Category Archives: Substitution of Counsel

State v. Castillo-Lopez: Substituting Counsel & Continuances

In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. HamptonFinally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance. Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.