Six days before his trial, Defendant moved for a continuance in order to substitute new counsel. Defendant stated:
- He had concerns with “his current attorney’s defense strategies and trial presentation;”
- He also explained to the trial court he was uncomfortable with the firm he originally had hired after being transferred between attorneys several times;
- He did not have the funds to retain new counsel until recently, and he had already paid a substantial consulting fee to the new attorney.
The court denied his motion. After a jury trial, he was convicted of Aggravated DUI. On appeal, he argued the trial court erred by denying his motion to continue in order to substitute his counsel, thus denying him the right to counsel of his choosing.
The Trial Court Ruling
The trial court reasoned that “[t]here has been extensive litigation in this case, and, considering the age of the case and the activity in the case, the motion will be denied.” The court also noted its concerns that substitute counsel would not be ready by the scheduled trial date, as required by Rule 6.3(c), Ariz. R. Crim. P. However, the court did not articulate this concern as a basis for its final ruling.
The Appellate Court Ruling
The Court of Appeals reversed the conviction concluding:
The trial court erred by focusing solely on its own schedule and not giving due regard to Kennedy’s request to exercise his right to counsel of his choosing. See Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262. The court’s ruling thus constituted “an ‘unreasoning and arbitrary’ adherence to its schedule.” Id.; Morris, 461 U.S. at 11–12. Because the “erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error,’ “ we must vacate Kennedy’s conviction and sentence. See Gonzalez–Lopez, 548 U.S. at 150, 152, quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993); Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262.
The conviction was vacated and a new trial was granted.
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