This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1277

 

State of Minnesota,
Respondent,

vs.

Cruz Guadalupe Estudillo Moran,
Appellant.

 

Filed April 10, 2001

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 99110335

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

 

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

 

Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55487 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of second-degree criminal sexual conduct, appellant argues that he was denied his right to counsel when the district court summarily denied his request for substitute counsel without inquiring whether exceptional circumstances justified the request.  We affirm.

FACTS

            Sixteen-year-old L.A.T. reported to personnel at the high school she attended that she had been sexually abused by her father, appellant Cruz Guadalupe Estudillo Moran.  School officials forwarded the information to police, who investigated the allegation.

Appellant was charged by complaint with three counts of first-degree and one count of third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(a) (sexual penetration of child under age 13), 609.342, subd. 1(b) (sexual penetration of child at least age 13 but under age 16 and defendant is in a position of authority over child), 609.344, subd. 1(f) (child is at least age 16 but under age 18 and defendant has a significant relationship with child) (1998).  The state later filed an amended complaint, adding two counts of second-degree criminal sexual conduct, one count of child endangerment, and two counts of third-degree assault in violation of Minn. Stat. §§ 609.343, subd. 1(h) (iii) (sexual contact with child under age 16 when defendant has significant relationship with child and sexual abuse involved multiple acts committed over an extended time period), 609.378, subd. 1(b)(1) (intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health), 609.223, subd. 2 (past pattern of child abuse) (1998) based on the alleged sexual contact and penetration of L.A.T. and her thirteen-year-old sister L.E.T.

            At appellant’s first appearance, the district court appointed a public defender to represent him.  At his next appearance, appellant pleaded not guilty.  At the beginning of a later appearance, appellant asked that the district court appoint a new attorney to represent him.  Appellant’s attorney stated on the record that the Legal Rights Center had reviewed appellant’s case twice and declined to represent him.  The district court summarily denied appellant’s request for substitute counsel.  The district court gave appellant the option of representing himself, but appellant chose to have his attorney continue representing him.

            Appellant then waived his right to a jury trial, and the parties agreed to submit the case to the district court for decision based on the facts alleged by the state and appellant’s testimony.  The parties agreed that if appellant was found guilty, he would only be found guilty of two counts of second-degree criminal sexual conduct and the remaining charges would be dismissed.  At a hearing the following week, appellant sought to withdraw his waiver of his right to a jury trial, claiming that his attorney failed to assist him in getting needed medical attention and that his attorney promised him a one-year sentence.  His attorney stated on the record that he did assist appellant in getting medical treatment.  Also, the record supports the district court’s finding that the parties had agreed that apellant would receive two consecutive 48-month executed sentences pursuant to the guidelines.

The district court denied appellant’s request to withdraw his waiver of his right to a jury trial and found him guilty of two counts of second-degree criminal sexual conduct.  The court sentenced appellant according to the parties’ agreement.  This appeal is from the conviction.

D E C I S I O N

The U.S. Const. Amend. VI and Minn. Const. art. 1, s 6, provide a criminal defendant in this state the right to have the assistance of counsel for his defense.  This right includes a fair opportunity to secure counsel of his choice.  An indigent defendant has the right to be provided competent counsel in all criminal proceedings.  However, the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his choice.  Although he may request a substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.

 

State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  A defendant has the burden of showing the existence of exceptional circumstances. State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998).  The decision whether to grant a request for substitute counsel lies within the district court’s discretion.  Id.

“General dissatisfaction or disagreement with appointed counsel's assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney.”   State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998); see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (personal tension between defendant and counsel during the trial preparation phase did not entitle defendant to new counsel because it did not relate to counsel’s ability or competence to represent defendant).  To prevail on a request for substitute counsel, a defendant must show “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.”  United States v. Long Crow, 37 F.3d 1319, 1324 (8th Cir. 1994) (quotation omitted).  When a defendant “voices a ‘seemingly substantial complaint about counsel,’ the court should inquire into the reasons for dissatisfaction.” McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981) (quoting United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972)), cited in State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).  But the district court’s failure to inquire as to the reasons underlying a request for substitute counsel is not reversible error unless the defendant makes a showing that he was prejudiced by the lack of inquiry.  Id. at 933-34.

Appellant has alleged nothing beyond general dissatisfaction with his attorney’s representation.  He has not alleged any facts that would support a finding that his attorney’s representation was inadequate in any way.  Absent any such allegations, there is no basis for this court to conclude that appellant was prejudiced by the lack of inquiry regarding the reasons underlying his request for substitute counsel.

            Affirmed.