This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1141

 

State of Minnesota,
Respondent,

vs.

Todd Allen Ellingson,
Appellant.

 

Filed May 16, 2006

Affirmed

Peterson, Judge

 

Watonwan County District Court

File No. K8-04-362

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

LaMar T. Piper, Watonwan County Attorney, 710 Second Avenue South, P.O. Box 518, St. James, MN  56081 (for respondent)

 

Jeffrey C. Dean, Dean Law Office, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, 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 convictions of driving while impaired, appellant argues that the district court (1) abused its discretion and violated his right to counsel of his choice when it denied his request for a continuance to obtain a new attorney; and (2) abused its discretion and denied his right to present a defense when it denied his request for a continuance to subpoena a witness.  We affirm.

FACTS

            After his arrest on August 23, 2004, appellant Todd Allen Ellingson was charged with four counts of driving while impaired.  Appellant requested that counsel be appointed to represent him, and on August 25, 2004, an assistant public defender was assigned to represent appellant.   

Appellant’s trial was scheduled to begin on January 27, 2005.  During the morning on January 27, appellant told his attorney and the court that he had new evidence.  The new evidence was a recording of a discussion that appellant had with a person identified as “Randy.”  The court told appellant that the recording was inadmissible hearsay and that appellant should have given his attorney the name of the witness so that she could have subpoenaed him.  Appellant responded that he did not have a reasonable amount of time to submit anything to his attorney because after his previous court appearance, his attorney had not called him until the previous morning.  Appellant’s attorney stated that she had met with appellant for two hours the previous day and spoke to him again that morning.

The court also told appellant that if he did not want his attorney to represent him, he could represent himself or he could get another lawyer, but the new lawyer needed to be there that day because that was appellant’s trial date.  Appellant asked for a continuance to obtain new counsel because his attorney would not offer the recording.  The district court explained that the recording would be inadmissible, regardless of which attorney represented appellant, and denied the request for a continuance.  The court told appellant that he could choose either to represent himself or to go to trial with his court-appointed attorney. 

Appellant briefly conferred with his attorney, and his attorney reported to the court that appellant wanted his attorney to listen to the recording.  The court agreed to listen to the recording, and the recording was played off the record.  After listening to part of the recording, the court again told appellant that the recording was inadmissible.[1]

The district court asked appellant whether he wanted to represent himself or go to trial with his court-appointed attorney.  Appellant asked again for a continuance, and the district court denied his request.  When appellant would not state a decision about representing himself or going to trial with court-appointed counsel, the court ordered appellant’s attorney to continue her representation.  Following trial, a jury found appellant guilty on two counts.  This appeal followed.

D E C I S I O N

1.         Appellant argues that his right to counsel of his choice was denied when the district court denied his request for a continuance to obtain new counsel.  Because it is not clear whether appellant wished to obtain private counsel or a substitute appointed counsel, we will address both situations.

            The right to counsel guaranteed by the Sixth Amendment to the United States Constitution and by Minn. Const. art. 1, § 6, includes a fair opportunity for a defendant to secure counsel of his choice.  State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970).  Whether to grant a continuance to permit substitution of counsel is within the discretion of the district court, whose “decision is to be based on the facts and circumstances surrounding the request.”  Id. at 299, 176 N.W.2d at 264.  One factor that appellate courts have looked at when determining whether a denial of a motion for a continuance was an abuse of discretion is “whether the defendant was prejudiced in preparing and presenting his defense.”  Id., 176 N.W.2d at 264-65.

The district court appointed appellant’s attorney five months before trial, and appellant did not request a continuance to obtain new counsel until the day of trial.  Appellant argues that he requested a continuance immediately upon learning that he had an important and fundamental disagreement with his attorney about trial strategy and that it was not his fault that his attorney did not tell him until the day of trial that the recording was inadmissible without witness testimony.  But appellant fails to acknowledge that he did not tell his attorney about the recording until the day of trial.  She could not tell him that the recording was inadmissible before she knew that it existed.

Appellant argues that he did not tell his attorney about the recording before the day of trial because she did not contact him before then.  But his attorney told the district court that she met with appellant for two hours on the day before the trial began.  Also, appellant told the court that he had previously appeared in court with his attorney.

The only reason appellant gave to the district court for wanting to obtain new counsel was his dissatisfaction with his attorney because of her unwillingness to offer the recording.  But appellant did not identify any authority for admitting the recording at trial.  Under these circumstances, appellant was not prejudiced in preparing and presenting his defense, and the district court did not abuse its discretion by denying appellant a continuance to obtain new counsel. 

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).  “General dissatisfaction or disagreement with appointed counsel’s assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney.”  Id.   “[E]xceptional circumstances are those that affect a court-appointed attorney’s ability or competence to represent the client.”  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  Appellant’s dissatisfaction with his attorney because of her unwillingness to offer the recording did not constitute the exceptional circumstances needed for appellant to be granted a substitution of counsel.  His attorney’s unwillingness to offer the recording did not indicate an inability to represent appellant. 

2.         Appellant also argues that the district court erred when it denied his request for a continuance to subpoena “Randy” as a witness.  But a reviewing court must generally consider only those issues that the record shows were presented to and considered by the district court in deciding the matter before it.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 2001); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appellate court generally will not decide issues that were not raised before the district court, including constitutional questions of criminal procedure).  The record does not show that the district court considered a request for a continuance to subpoena “Randy.”  The transcript indicates that while explaining to appellant that the recording does not prove that the police officers who arrested appellant did not follow proper police procedures, the district court stated, “The tape proves that someone named Randy, who has been a police officer, he says for six years, doesn’t think that these officers did it right.  That’s what it proves, that Randy doesn’t think that they did it right.”  Appellant then responded, “If I have enough time, we can subpoena him.” 

Appellant cites this response as a request for a continuance to subpoena “Randy.”  But the transcript does not indicate that the district court perceived the response as a request for a continuance.  The district court did not deny a request; it continued to explain why the recording was not relevant.  And appellant did not clarify that he was requesting a continuance to subpoena “Randy”; he continued with the discussion about the recording’s relevance.  This exchange does not demonstrate that the district court considered a motion for a continuance to permit appellant to subpoena “Randy.”

Furthermore, even if the district court did consider and deny a request for a continuance to permit appellant to subpoena “Randy,” appellant has not shown that the denial of a continuance was reversible error.  “The right to call witnesses in one’s behalf is an essential element of a fair trial and due process.”  State v. King, 414 N.W.2d 214, 219 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).  But the decision to grant or deny a continuance to secure the attendance of a witness lies within the sound discretion of the district court and will only be reversed upon an abuse of discretion.  Id. at 220.   And in determining whether a defendant’s constitutional rights were violated by a denial of a continuance to secure the attendance of a witness, we must consider whether the defendant “sufficiently showed, when he moved for the continuance, that the missing witness . . . would provide favorable, noncumulative evidence.”  Id. at 219.  Appellant presented no evidence that “Randy” witnessed any of the events surrounding appellant’s arrest and could provide any admissible testimony at trial.  Therefore, the district court did not abuse its discretion by denying a request for a continuance to subpoena “Randy” as a witness.

            Affirmed.