State v. Perez-Bojorquez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) GUADALUPE PEREZ-BOJORQUEZ, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0930 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-139694-001 DT The Honorable Arthur T. Anderson, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals Section/Capital Litigation Section And William Scott Simon, Assistant Attorney General Attorneys for Appellee Janelle A. McEachern Attorney for Appellant Chandler O R O Z C O, Judge ¶1 Guadalupe Perez-Bojorquez (Bojorquez) appeals from his convictions and sentences. He argues that the trial court committed fundamental error by denying his August 4, 2008 motion for continuance and change of counsel. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Bojorquez was charged with one count of second degree murder, a class 1 dangerous felony; one count of aggravated assault, a class 2 dangerous felony; one count of aggravated assault, a class 6 felony; one count of leaving the scene of a fatal injury accident, a class 3 felony; one count of resisting arrest, a class 6 felony; and one count of possession or use of a narcotic drug, a class 4 felony. ¶3 The State indicted Bojorquez on June 27, 2007 and trial was initially scheduled to begin on May 5, 2008. 20, 2007, the trial court granted On September Bojorquez s request to designate the case as complex, basing its decision on the amount of scientific evidence, discovery, and the number of witnesses and experts involved. On April 28, 2008, Bojorquez and the State each filed motions to continue trial. The trial court reset trial for July 31, 2008, based in part on the need for more time for Bojorquez s expert witness reconstruction and crash analysis. to prepare a collision On July 31, 2008, the first scheduled day of trial, Bojorquez s proposed counsel (Proposed Counsel) filed a motion for substitution 2 of counsel in open court.1 The trial court then asked Proposed Counsel if he would be ready for trial. Ultimately, Proposed Counsel could not avow that he would be prepared for trial by the August 11, 2008 start date. As a result, the trial court denied Bojorquez s motion for substitution of counsel. ¶4 On August 4, 2008, thirty minutes before jury selection, Bojorquez filed a motion in propria persona for a continuance and substitution of counsel. Bojorquez argued he had the right to counsel of his choice and that if the trial court denied his motion he would not have an opportunity to address issues of ineffective assistance of counsel until post-conviction proceedings. unwarranted, The trial court struck the motion as untimely, and filed without authority. The trial court reasoned that Bojorquez had no standing to file the motion in propria persona because he was represented by counsel. Additionally, the trial court reasoned that Bojorquez s argument regarding ineffective assistance of counsel was improper to consider before trial. ¶5 The jury found Bojorquez guilty as charged, and Bojorquez was sentenced to a term of twenty-seven-and-one-half years imprisonment. Bojorquez filed a timely notice of appeal 1 For reasons that are unclear in the record, the trial court reset trial for August, 4, 2008. Voir dire began on August 4, 2008 and ended on August 5, 2008; however, opening statements began on August 12, 2008. 3 and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031, and -4033.A (2010).2 DISCUSSION ¶6 court Bojorquez raises one issue on appeal: whether the trial abused continuance 2008.3 its and discretion for in substitution denying of his counsel motion filed for August a 4, The granting of a continuance is within the discretion of the trial court, and its decision will only be disturbed upon a showing of a clear abuse of such discretion and prejudice to defendant. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). A trial court s denial of a motion for change of counsel is reviewed for a clear abuse of discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). Hybrid Representation ¶7 The trial court denied Bojorquez s motion as untimely, unwarranted and filed without authority. The trial court explicitly reasoned that Bojorquez had no standing to file the motion in propria persona because he was represented by counsel. 2 We cite to the current version of the applicable statutes because no revisions material to this decision have since occurred. 3 Bojorquez does not argue on appeal that the trial court erred in denying his first motion for substitution of counsel filed July 31, 2008. Bojorquez only appeals the trial court s denial of his motion filed August 4, 2008. 4 ¶8 When a defendant concurrently has self-representation and representation by counsel, hybrid representation results. State v. Roscoe, 184 Ariz. 484, 498, 910 P.2d 635, 649 (1996). It is well established law that a criminal defendant has no constitutional right to hybrid representation. State v. Cornell, 179 Ariz. 314, 325, 878 P.2d 1352, 1363 (1994); State v. Rickman, 148 Ariz. 499, 504, 715 P.2d 752, 757 (1986); State v. Stone, 122 Ariz. 304, 307-08, 594 P.2d 558, 561-62 (App. 1979). hybrid representation is not a constitutional Although right and is disfavored, it is permitted at the discretion of the court. Roscoe, 184 Ariz. at 498, 910 P.2d at 649. trial court effectively hybrid representation. prohibited In this case, the Bojorquez from the use of Because Bojorquez was represented at all times by counsel, the trial court acted within its discretion in denying Bojorquez s motion filed in propria persona. Id. Right to Counsel ¶9 Nevertheless, Bojorquez cites State v. Aragon, 221 Ariz. 88, 210 P.3d 1259 (App. 2009) to support his argument that the trial court improperly denied his motion for continuance and for substitution of counsel. A trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, States v. omitted). and against the Gonzalez-Lopez, demands 548 U.S. of its 140, calendar. 152 (2006) United (citation The Arizona Supreme Court has stated that [w]hether 5 an accused s constitutional rights are violated by the denial of a request for a continuance depends on the circumstances present in the particular case. State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358, 1367 (1983). As a result, we consider the following factors: [W]hether other continuances were granted; whether defendant had other competent counsel prepared to the case; the convenience or inconvenience to litigants, counsel, witnesses, and the court; length of the requested delay; the complexity of case; and whether the requested delay was legitimate reasons or was merely dilatory. the try the the the for Id. ¶10 In Aragon, this Court concluded that the trial court violated the defendant s right to counsel by denying his request for a continuance to substitute appointed counsel. 91, ¶ 9, defendant 210 had continuances, P.3d at neither and the 1262. In sought State Aragon, nor did been not we 221 Ariz. at noted granted argue that any the case the prior was particularly complex or dispute [the defendant s] assertion that all of the witnesses . . . were law enforcement personnel . . . or law enforcement-related professionals, who routinely juggle their calendars to accommodate court appearances. Id. at 90, ¶ 6, 210 P.3d at 1261. ¶11 In this case, the trial court had already granted one continuance, because of Bojorquez s need to prepare an accident reconstructionist. The trial court had also granted Bojorquez s 6 motion to designate the case as complex. Furthermore, numerous civilian witnesses, including one who traveled from out of state, were to testify during trial. for continuance was filed Additionally, Bojorquez s motion only thirty minutes before jury selection. ¶12 The Arizona Supreme Court has held that denying a motion for continuance under similar facts is not an abuse of discretion. See Hein, 138 Ariz. at 369-70, 674 P.2d at 1367-68 (finding no abuse of discretion in denying a motion to continue after noting that a jury was present and a continuance would place a great burden on out of state witnesses); State v. Miller, 111 Ariz. 321, 323, 529 P.2d 220, 222 (1974) (upholding a trial court s decision to compel a defendant to proceed with appointed counsel where trial had already been postponed twice and defendant waited until the day before trial to move for a substitution and continuance). the Ninth Circuit. We have found similar support in United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986) (finding no abuse of discretion in denying a motion to continue for substitution of counsel filed on the first day of trial). In Aragon, we cited to Miller and Hein to contrast the facts of Aragon with facts sufficient to uphold a trial court s continuance. denial of a defendant s untimely motion 221 Ariz. at 90, ¶¶ 5-6, 210 P.3d at 1261. 7 for We find the facts in this case are more analogous to the facts found in Miller and Hein rather than those found in Aragon. ¶13 After considering the Hein factors, see supra ¶ 9, we hold the trial court did not abuse its discretion in denying Bojorquez s motion for continuance and for substitution of counsel.4 CONCLUSION ¶14 For the reasons previously stated, we affirm Bojorquez s convictions and sentences. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Judge /S/ ____________________________________ JON W. THOMPSON, Judge 4 To the extent Bojorquez argues that his motion for continuance should have been granted based on a claim of ineffective assistance of counsel, we reject it. We agree with the trial court that ineffective assistance of counsel is an inappropriate reason for granting a motion for continuance. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) (holding that a defendant may bring ineffective assistance of counsel claims only in a Rule 32 postconviction proceeding - not before trial, at trial, or on direct review. ). 8

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