Colorado Supreme Court

Case Number: 2017 CO 99 3

Judge: William W. Hood

Court: Supreme Court of the State of Colorado

Plaintiff's Attorney: Cynthia H. Coffman, Attorney General
Ethan E. Zweig, Assistant Attorney General

Defendant's Attorney: Douglas K. Wilson, Public Defender
Michael C. Mattis, Deputy Public Defender

Description: Jesus Manuel Ronquillo retained private defense counsel to defend him against
charges that Ronquillo had sexually assaulted his son. Ronquillo remained in custody
throughout the proceedings. On August 16, 2010, the court set trial for Tuesday,
January 11, 2011. On Friday, January 7, 2011, defense counsel filed a motion to
withdraw, and the court held a hearing on the motion.
¶8 Defense counsel explained that Ronquillo sought to terminate representation
because Ronquillo (1) believed defense counsel was “in cahoots” with the prosecution,
(2) felt defense counsel was not representing him adequately, and (3) was out of money
to pay defense counsel. Addressing the court directly, Ronquillo confirmed those were
the reasons motivating him. He also said he thought a public defender would do a
better job. Defense counsel added that Ronquillo’s dissatisfaction had led to a complete
breakdown of attorney–client communication.


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¶9 The prosecutor objected to withdrawal, explaining that he was “ready to go
forward” and the victim was “interested” in doing so. He also pointed out that airfare
had already been purchased for multiple out-of-state witnesses, although he
volunteered that the tickets were refundable. He explained, therefore, “[I]f this is
continued there won’t be any prejudice or lost money . . . .”
¶10 The district court denied the motion. It reasoned that non-payment did not
constitute a sufficient reason to withdraw so close to trial, particularly when there were
out-of-state witnesses. It ruled that Ronquillo could choose between (1) keeping
retained counsel, whom the trial court would not allow to withdraw for lack of funds,
or (2) representing himself. Ronquillo chose to keep retained counsel. He went to trial
and was convicted of aggravated incest and sexual assault on a child by one in a
position of trust.
¶11 On appeal, Ronquillo argued that he should have been able to discharge retained
counsel at will, even when seeking court-appointed counsel. The court of appeals
division recognized that defendants may discharge retained counsel, but noted that
indigent defendants must show good cause before discharging appointed counsel.
Because of the overlapping analytical frameworks, it held that the trial court should
have determined whether Ronquillo had good cause to discharge retained counsel and
obtain court-appointed counsel. Therefore, it remanded the case with directions that
the trial court make the good-cause determination.


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¶12 Ronquillo petitioned this court for review, and we granted certiorari.1
II. Standard of Review

¶13 We apply de novo review here. Although we review a trial court’s rulings on
withdrawal and appointment of counsel for an abuse of discretion, People ex rel. M.M.,
726 P.2d 1108, 1121 (Colo. 1986); Nikander v. Dist. Court, 711 P.2d 1260, 1262 (Colo.
1986); see also Crim. P. 44(c) (withdrawal of a lawyer in a criminal case is generally a
matter within the sound discretion of the court), we review questions of law—like
which standard governs a motion to withdraw—de novo, see Lucero v. People, 2012 CO
7, ¶ 19, 272 P.3d 1063, 1065. Because the issue before us is whether the division applied
the correct legal standard, we conduct de novo review.
III. Analysis
¶14 We address the question before us in several steps. First, we examine a
defendant’s Sixth Amendment right to counsel of choice. Second, we consider a
lopsided split of national authority regarding whether a defendant may discharge
retained counsel without showing good cause, even if the defendant seeks to replace
retained counsel with court-appointed counsel. We join the overwhelming majority of
courts that have concluded that no good-cause showing is necessary. Third, we discuss
how a trial court should ensure that a defendant understands and accepts the
consequences of firing retained counsel before being allowed to do so. Finally, we
1 We granted certiorari to review the following issue: “Whether the court of appeals erred when it held that petitioner was required to demonstrate ‘good cause’ to discharge privately retained counsel before trial and obtain substitute appointed counsel.”


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apply these legal determinations to the facts before us, and we conclude that remand is
necessary for the trial court to make findings under the framework we clarify today.
A. The Sixth Amendment Right to Counsel of Choice
¶15 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI; see also Colo. Const. art. 2, § 16. The Sixth Amendment right to counsel
applies to all state criminal prosecutions in which a defendant faces the prospect of
incarceration. Gideon v. Wainwright, 372 U.S. 335, 342 (1963); Scott v. Illinois, 440 U.S.
367, 373–74 (1979).
¶16 A criminal defendant’s Sixth Amendment right to “Assistance of Counsel”
includes the right to hire counsel of choice. United States v. Gonzalez-Lopez,
548 U.S. 140, 144 (2006); People v. Brown, 2014 CO 25, ¶ 16, 322 P.3d 214, 218–19. The
right to hire counsel of choice “is the right to a particular lawyer regardless of
comparative effectiveness,” as opposed to the right to effective counsel, which “imposes
a baseline requirement of competence on whatever lawyer is chosen or appointed.”
Gonzalez-Lopez, 548 U.S. at 148.
¶17 We afford the right to retained counsel of choice “great deference” because it is
“central to the adversarial system and ‘of substantial importance to the integrity of the
judicial process.’” Brown, ¶ 16, 322 P.3d at 219 (quoting Rodriguez v. Dist. Court,
719 P.2d 699, 705 (Colo. 1986)). A trial court must therefore recognize a presumption in
favor of a defendant’s choice of retained counsel. See Tyson v. Dist. Court, 891 P.2d 984,
990 (Colo. 1995) (citing Wheat v. United States, 486 U.S. 153, 160, 163–64 (1988), in the


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context of determining whether to allow a defendant to waive the right to conflict-free
counsel).
¶18 However, the right to counsel of choice does not extend to a defendant who
requires counsel to be appointed for him. Gonzales-Lopez, 548 U.S. at 151. He is
guaranteed only effective assistance of counsel. Caplin & Drysdale, Chartered v.
United States, 491 U.S. 617, 624 (1989) (“[T]hose who do not have the means to hire their
own lawyers have no cognizable complaint so long as they are adequately represented
by attorneys appointed by the courts.”).
¶19 An indigent defendant who wants to replace his court-appointed attorney with
another court-appointed attorney must show “good cause, such as a conflict of interest,
a complete breakdown of communication or an irreconcilable conflict.” People v.
Arguello, 772 P.2d 87, 94 (Colo. 1989) (quoting McKee v. Harris, 649 F.2d 927, 931 (2d
Cir. 1981)). This ability to change appointed counsel upon good cause is unrelated to
the right to counsel of choice; it protects only the right to effective assistance of counsel.
United States v. Jimenez-Antunez, 820 F.3d 1267, 1271 (11th Cir. 2016). “[I]f good cause
exists, a defendant no longer has effective representation.” Id.
B. Must a Defendant Show Good Cause for Firing Retained Counsel When Seeking Appointed Counsel?

¶20 The right to counsel of choice applies any time a defendant seeks to hire retained
counsel, even if that involves firing appointed counsel. It doesn’t apply when a
defendant seeks to fire appointed counsel just to have different counsel appointed; such
a defendant must show good cause. Does it apply when a defendant seeks to fire


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retained counsel and receive appointed counsel? Neither this court nor the Supreme
Court of the United States has yet answered that question.
¶21 Other courts are divided, but not evenly. The First Circuit, in United States v.
Mota-Santana, 391 F.3d 42, 44, 47 (1st Cir. 2004), required that the defendant seeking to
replace retained counsel with appointed counsel show good cause for the substitution.
Although the court recognized that defendants ordinarily may fire retained counsel
without court permission, it held that the calculus changed when the defendant sought
to have replacement counsel appointed. Id. at 47. It reasoned that the “two actions”—
discharging retained counsel and seeking appointed counsel—merge. Id. The court
thus treated the retained-to-appointed substitution as though the right to counsel of
choice were inapplicable. See id.
¶22 The Eleventh Circuit, in Jimenez-Antunez, rejected the First Circuit’s approach.
820 F.3d at 1272. It noted that the First Circuit provided no reason why, when the two
actions merged, the first (the discharge of retained counsel) should be treated as
irrelevant while the second should be given force. Id. Further, it explained that the
First Circuit’s merger theory conflates the right to counsel of choice, which the
discharge of retained counsel implicates, with the right to effective counsel, which is all
the good-cause test protects. Id.
¶23 The Jimenez-Antunez court held instead that “[a] defendant exercises the right to
counsel of choice when he moves to dismiss retained counsel, regardless of the type of
counsel he wishes to engage afterward.” Id. at 1271. This conclusion follows, the court
explained, from the order of events: The defendant seeks first to discharge retained


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counsel and then to have replacement counsel appointed. Id. The right to counsel of
choice at the first step is not destroyed by adding the second. See id. (“[T]hat distinct
right [to effective representation] does not alter the right under the Sixth Amendment to
hire and fire retained counsel.”). Thus, held the court, a motion to dismiss retained
counsel should be granted except when doing so would “interfere with the ‘fair,
orderly, and effective administration of the courts.’” Id. at 1272 (quoting United States
v. Koblitz, 803 F.2d 1523, 1528 (11th Cir. 1986)).
¶24 A strong majority of other courts to consider the issue align with the Eleventh
Circuit’s approach. See United States v. Brown, 785 F.3d 1337, 1344 (9th Cir. 2015);
People v. Ortiz, 800 P.2d 547, 555 (Cal. 1990); People v. Abernathy, 926 N.E.2d 435, 444
(Ill. App. Ct. 2010) (adopting the rationale from Ortiz); Dixon v. Owens, 865 P.2d 1250,
1252 (Okla. Crim. App. 1993) (same); State v. Barber, 206 P.3d 1223, 1235 (Utah Ct. App.
2009) (same); see also Lovin v. State, 286 S.W.3d 275, 286 (Tenn. 2009) (“When a prisoner
desires to discharge a retained lawyer, the appropriate focus is on balancing the
prisoner’s right to discharge his or her lawyer against the court’s obligation to
administer justice efficiently by avoiding unreasonable delay.”); Shaw v. State, 148 So.
3d 745, 758 (Ala. Crim. App. 2013) (same). That majority includes the division in People
v. Munsey, 232 P.3d 113, 127 (Colo. App. 2009), which authored the only published case
on the issue from the Colorado Court of Appeals. Indeed, we are aware of no other
court (aside from the division of the court of appeals in this unpublished opinion)
taking the First Circuit’s approach.


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¶25 For two reasons, we reject the People’s argument that the Supreme Court
foreclosed the majority approach when it said that “the right to counsel of choice does
not extend to defendants who require counsel to be appointed for them.”
Gonzalez-Lopez, 548 U.S. at 151. First, context suggests that the Court merely meant to
recite the established limitation that a defendant requesting a free lawyer can’t choose
which one he’s given. The Court opened the relevant paragraph by explaining that it
was leaving intact its “previous holdings that limit the right to counsel of choice,” id.,
thereby suggesting that the limitations to follow had already been established. Second,
on its face, the sentence at issue does not apply to a defendant who wishes to fire
retained counsel. A defendant who wishes to fire retained counsel obviously has
retained counsel, and therefore does not yet “require counsel to be appointed.” He
doesn’t “require” appointed counsel until retained counsel has been allowed to
withdraw.
¶26 The Eleventh Circuit’s rationale in Jimenez-Antunez persuades us that the
majority approach is correct. A corollary of the right to hire is the right to fire: “The
right to choose counsel is incomplete if it does not include the right to discharge counsel
that one no longer chooses.” 820 F.3d at 1271.
¶27 We now join the majority of jurisdictions and hold that the right to counsel of
choice includes the right to fire retained counsel. A defendant who wishes to discharge
retained counsel may do so without good cause, even if he seeks to replace retained
counsel with appointed counsel.


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¶28 Petitioner asked us only whether good cause is required to fire retained counsel;
we’ve answered that question, so we need not go further. But were we to say what
courts shouldn’t do in this situation (require good cause) without explaining what they
should do, we would leave the lower courts without guidance in a procedural and
constitutional thicket. Therefore, we will describe the analysis that a trial court should
follow when a criminal defendant asks to fire retained counsel.
C. Considerations Before Releasing Counsel
¶29 While a defendant may fire retained counsel for any reason, circumstances may
prohibit him from proceeding the way he desires. For example, were a defendant to
learn that he would not be allowed enough of a delay in proceedings for a new lawyer
to get up to speed, he might reconsider his decision to fire his current counsel. Thus,
before a trial court grants a request to release retained counsel from a case, it must
ensure that the defendant understands and accepts the consequences of doing so.
¶30 Of course, a trial court can’t explain the consequences of firing counsel until it
has determined what those consequences will be. So, when considering a motion to fire
counsel (however framed), a court should first ascertain how the defendant wishes to be
represented going forward. See Jimenez-Antunez, 820 F.3d at 1272.
¶31 What happens next will depend on how the defendant wants to proceed.
¶32 If the defendant wants to represent himself, he may. Faretta v. California, 422
U.S. 806, 832 (“The Framers selected in the Sixth Amendment a form of words that
necessarily implies the right of self-representation.”). However, he must first


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voluntarily, knowingly, and intelligently waive the right to counsel under the
procedures described in Arguello. 772 P.2d at 95–96.
¶33 If, instead, the defendant seeks replacement counsel, several questions arise. If
the defendant wants appointed counsel, does he qualify for one? Does the trial
schedule allow, or is defendant entitled to, enough time for new counsel to come up to
speed? The trial court must answer these questions, which we address in turn.
¶34 First, a defendant seeking appointed counsel will need to know whether he
qualifies for it. Our statutes set out the eligibility requirements for receiving
court-appointed counsel. See § 21-1-103, C.R.S. (2017) (explaining whom public
defender shall represent); § 21-2-103, C.R.S. (2017) (explaining whom alternate defense
counsel shall represent). In Colorado, a defendant in custody, like Ronquillo,
automatically qualifies for a public defender. C.J.D. 04-04(III).
¶35 Second, the court must decide whether to allow the defendant enough time for
replacement counsel to take over the case; the right to counsel of choice is not absolute
and must sometimes give way to “the demands of fairness and efficiency.” Brown,
¶ 20, 322 P.3d at 219 (citing Gonzalez-Lopez, 548 U.S. at 152 (recognizing “a trial court’s
wide latitude in balancing the right to counsel of choice against the needs of fairness
and against the demands of its calendar” (citation omitted))). In some situations, it may
be obvious to the trial court that the schedule contains ample time for a new attorney to
take over without need for a continuance. But in others, a delay in proceedings may be
necessary to accommodate the change in counsel, and the court should determine
whether the defendant is entitled to a continuance under the test we set out in Brown,


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¶¶ 24–25, 322 P.3d at 220–21.2 As we explained, “[W]hen deciding whether to grant a
continuance to allow a defendant to change counsel, the trial court must conduct a
multi-factor balancing test and determine whether the public’s interest in the efficiency
and integrity of the judicial system outweighs the defendant’s Sixth Amendment right
to counsel of choice.” Id. at ¶ 2, 322 P.3d at 216.3
¶36 We note that a Brown analysis will require some adjustment where, as here,
replacement counsel has not yet been identified. In Brown, replacement counsel had
2 Of course, the defendant’s right to effective assistance of counsel may compel a continuance even if Brown, which is based solely on the right to counsel of choice, would not. The procedure we set out today covers a request to fire retained counsel based on the right to counsel of choice, for which good cause is not required. But if good cause exists, such as a complete breakdown in communication or an irreconcilable conflict, then current counsel cannot effectively represent the defendant. See Arguello, 772 P.2d at 94; Jimenez-Antunez, 820 F.3d at 1271 (“[I]f good cause exists, a defendant no longer has effective representation.”). In such a situation, the defendant would be entitled to the time reasonably necessary for replacement counsel to become effective. See Arguello, 772 P.2d at 94 (explaining that, if the defendant establishes good cause, then “the court is required to substitute new counsel.” (emphasis added)). 3 In Brown, ¶ 24, 322 P.3d at 221, we directed trial courts to consider and make a record of the impact of these factors: 1. the defendant’s actions surrounding the request and apparent motive for making the request; 2. the availability of chosen counsel; 3. the length of continuance necessary to accommodate chosen counsel; 4. the potential prejudice of a delay to the prosecution beyond mere inconvenience; 5. the inconvenience to witnesses; 6. the age of the case, both in the judicial system and from the date of the offense; 7. the number of continuances already granted in the case; 8. the timing of the request to continue; 9. the impact of the continuance on the court’s docket; 10. the victim’s position, if the victims’ rights act applies; and 11. any other case-specific factors necessitating or weighing against further delay.


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already been selected and entered an appearance, and two of Brown’s factors assume
that replacement counsel is already chosen: (2) “the availability of chosen counsel,” and
(3) “the length of continuance necessary to accommodate chosen counsel.” ¶ 24, 322
P.3d at 221. In a case like this one, where replacement counsel has not yet been selected,
the trial court will need to draw on its own experience to make assumptions about
when counsel will likely be available and how long counsel will likely need to prepare.
¶37 At this point, the court should know whether the defendant will be able to
proceed as he wishes.
¶38 If he will be, then the court should proceed accordingly. Thus, for a defendant
who wishes to go pro se and has adequately waived his right to counsel under
Arguello, the court should release retained counsel and allow the defendant to
represent himself. And for a defendant who wants new counsel, qualifies for appointed
counsel if necessary, and has (or is entitled to) enough time for the new lawyer to ramp
up, then the court should release retained counsel and appoint counsel if needed.
¶39 But what if there are impediments that prevent the defendant from proceeding
as he wishes? Maybe the defendant wants to go pro se but refuses to waive his right to
counsel under Arguello. Or maybe the defendant wants new counsel but either is
ineligible for the appointed counsel he seeks or isn’t entitled under Brown to enough
time for a new lawyer to take over the case.
¶40 In the case of such an impediment, the court can insist that the defendant choose
between keeping retained counsel or waiving the right to counsel and proceeding pro
se. See Arguello, 772 P.2d at 94. For a defendant who balks at this choice, the trial court


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should instruct the defendant that a refusal without good cause to proceed with able
counsel will effect a “voluntary” waiver of the right to counsel. Id. In that situation, the
trial court should ensure that the waiver is knowing and intelligent by making sure the
defendant understands all facts “essential to a broad understanding of the whole
matter.” Id. at 94–95.4
D. Summary of Process for Firing Retained Counsel
¶41 In sum, when a criminal defendant seeks to fire retained counsel, a trial court
should carry out the following steps. First, it should find out how the defendant wishes
to proceed. Second, it should determine whether there are any procedural impediments
to proceeding as defendant wishes. For a defendant who wants to go pro se, this means
4 Here is the full explanation from Arguello: A waiver cannot be knowing and intelligent unless the record clearly shows that the defendant understands the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. Other factors considered by courts in determining whether the waiver was knowing and intelligent include whether the defendant understood the requirement of complying with the rules of procedure at trial, whether the exchange between the defendant and the judge consisted merely of pro forma answers to pro forma questions, and whether the defendant was attempting to delay or manipulate the proceedings. In each situation, the validity of the waiver must be determined on the basis of the particular facts and circumstances of the case, including the background, experience, and conduct of the defendant. 772 P.2d at 94–95 (citations omitted).



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the court should follow Arguello to determine whether the defendant will voluntarily,
knowingly, and intelligently waive his right to counsel. For a defendant who seeks
replacement counsel, the court must determine (1) whether defendant will qualify for
appointed counsel if necessary and (2) whether the defendant has, or is entitled to
under Brown, enough time to accommodate new counsel.
¶42 If there are no procedural impediments, the court should release retained counsel
and proceed as defendant wishes.
¶43 If, on the other hand, procedural impediments preclude the defendant’s
preferred representation, then the court should give the defendant the choice between
(1) keeping retained counsel and (2) waiving the right to counsel and representing
himself. Further, the court should instruct the defendant that a choice at this stage to
refuse representation by able counsel may effect a voluntary waiver of the right to
counsel. For a defendant who does so refuse, the court should ensure that such
voluntary, implied waiver is also knowing and intelligent as described in Arguello, 772
P.2d at 94–95.
E. Application
¶44 Here, neither the trial court nor the court of appeals adequately protected
Ronquillo’s right to counsel of choice.
¶45 The trial court improperly weighed Ronquillo’s reasons for firing retained
counsel when it placed so much emphasis on Ronquillo’s inability to continue paying
retained counsel. As we discussed above, the right to counsel of choice includes the
right to fire retained counsel for any reason. True, Brown allows a court deciding


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whether to grant a continuance for a change of counsel to consider a defendant’s
“apparent motive for making the request.” 322 P.3d at 221. But that factor serves only
to prevent misfeasance by defendants, such as attempting to delay criminal
proceedings. See People v. Maestas, 199 P.3d 713, 717 (Colo. 2009) (describing
“improper purposes” for exercising right to counsel of choice). It does not allow courts
to weigh a defendant’s legitimate reasons for firing retained counsel, even if those
reasons seem insignificant or wrongheaded. Thus, the trial court should not have
factored Ronquillo’s legitimate reason for firing retained counsel (his inability to pay)
into its analysis.
¶46 The court of appeals made a different error when it improperly required
Ronquillo to show good cause for firing retained counsel. As we hold today, a
defendant need not show good cause in order to fire retained counsel.
¶47 The People argue we should affirm the trial court’s decision anyway. They
reason that the trial court has already effectively ruled on the proper test because its
rationale for denying the motion to withdraw was based in part on permissible
considerations. Namely, the trial court seemed to assume a continuance would be
necessary, and it considered how that would affect the witnesses, victim, and
prosecution. These are valid considerations weighing against a defendant’s right to
counsel of choice under Brown, ¶ 24, 322 P.3d at 220–21.
¶48 But the People’s argument still fails. The trial court based its decision in part on
one of Ronquillo’s legitimate reasons for firing retained counsel, namely lack of funds to
pay him. That was error. Moreover, we have no way to know how much weight the


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court assigned that impermissible consideration in reaching its decision. In
determining whether to give Ronquillo time to fire counsel and obtain appointed
counsel, the trial court should have limited its analysis to the type of considerations
contemplated by Brown. That determination has not yet been made.

Outcome: The right to counsel of choice applies to a defendant who wishes to fire retained counsel, regardless of how he wishes to be represented next. The court of appeals erred by requiring Ronquillo to show good cause for firing retained counsel. We reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

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