El Paso County District Court No. 08CR1501. Honorable Thomas L. Kennedy, Judge.
John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE ASHBY Hawthorne and J. Jones, JJ., concur. JUDGE HAWTHORNE and JUDGE J. JONES concur..
[¶1] Defendant, Afrow Spade Stidham, appeals the sentence entered on judgments of conviction for multiple sex offenses and the district court's determination that he is a habitual criminal. He argues that the court erred by denying (1) his motion to continue so that he could be represented by his counsel of choice at the most recent sentencing hearing and (2) his request for an extended proportionality review of his sentence. As a matter of first impression, we consider how the Sixth Amendment right to counsel of choice applies to a defendant's request to be represented by an individual attorney who is part of a law firm where defendant originally retained either (1) a different individual attorney within the same law firm, or (2) the law firm itself. Because we are unable to determine on the record before us whether the court should have continued the most recent sentencing hearing, we remand for further proceedings and do not decide whether Stidham was entitled to an extended proportionality review of his sentence.
[¶2] At trial, a jury found Stidham guilty of multiple sex offenses involving three minor children. The district court convicted him, adjudicated him a habitual criminal based on various prior convictions, and sentenced him to forty-eight years to life in the custody of the Department of Corrections.
[¶3] Stidham appealed the judgments of conviction and the sentence. A division of this court affirmed the convictions but vacated the sentence and remanded for resentencing.
[¶4] At the resentencing hearing, attorney R.T., an associate in the firm of S. & S., P.C. (the firm), appeared as counsel for Stidham. At the beginning of the hearing, Stidham objected to being represented by R.T., claiming that attorney H.S. (a partner in the firm) was his lawyer and that he had not agreed to be represented by anyone else from the firm. The district court indicated that it had scheduled the hearing on H.S.'s calendar and expected H.S. to appear at the hearing. The court asked R.T. to contact H.S. to advise him that he was expected to appear. R.T. stepped out of the courtroom to do so, and when he returned, stated that he had spoken to H.S. and that H.S. was out of town and unavailable. R.T. also stated that according to H.S., Stidham had retained the firm, not H.S. personally, and H.S. consented to R.T. representing Stidham at the hearing. Stidham, however, maintained that he had not agreed to be represented by anyone other than H.S. at the resentencing hearing.
[¶5] The district court noted that (1) it had not received a formal entry of appearance on behalf of Stidham and could not determine whether Stidham had hired the firm, or an individual attorney within the firm (H.S.), to represent him at the resentencing hearing; (2) R.T. was an associate of the firm; (3) Stidham had been previously represented on appeal by another of the firm's attorneys; and (4) the victims' family was present. Therefore, the district court denied any request for a continuance based on H.S.'s absence. The resentencing hearing proceeded, and the district ...