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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JONATHAN DAVID HEWITT, Defendant-Appellant.

UNPUBLISHED September 15, 2011

No. 299241 Wayne Circuit Court LC No. 10-002907-FC

Before: SAWYER, P.J., and JANSEN and DONOFRIO, J.J. PER CURIAM. Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529, assault with intent to do great bodily harm, MCL 750.84, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. Because the trial court did not abuse its discretion in denying defendant's motion for substitution of counsel, and, because defendant has failed to establish that he was denied the effective assistance of counsel, we affirm. The victim, James Lemon, testified that defendant called him on February 14, 2010, about coming over to visit. Defendant later arrived at Lemon's house, accompanied by a man he introduced as Terry. Lemon testified that Terry pulled a gun on him and defendant demanded Lemon's money. When Lemon tried to escape through a window, defendant told Terry to shoot Lemon and shots were fired. Lemon was shot as he went through the window. Defendant denied being at Lemon's house. According to defendant, Lemon had a drug habit and defendant had previously introduced Lemon to a dealer named Steve, whom Lemon knew as Terry. According to defendant, on the day of the offense, Lemon called defendant at home looking for drugs and defendant told him to call one of the people defendant had introduced him to. Defendant stated that Lemon later called him back to report that he had spoken to Terry, who was on his way to Lemon's house. Defendant testified that later in the month after the offense, a man named Craig called and "asked about the whereabouts of the guy Terry and [said] that if I didn't give Mr. Lemon the full name and address of Terry, then he would hold me responsible, seeing I'm the one who introduced them." Defendant first argues that the trial court erred in denying his motion for substitute counsel. We review a trial court's decision affecting a defendant's right to counsel of choice for an abuse of discretion. People v Akins, 259 Mich App 545, 556; 675 NW2d 863 (2003). A trial -1-

court's decision regarding substitution of appointed counsel is also reviewed for an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). An abuse of discretion occurs if the trial court's decision is outside the range of principled outcomes. People v Carnicom, 272 Mich App 614, 616-617; 727 NW2d 399 (2006). While the record is unclear about the status of defense counsel as retained or appointed, at oral argument, appellate counsel advised that defendant's trial counsel was indeed retained. A motion to adjourn trial must be based on good cause. MCL 768.2; MCR 2.503(B)(1). When the trial court denies a motion to adjourn to retain another attorney, this Court considers the following factors: (1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision. [Echavarria, 233 Mich App at 369.] Obviously, a constitutional right was involved; the Sixth Amendment guarantees the right to counsel in all criminal prosecutions. US Const, Am VI; Const 1963, art 1,

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