by Harold Hempstead

The Supreme Court of Nevada ruled that a trial court erred in denying defendant’s motion to substitute counsel where the record demonstrated defense counsel was unprepared for trial and motion was timely.

Dequincy Brass was charged with 22 crimes based on allegations that he kidnapped and sexually assaulted and/or abused three children, ages 3, 8, and 13, and that he used intimidation or threats to dissuade them from reporting his crimes.

After his family retained private defense attorney Mitchell Posin and four continuances due to a lack of preparation and readiness for trial, a trial date was eventually set for February 24, 2020.

Frustrated with Posin’s alleged lack of adequately preparing a defense for trial, Brass filed a motion to have the trial court appoint substitute counsel. On February 20, 2020, the trial court conducted a sealed hearing outside the presence of the prosecution’s presence pursuant to Young v. State, 102 P.3d 572 (Nev. 2004), on the motion. Brass advised the court that he believed Posin was “kind of trying to freestyle at trial with nothing prepared.”

In the motion, Brass raised concerns that he had recently learned from his investigator, Robert Lawson, about Posin not being prepared for trial. The trial court denied his motion, ruling that it was untimely because it was filed immediately prior to the start of the trial and the matter could have been raised at the prior status checks; another continuance would be “highly prejudicial” to the State, alleged victims, and witnesses; and the fact that the public defender originally represented Brass and he chose Posin “weighed against” granting the motion.

On the first day of trial prior to voir dire, a second sealed Young hearing outside the presence of the prosecution was held on Brass’ renewed motion to substitute counsel. Posin conceded that he was concerned that he wasn’t prepared to provide adequate representation and that he may “have dropped the ball.” 

Lawson advised the court that Posin “had literally no knowledge of this case.” He told Posin that investigators “developed exculpatory evidence” that Brass likely didn’t commit the crimes for which he’s standing trial, but Posin failed to subpoena the exculpatory evidence. Lawson declared that he “cannot let this [c]ourt believe for one minute that Mr. Brass is getting any kind of defense, let alone a bad defense.”

Posin acknowledged that he didn’t issue any subpoenas but disagreed with the characterization that he didn’t do any preparation for trial. However, he did concede that his preparation was insufficient.

Unaware of what had transpired at the hearing, the prosecution opposed the motion. The trial court denied it on essentially the same grounds as the first motion. It added that the difference of opinions as to the adequacy of the defense preparation by Posin “boils down to potential strategy differences,” which doesn’t justify granting the motion for substitute counsel. 

The jury convicted Brass of 20 of the 22 counts, and the trial court sentenced him to an aggregate term of 115 years to life. He appealed, arguing that his motion was timely and that the denial of his motion violated his Sixth Amendment rights.

The Court began its discussion by stating the trial court applied the wrong test in denying Brass’ motion to substitute counsel. The Young analysis is used when a defendant wants to replace appointed counsel with different appointed counsel, the Court explained. Patterson v. State, 298 P.3d 433 (Nev. 2013). But Brass sought to replace retained counsel for appointed counsel, so the trial court erred in applying Young, according to the Court.

The replacement of a retained lawyer for appointed counsel is subject to analysis under Patterson, which balances “the right to counsel of choice against the needs of fairness … and against the demands of [the trial court’s] calendar.” Patterson (quoting United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)). In general, a defendant is entitled to substitute retained counsel at any time unless the motion to substitute is “untimely and would result in a ‘disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’” Id. (quoting People v. Lara, 86 Cal. App. 4th 139 (2001)). Under Patterson, the defendant doesn’t need to show inadequate representation or irreconcilable conflict with counsel. See People v. Ortiz, 800 P.2d 547 (Cal. 1990).

The Court explained that the two-part analysis under Patterson is (1) whether the motion is untimely and (2) whether the disruption caused by substitution outweighs the defendant’s right to choice of counsel. Patterson.

Whether a motion is timely depends on the totality of the circumstances. Id. In the present case, Brass filed the motion four days prior to the trial date, which was seven days after Lawson met with Brass to advise him that Posin wasn’t prepared for trial. The trial court denied Brass’ motion, reasoning that Brass could have filed the motion at any of the numerous pre-trial hearings. But the Court rejected that argument, stating Posin represented to the trial court during each of those hearings that he was adequately preparing for trial, and Brass was entitled to rely on his counsel’s representations to the court. Brass raised his concerns about Posin and his lack of preparations at the earliest opportunity after having been told by Lawson. The Court noted that the record is replete with indications that Posin’s preparations were inadequate, even Posin himself admitting it to the trial court. Although inadequate representation or irreconcilable conflict need not be shown under Patterson, the Court commented that this is not a case where the defendant sought to arbitrarily discharge retained counsel on the first day of trial. Thus, the Court concluded that Brass’ motion was timely.

   Turning to the second Patterson factor, the Court determined that Brass’ interest in not going to trial with an admittedly unprepared lawyer in a 22-count felony case outweighed the disruption to the orderly processes of justice. The Court acknowledged that granting Brass’ motion would have necessitated another continuance that would have inconvenienced the prosecution, victims, witnesses, and potential jurors. But given the totality of the circumstances, the Court concluded that the disruption was not unreasonable. Thus, the Court ruled that the trial court erred in denying the motion to substitute, and because such error is structural, Gonzalez-Lopez, a new trial is required.

Accordingly, the Court reversed the trial court’s judgment and remanded for a new trial. See: Brass v. State, 507 P.3d 208 (Nev. 2022). 

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