NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

Matthew S. Goodlander's privately retained counsel was suspended from the practice of law on the Friday before his Tuesday jury trial. Goodlander appeared for trial with another attorney from his counsel's law firm, who moved for a continuance so that Goodlander could find different counsel to represent him. The district court overruled the motion and proceeded with the jury trial. Because we conclude the court's decision was untenable, we reverse, and remand for a new trial.

BACKGROUND

As the result of a high-speed pursuit, the State filed a criminal complaint in the county court for Sarpy County, charging Goodlander with operating a motor vehicle to avoid arrest. One month later, on November 13, 2009, Jeri Lynn Hunter—privately retained counsel—filed an entry of appearance and filed a motion to continue the preliminary hearing. A document filed November 17, which bound Goodlander over to district court to stand trial, shows Hunter as counsel for Goodlander. On November 19, the State filed an information in district court, charging Goodlander with operating a motor vehicle to avoid arrest, a Class IV felony, and driving under the influence of alcohol, a Class W misdemeanor. A "jury trial order" states that on November 30, Goodlander appeared with his counsel, Hunter; that he entered a plea of not guilty; and that a jury trial was set for March 9, 2010. However, a document titled "Journal Entries" stated that Goodlander appeared for arraignment with counsel, David Nich, and the bill of exceptions also shows that Nich appeared as counsel for Goodlander on November 30. A later journal entry shows Nich's appearance with Goodlander on February 22, 2010.

On March 5, 2010, the Nebraska Supreme Court suspended Nich from the practice of law for 6 months, effective immediately. See State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533, 780 N.W.2d 638 (2010). On March 9, Goodlander appeared with Hunter for the scheduled jury trial. Hunter orally moved for a continuance because Nich "is the one who has worked with . . . Goodlander, and he's unavailable to do the trial. And . . . Goodlander would like to find different counsel to represent him." The State objected:

Hunter denied the assertion, stating that "[w]e did tell the prosecutor that I was working with . . . Niche [sic], but we had never anticipated that I would take over the defense of this trial." Hunter added that Nich's "absence was very sudden. It was . . . certainly not something we had planned or could anticipate that two days before, two business days before, the trial he would be unable to do the trial. And that was the understanding of my client as well." The court pointed out that the Counsel for Discipline had recommended suspension well before the Supreme Court's decision, to which Hunter replied, "[B]ut they did not give us — warning that he got was when the suspension came that morning. He . . . knew it was coming, but it was issued March 5th. He got it March 5th. That was — it was very sudden. My client was certainly not expecting it." Neither party offered affidavits.

The district court overruled the motion, explaining:

Hunter interjected that "Niche [sic] was the one who did that." The court responded that it was reading the court record. The court then continued:

A jury trial commenced after a short recess, and the jury found Goodlander guilty on both counts. The district court subsequently sentenced Goodlander, and Goodlander timely appealed to this court.

ASSIGNMENTS OF ERROR

Goodlander assigns six errors. He alleges that the district court violated his constitutional right to be represented by competent trial counsel of his own choosing and that the court abused its discretion in failing to grant his motion for continuance of the trial to allow him sufficient time to replace his trial counsel who had been suspended from the practice of law 2 days before trial. In view of our disposition of this appeal, it is not necessary to summarize Goodlander's other assignments of error.

STANDARD OF REVIEW

A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

The Sixth Amendment to the U.S. Constitution provides that a criminal defendant has a right to have the assistance of counsel for his or her defense, and an essential part of that right is the defendant's ability to select the counsel of his or her choice. State v. Kawa, 270 Neb. 992, 708 N.W.2d 662 (2006). While Hunter participated at the periphery of this case, the record makes it clear that Goodlander anticipated that Nich would handle the trial. When a defendant in a criminal case chooses to privately retain counsel, he or she has a constitutional right to representation by the counsel of his or her choice. State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001). As stated above, Nich was suspended from the practice of law on the Friday before Goodlander's Tuesday jury trial. The record shows that Goodlander appeared in court with Hunter on the day of his scheduled trial as Hunter informed the court that Goodlander wanted different counsel to represent him at trial. In general, defendants are free to employ counsel of their own choice, and the courts are afforded little leeway in interfering with that choice. State v. Kawa, supra. Here, the court forced Goodlander to proceed to trial with counsel whom he did not choose.

Nich's suspension very shortly before trial coupled with the district court's refusal of a continuance placed Goodlander in an untenable position. Moreover, the record shows instances of Hunter's lack of preparation which demonstrate the prejudice resulting to Goodlander. There is no abuse of discretion by the court in denying a continuance unless it clearly appears that the party seeking the continuance suffered prejudice as a result of that denial. State v. Edwards, supra. The record shows instances of the court's aiding Hunter. For instance, after the prosecutor handed the State's witness her statement, asked her to read it, and began asking her a question, the court interjected that "you can't — you can only ask her if it refreshes her memory. You can't attack the credibility of your own witness." During redirect examination of a police officer, Hunter objected to the prosecutor's question as being "[a]sked and answered," and the court replied, "Beyond the scope of the redirect. Sustained." During Hunter's cross-examination of a police officer, Hunter asked, "What was the BAC that was at the site, the on-site BAC?" The court then stated, "Just a second. Counsel, I need to see you out in the hallway. Excuse us, jury." The record shows that the judge and counsel exited the courtroom, and the conversation outside the courtroom was not recorded. The record then shows that the court stated, "Thank you. We're back on the record. Rephrase your question or reask it, whichever." Hunter then asked, "Did you say you gave . . . Goodlander two breath analyzer tests?" In addition to the above instances of the court's helping Hunter, the record also contains numerous questionable acts or omissions by Hunter during the course of the trial, which we have omitted in the interest of brevity. Suffice it to say, our review of the record does not leave us confident that Hunter was adequately prepared to handle Goodlander's criminal defense.

While the State argues that Goodlander should have anticipated Nich's suspension, this situation seems analogous to that where primary counsel is being treated for a cancer everyone knows is possibly fatal but who suddenly dies 2 days before trial. The client chose the lawyer with the illness but the lawyer's sudden death deprived the client of his chosen counsel without any fault on the part of the client. In the case before us, to insist that Goodlander go forward with associate counsel he does not wish to represent him and who is unprepared denies Goodlander his right to counsel of his choice. Under the circumstances, the district court abused its discretion in denying the motion for continuance.

Although the Double Jeopardy Clauses of the federal and state Constitutions do not protect against a second prosecution for the same offense where a conviction is reversed for trial error, they bar retrial if the reversal is necessitated because the evidence was legally insufficient to sustain the conviction. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008). The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict. Id. The evidence adduced was sufficient to sustain Goodlander's conviction; thus, the cause may be remanded for a new trial.

Because we have determined that the district court committed reversible error in denying the motion for continuance to obtain new counsel, we do not address Goodlander's other assigned errors. See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009) (appellate court is not obligated to engage in analysis that is not needed to adjudicate controversy before it).

CONCLUSION

Because we conclude that the district court abused its discretion in denying Goodlander's motion to continue the trial for purposes of securing new counsel due to his privately retained counsel's suspension from the practice of law, we reverse, and remand the cause for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.