RENDERED: APRIL 21, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0665-MR

BRANDON ENGSTROM APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN S. LAPE, JUDGE

ACTION NO. 21-CR-00697

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.

THOMPSON, CHIEF JUDGE: Brandon Engstrom appeals from his conviction 

and argues that the trial court should have granted a continuance to allow him to 

hire private counsel. We find no error and affirm.
-2-

FACTS AND PROCEDURAL HISTORY

Appellant was indicted for trafficking in marijuana between eight 

ounces and five pounds,1 driving while under the influence of a controlled 

substance,

2

and two counts of possession of drug paraphernalia.3 Appellant was 

appointed an attorney from the Public Defender’s Office to represent him at trial. 

On the day of trial, Appellant informed the court that he wished to hire new 

counsel. He stated that he did not believe his public defender had his best interests 

in mind. He also stated that he had spoken to a private attorney and was going to 

hire him when he received his tax refund. Appellant did not specifically ask for a 

continuance. Defense counsel stated that he was prepared for trial and that this 

request was the first he had heard about potential new counsel. The trial court 

denied Appellant’s motion and the case proceeded to trial.

Appellant was convicted of the trafficking and drug paraphernalia 

charges. He was acquitted of the driving under the influence charge. Appellant 

was sentenced to two years in prison. This appeal followed.

1 Kentucky Revised Statute (KRS) 218A.1421(3).

2 KRS 189A.010(1)(c).

3 KRS 218A.500(2).
-3-

ANALYSIS

Appellant argues on appeal that the trial court should have granted a 

continuance to allow him to hire private counsel. Appellant concedes that he did 

not specifically ask for a continuance; therefore, he requests that we review this 

issue for palpable error.

A palpable error which affects the substantial rights of a 

party may be considered by the court on motion for a 

new trial or by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination 

that manifest injustice has resulted from the error.

Kentucky Rules of Criminal Procedure (RCr) 10.26. “To discover manifest 

injustice, a reviewing court must plumb the depths of the proceeding . . . to 

determine whether the defect in the proceeding was shocking or jurisprudentially 

intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). 

Whether a continuance is appropriate in a particular case 

depends upon the unique facts and circumstances of that 

case. Factors the trial court is to consider in exercising 

its discretion are: length of delay; previous continuances; 

inconvenience to litigants, witnesses, counsel and the 

court; whether the delay is purposeful or is caused by the 

accused; availability of other competent counsel; 

complexity of the case; and whether denying the 

continuance will lead to identifiable prejudice. To 

warrant substitution of counsel, appellant must show: (1) 

complete breakdown of communications between 

counsel and himself, (2) a conflict of interest, or (3) that 

his legitimate interests are being prejudiced.
-4-

Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (citations 

omitted), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 

534 (Ky. 2001). The decision to grant a continuance is within the trial judge’s 

discretion. Id. “[A] defendant should be afforded a fair opportunity to secure 

counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 

77 L. Ed. 158 (1932). 

Here, when we examine the Snodgrass factors through the lens of 

palpable error, we conclude that the trial court made no error. Weighing in 

Appellant’s favor is the fact that there had been no prior continuance requests. 

Also, the only inconveniences would be the usual inconveniences of rescheduling a 

trial. Further, the only witnesses to testify were those for the Commonwealth. 

Those witnesses were all employees of the state which suggests there would be 

little inconvenience to them if the trial were rescheduled. 

On the other hand, the case was not very complex and would not

require a specialized defense attorney. Also, the evidence of trafficking was 

overwhelmingly against Appellant; therefore, there is no evidence of prejudice to 

Appellant.4 The police found over eight ounces of marijuana after searching 

Appellant’s car. Appellant also made statements incriminating himself in 

4 The trafficking charge was the only felony for which Appellant was on trial. The other charges 

were misdemeanors. As it was the only felony, and was the cause of his two-year sentence, we 

are primarily focusing on it.
-5-

trafficking activities. Further, the police found a digital scale, a grinder, and plastic 

baggies inside the car. Appellant also had over three thousand dollars in his 

possession. All of this points to trafficking in marijuana.

As for the availability of other counsel, while Appellant stated he 

wanted to hire private counsel, he had yet to do so and was relying on a speculative 

amount of money to do so. Had Appellant already had new counsel, or even had 

the tax refund money in his possession, maybe this factor would have been in his 

favor. Furthermore, because Appellant did not ask for a continuance, we do not 

know how long of a delay would have been reasonable to hire this new attorney. 

CONCLUSION

Based on the foregoing, we affirm. The trial court did not err in 

failing to grant Appellant a continuance or the chance to hire a private attorney. 

There was no palpable error or manifest injustice in the failure to grant a 

continuance.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Adam Meyer

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky