State v. Galloway
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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. CHESTER CHARLES GALLOWAY, II, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/11/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0238 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-139975-001 DT The Honorable Steven P. Lynch, Judge Pro Tempore REMANDED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Katia Mehu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant Chester Charles Galloway, II, challenges his misdemeanor conviction on one count of possession or use of marijuana. Specifically, he argues that the trial court erred when it denied his motions for new counsel. reasons, we remand for a hearing For the following consistent with State v. Torres, 208 Ariz. 340, 93 P.3d 1056 (2004). FACTUAL AND PROCEDURAL BACKGROUND ¶2 Defendant entered the Glendale apartment of victim C.I. 1 without permission on the morning of February 22, 2008, between 2:00 a.m. and 4:00 a.m. He removed his jacket and eventually went to the second floor of the apartment, at which time C.I. gathered her children and went to her neighbor s apartment to call the police. ¶3 When officers arrived, they found Defendant asleep in one of the second-floor bedrooms. The officers also found and searched a brown leather jacket later identified as belonging to Defendant. The search revealed a partially burned marijuana cigarette in one of the jacket s interior pockets. ¶4 Defendant was charged with one count of criminal trespass and one count of possession or use of marijuana, both 1 We use the initials of the victim throughout this decision to protect her privacy. See State v. Maldonado, 206 Ariz. 339, 341 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 class six felonies. An attorney at the Maricopa County Legal Defender s Office was appointed to represent Defendant. ¶5 Defendant made an oral pro per motion for new counsel during a status conference on March 2, 2009, the day before trial was set to begin. ¶6 The court denied his request. On the State s motion, both counts were subsequently designated as misdemeanors and the matter was tried before the court. Defendant was acquitted of criminal trespass, but convicted of possession or use of marijuana. ¶7 Prior change of criminal to counsel matter sentencing, in in both which Defendant this he matter was again and moved in represented a for a collateral by the same attorney. Counsel joined the motion and stated that, during the course representation, of a conflict over strategy developed and, over time, caused a complete breakdown in communication and an irreconcilable conflict between he and Defendant. explained that the conflict originally arose in He January [2009], ha[d] worsened since that time, and [s]ince February 27, 2009[,] [he] and defendant ha[d] spoken occasions . . . [without] meaningful discussion. on multiple The court granted the motion for new counsel in the collateral criminal matter, but denied the motion in this case. ¶8 Five days later, the court suspended sentencing, placed Defendant on probation for a one-year term, and ordered a 3 five-month jail term as a condition of his probation. Defendant appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and -4033(A) (Supp. 2008). DISCUSSION ¶9 First, Defendant argues that the trial court abused its discretion when it refused to grant Appellant new counsel for sentencing [in this case] after finding grounds to remove counsel in [the collateral criminal matter]. Defendant misconstrues the record. ¶10 During oral argument on his second motion for new counsel, the court found that Defendant and his lawyer were not getting along and ordered collateral criminal matter. new counsel appointed in the However, the court stated that it just [didn t] make sense to have a new attorney in this matter because the case was already set for sentencing and it involved only a single misdemeanor. The court then asked Defendant if he would still like a new attorney to help [him] on sentencing. In response, Defendant indicated that he wanted to present a different defense at his trial, to which the court informed him that he had a right to appeal. was willing to do something The court then stated that it that would have the effect of delaying sentencing, but Defendant interrupted before the court was able to finish, and stated that he did not want to delay 4 sentencing. The court therefore denied the motion in this matter. ¶11 By electing to proceed with sentencing as scheduled, Defendant declined the court s offer and, in effect, withdrew his motion in respect to this case. Consequently, Defendant s characterization that the court refused to provide substitute counsel for sentencing in this matter is inaccurate. ¶12 denial The of precludes the our State argues motion review was that, error, because to the the extent invited Defendant the error expressly proceed to sentencing with his lawyer. court s doctrine elected We agree. to We have repeatedly held that we will not find reversible error when the party complaining of it invited the error. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001). Because Defendant elected to proceed with the scheduled sentencing and did not respond to the court s offer to substitute counsel, the court did not err when it denied his motion. ¶13 inquire Defendant next challenges the trial court s failure to into his initial motion subsequent denial of the motion. for new counsel and the He argues that the trial court abused its discretion when it did not sufficiently inquire into whether a total breakdown in communication, or an irreconcilable conflict with his attorney existed based on his allegations. We review a trial court s decision on whether to 5 conduct an inquiry on a request to substitute counsel for an abuse of discretion. Torres, 208 Ariz. at 343, ¶ 9, 93 P.3d at 1059. ¶14 The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be represented by counsel. U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24. defendant A choice, or to attorney. is a not, however, meaningful entitled relationship to with counsel his or of her State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). The right to counsel is violated whenever a defendant is forced to go to trial with counsel when there has been a complete breakdown irreconcilable conflict. in communication or an Torres, 208 Ariz. at 342, ¶ 6, 93 P.3d at 1058. ¶15 To trial judge protect has a a defendant s duty to Sixth inquire as Amendment to the right, basis of a a defendant s request for substitution of counsel and must make such an inquiry on the record. 1059. the Id. at 343, ¶ 7, 93 P.3d at The nature of the inquiry will depend upon the nature of defendant s request, and generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding. Id. at ¶ 8. Although an evidentiary hearing is required if a defendant makes sufficiently specific, factually based allegations in support of his request for new 6 counsel, a trial court is not exempt from conducting an inquiry when presented with less specific allegations. Id. at ¶¶ 7-8 (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). ¶16 In Torres, the defendant claimed that he could no longer speak with his lawyer about the case, he did not trust him, he felt threatened and intimidated by him, there was no confidentiality between them, and behaving in a professional manner. 1058. his counsel was no longer Id. at 342, ¶ 2, 93 P.3d at The court denied the motion based on the assumption that it lacked authority to appoint new counsel. Id. Our supreme court held that the trial court abused its discretion by not conducting an inquiry into Torres request. Id. at 343, ¶ 9, 93 P.3d at 1059. ¶17 Here, as the basis for his motion, Defendant stated that: (1) [his lawyer] sent [him] correspondence through the mail and failed to put [his] address on it; (2) he didn t want his lawyer representing him; (3) he and his lawyer had a fight in the [jail] visitor s room; 2 (4) he felt that his lawyer was trying to sell [him] out every chance he g[ot]; and (5) his lawyer stated he would love to get rid of [him] as a client. 2 In a later filing, counsel explained the fight that took place on February 27, 2009, in the jail visitor s room. During a meeting with Defendant, counsel stated that Defendant became very agitated, refused to discuss the case, and asked a Sheriff s officer to have him leave. 7 After Defendant s motion, the court denied his request, suggesting that Defendant was being mean to his lawyer, and indicated that his lawyer is a very hard worker and does very good for his clients. A short time later, Defendant argued that his lawyer had failed to interview a police officer until close to trial, and again asserted that his lawyer stated that he wanted to be rid of him. Without any further inquiry, the court stated that Defendant s lawyer did not want to be his attorney because [he] [was] mean to him, and confirmed that trial would begin the next day. Defendant contends that, based on his motion and allegations, the court abused its discretion by not making further inquiry. ¶18 Certain disputes and of his represent him, substitute counsel, Defendant s personal are We agree. not and allegations, wishes not sufficient would not to bases require i.e., have strategy his for lawyer requesting further inquiry. However, we find that Defendant s allegations of discord between he and his lawyer prior to trial necessitated further inquiry to determine whether substitution of counsel was warranted. 3 3 Rather Counsel s subsequent statements further support the necessity of additional inquiry into the state of the relationship before Defendant s trial. In his joinder to Defendant s second motion for new counsel, counsel concluded that the breakdown in communication . . . [was] complete and that his ability to present a defense in [this matter] was directly and materially affected by the breakdown in communication and the defendant s refusal to assist in his own defense. 8 than conduct this inquiry, the court speculated that Defendant was being mean to his lawyer and denied his request without any meaningful questioning of him or counsel. ¶19 fact, Based on his allegations, it is unclear whether, in an irreconcilable difference or complete breakdown communications existed at the time of the first motion. in The mere possibility of a fractured relationship with counsel does not require reversal. at 1060. Torres. 4 Torres, 208 Ariz. at 344, ¶ 12, 93 P.3d We therefore remand for a hearing consistent with See id. at ¶ 13 ( [T]he appropriate remedy for a trial court s error in this situation is to remand for a hearing on the defendant s allegations. ). 4 At the hearing, Defendant bears the burden of demonstrating that, at the time of trial, there was an irreconcilable conflict with his counsel or a total breakdown in communications. See Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059. Torres also outlines the process the court should follow should Defendant meet, see id., or not meet his burden, id. at 344, ¶ 13, 93 P.3d at 1060. 9 CONCLUSION ¶20 Based on the foregoing, we remand the matter for a hearing consistent with this decision. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 10
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