State of Minnesota, Respondent, vs. Timothy Bradford Ames, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-2092

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy Bradford Ames,

Appellant.

 

Filed September 23, 2003

Affirmed Willis, Judge

 

Polk County District Court

File No. K902744

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Ronald I. Galstad, East Grand Forks City Attorney, 411 Second Street NW, Suite D, P.O. Box 386, East Grand Forks, MN  56721 (for respondent)

 

Steven M. Light, Lindsey D. Haugen, Larivee & Light, Ltd., US Bank Building, 600 DeMers Avenue, Grand Forks, ND  58201 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of driving while impaired, arguing that the district court abused its discretion by denying his motions for a continuance and to extend the deadline for pretrial motions.  He also contends that the district court erred by allowing defense counsel unlicensed in Minnesota to appear on his behalf.  We affirm.

FACTS

Appellant Timothy Bradford Ames was arrested in East Grand Forks during the early morning hours of May 17, 2002.  An East Grand Forks police officer stopped Ames after seeing him drive "erratically."  The officer noticed that Ames smelled of alcohol, slurred his speech, and had red and glassy eyes.  Ames failed three field sobriety tests, and a portable Breathalyzer test showed that his alcohol concentration was .196.  A subsequent Breathalyzer test at the police station showed that Ames's alcohol concentration was .17. 

Ames was charged with driving while impaired.  At a May 20 pretrial hearing, Ames pleaded not guilty, and the district court scheduled an omnibus hearing for June 17 and another pretrial hearing for June 24.  There is nothing in the record before us regarding the omnibus hearing, including any record that it even occurred.  But at the June 24 pretrial hearing, Ames's counsel requested a continuance of the hearing to July 1, and the state did not object.  On July 1, the district court scheduled Ames's trial for August 6, and on August 6 the trial was continued to September 24, 2002.

            By no later than September, Ames had retained new counsel, who filed a notice of substitution and a certificate of representation in the district court on September 23, 2002.  On the same day, he filed a motion to extend the deadline for pretrial motions and a motion for a continuance.  At a hearing before trial the following day, the district court denied Ames's motions.  Ames entered a Lothenbach plea, and the district court found him guilty.  This appeal follows.

D E C I S I O N

I.

Ames first argues that the district court abused its discretion by denying his motion to extend the deadline for filing "pretrial motions."  Neither Ames's motion nor his brief on appeal identifies the deadline that Ames sought to extend.  But we presume that Ames sought to extend the deadline for filing omnibus motions, which must be "served upon opposing counsel not later than three (3) days before the Omnibus Hearing."  Minn. R. Crim. P. 10.04, subd. 1.  "When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion" order the period enlarged.  Minn. R. Crim. P. 34.02; see also Parker v. O'Phelan, 414 N.W.2d 534, 537 (Minn. App. 1987) (reviewing denial of a motion under the analogous enlargement rule in a civil action for an abuse of discretion).

Ames contends that the court's denial of his motion to extend the deadline had a "prejudicial effect" on him, but he does not specify the prejudice.  Nor does he describe the motions that he intended to make if the district court had extended the deadline.  And Ames waited until the day before trial to move to file his motion.  We conclude, therefore, that the district court did not abuse its discretion by denying Ames's motion to extend the deadline for filing motions.

II.

Ames next argues that the district court abused its discretion by denying the motion for a continuance of the trial that he filed on the day before trial.  The granting of a continuance is a matter within the trial court's discretion, and the court's ruling will not be reversed absent a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  When reviewing the denial of a continuance, an initial consideration is whether the district court granted any previous motions for a continuance.  State v. Sanders, 598 N.W.2d 650, 654 (Minn. 1999).  Here, Ames had requested and been granted continuances of both a pretrial hearing and the trial.

Ames nonetheless contends that the denial of his motion for a continuance deprived his new counsel of adequate trial preparation time.  When determining whether the district court abused its discretion by denying a motion for a continuance, this court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.  State v. Huber, 275 Minn. 475, 481, 148 N.W.2d 137, 142 (1967).  The constitutional right to have the assistance of counsel for one's defense includes a fair opportunity to secure counsel of one's choice.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

Ames asserts that at his June 24 pretrial hearing, the district court notified his original counsel, who was apparently not licensed to practice law in Minnesota, that he could not appear on behalf of Ames without local counsel.  And Ames claims that there is "ample evidence" that he "made every effort" to retain new counsel.  But he makes no citation to the record to support his claims.  See Minn. R. Civ. App. P. 128.02, subd. 1(c) (requiring that each "statement of a material fact shall be accompanied by a reference to the record").  Indeed, we find nothing in the record regarding what happened at the June 24 hearing, what efforts Ames made to retain new counsel, or when he eventually did retain new counsel.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (placing burden on appellant to provide an "adequate record" on review). 

Ames may not "demand a continuance for the purpose of delay or obtain a continuance by arbitrarily choosing to substitute counsel at the time of trial."  Vance, 254 N.W.2d at 358; see also State v. Fagerstrom,  286 Minn. 295, 300, 176 N.W.2d 261, 265 (1970) (finding no abuse of discretion in denial of day-of-trial motion for continuance when "defendant had ample time prior to trial to make his request").  Further, having waited until the day before trial to move for a continuance, Ames "ought to have a good explanation for the delay."  State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 1979).  But he provides no explanation. 

Finally, Ames does not specify how the denial of a second continuance of his trial so prejudiced him in preparing or presenting his defense as to materially affect the outcome of the trial.  We conclude, therefore, that the district court did not abuse its discretion by denying Ames's motion for a continuance of the trial.

III.

Ames argues finally that the district court "erroneously allowed [his] previous counsel to appear in the State of Minnesota without being licensed to do so."  Ames cites In re Discipline of Jorissen, 391 N.W.2d 822 (Minn. 1986), in which the supreme court held that repeatedly engaging in law practice while suspended warranted disbarment.  While the court in Jorissen points out that the unlicensed practice of law in Minnesota violates a Minnesota statute, see id., none of the issues discussed in that case relates to the grounds for Ames's appeal, and the decision provides no basis for reversal of Ames's conviction.  We decline, therefore, to consider Ames's argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (declining to consider assignment of error based on mere assertion and unsupported by argument or authority).

Affirmed.