SUMMARY

March 18, 2021

2021COA35

No. 17CA1133, People v. Rainey — Constitutional Law — Sixth 

Amendment — Right to Counsel

The defendant in this criminal case requested a continuance 

so that he could continue to be represented by his appointed 

counsel who could not appear on the scheduled trial date. The 

district court, relying primarily on scheduling issues, denied the 

request, and the defendant proceeded to trial with new, substitute 

counsel. On appeal, he argued that the district court’s denial of his 

continuance request violated his Sixth Amendment right to 

continued representation by his counsel. 

A division of the court of appeals holds that because indigent 

defendants have a constitutional right to continued representation 

by appointed counsel, the district court must apply the factors 

enumerated in People v. Brown, 2014 CO 25, when the defendant 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
seeks a continuance to enable him to continue the representation 

by his appointed counsel. Because the district court did not apply 

the Brown factors, the division reverses the judgment and remands 

for further proceedings.
COLORADO COURT OF APPEALS 2021COA35

Court of Appeals No. 17CA1133

El Paso County District Court No. 16CR3477

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert James Rainey,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE HARRIS

Johnson and Vogt*, JJ., concur

Announced March 18, 2021

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
1

¶ 1 Defendant, Robert James Rainey, appeals the judgment of 

conviction entered on jury verdicts finding him guilty of second 

degree kidnapping and criminal mischief.

¶ 2 On appeal, one claim is potentially dispositive. Rainey 

contends that the district court violated his Sixth Amendment right 

to continued representation when it denied a continuance on 

grounds of judicial efficiency, thereby forcing him to proceed with a 

different public defender. We conclude that the district court 

applied the wrong legal standard in considering the motion to 

continue, and we therefore reverse and remand for further findings.

I. Background

¶ 3 Rainey was charged with second degree kidnapping, a felony, 

and several misdemeanor domestic violence offenses following an 

altercation with the victim. The district court appointed counsel to 

represent him.

¶ 4 Trial was originally scheduled to begin January 9, 2017, but 

was thereafter delayed and continued multiple times for reasons not 

attributable to the defense:

 The court delayed trial to January 10 because a storm had 

damaged the courthouse.
2

 On January 10, the prosecution moved for a continuance 

because the victim failed to appear. Over Rainey’s 

objection, the court granted the continuance and 

rescheduled trial for February 2.

 The jury commissioner did not have enough jurors available 

on February 2, so the court continued the case to February 

23.

 On February 23, the prosecution moved for a second 

continuance because one of its witnesses was unavailable. 

The court granted the continuance (again, over Rainey’s 

objection) and reset trial for March 6, 2017, the day before 

the speedy trial deadline.

¶ 5 At a pretrial hearing on March 3, Rainey, through his public 

defender, Neil DeVoogd,1 requested a continuance. DeVoogd

explained that he would be out of town for the week of March 6, and 

that when he had accepted that date, the parties had reached an 

agreement and there was “not any [likelihood] that [the case] was 

 

1 DeVoogd had recently replaced Rainey’s initial public defender, 

who, according to Rainey’s wife, had “called [Rainey] an asshole, 

had called him stupid at some point,” and did not “communicate 

back in a timely manner.”
3

going to be going to trial,” but the agreement “ended up not going 

through.” He said that Rainey wanted to continue the 

representation and was asserting his “right to have [DeVoogd] as his 

attorney” at trial. DeVoogd told the court that Rainey would agree 

to waive his right to a speedy trial.

¶ 6 The court recognized that every prior delay or continuance had 

“either been attributable to the DA or the Court” and that “none of 

them [we]re attributable to the Defense.” The trial judge rejected 

any notion that the continuance request was a dilatory tactic and 

indicated that she personally “felt terrible for Mr. Rainey in the 

midst of all of this” and was “sympathetic” to the request.

¶ 7 Nonetheless, the trial judge denied the continuance, finding, 

primarily, that it had been difficult to find a substitute judge to hear 

the case and, due to the nature of the case, it would be difficult to 

fit the trial back into her docket:

It would have been great to have [DeVoogd] do 

it and that would have been a little more 

comfortable, I think for Mr. Rainey. But what 

the factual [sic] comes down to is that this isn’t 

a [complicated] case. It’s not a case that 

involved anything technical. It’s just straight 

forward witnesses and a victim who doesn’t 

want to cooperate. 
4

. . . .

If I have to reset this case, it’s getting reset [in] 

July, and then even then it’s not a high 

priority case. Every week I have sex assault on 

a child, I have homicides set, I have [serious] 

assault cases set, crimes of violence set. There 

is a darn good chance that if we continue this, 

he gets bumped again. And I can’t do that. I 

just can’t do that for the sake of this case. He 

is getting his attorney of choice. He’s getting 

the Public Defender and a fine one too. So, I 

understand where you’re coming from, record 

so noted. But I’m gonna deny the request for a 

continuance.

¶ 8 Accordingly, in place of DeVoogd, two other public defenders 

from the same office represented Rainey at trial.

II. Sixth Amendment Right to Counsel

¶ 9 Rainey contends that the district court’s denial of his request 

for a continuance violated his constitutional right to continued 

representation by DeVoogd, his counsel of choice.

A. Standard of Review

¶ 10 We review the district court’s denial of a continuance motion 

for an abuse of discretion. People v. Brown, 2014 CO 25, ¶ 19. The 

court’s “failure to understand the . . . criteria upon which [its] 

discretion is to be exercised can amount to an abuse of that 

discretion.” Pierson v. People, 2012 CO 47, ¶ 21. And the court 
5

necessarily abuses its discretion if it bases its ruling on an 

erroneous view of the law. People v. Wadle, 97 P.3d 932, 936 (Colo. 

2004). Whether the court applied the correct legal standard is a 

question of law we review de novo. Ronquillo v. People, 2017 CO 99, 

¶ 13.

B. Analysis

¶ 11 The Sixth Amendment guarantees a criminal defendant “the 

Assistance of Counsel for his defence.” U.S. Const. amend. VI; see 

also Colo. Const. art. II, § 16. That guarantee has been interpreted 

to include, among other things, the right to appointed counsel for 

indigent defendants, Gideon v. Wainwright, 372 U.S. 335, 345 

(1963), and the right to “select and be represented by one’s 

preferred attorney” for defendants of means, Wheat v. United States, 

486 U.S. 153, 159 (1988).

¶ 12 The People argue that because Rainey, as an indigent 

defendant, had no constitutional right to choose his lawyer, he also 

had no right to continued representation by his appointed lawyer. 

That argument cannot be squared with our supreme court’s wellsettled precedent.
6

¶ 13 To be sure, an indigent defendant does not have a right to 

select his appointed counsel. Ronquillo, ¶ 25 (“[A] defendant 

requesting a free lawyer can’t choose which one he’s given.” (citing 

United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006))). But 

“[t]he right to continued representation by counsel of choice [is 

distinct] from an asserted right to have particular counsel of choice 

appointed.” People v. Harlan, 54 P.3d 871, 878 (Colo. 2002). 

“[O]nce counsel is appointed, the attorney-client relationship is no 

less inviolable than if the counsel had been retained by the 

defendant.” People v. Shari, 204 P.3d 453, 460 (Colo. 2009) 

(quoting Harlan, 54 P.3d at 878). So, “[w]hile there is no Sixth 

Amendment right for an indigent defendant to choose his appointed 

counsel, that defendant is ‘entitled to continued and effective 

representation’” by court-appointed counsel of choice “in the 

absence of a demonstrable basis in fact and law to terminate that 

appointment.” Harlan, 54 P.3d at 878 (citation omitted); accord 

People v. Nozolino, 2013 CO 19, ¶ 17.

¶ 14 The People’s argument, which conflates the right to select 

counsel with the right to continued representation, was expressly 

rejected by the supreme court in Harlan. In that case, after the 
7

defendant was convicted at trial and while two postconviction 

motions were pending, the district court disqualified appointed 

counsel based on an alleged conflict of interest. Harlan, 54 P.3d at 

876. On appeal, the prosecution contended that the court’s interest 

in avoiding a potential conflict necessarily outweighed any interest 

the defendant had in keeping his appointed counsel, noting that an 

indigent defendant has no right to counsel of his choice. Id. at 878. 

The court deemed that contention a non sequitur:

[T]he People’s contention that indigent 

defendants are not entitled to choose courtappointed counsel is irrelevant to the issue 

before us. . . . As noted above, an indigent 

defendant has a presumptive right to 

continued representation by court-appointed 

counsel absent a factual and legal basis to 

terminate that appointment. Because the 

issue presented in this case is whether Harlan 

may continue to be represented by his current 

counsel, and not whether he may choose his 

counsel, this argument by the People, and the 

case law cited to support the argument, is 

inapposite.

Id. (citation omitted); see also Nozolino, ¶ 17; Shari, 204 P.3d at 

460; Lane v. State, 80 So. 3d 280, 296-99 (Ala. Crim. App. 2010) 

(explaining that the right to continued representation applies 

equally to indigent defendants and collecting state and federal cases 
8

applying the rule); State v. McKinley, 860 N.W.2d 874, 879-80 (Iowa 

2015) (adopting Harlan’s view and collecting cases).

¶ 15 In light of this case law, we reject the People’s position that if a 

defendant does not pay for his lawyer, he has no grounds to object 

to his lawyer’s replacement as long as the replacement lawyer 

handles the case competently. See Lane, 80 So. 3d at 296. “To 

allow trial courts to remove an indigent defendant’s court-appointed 

counsel with greater ease than a non-indigent defendant’s retained 

counsel would stratify attorney-client relationships based on 

defendants’ economic backgrounds.” Weaver v. State, 894 So. 2d 

178, 189 (Fla. 2004).

¶ 16 And the right to continued representation means that an 

indigent defendant has a right to proceed with his specific 

appointed lawyer, not just any appointed lawyer from the public 

defender’s office.

¶ 17 We have recognized that non-indigent defendants have this 

right. In People v. Stidham, 2014 COA 115, ¶ 10, a division of this 

court held that a defendant has a Sixth Amendment right to 

proceed with his specific lawyer, and that the district court erred by

denying a motion to continue and thereby requiring the defendant 
9

to proceed with another lawyer from the same firm. See also 

Gonzales v. State, 970 A.2d 908, 920 (Md. 2009) (trial court erred 

by denying the defendant’s request to continue with his own lawyer 

and instead requiring him to choose between proceeding to trial 

with a different lawyer from the same firm or representing himself).

¶ 18 If, as Harlan says, the attorney-client relationship between an 

indigent defendant and his appointed counsel is no less inviolable 

than the relationship between a non-indigent defendant and his 

retained counsel, then the Sixth Amendment limits the district 

court’s power to replace a defendant’s appointed lawyer with 

another from the same firm or organization.2 See Stearnes v. 

 

2 People v. Coria, 937 P.2d 386 (Colo. 1997), does not affect our 

conclusion. In that case, after noting that an indigent defendant 

does not have “an absolute right to demand a particular attorney,” 

the supreme court stated that “[t]he substitution of one public 

defender with another does not violate the Sixth Amendment right 

to counsel, absent evidence of prejudice.” Id. at 389. The question 

on appeal, though, was whether a defendant has a right to be 

represented by a law student intern. Id. at 387, 388. The supreme 

court never purported to address whether an indigent defendant 

has a right to continued representation by his appointed counsel. 

That precise issue was resolved five years later in People v. Harlan, 

54 P.3d 871, 878 (Colo. 2002), which did not mention Coria. 

Because the propriety of substituting appointed counsel over a 

defendant’s Sixth Amendment-based objection was outside the 

scope of the issue decided by the Coria court, the court’s statement 
10

Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (“[T]he power 

of the trial court to appoint counsel to represent indigent 

defendants does not carry with it the concomitant power to remove 

counsel at [its] discretionary whim.”); State v. Huskey, 82 S.W.3d 

297, 305 (Tenn. Crim. App. 2002) (“[A]ny meaningful distinction 

between indigent and non-indigent defendants’ right to 

representation by counsel ends once a valid appointment of counsel 

has been made.”). To the client — whether indigent or wealthy —

“[a]ttorneys are not fungible, as are eggs, apples and oranges.” 

United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979). Once 

counsel has been appointed, and the defendant has reposed his 

trust and confidence in the attorney assigned to represent him, the 

district court may not “rend that relationship by dismissing the 

 

is “mere dictum which is not binding on us.” McCallum Fam. L.L.C. 

v. Winger, 221 P.3d 69, 73 (Colo. App. 2009). 

 The Coria court’s statement was taken from People v. 

Gardenhire, 903 P.2d 1165 (Colo. App. 1995), in which a division of 

this court held that, absent some showing of prejudice, “the 

substitution of one public defender with another does not constitute 

a violation of defendant’s Sixth Amendment right to effective 

assistance of counsel.” Id. at 1168 (emphasis added). That narrow 

proposition is unrelated to the issue in this case. And to the extent 

a broader rule was intended, we decline to adopt it. See Chavez v. 

Chavez, 2020 COA 70, ¶ 13. 
11

originally appointed attorney and then thrusting unfamiliar and 

unwelcome counsel upon the defendant.” McKinnon v. State, 526 

P.2d 18, 22-23 (Alaska 1974); see also English v. State, 259 A.2d 

822, 826 (Md. Ct. Spec. App. 1969) (“[O]nce counsel has been 

chosen, whether by the court or the accused, the accused is entitled 

to the assistance of that counsel at trial.”) (emphasis added). 

¶ 19 The right to counsel of choice, including the right to continued 

representation, is not absolute. See Rodriguez v. Dist. Ct., 719 P.2d 

699, 706 (Colo. 1986). But, as Harlan recognizes, there is “a 

presumption in favor of a defendant’s choice of counsel” that 

“extends to indigent defendants: A defendant’s desire for continued 

representation by a court-appointed public defender is ‘entitled to 

great weight.’” 54 P.3d at 878 (quoting Rodriguez, 719 P.2d at 707); 

accord Nozolino, ¶ 17. Only when that presumption is overcome 

may a court disregard a defendant’s choice. See Brown, ¶ 21 

(refusing to allow the defendant to proceed with his counsel of 

choice “is an ‘extreme remedy’ that should not be used absent a 

showing of prejudice”) (citation omitted); Harlan, 54 P.3d at 877.

For instance, if the defendant’s choice of counsel has a conflict of 

interest, the presumption may be outweighed by the public’s 
12

interest in maintaining the integrity of the judicial process and the 

defendant’s Sixth Amendment right to conflict-free counsel. See 

Nozolino, ¶ 16; Harlan, 54 P.3d at 877. Likewise, if counsel of 

choice is unable to appear without a continuance, some 

combination of interests including prejudice to the prosecution and 

the victim’s rights may overcome the presumption. Brown, ¶ 24.

¶ 20 In determining whether competing interests overcome the 

presumption, the court “must balance the defendant’s right to 

counsel of choice against the public’s interest in both the ‘efficient 

administration of justice’ and maintaining the integrity of the 

judicial process.” Id. at ¶ 22 (quoting Harlan, 54 P.3d at 877). As 

noted, when balancing those interests, the court must afford “great 

weight” to the defendant’s choice. Nozolino, ¶ 17 (citing Harlan, 54 

P.3d at 878); accord Brown, ¶¶ 16, 21.

¶ 21 The People argue that even if, in some circumstances, the 

court should consider the defendant’s “desire” to continue with 

appointed counsel, no such deference was warranted here. 

DeVoogd had no longstanding or “special” relationship with Rainey, 

they say, and no substantial history with the case; thus, the court 
13

had no obligation to cater to Rainey’s “preference” to keep his 

lawyer.

¶ 22 But the argument arises from the faulty premise that Rainey’s 

interest in continued representation by his counsel of choice 

amounts to no more than a mere “desire” or “preference,” with no 

constitutional dimension. The premise is irreconcilable with Harlan

and Nozolino. Contrary to the People’s assertion, an indigent 

defendant’s right to continued representation is not based on the 

district court’s assessment of the strength or longevity of a 

particular attorney-client relationship, but on the recognition that 

“respect and deference must be accorded to a defendant’s intelligent 

and informed choice of counsel under our justice system.” 

Nozolino, ¶ 17; see also Brown, ¶¶ 7, 11, 28 (remanding to consider 

whether continuance should have been granted where retained 

counsel entered his appearance twelve days before trial).

¶ 23 Accordingly, though the decision whether to grant or deny a 

continuance ultimately falls within the sound discretion of the 

district court, where constitutional rights are concerned, the court 

must consider and weigh additional factors to enable our review of 

whether it properly exercised its discretion. See Brown, ¶¶ 19-24; 
14

see also People v. Travis, 2019 CO 15, ¶ 12 (“[W]hen the Sixth 

Amendment right to counsel of choice is at issue,” a court ruling on 

a motion for a continuance “must demonstrate that it weighed the 

full range of factors that might affect its exercise of discretion.”).

¶ 24 When ruling on a request for a continuance to allow 

representation by counsel of choice, Brown directs the district court 

“to consider and make a record of the impact” of eleven factors:

1. the defendant’s actions surrounding the 

request and apparent motive for making the 

request;

2. the availability of chosen counsel;

3. the length of continuance necessary to 

accommodate chosen counsel;

4. the potential prejudice of a delay to the 

prosecution beyond mere inconvenience;

5. the inconvenience to witnesses;

6. the age of the case, both in the judicial 

system and from the date of the offense;

7. the number of continuances already granted 

in the case;

8. the timing of the request to continue;

9. the impact of the continuance on the court’s 

docket;
15

10. the victim’s position, if the victims’ rights 

act applies; and

11. any other case-specific factors 

necessitating or weighing against further 

delay.

Brown, ¶ 24. 

¶ 25 Though Brown involved a request for a continuance to change

counsel, see id. at ¶¶ 7-9, we conclude that the same factors should 

guide the district court’s discretion when the defendant seeks a 

continuance to continue with his counsel. In both situations, the 

defendant’s Sixth Amendment right to counsel of choice is 

implicated, and therefore the same interests must be balanced.

¶ 26 Indeed, the division in Stidham, ¶ 17, applied the Brown

factors where the defendant sought a continuance to allow 

continued representation by his retained lawyer. Because the right 

to continued representation applies equally to indigent defendants, 

we hold that the district court was required to weigh the Brown

factors before deciding whether to grant or deny a continuance 

necessary for DeVoogd’s continued representation of Rainey at 
16

trial.3 See Harlan, 54 P.3d at 878; see also Lane, 80 So. 3d at 295 

(“With respect to continued representation, however, there is no 

distinction between indigent defendants and nonindigent 

defendants.”).

¶ 27 It is undisputed that the district court did not consider the 

Brown factors on the record. What is more, it mistakenly concluded 

that Rainey was still “getting his attorney of choice” — i.e., any 

lawyer employed by “the Public Defender.” Cf. Nozolino, ¶ 20; 

Stidham, ¶¶ 14-17. And rather than affording “great weight” to 

Rainey’s choice to continue the representation, Harlan, 54 P.3d at 

878, the court suggested only that Rainey “would have been a little 

more comfortable” with DeVoogd as his trial counsel.

¶ 28 As a result, we must remand for the district court to make 

findings on the record as to each applicable Brown factor and apply 

 

3 We reject Rainey’s argument, relying on People v. Stidham, 2014 

COA 115, that when the right to continued representation is at 

issue, as opposed to the right to select counsel of choice, no 

balancing test applies, and the district court must simply grant 

every request for a continuance. The Stidham division’s analysis in 

this regard, see id. at ¶ 14 & n.1, applied only to a situation where 

a defendant’s chosen counsel fails to appear, through no fault of, 

and without notice to, the defendant.
17

the correct legal standard. See, e.g., Brown, ¶ 29 (remanding for 

court to make additional findings and apply the correct standard).

III. Conclusion and Remand Order

¶ 29 The judgment is reversed, and the case is remanded for 

further proceedings. On remand, the district court must make 

findings on the record as to each applicable Brown factor (and state 

on the record why the remaining factors, if any, do not apply). If 

the court, after considering those factors and affording great weight 

to Rainey’s choice to continue DeVoogd’s representation, concludes 

that the presumption of continued representation has been 

overcome, it may reinstate the judgment of conviction, from which 

Rainey may separately appeal.4 Otherwise, Rainey is entitled to a 

new trial. See People v. Cardenas, 2015 COA 94M, ¶ 19 (violation of 

a defendant’s right to counsel of choice is structural error).

JUDGE JOHNSON and JUDGE VOGT concur.

 

4 In light of our disposition, we decline to address Rainey’s 

additional contentions. If, after remand, the judgment of conviction 

is reinstated and Rainey appeals, he may re-raise his other claims 

at that time.