RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Assistance of Counsel

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROBATION VIOLATION HEARINGS

Assistance of Counsel

O’Neill v. Sharkey, 268 A.2d 720 (R.I. 1970). Defendant was not able to confer with court-appointed counsel until minutes before his violation hearing was set to begin. After violation, R.I.S.C. remanded the matter for a new hearing, finding defendant was denied the assistance of meaningful representation.

“We hold, therefore, that … O’Neill shall have the benefit of representation by counsel appointed sufficiently in advance of said hearing to make that representation meaningful; to be heard in his own defense, and to cross-examine such witnesses as may be produced against him.” Id. at 723.

State v. Dias, 374 A.2d 1028 (R.I. 1977). The trial judge abused his discretion when he refused to grant a continuance to allow defendant to retain counsel of his choice and prepare a defense. Private counsel was prepared to enter but could not attend on that date. The public defender was forced to enter on the day of violation hearing. Defendant’s request was not an attempt to delay proceedings and there was no prejudice to the state.

“The defendant contends that he must be afforded a reasonable opportunity to secure counsel of his own. This principle of law is not disputed. The right to the opportunity to obtain counsel of one’s choice is as much a part of due process requirements as the right to be represented by counsel at every critical stage of the proceedings.” Id. at 1029.
“Violation hearings are held without a jury; thus the factors of additional expense and scheduling difficulties which could mitigate against the interruption of a trial in progress to change counsel midstream were not present. The state’s case involved only four witnesses, of which two were police officers and one was a state employee.” Id. at 1030.
State v. Caprio, 819 A.2d 1265 (R.I. 2003). Defendant in a probation violation hearing requested a continuance to obtain new counsel because his attorney unintentionally misrepresented the state’s offer in a plea agreement. (Counsel said the offer was six years with fifteen months to serve when in actuality the offer was fifteen years with six years to serve.) R.I.S.C. upheld the trial court’s denial of defendant’s motion.

“‘Exceptional circumstances'” are necessary to justify a delay due to an eleventh-hour discharge of counsel. Id. at 1270 (quoting State v. Monteiro, 277 A.2d 739, 742 (R.I. 1971)).
Lyons v. State, 880 A.2d 839 (R.I. 2005). Defense counsel chose not to subpoena medical records at defendant’s probation violation hearing. R.I.S.C. held the decision was tactical and did not prejudice defendant or violate his rights to counsel.

State v. Gilbert, 984 A.2d 26 (R.I. 2009). The hearing justice at defendant’s probation violation hearing denied defendant’s request for a continuance to obtain alternate counsel due to a lack of confidence in his appointed attorney. The attorney’s request to withdraw was denied as well. R.I.S.C. affirmed.

The hearing justice considered several factors, including that the defendant waited until the second day of the hearing to make the request, the defendant’s doubts lacked adequate grounds, defendant could not represent himself, and no other counsel was immediately available to represent defendant.
Upon a request for a continuance to secure new counsel, the hearing justice’s decision “requires the careful 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.” This balancing requires a fact-specific analysis of each case. Id. at 30.
State v. Powell, No. 2008-336-M.P., 2010 WL 4263713 (R.I. Oct. 29, 2010). Defendant was not entitled to grant of his motion for new counsel filed on the morning of his probation violation hearing. Defendant had not demonstrated that he could afford private counsel or that he had alternate counsel available, his appointed counsel appeared prepared to proceed, state and its witnesses were prepared to proceed, and defendant had weeks leading up to his hearing to secure attorney of his choice.

A motion for new counsel is treated as a continuance because, if granted, the court would be required to continue the matter and delay proceedings.
“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. Therefore a motion to continue a probation-violation hearing so that alternative counsel might be retained is more narrowly reviewed.” Id. at *3.

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