Cite as 2021 Ark. App. 321 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION IV integrity of this document No. CR-20-522 2023.07.07 09:50:29 -05'00' 2023.003.20215 Opinion Delivered September 8, 2021 DERRICK QUIJADA APPELLANT APPEAL FROM THE LOGAN V. COUNTY CIRCUIT COURT, NORTHERN DISTRICT STATE OF ARKANSAS [NO. 42PCR-18-234] APPELLEE HONORABLE JERRY RAMEY, JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Appellant Derrick Quijada appeals from an order of the Logan County Circuit Court
revoking his probation and sentencing him to seven years’ imprisonment. For his sole
argument on appeal, he contends that the circuit court erred in denying his motion for
continuance in light of the ongoing COVID-19 pandemic. We affirm.
On March 4, 2019, appellant entered a negotiated plea of guilty to third-degree
escape (Class C felony) and was sentenced to forty-eight months’ probation and ordered to
pay fines, fees, and costs to be paid in $50 monthly installments to begin within sixty days
of his release from the county jail. A petition to revoke was filed on September 17, 2019,
alleging that appellant had violated the terms and conditions of his probation by committing
residential burglary on July 16, 2019; testing positive for illegal drugs on March 28, April
16, and August 12, 2019; associating with others engaging in criminal activity on July 16, 2019; failing to comply with an order to attend substance-abuse class; and failing to pay
fines, costs, and fees as directed. The petition to revoke was amended on December 12,
2019, adding that appellant committed the offense of failure to appear on December 9, 2019.
On February 14, 2020, the court released the assigned public defender due to a
conflict and substituted a new one, who was representing appellant in another case in
Booneville. The court granted appellant a continuance from that date until March 13 on
the ground that additional time was needed to prepare because of the substitution of counsel.
The court directed appellant to “get with” his new attorney, indicating that appellant had
the attorney’s contact information due to an appointment in another pending case. On
March 13, appellant’s substituted counsel asked for a continuance on the basis of her recent
appointment. The court granted the continuance until April 13 but noted that “it can’t
move them anymore” because the next date would be the “third setting.” The court stated,
“So you have got to be here, and you have got to be ready. If you have an agreement fine,
but if not then it will be trial on that day; okay?” Appellant agreed, and the court told
counsel that it was granting her the courtesy because she was helping out other lawyers and
was “spread thin” as a result. The court told appellant again to stay in touch with his lawyer.
Following the April 13 hearing, the court continued the revocation until May 8 due
to COVID-19 noting the per curiam of the Arkansas Supreme Court. See In re Response to
the COVID-19 Pandemic, 2020 Ark. 125 (extending the previous suspension of in-person
proceedings in Arkansas’s courts to Friday, April 17, 2020). On May 8, the court again
continued the case until June 15, also based on COVID-19. See In re Response to COVID-
2 19 Pandemic, 2020 Ark. 163 (per curiam) (extending the previous suspension of all in-person
proceedings in Arkansas’s courts through May 15, 2020).
At the June 15 revocation hearing, appellant’s counsel informed the court that
appellant “instructed” her to ask for a continuance. She stated that they had not had court
in three months due to the coronavirus and needed more time to prepare. The court denied
the request:
This case started -- it looks like the arraignment was December 9, 2019. We have had court dates of February 14, 2020, March 13, 2020, April 13, 2020, May 8, 2020, and now, today. There has been plenty of time to be prepared. The virus in no way would prevent him to be talking to his attorney. He could call and do whatever he needed to do so that will be denied.
Counsel reminded the court that appellant was indigent and asserted that it is harder for an
indigent defendant to speak to his lawyer. The court again denied the request. At the
conclusion of the revocation hearing, the court elaborated on its earlier ruling noting that
it had followed all the safety guidelines set by the supreme court regarding the pandemic.
In re Response to COVID-19 Pandemic, 2020 Ark. 249 (per curiam).
The court revoked appellant’s probation finding that he had violated multiple
conditions thereof including committing an offense punishable by incarceration as a result
of his failure to appear for court on December 9, 2019, and residential burglary; failing to
make payments as directed; and failing to report to his probation officer. Appellant was
sentenced to seven years’ imprisonment and timely appealed from the June 15, 2020
sentencing order.
3 Appellant does not challenge the sufficiency of the evidence to support the
revocation but instead argues only that the circuit court abused its discretion in denying his
motion for continuance in light of the ongoing COVID-19 pandemic.
Rule 27.3 of the Arkansas Rules of Criminal procedure provides that the “court shall
grant a continuance only upon a showing of good cause and only for so long as is necessary,
taking into account not only the request or consent of the prosecuting attorney or defense
counsel, but also the public interest in prompt disposition of the case.” Ark. R. Crim. P.
27.3 (2020). The grant or denial of a motion for continuance is within the sound discretion
of the circuit court, and that court’s decision will not be reversed absent an abuse of
discretion amounting to a denial of justice. Williams v. State, 2016 Ark. App. 601, at 4, 509
S.W.3d 677, 679. The abuse-of-discretion standard is a high threshold and requires the
appellant to make a showing that the circuit court acted improvidently, thoughtlessly, or
without due consideration. Staggs v. State, 2021 Ark. App. 259, at 10. When a motion is
based on a lack of time to prepare, we will consider the totality of the circumstances;
prejudice from denial of the continuance must be shown, and the burden of showing
prejudice is on the appellant. Id. A lack of diligence alone is a sufficient basis to deny a
motion for continuance. Id.
Here, the motion for continuance was made orally at the beginning of the revocation
hearing. Counsel stated that that appellant “instructed” her to ask for a continuance based
on COVID-19, stating that they had not been in court for three months and needed more
time to prepare. In denying the motion, the court noted that appellant was arraigned in
December 2019 and had court dates in February, March, April, and May 2020 and stated
4 that there had been plenty of time to prepare. The court added that the virus would in no
way have prevented appellant from talking to his attorney, indicating that he could “call and
do whatever he needed to do[.]” At the conclusion of the hearing, the court further
explained its general denial of the request based on the “Covid-19 issue,” indicating that it
had complied with the safety guidelines set by our supreme court in the per curiams related
to the pandemic.
While appellant stated that there was not enough time to prepare, there was no
explanation for this contention at the hearing. Rather, appellant now argues that he would
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2021 Ark. App. 321 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION IV integrity of this document No. CR-20-522 2023.07.07 09:50:29 -05'00' 2023.003.20215 Opinion Delivered September 8, 2021 DERRICK QUIJADA APPELLANT APPEAL FROM THE LOGAN V. COUNTY CIRCUIT COURT, NORTHERN DISTRICT STATE OF ARKANSAS [NO. 42PCR-18-234] APPELLEE HONORABLE JERRY RAMEY, JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Appellant Derrick Quijada appeals from an order of the Logan County Circuit Court
revoking his probation and sentencing him to seven years’ imprisonment. For his sole
argument on appeal, he contends that the circuit court erred in denying his motion for
continuance in light of the ongoing COVID-19 pandemic. We affirm.
On March 4, 2019, appellant entered a negotiated plea of guilty to third-degree
escape (Class C felony) and was sentenced to forty-eight months’ probation and ordered to
pay fines, fees, and costs to be paid in $50 monthly installments to begin within sixty days
of his release from the county jail. A petition to revoke was filed on September 17, 2019,
alleging that appellant had violated the terms and conditions of his probation by committing
residential burglary on July 16, 2019; testing positive for illegal drugs on March 28, April
16, and August 12, 2019; associating with others engaging in criminal activity on July 16, 2019; failing to comply with an order to attend substance-abuse class; and failing to pay
fines, costs, and fees as directed. The petition to revoke was amended on December 12,
2019, adding that appellant committed the offense of failure to appear on December 9, 2019.
On February 14, 2020, the court released the assigned public defender due to a
conflict and substituted a new one, who was representing appellant in another case in
Booneville. The court granted appellant a continuance from that date until March 13 on
the ground that additional time was needed to prepare because of the substitution of counsel.
The court directed appellant to “get with” his new attorney, indicating that appellant had
the attorney’s contact information due to an appointment in another pending case. On
March 13, appellant’s substituted counsel asked for a continuance on the basis of her recent
appointment. The court granted the continuance until April 13 but noted that “it can’t
move them anymore” because the next date would be the “third setting.” The court stated,
“So you have got to be here, and you have got to be ready. If you have an agreement fine,
but if not then it will be trial on that day; okay?” Appellant agreed, and the court told
counsel that it was granting her the courtesy because she was helping out other lawyers and
was “spread thin” as a result. The court told appellant again to stay in touch with his lawyer.
Following the April 13 hearing, the court continued the revocation until May 8 due
to COVID-19 noting the per curiam of the Arkansas Supreme Court. See In re Response to
the COVID-19 Pandemic, 2020 Ark. 125 (extending the previous suspension of in-person
proceedings in Arkansas’s courts to Friday, April 17, 2020). On May 8, the court again
continued the case until June 15, also based on COVID-19. See In re Response to COVID-
2 19 Pandemic, 2020 Ark. 163 (per curiam) (extending the previous suspension of all in-person
proceedings in Arkansas’s courts through May 15, 2020).
At the June 15 revocation hearing, appellant’s counsel informed the court that
appellant “instructed” her to ask for a continuance. She stated that they had not had court
in three months due to the coronavirus and needed more time to prepare. The court denied
the request:
This case started -- it looks like the arraignment was December 9, 2019. We have had court dates of February 14, 2020, March 13, 2020, April 13, 2020, May 8, 2020, and now, today. There has been plenty of time to be prepared. The virus in no way would prevent him to be talking to his attorney. He could call and do whatever he needed to do so that will be denied.
Counsel reminded the court that appellant was indigent and asserted that it is harder for an
indigent defendant to speak to his lawyer. The court again denied the request. At the
conclusion of the revocation hearing, the court elaborated on its earlier ruling noting that
it had followed all the safety guidelines set by the supreme court regarding the pandemic.
In re Response to COVID-19 Pandemic, 2020 Ark. 249 (per curiam).
The court revoked appellant’s probation finding that he had violated multiple
conditions thereof including committing an offense punishable by incarceration as a result
of his failure to appear for court on December 9, 2019, and residential burglary; failing to
make payments as directed; and failing to report to his probation officer. Appellant was
sentenced to seven years’ imprisonment and timely appealed from the June 15, 2020
sentencing order.
3 Appellant does not challenge the sufficiency of the evidence to support the
revocation but instead argues only that the circuit court abused its discretion in denying his
motion for continuance in light of the ongoing COVID-19 pandemic.
Rule 27.3 of the Arkansas Rules of Criminal procedure provides that the “court shall
grant a continuance only upon a showing of good cause and only for so long as is necessary,
taking into account not only the request or consent of the prosecuting attorney or defense
counsel, but also the public interest in prompt disposition of the case.” Ark. R. Crim. P.
27.3 (2020). The grant or denial of a motion for continuance is within the sound discretion
of the circuit court, and that court’s decision will not be reversed absent an abuse of
discretion amounting to a denial of justice. Williams v. State, 2016 Ark. App. 601, at 4, 509
S.W.3d 677, 679. The abuse-of-discretion standard is a high threshold and requires the
appellant to make a showing that the circuit court acted improvidently, thoughtlessly, or
without due consideration. Staggs v. State, 2021 Ark. App. 259, at 10. When a motion is
based on a lack of time to prepare, we will consider the totality of the circumstances;
prejudice from denial of the continuance must be shown, and the burden of showing
prejudice is on the appellant. Id. A lack of diligence alone is a sufficient basis to deny a
motion for continuance. Id.
Here, the motion for continuance was made orally at the beginning of the revocation
hearing. Counsel stated that that appellant “instructed” her to ask for a continuance based
on COVID-19, stating that they had not been in court for three months and needed more
time to prepare. In denying the motion, the court noted that appellant was arraigned in
December 2019 and had court dates in February, March, April, and May 2020 and stated
4 that there had been plenty of time to prepare. The court added that the virus would in no
way have prevented appellant from talking to his attorney, indicating that he could “call and
do whatever he needed to do[.]” At the conclusion of the hearing, the court further
explained its general denial of the request based on the “Covid-19 issue,” indicating that it
had complied with the safety guidelines set by our supreme court in the per curiams related
to the pandemic.
While appellant stated that there was not enough time to prepare, there was no
explanation for this contention at the hearing. Rather, appellant now argues that he would
not have had time to speak to counsel on the court dates noted by the circuit court. For
example, appellant states that he could not have spoken to counsel at the December 9, 2019
plea and arraignment because he failed to appear due to confusion about court dates.
Appellant also argues that the court erroneously relied on the February 14, 2020 date as a
date to become prepared for trial because new counsel was substituted that date and was not
present to confer. In regard to the March 13, 2020 date, appellant acknowledges he was
granted a continuance over the State’s objection. Appellant was warned, however, that an
additional continuance would not be granted absent an agreement and instructed him to
stay in touch with his lawyer.
Appellant also asserts that the circuit court attributed the April and May 2020
continuances to him when it mentioned them in its ruling and argues that the “court
deliberately and consciously misled the defendant and counsel that there had been a
possibility of going forward with appellant’s case during those two dates[.]” However, the
record suggests that the court used those dates to indicate how many previous continuances
5 there had been and how much time there had been to prepare. The orders entered on April
13 and May 8 clearly indicate that the case was continued at the direction of the court on
the basis of the COVID-19 per curiam orders.
At the February hearing, the court stated that appellant already had his newly
appointed attorney’s contact information from another case and instructed him to “get with”
his new attorney. The court warned at the March hearing that it would not grant another
continuance absent an agreement and told appellant to stay in touch with his lawyer. Here,
appellant waited until the day of trial to request a continuance. It is notable that the State
had five witnesses present at the revocation hearing.
In addition, appellant has failed to demonstrate prejudice. He argues only that he
could not meet in person with his counsel, and the circuit court relied on the suspension of
in-person proceedings by the supreme court as a reason not to grant the continuance. After
hearing all the testimony, the court revisited its ruling on the denial of the request for the
motion for continuance based on COVID-19. The court clarified on the record how it was
complying with the safety guidelines set out in the per curiam orders.
Here, appellant has failed to show how he was prejudiced. There was no indication
that he was unable to speak to his attorney. If anything, there was more time to prepare
because of the continuances granted by the court. And as the State points out, there is no
showing that more time would have changed the outcome of the revocation. For the
foregoing reasons, we cannot say that the circuit court abused its discretion in denying the
motion for continuance.
Affirmed.
6 HARRISON, C.J., and MURPHY, J., agree.
Beth Wright, for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.