutional rights

guaranteed by the Sixth Amendment and Article II, Section 24 of the Montana Constitution.

Accordingly, we hold that the District Court abused its discretion when it denied Garcia’s

motion to continue.

¶38 Finally, the denial of a motion for a continuance cannot be reversed absent a showing

of resultant prejudice to the defendant. State v. Lundblade (1984), 213 Mont. 420, 424, 691

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P.2d 831, 833. We believe that a deprivation of this magnitude compels reversal despite the

legitimacy of the subsequent proceedings. “[W]ere a defendant not provided the opportunity

to select his own counsel at his own expense, substantial risk would arise that the basic trust

between counsel and client, which is a cornerstone of the adversary system, would be

undercut.” Linton, 656 F.2d at 209. Similarly, contrary to popular sentiment:

We would reject reality if we were to suggest that lawyers are a
homogenous group. Attorneys are not fungible, as are eggs, apples and
oranges. Attorneys may differ as to their trial strategy, their oratory style, or
the importance they give to particular legal issues. These differences, all
within the range of effective and competent advocacy, may be important in the
development of a defense. It is generally the defendant’s right to make a
choice from the available counsel in the development of his defense. Given
this reality, a defendant’s decision to select a particular attorney becomes
critical to the type of defense he will make . . . .

United States v. Laura (3rd Cir. 1979), 607 F.2d 52, 56.

¶39 Grounded in part on precepts similar to those above, the California Supreme Court

offered the following:

[T]o assess “why or how an accused’s trial was disadvantaged by injecting an
undesired attorney into the proceedings would require an impossibly
speculative comparison” of appointed counsel’s representation with chosen
counsel’s unrealized performance. “No appellate court can or should engage
in that kind of analysis when such fundamental rights hang in the balance.”
[Citations omitted.]

Courts, 693 P.2d at 785. Several courts agree with California that the denial of the right to

private representation is prejudicial per se. See Foster, 704 So.2d at 174. We concur with

the above authorities that the error contemplated herein is structural. To surmise a

non-participating entity’s impact on a foregone proceeding is to countenance conjecture.

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Such hypothetical deliberations should not enter the equation with the fundamental right to

counsel at stake.

¶40 In its closing comments at the January 22, 2001, hearing, the State reassured the court

that the court would make the right decision. The court responded, “I know I will make the

right decision. I am not sure the seven folks in Helena would.” Despite the court’s notions

to the contrary, the sentiments reflected in this Opinion transcend Helena, Montana. As the

foregoing analysis demonstrates, a significant weight of Sixth Amendment authority supports

Garcia’s position. This, in conjunction with Montana’s right to counsel case law and

presumption in favor of the defendant in “close calls” regarding continuances, we simply

cannot discount. Accordingly, we reverse the decision of the District Court and remand this

matter for a new trial.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE

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