By RICHARD WEATHERINGTON
A forger who gets caught red-handed passing a bad check and can’t successfully argue against the facts presented will often attack the court’s rulings.
Although the old adage “Justice delayed is justice denied” is often associated with the right to a speedy trial, if a forger unnecessarily tries to delay the proceedings, the check casher can end up being victimized a second time.
Recently, a forger who tried to pass a second bad check at the same check cashing store cried foul after the court refused to allow any further continuances in the her trial.
In March 2007, a woman whose first name was Cheryl, visited a California check cashing business where she cashed a check, made out to her, from another person’s checking account, for $3,240.
The check casher’s manager knew Cheryl as a regular customer and therefore did not question the validity of the check.
The check was returned to the manager from the company’s corporate office a few days later, with a notation that the check was fraudulent.
A senior fraud investigator for the bank from which the check had supposedly been issued verified that the check had been drawn from a nonexistent account. The manager then followed standard collection procedures, but she was unable to contact Cheryl regarding the check.
Almost a year later, in January 2008, Cheryl went back to the check casher and gave the same manager two checks to be cashed.
The manager knew that she still owed the company money from the check the year before.
The manager was suspicious about one of the checks Cheryl presented, which was purportedly drawn from the account of an industrial maintenance and repair company in the amount of $2,876.25. Among other things, the word “maintenance” was misspelled. The manager called the police.
Claims from Estate
After her arrest, Cheryl told the police that the 2007 check was her share of her sister’s estate and she had no idea why there would be any problem with it.
She said the check from the repair company was for paralegal work she had contacted for through a Web site. However, a company employee later verified that the check was fraudulent.
In February 2008, Cheryl was charged with two counts of commercial burglary and two counts of forgery. Between April 2008 and April 2009, her counsel requested and received nine continuances.
On April 2, 2009, Cheryl told the court she needed another continuance because she wanted to retain a private attorney, who was a friend of the family, instead of using the public defender’s services. The court denied her request for a further continuance.
At trial, Cheryl denied telling police that the 2007 check was part of a bequest. She stated that both checks were for different jobs she obtained through the Internet, where her role was to cash checks for third parties in exchange for 8 percent to 10 percent of the proceeds.
At the conclusion of trial, Cheryl was found guilty as charged. The court suspended imposition of sentence and placed her on three years of formal probation, including restitution in the amount of $3,240 and ordered her to spend 240 days in county jail.
Cheryl appealed her conviction to the California Court of Appeals, claiming that the court should have granted a tenth pretrial continuance so that she could retain private counsel in lieu of the public defender.
She also argued the trial court was wrong by permitting the verdict to be read in her absence after she failed to appear in court without explanation.
Matter of Discretion
The decision to grant or deny a continuance, noted the Appeals Court, traditionally rests within the sound discretion of the trial judge.
A defendant who appeals a denial of a request for a continuance, said the Appeals Court, must demonstrate a clear abuse of discretion or the trial court’s decision will be affirmed.
In deciding whether the denial of a continuance was so arbitrary that it violated due process, the reviewing court looks to the circumstances of each case, particularly the reasons presented to the trial judge at the time the request was denied. Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.
Although the right to choose one’s attorney is a component of the right to counsel under the Sixth Amendment, the right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably delaying or arbitrarily desires to substitute counsel at the time of trial.
The United States Supreme Court in 2006 also “recognized 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.”
Cheryl pointed to the 2006 case of People v. Munoz, claiming that blanket concerns about delay were not sufficient.
But in that case, noted the Appeals Court, the court found that the defendant’s repeated and detailed requests for a new attorney reflected a “genuine concern about the adequacy of his defense rather than any intent to delay” the proceedings. The record in that case was devoid of even a suggestion that the defendant had an interest in delay.
Nothing in Common
Unfortunately for Cheryl, said the Appeals Court, the facts in her case had nothing in common with Munoz. The key to the court’s holding in the Munoz case was the defendant’s real concern about his attorney.
Here, Cheryl told the court directly that her request had nothing to do with the public defender’s ability to defend her, but rather stemmed from her own comfort level. And the record, unlike that in Munoz, did suggest that Cheryl had “an interest in delay.”
The Appeals Court said Cheryl’s case was closer to the 2003 case of People v. Pigage, a case in which the defendant had sought a continuance to seek private counsel to replace his public defender on the eve of trial. The appellate court in Pigage upheld the trial court’s exercise of discretion in denying the motion.
The appellate court said the defendant failed to demonstrate that the trial court was wrong. He stated he had exchanged “strong words” with his counsel and “did not feel confident” in his appointed counsel’s representation.
However, the appellate court noted that he waited until the last minute to express those concerns. There was no evidence that Pigage attempted to retain counsel, or had even taken steps to secure funds to hire private counsel.
The appellate court found that the court’s decision to deny the request for continuance to obtain counsel did not constitute an abuse of discretion or a denial of his Sixth Amendment right to counsel.
The Appeals Court noted that Cheryl’s case was not even as strong as Pigage, in which the defendant had clashed with his attorney and expressed a lack of confidence in him. The Appeals Court said that Cheryl did not even go that far in seeking to replace the public defender. Further, she had ample opportunity to retain counsel but failed to do so.