Luis Olivera, 45, was convicted of aggravated kidnapping and aggravated assault at the end of his trial March 31. He tried to have his attorney, Assistant Public Defender Bill Donaldson, removed from the case before trial as well as just prior to a motion for new trial Criminal Court Judge Lisa Rice heard in June.
Rice denied both of those motions, but after considering Donaldson’s most recent motion and hearing about further deterioration in the attorney/client relationship between Donaldson and Olivera during a brief hearing Friday, she relented. But she also gave Olivera a stiff warning about how his getting his way would delay the appellate process.
In Donaldson’s motion, he said Olivera has accused him of “conspiracy against him involving the public defender. The defendant also alleges that since he has complained about his lawyer, his lawyer will take revenge and won’t put any effort into his appeal.”
With the new accusations, and the fact Olivera filed an official complaint against Donaldson with the Board of Professional Responsibility which was referred to the Consumer Assistance Program, Donaldson asked Rice to remove him. Donaldson put Olivera on the stand to ensure that’s what Olivera believes.
“I feel that you are not honest with me. I told you in a respectful way to leave my case,” Olivera testified.
Rice granted the request, but said it will take effect after Donaldson files an extension with the Court of Criminal Appeals for more time to file the appeal. Rice said the transcript, which includes all pretrial motions and the trial, isn’t even completed, she said.
“After you file the extension, I will release you from the appeal,” she said.
“You understand this will delay your appeal,” Rice asked Olivera. He said he understood.
Rice told Olivera that his new attorney — she appointed Nikki Himebaugh — will need a “significant amount of time” after the transcripts are complete to get caught up on the case.
“She can’t drop everything in her practice to only work on your appeal. I don’t want to hear you complain every two weeks that nobody’s working on your case. You have effected this withdrawal by your competent attorney. Don’t complain. I’ll tell you right now, up front, it’s going to take time,” Rice said.
Olivera said he understood.
The charges stemmed from a Dec. 27, 2015, incident at the home of Olivera’s ex-wife, Sheri Swartz, who did not remember what happened to her. Prosecutors tried to piece the puzzle together using evidence from the scene, injuries to Swartz and the words of the couple’s child, a scared 5-year-old boy.
It was the boy, hiding in a closet as his mother told him to, who called 911 to ask for help. He told a dispatcher his father wanted to take him to California and not bring him back.
After the trial, Olivera was sentenced to 12 years in prison.