Raino v. State, CR-21-18

2021 Ark.App. 331

STEPHEN CHRISTOPHER RAINO APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-21-18

Court of Appeals of Arkansas, Division III

September 15, 2021

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-15-2] HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, JUDGE

Stephen Christopher Raino appeals the revocation of his suspended sentence in the Ashley County Circuit Court, case number 02CR-15-2.^[1] He argues that the circuit court abused its discretion in denying his Sixth Amendment right to counsel.

I. Facts

On January 8, 2015, Raino was charged in case number 02CR-15-2 with possession of methamphetamine, possession of drug paraphernalia, fleeing, and second-degree criminal mischief. On June 1, Raino negotiated a guilty plea on these charges along with the charges under case number 02CR14-175 (possession of methamphetamine with intent to deliver possession of a Schedule IV controlled substance with intent to deliver, and possession of paraphernalia to manufacture methamphetamine) and case number 02CR15-25 (two counts of delivery of a Schedule III controlled substance). On November 17, he was sentenced aggregately to 240 months' imprisonment in the Arkansas Department of Correction with an additional sentence of 120 months suspended on conditions including that he not commit any felony, misdemeanor, or other criminal offense punishable by jail confinement or prison.^[2]

On June 30, 2020, the State filed a petition to revoke in case number 02CR-15-2, alleging that Raino had violated the conditions of his suspended sentence by committing new felony offenses possession of methamphetamine with purpose to deliver; two counts of possession of drug paraphernalia, Class B and D felonies; maintaining a drug premises; and possession of marijuana. On July 13, Raino was appointed a public defender.

On September 18, Raino filed a pro se motion for "Ineffective Assist[ance] of Counsel," asking that he be granted new representation. He alleged that his appointed counsel had stated that he was not obligated to "make my legal requests," that his counsel had not attempted to file any motions, and that his appointed counsel was acting in complicity with the prosecuting attorney in violation of his Sixth and Fourteenth Amendment rights.

A revocation hearing was held on September 28.^[3] Raino's appointed counsel moved to dismiss the petition filed in case number 02CR-14-175, and the State agreed that Raino's probation could not be revoked in that case. The circuit court granted the motion and proceeded on the pending revocation petitions. The following colloquy occurred:

Public Defender: Mr. Raino wants to address the Court before we start on the hearing.

Prosecutor: Your Honor, I don't think that's appropriate.

The Court: I'm going to - - Why does he?

Public Defender: He's asking that I be removed as his attorney, Your Honor.

Defendant Raino: (Unintelligible), Your Honor - - He violated my Sixth and Fourth constitutional rights.

Prosecutor: Well, he's not your - - He can't violate your rights.

The Court: Wait, wait, wait, I'm going to - - Let me listen to him -

Court Reporter: Can he come up to the podium so I can hear him better. I'm having a hard time - -

Defendant Raino: (Inaudible).

The Court: You have to listen to me. You have to get to the podium. I'm going to give you - - Make it short and sweet.

Defendant Raino: The case, the revo case, CR14-175 that's being dismissed, I actually had that submitted to - - I filed a grievance on Mr. Frank Spain (prosecutor) and started a claim and grievance procedure, so it's actually a conflict of interest for him to represent the State of Arkansas against me.

The Court: It's not. Why do you want to discharge Mr Mazzanti (public defender)?

Defendant Raino: Well, I'm the one that initiated the process of saying that CR14-175 would - - I was illegally sentenced.

The Court: It doesn't matter. It's been taken care of, so that's been fixed.

Prosecutor: (Talking over) illegally sentenced. I should not have filed a revocation petition on - -

The Court: Okay. That's fine. It doesn't matter. The case is not before me anymore. It's been - - The revocation has been dismissed. Now, I don't know - - I've got - -

Trial Court Assistant: You've got two other revocations and an omnibus. He filed a motion in each case.

The Court: I've got three cases here now?

Trial Court Assistant: Yes.

The Court: The new one is 161, and then the 2015-2, 2015-25. Let me give the 175 back. All right, anything else?

Defendant Raino: I still have a grievance in process actually right now, Your Honor, with the gentlemen - - with me and Mr. Frank Spain - - on the other two revocations, too.

The Court: Well, I'm not going to listen to those now. There's nothing inappropriate about Mr. Spain representing the State, so y'all have a seat over there. Let's proceed.

Defendant Raino: Yes, sir.

Thereafter, Ted Huntsman, narcotics investigator for the Ashley County Sheriff's Department, testified that on June 12, 2020, he went to an address in Crossett where he found Raino residing with Mahogany Mooney. Both Raino and Mooney were on probation, and Raino was arrested after methamphetamine, marijuana, and drug paraphernalia were found in the house. Huntsman testified that on the way to the sheriff's office, Raino told him that he had some more methamphetamine on his person, and a little over twenty-three grams of methamphetamine was recovered from Raino's pants. Huntsman said that Mooney accepted responsibility for all the drugs and contraband found in the house and that she came back after her release and claimed that the methamphetamine found on Raino was hers too.

Mooney testified that she had pled guilty to the charges against her, that Raino is the father of her child, and that the controlled substances found in the house were hers. She said, "Everything was mine." She said that when the police officers were at her door, she asked Raino to hold her stuff, and he agreed to hide it for her.

The circuit court found by a preponderance of the evidence that Raino had violated the conditions of his probation by possessing illegal drugs. Raino was sentenced consecutively under the revocation cases for an aggregate term of forty years' imprisonment. This appeal timely followed.

II. Right to Counsel and Standard of Review

We review a circuit court's denial of a motion to relieve counsel for an abuse of discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). This court recently stated,

A defendant's right to counsel of choice is grounded in the Sixth Amendment to the United States Constitution and is also guaranteed by article 2, section 10 of the Arkansas Constitution. While constitutionally guaranteed, the right to counsel of one's choosing is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Moreover, once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. Id. Additionally, once a defendant has accepted representation by an attorney, the fact that the defendant is dissatisfied with counsel's efforts does not entitle him to appointment of a different attorney. Id. In fact, "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006).

Factors to be considered by the trial court in determining whether to grant a continuance for the purpose of obtaining new counsel include whether there was adequate opportunity for the defendant to employ counsel; whether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether the motion for a continuance was timely filed; whether the defendant contributed to the circumstances giving rise to the request for a continuance; whether the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; and whether the request was consistent with the fair, efficient, and effective administration of justice. Brewer v. State, 2017 Ark.App. 335, 525 S.W.3d 24. In each situation, the trial court must look at the particular circumstances of the case at bar, and the issue must be decided on a case-by-case basis. Liggins v. State, 2015 Ark.App. 321, 463 S.W.3d 331.

King v. State, 2019 Ark.App. 531, at 3-4, 589 S.W.3d 420, 423. The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the circuit court, and the decision will not be overturned absent a showing of abuse of that discretion. Staggs v. State, 2021 Ark.App. 259, at 12 (citing Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994)).

III. Argument

Raino argues that the circuit court abused its discretion in denying his Sixth Amendment right to counsel of his choice. He claims that the circuit court abused its discretion when it denied his motion to discharge counsel, Thomas v. State, 2014 Ark.App. 492, 441 S.W.3d 918, and that his request should have been accepted as a motion for continuance to allow time to replace counsel. Smith v. State, 2012 Ark.App. 613. He contends that there would have been no disruption in the circuit court's docket because the revocation hearings could have been reset to be heard at a pretrial setting.

Raino distinguishes Brewer v. State, 2017 Ark.App. 335 525 S.W.3d 24, wherein this court upheld the circuit...