Preview:

Supreme Court
No. 2008-336-M.P.
(P2/02-3824A)
State                                                                        :
v.                                                                           :
Tyrone R. Powell.                                                            :
NOTICE:   This opinion is subject to formal revision before publication in
the Rhode Island Reporter.   Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode  Island  02903,  at Tel.  222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.




Supreme Court
No. 2008-336-M.P.
(P2/02-3824A)
State                                                                                                  :
v.                                                                                                     :
Tyrone R. Powell.                                                                                      :
Present:  Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
O P I N I O N
Justice Flaherty, for the Court.   Community complaints about street-level prostitution
and narcotics activities resulted in three members of the Providence Police Department working
undercover in plainclothes.   At approximately 10:15 P.M. on April 8, 2008, the undercover
police pulled into the parking lot of a gas station.  A man standing next to a black SUV made eye
contact with one of the undercover officers and motioned with a nod.   After the officer nodded
back, the man approached, engaged in some small talk and then asked whether the men were
looking to buy any “rock” (crack cocaine).   One of the officers replied affirmatively.   The man
then asked whether he could get in the car and said that he could get them what they needed.
Once in the car, the man and the three undercover officers went for a drive around the block.
After  some  haggling  over  price,  the  man  removed  from  his  waistline  a  clear  plastic  bag
containing the drug.   The undercover police paid for the contraband with a pre-marked $20 bill.
With the drug transaction complete, the car came to a stop; but before leaving the vehicle the
- 1 -




man inquired whether the occupants wanted more.   The officers agreed and bought a second bag
for $18.   After completing the second exchange, the man exited the vehicle.   The undercover
police immediately followed the man on foot and, with badges shown, revealed themselves as
police officers.
The man, Tyrone R. Powell, was handcuffed and brought to the police station.  Field tests
confirmed that the “rocks” purchased by the officers for $38 were, in fact, cocaine.   Because he
was serving a probationary period, Powell was presented to the Superior Court as a probation
violator, and after a hearing, a justice of that court so adjudicated him.   The hearing justice
vacated the remaining five years, six months of a previously imposed suspended sentence and
ordered that defendant be incarcerated.   Defendant seeks review from that adjudication from this
Court.1   Before us, defendant argues that the hearing justice erred in (1) denying defendant’s
request for a continuance to secure new counsel, and (2) in refusing defendant’s request for the
appointment of alternative counsel.   On October 5, 2010, the parties appeared before this Court
to show cause why this issue should not be summarily decided.   After considering the parties’
arguments and reviewing the record, we conclude that cause has not been shown.   For the
reasons set forth in this opinion, we affirm the order of the Superior Court.
Travel of the Case
On April  10,  2008, defendant was arrested and charged with one count of unlawful
delivery of cocaine to an undercover police officer and one count of unlawful delivery within a
1 This case came before us after we granted a common law writ of certiorari.   It appears that Mr.
Powell filed a timely pro se notice of appeal, and indeed the Superior Court docket sheets
contain an entry that such a notice was filed.  The Superior Court file, however, does not contain
the notice of appeal itself.   Because the actual notice could not be located, the Superior Court
declined to transmit its file to the Supreme Court.    Consequently, the Office of the Public
Defender petitioned for a writ of certiorari, which we granted.
- 2 -




school zone.  The next day, April 11, 2008, the state filed a probation-violation report under Rule
32(f) of the Superior Court Rules of Criminal Procedure.   The filing alleged that defendant
violated the terms of his probation.2   On April 11, 2008, defendant appeared before a magistrate,
who ordered that he be held without bail.   On April 25, 2008, defendant appeared before a
second magistrate, at which time the date for a violation hearing was set.
On the morning of May  23,  2008, defendant appeared before the magistrate for a
violation  hearing.    The  state’s  witnesses  were  present  and  prepared to testify.    However,
defendant’s appointed counsel informed the court that defendant no longer wished to have her
represent him.  Speaking to the court on his own behalf, defendant said (1) that he was unaware a
hearing had been scheduled for that day, (2) that he had witnesses to present but they were not
ready, and (3) that his family was going to assist him to retain private counsel.   The magistrate
responded, “[y]ou don’t go the day of the hearing with witnesses and decide you’re going to fire
your attorney.”   He informed defendant that the hearing would go forward as scheduled, and he
assigned the matter to a hearing justice.   The magistrate also directed counsel to accompany
defendant to the hearing, remarking, “[s]he can either be stand-by counsel or Mr. Powell can
represent himself.”
Before the hearing justice that afternoon, counsel again raised the question of whether
defendant wished to represent himself.  The defendant again recited the bases for what amounted
to a motion for a continuance and an opportunity to retain private counsel, this time adding that
2   These terms included the suspension of a sixty-six month sentence imposed on P2/02-3824A
and a concurrent fifty-nine month sentence imposed on P2/04-1372A.   Both of these suspended
sentences resulted from judgments arising from the manufacture and delivery of a controlled
substance.   We note that “[i]f a defendant violates the terms of his or her probation, the court
may remove the suspension and order the defendant to serve the entire portion of any sentence
that previously was imposed but suspended, or any lesser sentence that the court determines is
just.”  State v. Parson, 844 A.2d 178, 180 (R.I. 2004).
- 3 -




he did not believe that appointed counsel wished to continue to represent him.   His attorney
renewed her motion to withdraw as counsel and for the Court to appoint another attorney, saying,
“[h]e’s not willing to heed my advice at this point.”
After he inquired of defendant about the details of his family’s offer to retain private
counsel, the hearing justice denied the motion to withdraw and refused to appoint new counsel.
The hearing justice explained, “[t]he Court is convinced that it would be very difficult for Mr.
Powell to get a private counsel.   I don’t see any significant discord between [counsel] and Mr.
Powell.   She certainly is a capable attorney who can represent him.”   Finally, the hearing justice
said that he would allow defendant an opportunity to subpoena witnesses, but he also determined
that in the interest of judicial economy — the state was ready to proceed and defendant had been
given proper notice — the hearing would begin.
At the hearing, the state presented two Providence police officers as witnesses to support
the allegation that on April 10, 2008, defendant sold them cocaine while they were serving in an
undercover capacity.   After the officers concluded their testimony, the state rested.   Defense
counsel then informed the hearing justice that the defense wished to investigate information that
might be offered by defendant’s witnesses.   In response, the hearing justice granted a one-week
continuance, to May 30, 2008.
On that day, the parties again appeared before the hearing justice.    The defendant
requested a further continuance so that he could provide defense counsel with information about
his proposed witnesses.   Even though counsel argued that she had not had the opportunity to see
defendant during the previous week, and that the state would not be prejudiced by an additional
continuance, the hearing justice denied the request for a continuance, and the hearing proceeded.
- 4 -




After defendant testified, the hearing justice continued the matter an additional week
because of an afternoon scheduling conflict.   However, before adjournment, the hearing justice
returned to the issue of the defendant’s witnesses, offering, “I will give the defendant every last
opportunity.   If you have got anyone you want subpoenaed on your behalf, give those names to
[counsel]. * * *  We will hear what they have to say.”
On June 12, the parties appeared before the hearing justice for the last time.   Having no
witnesses to present, the defense rested.   The hearing justice determined the defendant to be a
violator and imposed sentence.
Standard of Review
It is well settled that the decision of the hearing justice to grant or deny a defendant’s
request for a continuance to secure alternate counsel is left to the sound discretion of the trial or
hearing justice and will not be disturbed on appeal absent a clear abuse of discretion.   State v.
Gilbert, 984 A.2d 26, 29 (R.I. 2009); State v. Sampson, 884 A.2d 399, 404 (R.I. 2005).   A
motion requesting a court appointment of alternate or new counsel is treated as a motion for
continuance because such a request, if granted, would require the court to continue the matter
and delay its disposition.   Gilbert, 984 A.2d at 30.   Recently, in Gilbert, this Court had occasion
to review the balancing framework for a hearing justice deciding to grant or deny a motion for
continuance where arrangements for alternate counsel are sought.   Id.   In that case, we explained
that although a defendant has a right to counsel at a probation violation hearing, such a hearing is
summary in nature and the defendant is not entitled to the panoply of rights available at a
criminal trial.   Id. (citing State v. Goncalves, 941 A.2d 842, 846 (R.I. 2008)).   Therefore a
- 5 -




motion to continue a probation-violation hearing so that alternative counsel might be retained is
more narrowly reviewed.
A hearing justice’s decision to grant or deny a request for alternate counsel requires a
balancing of “the presumption in favor of the defendant’s right to trial counsel of choice and the
public’s interest in the prompt, effective, and efficient administration of justice.”   Gilbert, 984
A.2d at  30  (quoting State v. Caprio,  819 A.2d  1265,  1270  (R.I.  2003)).   In conducting the
required fact-specific exploration, a hearing justice should consider the following factors:
“[1] the promptness of the continuance motion and the length of
time  requested;                                                                                       [2]  the  age  and  intricacy  of  the  case;   [3]  the
inconvenience to the parties, witnesses,  *  *  * counsel, and the
court; [4] whether the request appears to be legitimate or merely
contrived foot-dragging; [5] whether the defendant contributed to
the  circumstances  giving  rise  to  the  request;                                                    [6]  whether  the
defendant in fact has other competent and prepared trial counsel
ready to pinch-hit; * * * and [7] any other relevant factor made
manifest by the record.   Id.  (quoting State v. Burke,  811 A.2d
1158, 1163 (R.I. 2002)).
In addition, there must be “‘exceptional circumstances’ to justify a delay for an eleventh-hour
discharge of counsel.”  Id.
Analysis
After examining the specific circumstances attendant to this case, we are satisfied that the
hearing justice did not abuse his discretion when he denied defendant’s motion for new counsel.
First, we conclude that the hearing justice exercised diligence in balancing the public’s
interests and the presumption favoring a defendant’s right to counsel of choice.   The defendant
argues that his situation is “very much on point” with the facts of Dias, in which we held that a
hearing  justice  had  abused  his  discretion  when  he  denied  the  defendant’s  motion  for  a
continuance to secure private counsel.   State v. Dias, 118 R.I. 499, 374 A.2d 1028 (1977).   We
- 6 -




are not persuaded that Dias is apposite.   In that case, we observed that, “[t]he total time elapsed
between the date of arrest and arraignment and the date of the hearing was merely 2 weeks.”   Id.
at 504, 374 A.2d at 1030.   Additionally, Dias informed the court that he was financially able to
secure counsel, he named a particular attorney with whom he had met, and that counsel had
informed him that he would be out of town on the day that the hearing was scheduled.  Id.  Under
those circumstances we determined that the denial of the defendant’s motion was an abuse of
discretion.   Id. at 504-05, 374 A.2d at 1030.   Those circumstances simply are not present here.
The defendant has not demonstrated that he can afford private counsel, nor did he even give the
name of any potential advocate to the hearing justice.   Rather, he merely has asserted that his
family was making an effort to secure counsel.   Further, assigned counsel did not say that she
was unprepared to go forward with the hearing.   Indeed, when the hearing began she cross-
examined the state’s witnesses.
Second, the state and its witnesses were present and ready to proceed.   The hearing
justice’s efforts to balance defendant’s rights and the public’s interest in the prompt, effective,
and efficient administration of justice was on keen display in the record of May 23 as the hearing
justice patiently evaluated defendant’s motion requesting the appointment of new counsel:
“THE COURT: * * * I don’t see you as getting a private attorney.
And frankly, unless I hear something to the effect that you folks
are at such loggerheads that you can’t agree at all, or there’s a
possibility of you requiring or suggesting to [counsel] that she do
something improper, my feeling is that she can handle the case.
She’s a qualified attorney, has a lot of experience.   The Public
Defender’s Office, as we know, is a very busy office, but they
make  up  for  the  fact  that  they  have  a  lot  of  clients  by  the
experience that they have.   So, while they might not be able to sit
with a client as long as a private attorney might, they have so much
experience that they can often counter that.   It’s not always perfect
in that regard, but for the most part I think it balances out fairly
well.
- 7 -




“THE DEFENDANT:  Can I say something, your Honor?
“THE COURT:  Go ahead.
“THE DEFENDANT:  Can I get until Monday to think about this?
“THE COURT:  Pardon me?
“THE DEFENDANT:   Can you give me until Monday to think
about that situation?
“THE COURT:   The witnesses are here today.   Are they police
witnesses?
“[PROSECUTOR]:  Yes.
“THE COURT:  So, some taxpayer — is it in Providence?
“[PROSECUTOR]:  Providence.
“THE COURT:   So, the Providence taxpayers are paying for these
people to be downstairs today.”
Those balancing, fact-specific calibrations of the hearing justice are appropriate considerations
for a hearing justice evaluating a motion for alternative counsel.    As we previously have
established, review of the hearing justice’s assessment of the care and competence of a court-
appointed attorney is important because the effective assistance of counsel necessarily underlies
any consideration of an alternative counsel continuance motion.  See Goncalves, 941 A.2d at 846
(observing that  “the hearing justice noted on the record that  [the] defendant primarily was
unhappy with ‘the proposed disposition’ of the case, even though his lawyer had plea bargained
effectively with the state”); Sampson, 884 A.2d at 404 (observing that “[t]he hearing justice
disagreed with [the defendant’s] assessment of his court-appointed attorney, noting that ‘[the
court-appointed attorney] does an outstanding job for his clients’ and that he recently ‘gave the
best final argument I have ever heard a defense counsel give’”).
- 8 -




Third, and finally, it is significant that the defendant first expressed an interest in a
continuance to secure private counsel, or, in the alternative, for the court to appoint alternative
counsel on the morning of the hearing.  In our view, this smacks of an attempted “‘eleventh-hour
discharge of counsel’”; such a discharge at a violation hearing is justified only by “‘exceptional
circumstances.’”   Gilbert, 984 A.2d at 30.   We note that despite the defendant’s protestations of
being unaware of an impending violation hearing, the defendant was, in fact, before a magistrate
on April 25, 2008; at that time a violation hearing date was designated.   The violation hearing
before the hearing justice occurred four full weeks after that date, and a full six weeks after the
defendant was arrested.3   This Court is completely satisfied that no exceptional circumstances
existed to justify granting such a request for alternative counsel when the defendant (1) had
knowledge of the originally scheduled hearing date and (2) had the benefit of six weeks from the
time of his arrest until the time of the violation hearing to take whatever steps were required to
secure alternative counsel.   There is no indication whatsoever of an abuse of discretion by the
hearing justice.
Conclusion
The order of the Superior Court is affirmed.   The papers in this case are remanded to the
Superior Court.
Justice Indeglia did not participate.
3 Additionally, defendant’s alternative counsel motions did not constitute continuing objections
upon being denied.   In State v. Sampson, 884 A.2d 399, 404 n.4 (R.I. 2005), we concluded that
there was no continuing objection where the trial justice told the defendant he could either
represent himself or be represented by the attorney provided where the defendant replied “all
set.”   Here, the hearing justice informed defendant that he could either go forward with the
public defender provided or represent himself pro se.   To this, defendant finally responded, “I
better represent myself, but I’m not smart enough to represent myself because I’m not a lawyer.”
- 9 -




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          State v. Tyrone R. Powell.
CASE NO:                                                No. 2008-336-M.P.
                                                        (P2/02-3824A)
COURT:                                                  Supreme Court
DATE OPINION FILED:   October 29, 2010
JUSTICES:                                               Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
WRITTEN BY:                                             Justice Francis X. Flaherty
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Gilbert V. Indeglia
ATTORNEYS ON APPEAL:
For State:                                              Virginia M. McGinn
Department of Attorney General
For Defendant:  Paula Rosin
Office of the Public Defender

Download 08-336.pdf

Rhode Island Law