State of Utah v. Reigenborn

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

William Keith Reigenborn,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000113-CA

F I L E D
January 11, 2001 2001 UT App 16 -----

Third District, Murray Department
The Honorable Joseph C. Fratto, Jr.

Attorneys:
Shannon N. Romero, Salt Lake City, for Appellant
Fred Burmester, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Thorne.

THORNE, Judge:

Defendant William Reigenborn appeals from both the trial court's denial of his motion to continue and the denial of defense counsel's motion to withdraw prior to defendant's conviction for Assault, a Class A misdemeanor, in violation of Utah Code Ann. § 76-5-102 (1999). We affirm.

A. Motion to Continue

Defendant claims that the denial of his motion to continue was harmful error because (1) he was not allowed to exercise his "right to representation by an attorney of his choosing," (2) his counsel was unprepared for the trial, and (3) the court's ruling violated his right to compulsory process. "The grant or denial of a continuance is within the discretion of the trial court." State v. Oliver, 820 P.2d 474, 476 (Utah Ct. App. 1991). Further, we will not reverse the trial court's ruling unless defendant can show "that [he] was materially prejudiced by the court's denial of the continuance or that the trial result would have been different had the continuance been granted." Id. at 476.

Defendant first argues the trial court's ruling materially prejudiced him because it violated his right to be represented by an attorney of his own choosing. We disagree. "While an indigent defendant has a right to have counsel appointed to represent him, he does not have a constitutional right to a lawyer other than the one appointed, absent good cause." State v. Pursifell, 746 P.2d 270, 272 (Utah Ct. App. 1987).

Here, the trial court determined, in response to defendant's request, that defendant was indigent and appointed trial counsel in September 1998. On May 20, 1999, defendant, for the first time, voiced to the trial court his desire to obtain private counsel.(1) The trial court, while acknowledging defendant's right to obtain private counsel, stated on the record that until defendant's replacement counsel filed an appearance with the court, defendant should work with appointed counsel. As of the trial date, July 27, 1999, no appearance by substitute counsel had been entered and our review of the record fails to reveal any significant effort by defendant to obtain counsel of his own choosing. Therefore, we conclude the trial court's decision to deny the continuance did not violate defendant's right to representation by an attorney of his choice.

Next, defendant argues the trial court's denial materially prejudiced him because his counsel was not adequately prepared for trial. However, defendant fails to produce any evidence that, had trial counsel been better prepared, the result would have been different. At trial, the State presented two eyewitnesses who testified that defendant was at the scene of the assault and was in fact the aggressor. This testimony remains uncontroverted. Accordingly, we conclude that defendant's second claim is without merit and therefore fails.

Finally, defendant argues that the denial restricted his opportunity to call witnesses, and therefore, violated his right to compulsory process. To succeed, defendant must show that the testimony of any absent witness "'would have been both material and favorable to his defense.'" State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S. Ct. 3440 (1982)). On appeal, defendant identifies only one witness--his former mother-in-law--who, according to defendant, (1) could have testified concerning an earlier phone call made by defendant's ex-wife; (2) could have testified about her daughter's harassment and provocation of defendant; and (3) could have testified about defendant's state of mind at the time of the assault.(2) Defendant's summary, however, does not show that the witness's expected testimony "would have been both material and favorable to his defense." Id. Therefore, defendant's claim that the trial court violated his right to compulsory process is also without merit.

B. Motion to Withdraw

Defendant argues the trial court erred when it denied his trial counsel's motion to withdraw, because the attorney-client relationship "had deteriorated to the point where [defendant] did not believe counsel could or would adequately represent his interests." A trial court's decision to deny an indigent defendant's attorney's motion to withdraw is discretionary and will be reversed only for an abuse of discretion. See State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997). Such an abuse will be found if defendant can "'establish that the animosity . . . resulted in such a deterioration of the attorney-client relationship that the right to the effective assistance of counsel was imperilled.'" Id. (citation omitted). "However, such animosity must have a legitimate basis . . . [and] may not be based solely on the defendant's illegitimate complaints or subjective perception of events." Id.

Upon reviewing the record, we conclude that, while the relationship was not a model of cooperation on the part of defendant, any animosity which might have existed between the two did not rise to a level which imperiled defendant's right to effective assistance of counsel.

Based on the foregoing, we affirm.
 
 
 
 

______________________________
William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. Defendant also informed the trial court that he did not yet have the funds to obtain private counsel.

2. Defendant does not address the fact that the witness is not a mental health expert and, therefore, unqualified to testify as to defendant's mental health.