State v. Carman

774 P.2d 900, 116 Idaho 190, 1989 Ida. LEXIS 89

• Court: Idaho Supreme Court
• Decided: May 26, 1989
• Docket: 17903
• Status: Published

Opinions

BAKES, Chief Justice.

Following a jury trial, defendant James Carman was convicted of forcible rape and sentenced to a 10-year indeterminate term of imprisonment. On appeal, the Idaho Court of Appeals affirmed both the conviction and the sentence. State v. Carman, 114 Idaho 791, 760 P.2d 1207 (Ct.App.1988) (Carman I). Carman’s subsequent petition for this Court’s review was granted. We affirm.

On August 13, 1984, Carman was charged with a forcible rape that had occurred the previous day. Carman retained private counsel, Mr. William J. Tway, to represent him. Mr. Tway represented Car-man through the early stages of the criminal proceedings, including the preliminary hearing on September 13, 1984. At his district court arraignment on October 9, 1984, Carman again appeared with Mr. Tway, and the trial date was set for March 12, 1985 — just short of the 6-month period allowed under I.C. § 19-3501.

On January 8, 1985, Mr. Tway filed a motion seeking leave to withdraw as defense counsel. In his supporting affidavit, Mr. Tway stated three reasons for withdrawing: (1) Carman “has not kept in contact with counsel, and counsel has made numerous attempts to contact said client by phone and mail but has not been able to contact him. As a result of lack of contact, the Law Firm is unable to represent said defendant in this action”; (2) “said client has failed to abide by the agreement to pay for the costs and attorneys fees incurred in the prosecution of this case”; and (3) the “Motion is not made to hinder or delay this cause, and will in no way prejudice or delay the other parties hereto.”

Carman again appeared with Mr. Tway before the district court on January 21, 1985. At that time the court entered an order allowing Mr. Tway to withdraw from the case. The defendant then completed an affidavit of indigency and the court appointed the Ada County public defender to represent him. The March 12 trial date was re-confirmed.

On February 25, 1985, the court held a hearing on the public defender’s motion to vacate the March 12 trial date. The public defender stated that Carman was willing to waive his right to a speedy trial and that Carman was attempting to retain Mr. Vernon K. Smith as his counsel. The public defender also stated that he would not be prepared to try the case on March 12. The state opposed the motion and the victim’s mother testified regarding “the anxiety and the trauma” that her 16-year-old daughter had experienced as a result of the case. She said she didn’t think her daughter was “emotionally prepared to deal with this kind of delay,” and that her daughter felt “that unless this issue is brought to an end soon, that she threatens to — she cannot guarantee her being able to remain the State’s prime witness.” The district judge denied the motion for a continuance. However, following the hearing the prosecutor and the public defender apparently agreed to request that the trial date be reset for March 26, an open date on the calendar.

On March 12, 1985 — one week short of the 6-month period allowed by I.C. § 19-3501 — Carman appeared in court along with Mr. Smith and the public defender. Mr. Smith expressed a willingness to represent Carman, though no formal arrangements had been made, but only on the condition that trial be rescheduled for late April or early May. The State opposed any further continuance of the case. Nevertheless, the prosecutor noted that he had spoken with the victim the previous night and she had indicated that “she would abide by whatever decision the Court made; that she just wants a definite date set for trial.” The court declined to reset the trial date beyond March 26, observing that his schedule did not allow him the flexibility to reset the case and that he was “socked in for months” after March 26.

On March 26, 1985, the defense again moved for a continuance of the trial. The public defender took the stand and testified regarding the difficulties he had encountered in trial preparation. He described in detail the great volume of cases and hearings that had occupied his time. He also stated that there were reports, tape recordings, and potential witnesses that he had not been aware of until the preceding few days; these included a tape recording of statements made by the defendant that the public defender had not received until that very morning. The prosecutor, likewise, stated that he had only received the recording from the police earlier that morning and had not listened to it. Neither did he oppose the motion for continuance. The trial judge accepted this showing and, after consulting with the court clerk regarding his calendar, found that the dates of April 9th and May 7th, 1985, were then open. Accordingly, the court granted the motion and reset the trial for May 7. A jury trial, in which Carman was represented by the public defender, was then conducted and the jury found Carman guilty of forcible rape as charged.

This Court is asked to review whether the trial court erred when it denied Carman’s March 12th motion for a continuance so that he could retain counsel of his choice and also whether the trial court abused its discretion in sentencing Carman to a 10-year indeterminate prison term. Those issues were presented to the Court of Appeals in Carman’s initial appeal. State v. Carman, 114 Idaho 791, 760 P.2d 1207 (Ct.App.1988) (Carman I). We conclude that the Court of Appeals correctly decided those issues. Accordingly, for the reasons set out in the opinion of the Court of Appeals in Carman I, we affirm.

SHEPARD and JOHNSON, JJ., concur.