This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-394

 

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Ladon Webber,

Appellant.

 

 

Filed December 10, 2002

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 1007448

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Mulally, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Thomas Ladon Webber challenges the district court's denial of his motion to continue his trial. He argues that the denial so prejudiced his defense as to materially affect the trial's outcome and requests that his convictions and sentences be set aside and his case remanded for a new trial. We affirm.

FACTS

Webber was charged with various counts of third- and fourth-degree criminal sexual conduct. He hired a private attorney but failed to appear at a scheduled trial date in June 2001. Five months later, Webber appeared for a rescheduled trial with the same attorney and moved for a continuance in order to find a new attorney. The district court denied the motion. Webber then waived his right to a jury trial and submitted the matter to the court on stipulated facts. If Webber was found guilty, the court agreed to allow him to argue for a downward durational departure at sentencing. The court found Webber guilty and sentenced him to 112 months, executed. Webber now challenges the denial of his motion to continue the trial.

D E C I S I O N

We will not reverse a conviction for denial of a motion for a continuance unless the denial constitutes a clear abuse of discretion and the defendant demonstrates prejudice. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). Abuse of discretion may be found if, in light of the circumstances before the trial court at the time the motion was made, the court's decision prejudiced the defendant by materially affecting the outcome of the trial. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). The constitutional right to have the assistance of counsel for one's defense includes a fair opportunity to secure counsel of one's choice. U.S. Const. Amend. VI; State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

There is no evidence in the record that Webber made any effort to find a new attorney in the five months between the June 2001 scheduled trial and the November 2001 hearing. The district court therefore acted well within its discretion by concluding that Webber's motion was not timely. See id. at 358 ("A defendant may not * * * obtain a continuance by arbitrarily choosing to substitute counsel at the time of trial."); State v. Fagerstrom, 286 Minn. 295, 300, 176 N.W.2d 261, 265 (1970) (no abuse of discretion in denying day-of-trial motion for continuance where "defendant had ample time prior to trial to make his request"); State v. Caldwell, 639 N.W.2d 64, 69 (Minn. App. 2002) (district court did not abuse its discretion by denying defendant's day-of-trial request for continuance because, inter alia, defendant had not made effort to retain private attorney of his choice within three months before trial).

Nor is there evidence that the district court's denial of Webber's motion was prejudicial or affected the outcome of the trial by denying Webber competent legal representation. After the district court denied Webber's motion, Webber, with his attorney's assistance, negotiated both a sentencing cap and an opportunity to argue for a downward durational departure at sentencing.

The record also shows that Webber did not clearly articulate the reasons he wanted to hire a new attorney other than to repeat that he had a conflict with his attorney and that he was being poorly represented. See Fagerstrom, 286 Minn. at 299-300, 176 N.W.2d at 265 (affirming denial of motion for continuance where defendant "alleged no specific reason why he felt [his attorney] could not adequately defend him").

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.