How to Request A Setover and Make it an Issue for Appeal

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by: Andrew Robinson • April 14, 2014 • no comments

Introduction

For any number of reasons, the defense may anticipate being unprepared for an existing trial date, and be obliged to request a continuance. Sometimes, it’s not even our fault.

Reportedly, some trial court judges will routinely force an unprepared defendant to trial, unless the defendant stipulates that the delay will be attributable to the defense – even if the defense’s unpreparedness is, in fact, the state’s fault, because of late discovery. In addition, the Multnomah County Circuit Court reportedly may be considering strict new rules on set-overs that would impose a “date certain” for some kinds of cases.

What explains the trial courts’ haste? Among other things, they know that the appellate courts rarely reverse the denial of a continuance, because that claim of error is subject to the deferential “abuse of discretion” standard. State v. Hickey, 79 Or App 200, 203, (1986) (citing State v. Wolfer, 241 Or 15, 17, (1965)).

Nevertheless, I’ve collected the following cases and considerations as a guide for trial counsel in preserving the denial of a continuance for appellate review. In general, the cases show that when the defense is genuinely unprepared due to circumstances beyond its control, or when the trial court fails to effectively exercise its discretion, and when having more time would actually have affected the trial, we should win these cases on appeal, despite the deferential standard of appellate review.

The Standard of Review on Appeal

As noted, the appellate courts will ordinarily review the denial of a continuance for “abuse of discretion.” Accordingly, trial counsel’s first task in preserving the claim for appellate review is to make a record of an abuse of discretion. To do so, counsel must have a clear idea of what constitutes an abuse of discretion in this context.

In general, “[a]n abuse of discretion occurs when a court acts beyond the boundaries established by law.” State ex rel. Juvenile Dep't of Malheur Cnty. v. Garcia, 180 Or App 279, 286 (2002). Put differently, “[i]f the trial court’s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, the trial court did not abuse its discretion.” State v. Rogers, 330 Or 282, 312 (2000). The denial of a continuance is thus error if the decision is not “within the range of legally correct discretionary choices[.]” Id.

In addition, a trial court can forfeit the “abuse of discretion” standard’s usual deference by failing to effectively exercise its discretion at all. For instance, where a trial court’s purported exercise of discretion flows from a mistaken legal premise, its decision does not fall within the range of legally correct choices and does not produce a permissible, legally correct outcome. See State v. Mayfield, 302 Or 631, 645 (1987) (explaining that, in some circumstances, a trial court can err if it “fails to exercise discretion, refuses to exercise discretion[,] or fails to make a record which reflects an exercise of discretion”); see also State v. Pemberton, 226 Or App 285, 289 (2009) (holding that, under Mayfield, the exercise of discretion based on a mistaken premise of law can be a failure to properly exercise discretion).

Thus, under the “abuse of discretion” standard of review, there are two general ways for a trial court to commit reversible error in forcing the defendant to trial. First, the decision might be substantively erroneous, because it is “beyond the boundaries established by law.” Garcia, 180 Or App at 286. (More on what those boundaries are below). Second, the decision might be procedurally erroneous, because, regardless of whether the defendant actually deserved a continuance, the court failed to meaningfully exercise its discretion.

Substantive error: When forcing defendant to trial violates “the boundaries established by law.”

The principal “boundary established by law” in this context is that counsel must be given a reasonable amount of time to prepare for a hearing that could result in the deprivation of a liberty interest. Garcia, 180 Or App at 286- 87.

For that reason,

“‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality * * *. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. * * *’”

State v. Reese, 25 Or App 231, 234 (1976) (quoting Ungar v. Sarafite, 376 US 575, 589, 84 S Ct 841, 11 L Ed 2d 921 (1964)) (emphasis added). In deciding the motion, the trial court must balance those reasons against the state’s interest in “expedition in the court system.” State v. Hug, 186 Or App 569, 573 (2003) rev den, 335 Or 510 (2003).

Accordingly, trial counsel’s first job is to make a convincing record of the reasons why the defense needs and deserves more time. As demonstrated by the cases cited below, that can be a tall order. Except in dramatic circumstances, the appellate courts are likely to affirm a trial court’s judgment that the defense should have been ready, even if it was not.

A. Winning reasons for a set-over: dire circumstances beyond defendant’s control

The classic example of a good reason for a continuance occurred in Hickey:

“[Counsel] told the court that his briefcase, which contained his entire case file, had been stolen the night before. The file contained witness statements, police reports and ‘a considerable amount of work product’ which he had generated over the previous months, including his notes and research.”

79 Or App at 202.

In addition, Garcia represents a good example of a trial attorney who needed more time for good reasons that were apparently beyond the defense’s control:

“[C]ounsel was not aware of the case until the afternoon before the hearing. He had obtained some of the exhibits that were being offered against his client only five to ten minutes before the hearing, and some of those were illegible. Counsel told the court that he was unable to conduct any investigation on his own and that he was not able to ascertain whether there were additional documents available that he had not been given. He had not yet met with his client face-to-face because they were in different cities, and he told the court that, based on the information that he did have, he had concerns about youth's mental status. Youth’s mental status could implicate his ability to aid and assist counsel as well as his ability to conform his conduct to the requirements of the law. Moreover, counsel and the court were aware of youth’s attempted suicide.”

180 Or App at 287-88.

State v. Gale, 240 Or App 305 (2010) presents another example. There, the defendant was indicted in June of 2007. After a defense continuance, the court set trial for May 20, 2008. However, on May 16, the court allowed defendant’s first attorney to withdraw, and rescheduled trial for July 15. Defendant’s second attorney had an older case set for trial on that date, but the court refused to grant another continuance, so the second attorney had to withdraw. When the defendant appeared for trial on July 15 without counsel, the court denied his motion for a continuance and forced him to conduct the trial on his own.

The Court of Appeals reversed, reasoning that the trial court had abused its discretion because defendant’s interest in having counsel outweighed the state’s interest in proceeding expeditiously. In particular, although the trial court explicitly invoked its concern for “witness fatigue,” the record did not reflect that any witness would have been unavailable if the continuance had been granted. Moreover, the case was a complex one, involving multiple charges, a codefendant, and a large quantity of evidence. Finally, because the case was only 12 months old, a continuance would not have involved inordinate delay. Under those circumstances, the trial court abused its discretion in concluding that the state’s interest in proceeding expeditiously outweighed defendant’s right to counsel. Id. at 312.

Garcia, Hickey, and Gale reflect a certain theme: the denial of each continuance deprived the defendant of a meaningful opportunity to be represented by counsel at trial. If the record shows only that denying the continuance caused some lesser disadvantage to the defense, the appellate courts will not be so sympathetic.

B. Losing reasons for a set-over: a bare assertion of inadequate time to prepare

“Although defendant repeatedly asserts that his counsel had inadequate time in which to prepare for trial, no showing was made, either in the trial court or in this court, that defendant was prejudiced in the slightest degree by the denial of his motion.”

Wolfer, 241 Or at 16.

“There is no showing in the record about how the defendant was prejudiced or what better defense he could have made if time had been given as requested. For all that appears in the record, he was as ably defended and his rights observed as scrupulously as though he had been given much more time in which to prepare his defense. The case presented is one where the discretion of the court was not abused.”

State v. Haynes, 120 Or 573, 575 (1927).

Thus, the fact that counsel had inadequate time to prepare for trial is not, itself, a sufficient reason to grant a set-over. Counsel must make a record of what could have been accomplished with additional time, in order to allow the court to balance defendant’s interest in the set-over against the state’s interest in expeditiousness.

(As will be seen, in addition to being an element of the abuse of discretion itself, proof of prejudice is also necessary to establish that an abuse of discretion requires reversal on appeal).

C. More losing reasons for a set-over: dire circumstances resulting from defense counsel’s procrastination or ineptitude

As illustrated by State v. Burns, 121 Or App 373 (1993), counsel should request a continuance as soon as the need for one is anticipated. There, the trial court appointed a new attorney one month before trial. The new attorney moved for a continuance on the afternoon before trial, explaining that the case file did not contain the defendant’s address and that he had been unable to meet the defendant until three days before trial. The trial court denied the motion and the Court of Appeals affirmed. It noted that nothing in the record indicated that the attorney could not have engaged in discovery and pretrial preparation during the month before trial. Id. at 375. And it pointed out:

“Defendant’s attorney had an entire month following his appointment to ask the court for a continuance, but he chose to wait until the afternoon before the trial to ask for one. That procrastination placed an unreasonable burden on the state, its witnesses and the court. That is an abuse of the system.”

Id. at 375-76.

Thus, even if counsel had an excuse for not meeting the defendant earlier, the motion was untimely because counsel could and should have anticipated the problem and filed it much sooner.

Similarly, in State v. Licari, ___ Or App ___, ___ (slip op) (March 26, 2014), defendant asked for a continuance on the morning of trial. Counsel explained that he had had difficulty communicating with the defendant by phone from an out-of-town jail. Counsel further explained that it was only after speaking with the defendant’s mother and consulting with the defendant in person on the day before trial that counsel began to suspect that the defendant might suffer from post-traumatic stress disorder. Counsel asked for a continuance to allow the defendant to be examined by an expert. The trial court denied the request and the Court of Appeals affirmed, pointing out that counsel had nearly two months to prepare for trial, and that he could have requested an earlier private meeting with the defendant and could also have requested the continuance earlier. Id. (slip op at 4-5). As in Burns, counsel’s failure to address client communication problems in a timely manner meant that the court had discretion to deny the continuance, even if the communication problems were genuinely damaging to the defense. See also State v. Knight, 160 Or App 395, 400 (1999) (no abuse of discretion where the bases for the defendant’s motion for a continuance were “reasonably avoidable”).

In sum, a trial court is not obliged to grant a continuance whenever the defense is unprepared for trial. Rather, the defense must show that it has not had a reasonable opportunity to prepare, such that its unpreparedness is not the defense’s fault.

Procedural error: the court failed to properly exercise discretion

Even if the trial court is not substantively obliged to grant a continuance, it errs if it denies the continuance without exercising its discretion in a lawful manner. Thus, the denial (or grant) of a continuance is erroneous if the exercise of discretion is affected by an erroneous legal premise, or if it is not guided by the correct considerations.

For instance, in State v. Romero, 236 Or App 640, 642 (2010), the trial court granted the state’s motion to continue the trial, but, as a sanction for the state’s unpreparedness, it dismissed a second criminal case (the drug case) with prejudice. Defendant appealed and assigned error to the decision to grant the state’s continuance. Meanwhile, the state appealed and assigned error to the dismissal in the drug case. Defendant argued that, if the Court of Appeals were to conclude that the trial court had no authority to dismiss the drug case as a sanction for the state’s unpreparedness in the current case, the court should reverse and remand the current case to allow the trial court to reconsider its ruling on the state’s continuance.

The Court of Appeals agreed with defendant. It reasoned that the trial court’s decision to grant the state’s continuance was influenced by an erroneous legal premise, viz., that the court had authority to dismiss a separate case as a sanction for the state’s unpreparedness. If the court had known that it could not dismiss the drug case as a sanction for the state’s unpreparedness, it might have chosen to deny the state’s motion for a continuance. In that way, the trial court failed to effectively exercise its discretion in deciding the state’s motion. Id. at 644-45. Thus, even if granting the continuance might have been within the substantive boundaries established by law, the decision was reversible error because it was procedurally faulty.

Prejudice

In addition to an abuse of discretion, trial counsel must ensure that the record shows how the denial of the continuance prejudiced the defendant. “Oregon’s constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?” State v. Davis, 336 Or 19, 32 (2003). See ORS 138.230 (“After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”) The application of that standard to the denial of a continuance is problematic, because when the motion is heard and decided, trial counsel ordinary will not know exactly how having more time would help at trial. The problem is vividly demonstrated by State v. Lobo, ___ Or App ___, ___(March 26, 2014). There, the defendant prevailed in a discovery dispute by obtaining a writ of mandamus from the Supreme Court. The state then provided certain physical items to the defense on a Friday, with trial set the following Monday. Defendant requested a continuance, explaining that it would take several weeks to test the items. The court denied the motion, and the trial commenced as scheduled. However, the court instructed the defense to proceed with the testing during trial, and to move again for a continuance if the testing turned up anything exculpatory that would require further investigation. The trial concluded two weeks later without defendant indicating that the testing had revealed anything of consequence or requesting a continuance. Id. (slip op at 2- 5).

The Court of Appeals noted that it was a close call whether the trial court abused its discretion in denying the continuance, but it did not resolve that issue. Instead, it concluded that any error was harmless because “defendant’s briefing does not identify any useful or exculpatory evidence that was eventually revealed by the defense testing after trial.” Id. (slip op at 6-9) (emphasis in original).

Thus, under Lobo, the erroneous denial of a continuance is a basis for reversal only if the record shows exactly how having more time would have changed the outcome of the trial. In effect, the decision requires trial counsel to continue the investigation during and even after trial, and to make an offer of proof showing how the trial would have been different if the defense had had more time to prepare.

Conclusion – preservation checklist

To preserve a claim that the trial court erred in denying a continuance, trial counsel must:

1. Make a record showing an abuse of discretion.

a. A substantive abuse of discretion occurs when defendant’s interest in the continuance heavily outweighs the state’s interest in proceeding on the scheduled date. In that vein, our chances are best when the continuance is requested as soon as possible, when proceeding as scheduled will deprive defendant of effective counsel, and when the need for a continuance is not the defense’s fault.

b. A procedural abuse of discretion occurs when the court fails to effectively exercise its discretion, either by failing to do so at all, or by basing its decision on legally erroneous considerations.

2. Make a record proving prejudice. Show that the continuance will provide the defense with a specific advantage, such as time to test evidence or interview witnesses, and show how that advantage will affect the outcome of the trial.

In sum, trial counsel should try to prove that there is something concrete to be gained by having more time, and that the need for more time is not the defense’s fault. In addition, if the trial court’s decision appears to be based on a legally erroneous consideration, trial counsel should argue that the court is failing to effectively exercise its discretion.