This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Gary S. Gundy,
St. Louis County District Court
File No. K2-04-601061
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
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)
Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and 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.
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.
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 (
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
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.
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.”
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.
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
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.