State of Minnesota, Respondent, vs. Gary S. Gundy, Appellant.

State of Minnesota, Respondent, vs. Gary S. Gundy, Appellant. A05-1746, Court of Appeals Unpublished, October 31, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1746

 

State of Minnesota,

Respondent,

 

vs.

 

Gary S. Gundy,

Appellant.

 

Filed October 31, 2006

Affirmed

Ross, Judge

 

St. Louis County District Court

File No. K2-04-601061

 

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

Alan L. Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)

 

 

Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Gary Gundy appeals his conviction of felon in possession of a firearm and possession of a short-barreled shotgun.  He claims that the district court violated his constitutional right to counsel and abused its discretion when it denied his request to continue the trial so he could discharge his appointed attorney the morning of trial and find private counsel.  Because we conclude that the district court did not violate Gundy's right to counsel or abuse its discretion by denying Gundy's motion to continue, we affirm.

F A C T S

This case arises from a September 2004 dispute at Gary Gundy's home between Gundy and an acquaintance, Kacey Peterson.  Each dialed 911.  The two continued to argue as the 911 operator listened on a recorded line.  Peterson saw a shotgun near Gundy, and Gundy told the 911 operator that it was a "sawed-off old 12-gauge thing," that it was by his feet, and that he was "keeping it away from her."  Later in the call, Gundy told the 911 operator that he unloaded the shotgun and threw it outside into the woods.

St. Louis County sheriff deputies arrived, asked Gundy about the shotgun, and searched for it unsuccessfully.  Gundy then indicated that it was beside the house under a stack of shingles.  Deputies found it there.  Its barrel was sawn off to an illegal length, the stock was shortened, and it was loaded.  The deputies arrested Gundy.  He told them that he had accepted the gun as a gift for protection and that he oiled it and cut the barrel.  The state charged Gundy with possession of a short-barreled shotgun.

Gundy asked to be released without bail because he had recently started a small business, had a dependent child, did not "have a whole lot of money," and was "just barely scratching" by.  He also applied for court-appointed counsel.  The district court noted that Gundy would be ineligible for appointed counsel based on the financial information he provided.  Gundy maintained that he could not afford a lawyer but would try to retain one, and he noted that he was "not a rich man by any means."  He posted a $2,500 bond and was released.

After his release, Gundy requested appointed counsel on several occasions.  Police arrested Gundy on a warrant after he failed to attend his next scheduled court appearance.  Gundy later appeared before a different district court judge and again applied for appointed counsel.  The district court found Gundy to be "indigent/employed" and appointed counsel to represent him.  Two months later, the state charged Gundy for several unrelated offenses and he appeared before another judge.  Gundy applied for appointed counsel, and the court appointed the same public defender to represent him in that matter.

During plea negotiations on the shotgun charge, the state warned Gundy that it might amend the complaint to add a charge for being a felon in possession of a firearm, which, based on Gundy's criminal history, would have a presumptive sentence of 60 months' incarceration.  The public defender advised Gundy to plead guilty to possession of a short-barreled shotgun to avoid the more serious charge, but Gundy refused.  The public defender asked Gundy to acknowledge on the record his understanding that he could have pleaded guilty to the lesser charge, avoided the more severe felon in possession of a firearm charge, and, based on his criminal history, he would have faced a presumptive sentence of only 23 months' incarceration.  Gundy acknowledged that he understood his options, but he chose to plead not guilty.  The state filed an amended complaint, adding the charge of possession of a firearm by a felon based on Gundy's conviction for a 1997 burglary.

At about this time, Gundy was placed on probation in an unrelated matter and required to submit to daily drug tests at his own expense.  Gundy's public defender objected, in part because of Gundy's claimed indigence.  During a status review hearing on March 2, 2005, at which Gundy failed to appear, the district court questioned Gundy's eligibility for appointed counsel.  The court reviewed three applications for counsel that Gundy had completed and noted that he gave widely disparate financial responses on each.  The court issued another warrant and set bail at $100,000 but allowed the appointed counsel to continue until Gundy could explain the discrepancies.

Police arrested Gundy on the warrant, and he appeared before yet another district court judge on March 24, 2005.  Gundy again applied for appointed counsel.  The court again approved his application.  He responded to allegations that he violated the probation conditions of daily drug tests by claiming that he did not have "any money" and "can't pay" for them.  Five days later Gundy reiterated that he "didn't have the money."  He also told the court that he was unemployed, that he was seeking disability benefits for a back injury, and that he "live[s] on hardly nothing."

On the morning of the jury trial on the shotgun charges and six months after his arraignment, Gundy sought a continuance.  He told the court that he wanted to discharge his appointed counsel and "retain [his] own lawyer."  Gundy claimed that he lacked sufficient time to prepare a defense, that he did not spend enough time with his appointed counsel concerning the case, and that his appointed counsel told him that he had no defense.  Gundy also challenged the predicate burglary conviction upon which the felon in possession of a firearm charge was based, claiming that the state had not provided proof of the conviction during discovery and that it did not appear on his criminal record.

The prosecutor answered that he had provided to defense counsel certified records of the predicate burglary conviction.  He also noted that he had been the prosecutor and that Gundy's current attorney had represented Gundy when Gundy pleaded guilty to the burglary in December 1997.  The prosecutor also noted that the state was ready to proceed and that he did not know whether the state would be prejudiced by delay.

The public defender acknowledged that he told Gundy that he was "not aware of any defense" to the charges, but he insisted that he and Gundy "certainly spent plenty of time talking about this case," that he was ready to proceed, and that he would "certainly test the [g]overnment's burden of proof."  He contradicted his prior representations and stated that he had "no doubt" that Gundy had the ability to hire private counsel and that "[h]e's always had the ability to do that."  The district court denied Gundy's request to continue and noted that it found no prejudice to Gundy by proceeding with the jury trial while being represented by the chief public defender.

To prevent the jury from hearing details about Gundy's predicate felony conviction at trial, Gundy acknowledged the December 1997 burglary and stipulated that he was unauthorized to possess a firearm.  The jury returned guilty verdicts on both counts.  The district court sentenced Gundy to the presumptive sentence of 60 months' incarceration.  This appeal follows.

D E C I S I O N

Gundy contends that the district court's decision to deny his motion to continue the trial requires reversal of his conviction.  We disagree.  Whether to grant a continuance is a matter within the district court's discretion, based on the facts and circumstances surrounding the request.  State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998).  A defendant "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."  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  And while an indigent defendant "may request a substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made."  Id. at 358.  To determine whether the district court acted within its discretion by denying a motion to continue, we also consider whether the defendant "was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial."  Id. at 358-59.

Gundy focuses almost entirely on his Sixth Amendment right to counsel, highlighting that he has a constitutional right to retain counsel of his choice.  But the district court's denial of Gundy's motion to continue did not implicate the Sixth Amendment.  Although Gundy accurately describes his right to counsel, possessing this right does not mean that the district court abused its discretion by not granting him a continuance so that he could retain private counsel.  It is well established that "an indigent defendant does not have the unbridled right to be represented by the attorney of his choice."  Worthy, 583 N.W.2d at 278; see also State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  The district court did not prevent Gundy from retaining his own counsel during the six months before the trial, at the opening of trial, or after the trial began.  The district court merely exercised its discretion to deny Gundy's request for a continuance made for the first time on the morning of trial.

Gundy claims that his appointed counsel had not spent much time on the case and that he told Gundy that he knew of no defense.  The record contradicts Gundy's assertion that his attorney did not spend time on the case.  Within three days of his appointment, the public defender filed a demand for discovery, disclosure, production of documents and exculpatory evidence.  At the omnibus hearing, the public defender informed the court that he had met with Gundy, discussed the case, obtained discovery, and met with the prosecutor.  He also stated that, having read the file, he saw no suppression issues and that Gundy agreed.  Just before trial, the public defender informed the court that he and Gundy had spent sufficient time discussing the case, and that he was ready to proceed and challenge the government's case.  These circumstances did not require the district court to grant a continuance based on the alleged unpreparedness of Gundy's attorney.

Gundy's disappointment at his counsel's bleak assessment that he knew of no defense to the charges does not alter our conclusion because "attorneys have a duty to render candid advice to clients."  Worthy, 583 N.W.2d at 276.  "General dissatisfaction or disagreement with appointed counsel's assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney."  Id. at 279.  Gundy's counsel doubtless appreciated that Gundy faced overwhelming facts.  Concerning the charge that he possessed a short-barreled shotgun, police had found the shotgun where Gundy told them they would, Gundy admitted that he had sawn off a length of the barrel, and he acknowledged that the gun belonged to him.  Concerning possession as a felon, Gundy also stipulated to the predicate felony conviction.  In addition to the 911 recording in which Gundy admitted to having the shotgun and the eyewitness who would testify that she saw Gundy holding the gun, his own admissions merit his attorney's warning that he did not have a plausible defense.  See id. (finding no abuse of discretion when district court refused defendants' motion to continue to obtain private counsel after defense attorneys told their clients that evidence against them was quite strong, that chances for success at trial were not good, but that they were prepared and willing to try their cases).  And contrary to Gundy's claim on appeal of a "breakdown in the relationship" with his attorney and his "real dissatisfaction" with him, the attorney continued to represent him on his December 2004 charges, and he negotiated a plea agreement in which a first-degree burglary charge with a presumptive 100-month sentence was dismissed.

Neither was Gundy's request for a continuance timely and reasonably made.  The supreme court has found continuance requests properly denied when a defendant has ample opportunity to obtain new counsel, but waits until the last minute to exercise that option.  In Vance, for example, the defendant was provided with a competent court-appointed attorney who was prepared for trial.  The defendant had 11 weeks to obtain a private attorney, but he did not request a continuance until a few days before trial.  Vance, 254 N.W.2d at 359.  The supreme court concluded that the district court did not abuse its discretion by denying the request for continuance.  Id.  Similarly, in Worthy, the defendants had experienced and competent court-appointed attorneys for 45 days but did not request a continuance to hire private counsel until the first day of trial.  The supreme court again concluded that the district court did not abuse its discretion by denying the request.  Worthy, 583 N.W.2d at 278.  Likewise here, the district court had a sufficient basis to find Gundy's request untimely and unreasonable.  Gundy was appointed the chief public defender, whom the court recognized to be one of the most experienced attorneys in the district and who had prepared the case for five months.  Because Gundy was provided competent legal representation and "took full advantage of that representation up until the morning of the[] scheduled trial date," the district court was not required to find his request for a continuance to be timely or reasonable.  See id. at 276, 278-79 (finding that district court properly refused to appoint new counsel when defendants waited until morning of trial to make request).

Gundy also does not demonstrate that the denial "so prejudiced [him] in preparing or presenting his defense as to materially affect the outcome of the trial."  Vance, 254 N.W.2d at 358-59. The public defender cross-examined the state's witnesses and presented a defense witness who claimed to own the shotgun and who asserted that he had placed the shotgun under the shingles beside Gundy's home but had forgotten to retrieve it.  The public defender had represented Gundy many times and was aware of Gundy's criminal history.  He tried to convince Gundy to accept the plea bargain to avoid trial, but Gundy refused.  No prejudice is apparent.

In addition to the other substantive and procedural infirmities in Gundy's request, the record suggests that Gundy never attempted to retain private counsel during the course of the proceedings.  Gundy had repeatedly represented to the court that he could not afford a lawyer, that he could not pay for drug screens, that he had little money and few assets, that he was in debt and owed child support, that he was unemployed, and that he was applying for social security disability benefits.  The public defender had also previously represented to the court that Gundy was indigent.  Gundy submitted at least four successful applications for appointed counsel in three criminal matters during this same period.

There is also no merit to Gundy's claim that the court "never offered [him] the option to represent himself" and instead "pressed [Gundy's] appointed counsel" on him.  Gundy never suggested during the proceedings that he wished to represent himself.  See Minn. R. Crim. P. 5.02, subd. 1(4) ("If a defendant appearing without counsel . . . does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record.").

Gundy raises three additional issues in a supplemental pro se brief, but none warrants a lengthy discussion.  He first repeats that he was denied the right to effective assistance of counsel when the court refused to grant a continuance to hire new counsel.  For the reasons stated above, we reject this assertion.  Second, he asserts that the district court committed "serious misconduct and show[ed] bias when he gave his personal opinion of defense counsel."  Gundy seems to refer to the district court's comment that "in terms of criminal defense attorney[s] . . . you're not gonna be doing better than [the chief public defender]," made during the discussion on Gundy's continuance motion.  Gundy does not explain how this comment, which was made before trial and outside the presence of any potential jurors, demonstrates improper bias.  We therefore reject the assertion as unfounded.  Third, Gundy claims that the "prosecutor committed serious misconduct when he expressed his personal opinion of defense counsel and to the justness of the prosecution and to uncorroborated evidence."  But the prosecutor merely agreed with the court's assessment of the public defender's capabilities and responded to Gundy's challenge to the predicate felony.  Like his appellate counsel's arguments, Gundy's pro se brief provides no basis to reverse his convictions.

The district court did not offend Gundy's Sixth Amendment rights or abuse its discretion by denying Gundy's motion for a continuance to find and retain private counsel.  We therefore affirm Gundy's convictions.

Affirmed.