State v. Gill

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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, ) ) ) ) ) ) ) ) ) ) Respondent, v. GREGORY B. GILL, Petitioner. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0431 PRPC 1 CA-CR 09-0757 PRPC (Consolidated) DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR 2006-012840-002 DT CR 2007-009308-001 DT The Honorable Kristin C. Hoffman, Judge REVIEW GRANTED; RELIEF GRANTED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and E. G. Noyes, Jr., Assistant Attorney General and Elizabeth B. Ortiz, Maricopa County Attorney s Office Appeals and Westside Juvenile Division Attorneys for Respondent G. David DeLozier PC By G. David DeLozier, Jr. and Kathy M. O Quinn Attorneys for Petitioner Cave Creek N O R R I S, Judge ¶1 Gregory Benjamin Gill ( Gill ) petitions this court to review the superior court s denials of post-conviction relief. Presiding Judge Diane M. Johnsen, and Judges Patricia K. Norris and Philip Hall, have considered the petitions for review. For the reasons stated, we grant review and grant relief in both cases, and remand both matters for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶2 We necessary to discuss our only the disposition factual of these and procedural matters. In history Maricopa County Cause No. CR 2006-012840-002 DT (the first case ), Gill was charged by indictment with 191 counts in connection with his alleged participation in schemes to defraud investors. was designated complex. Gill retained entered an appearance on January motions and hearings, on June allowed Gill s counsel to 14, withdraw 29, private 2007. 2007, counsel After the because The case various superior of who court nonpayment of fees. Though he was not present, the court ordered Gill to appear at the next status conference with new counsel or sufficient documentation that he is indigent and unable to hire private counsel. The minute entry incorrectly listed July 26, 2007, as the date of the next status conference. conference was actually scheduled for June 29, 2007. The status The court corrected the error in a later minute entry but endorsed former counsel, not Gill. ¶3 Gill appeared at this status conference, but without 2 counsel. Gill explained he had been confused by the conflicting minute entries and stated it was his desire to in fact get new counsel, and the next hearing is the 26th [of July]. have counsel by that date. discussed a pending motion I could The court and the parties then to remand, argument on the motion for July 26. and confirmed oral The court advised Gill it would not continue the oral argument: THE COURT: So what I don t want to happen is new counsel to come on and somebody say, well, now we can t go because we just got new counsel and we re just processing the information. I don t want that to happen. I want everybody to be ready on the 26th the way they need to be ready . . . . ¶4 On July 26, Gill appeared without counsel. Gill explained he had expected counsel to appear: I found a firm that I like . . . . I made an arrangement with them. I was told that they would be here today to represent me . . . . Tuesday at 4:10, I received a voice mail message informing me that they would not be here today to represent me . . . . I m here to ask the Court for additional time. . . . If the Court isn t going to grant me additional time, then I have no choice but to submit the motion. And I m not prepared to orally argue the motion. If you have to go forward, I understand. The court then denied the motion, after noting Gill had not presented argument on the motion and had submitted it as is. 3 Because the State had tendered a plea offer to Gill, and the State and Gill were both interested in discussing settlement, the court ordered the parties to conduct good faith settlement discussions before the next status conference which the court set for October 12, 2007. The prosecutor then returned to the topic of Gill s efforts to retain counsel, saying he had exchanged messages with an individual expected to represent him. we take to be the lawyer Gill Nevertheless, the court announced Gill was pro per : As regards Gill s attorney, I don t know what the status is and I m not - I guess he doesn t. I didn t talk with Fred Petti [presumably the lawyer Gill referred to earlier]. I exchanged messages with him. THE COURT: Until there is a notice filed with the Court, Mr. Gill represents himself. Okay. So you are free to engage in discussions with Mr. Gill. Until something is filed with the Court showing that they want to be counsel of record, Mr. Gill represents himself. He s pro per. Although the trial court told the parties Gill was pro per, the court neither asked Gill whether he wanted to waive his right to counsel, nor did it warn him that his conduct could result in a waiver of his right to counsel. ¶5 The October 12 status conference went forward as planned. As the parties briefed the court regarding the status of settlement discussions, the court and the parties discussed Gill s efforts to obtain counsel. 4 Gill and the prosecutor advised the court that although Gill had not yet been able to retain counsel, Gill was receiving assistance in the settlement discussions from a California lawyer, Gerald Werksman, who had represented Gill before the Arizona Corporation Commission. court informed Gill that far unless as I m counsel concerned, filed you re a The notice of appearance, as representing yourself. Disagreeing with the court s view that he was not represented by counsel, Gill asserted [t]here will be somebody coming forward. To this, the court responded: So if you want to get counsel, get counsel, but I am proceeding as if you re representing yourself. The court did not warn Gill any further delay in retaining counsel in the case would result in a waiver of his right to counsel. Before the conclusion of the hearing, the court set trial for December 10, 2007. ¶6 The State moved negotiations were underway. to continue The prosecutor because plea A hearing on the State s motion was held before a different judge. hearing. trial did Gill was not present at the not, however, request a bench warrant because of Gill s absence, explaining Gill had agreed to participate in a settlement conference later in the week. prosecutor advised the court he had been in contact Werksman, who s unofficially representing Mr. Gill. granted the continuance, vacated the December The with The court 2007 trial setting, and set a status conference before the trial judge on 5 December 3, 2007. ¶7 The settlement conference referenced by the prosecutor took place on November 30, 2007. Gill appeared without counsel. At the beginning of the conference, the prosecutor informed the court and Gill that at the hearing on the State s motion to continue, the court had ordered applications for pro hac vice admissions be filed by December 3, 2007. Because Gill had not been at the hearing on the State s motion and the court s order regarding pro hac vice admissions was not mentioned in the minute entry of the hearing distributed by the clerk of the court to the parties, he had not known of the court s order regarding pro hac vice admissions. The court then told Gill he was representing himself right now, and if Werksman was going to represent him formally here he has to file papers with the judge. To this, Gill responded, Right. is he s prepared to do so. And my understanding Gill then explained Werksman had met with the prosecutor regarding settlement and that he and Werksman were in the process of setting up another meeting to negotiate settlement. The parties and the court agreed to continue the settlement conference to December 21, 2007. ¶8 At the appeared without December counsel. 3, 2007 The status prosecutor conference, told the Gill court he would be submitting a plea offer to Gill with a December 31, 2007 deadline, and because the 6 settlement conference was scheduled for December 21, we would know by the end of the year whether Gill would go to trial. Accordingly, with no objection from Gill, the court set trial for February 19, 2008. ¶9 On December 21, the same day as the settlement conference, the State charged Gill in a separate case, Maricopa County Cause No. CR 2007-009308-001 DT (the second case ), with three more felonies. Based on the new charges, the State sought to revoke Gill s release in the first case, and at a hearing on December 24 in representation. the second case, the court discussed Gill s The court provided Gill an opportunity to apply for appointed counsel but he declined: I will get representation here if could could [sic] put this out five days or a week or something. I m not claiming indigency, simply saying I m not prepared to go forward. . . . . THE COURT: And will you be able to get a private lawyer by then or appoint a public defender now and if you get one, they ll back out? [GILL]: I appreciate that. I d like to talk to a lawyer if I may before I go back to THE COURT: I ll appoint the Public Defender s Office now to discuss it with you but I will continue this to December 31. However before Gill could consult with the Public Defender, the Public Defender objected to the appointment because Gill stated 7 he was not indigent. The court then granted a continuance and told Gill, I will leave it up to you to get a lawyer. You have to understand that on December 31, if you don t have a lawyer, the case may still go on. ¶10 Gill retained counsel in the second case, but on February 12, 2008, appeared at a trial management conference in the first case without counsel. The prosecutor advised the court he continued to deal with a California lawyer [Werksman], who was unofficially representing Mr. Gill, and Werksman had advised him he had met with and discussed the plea offer with Gill, but Gill had rejected the offer. When Gill disputed this account, the superior court stated: We re not dealing with anybody except Mr. Gill from now on, and that s the Court s directive. And at this point, given the history of this case, it is very apparent to me, Mr. Gill, that you have forfeited your right to counsel. We re ready to go to trial on the 19th. [GILL]: May I be heard? THE COURT: I ve seen you more than one occasion, and on each occasion you have told me, I am going to be represented by counsel. You have yet to show up with counsel, sir. [GILL]: First of all, this Court has told me that I m representing myself. It s never been my desire, nor would I ever represent myself in a complex case. That 8 would be literally impossible. . . . . I m asking the Court today to appoint counsel to represent me. That s what I m asking. The court denied Gill s request for appointed counsel stating, I believe that the record is clear that you have forfeited your right to counsel based on your actions up to this point, sir. The court prosecutor granted about Gill s the plea request for time offer, and after to speak to the discussions, the State extended the offer for two days until the consolidated release hearing. ¶11 At the consolidated release hearing on February 14, Gill appeared with counsel he had retained in the second case. As to the first case, counsel expressed concern about Gill s representation, stating: [I]t s my understanding -- and I m sure [the prosecutor] will jump in if I m being inaccurate -[Gill] asked for courtappointed counsel in that [first] case and does not agree with the Court s ruling that he is not entitled to the court-appointed counsel. He certainly does not agree that he has forfeited that right and would ask, I believe in this court, that this Court appoint counsel for this case in the [first case]. . . . . I think if [the prosecutor], if I m not mistaken, made a record that there had never been a time when the Court had given Mr. 9 Gill the typical warnings required under the Constitution and law that the fool for a client, for lack of a better word, warnings, No. 1. No. 2, that he had never said I waive counsel. He always said I m hoping to get counsel. He waived counsel I believe one time or refused the public defender in December for purposes of his settlement conference. So for this hearing, he will confirm that I m sure he is requesting counsel be appointed. The court noted the trial judge in the first case had already found Gill had forfeited his right to counsel, and stated he would honor [that] determination. ¶12 counsel. behalf. On February Werksman 19, was Gill appeared for trial without but not appear on present, did his After reviewing the State s plea offer, Gill requested an opportunity to confer with his counsel in the second case. The State had no objection as it had extended an offer in the second case. The court contacted counsel, and allowed Gill to have a private conversation with him. Afterwards, Gill asked that the plea agreements be faxed to counsel, and the matter be continued until the next morning for a possible change of plea. The court agreed to continue trial to the next day, but informed Gill that if the matter was not resolved, he should be prepared to go to trial. ¶13 The next morning, Gill stated he wanted to settle the 10 case and asked for a short continuance. He told the court his counsel in the second case had suggested they spend some time with [the prosecutor] and see if we could work out some of the language. The court denied the request: You asked me for some additional time. I gave it to you. Today is the day that you need to make a decision, because I m going to send my bailiff downstairs to get the jury, if you re not ready, sir. [GILL]: As I am trying to indicate to the Court, I do not wish to waste the Court s time. I m incapable of acting as my own counsel in this complex case. I ve stated that over and over. So I m asking the Court to either allow me to have a -Mr. Feder s [retained counsel in the second case] suggestion was to have a settlement conference on Friday, and I would abide by whatever that settlement was, and that was his suggestion. . . . . THE COURT: . . . Are you prepared to enter a plea today? . . . . [GILL]: As I stated a minute ago, I have no desire to go forward with a trial, take up the Court s time and so forth, so I guess I would be in a position to sign this plea. The parties executed a plea agreement which the court then accepted. ¶14 Gill appeared at sentencing with retained counsel. The court denied counsel s motion to continue, and sentenced 11 Gill to consecutive, maximum ten year prison terms, followed by probation. Gill also pled guilty in the second case. The court sentenced him to a prison term concurrent with the sentences in the first case. ¶15 Gill both cases. 1 filed petitions for post-conviction relief In the first case, he argued the court had denied his constitutional right to counsel. He also argued the court had improperly denied his request to continue sentencing. the second in case, he argued the crimes alleged had not In been committed in Arizona and thus the court lacked subject matter jurisdiction, and the State s request to transfer this case to the judge assigned to the first case amounted to impermissible forum shopping. Finding no colorable claims, the court denied relief in both matters. Gill timely petitioned this court for review. DISCUSSION ¶16 We review Gill s Sixth Amendment denial of the right to counsel claim de novo. State v. Glassel, 211 Ariz. 33, 50, ¶ 59, 116 P.3d 1193, 1210 (2005). 1 The right to counsel is In the second case, the court noted Gill argued he pleaded guilty in this case only because he pleaded guilty in [the first case], and that he should have Rule 32 relief in this case if he obtains the Rule 32 relief he requested in the [first] case. The State agrees with the defendant. Because of our resolution of Gill s petition for review in the first case, we need not address Gill s denial of a continuance claim, or the claim presented in the second case. 12 fundamental. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795, 9 L. Ed. 2d 799 (1963). It is so fundamental to our adversarial system its deprivation can never be deemed harmless. Chapman v. California, 386 U.S. 18, 23 & n.8, 87 S. Ct. 824, 828 & n.8, 17 L. Ed. 2d 705 (1967); see also State v. Ring, 204 Ariz. 534, 552, ¶¶ 45-46, 65 P.3d 915, 933 (2003) (deprivation of right to counsel automatic[] ). right to is structural error, and reversal is Of course, like any constitutional right, the counsel may be expressly waived. Faretta v. California, 422 U.S. 806, 820, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975); State v. Dann, 220 Ariz. 351, 360, ¶ 24, 207 P.3d 604, 613 (2009). But waiver of such a fundamental constitutional right is valid only if voluntary, and made with an understanding of the consequences. Faretta, 422 U.S. at 835- 36, 95 S. Ct. at 2541; Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378 (1981). ¶17 In some circumstances, the right can be waived by conduct, but only after the court warns the defendant further disruptive or dilatory conduct may result in a waiver of the right to counsel, and explains the implications of such waiver, including the risks and dangers of self-representation. State v. Hampton, 208 Ariz. 241, 244, ¶ 7, 92 P.3d 871, 874 (2004). ¶18 A defendant can also lose his right to counsel through forfeiture. Although the Arizona 13 Supreme Court has not expressly applied forfeiture as a basis for loss of the right to counsel, number in of discussing cases the suggest doctrine that a it has defendant explained can that forfeit a his right to counsel without prior warning if he engages in severe misconduct or a course of disruption aimed at thwarting judicial proceedings. Hampton, 208 Ariz. at 244, ¶ 8, 92 P.3d at 874. However, [t]hese cases suggest that forfeiture is reserved for the most severe cases of misconduct and should result only when less restrictive measures are inappropriate. court also noted that in a few cases, Id. The supreme courts have found misconduct extremely dilatory when a defendant s actions in obtaining counsel have led to excessive delay. See e.g. United States v. Mitchell, 777 F.2d 248, 257-58 & n.2 (5th Cir. 1985). Because of the drastic nature of the sanction, forfeiture would appear to require extremely dilatory conduct. United States v. Goldberg, 67 F.3d 1092, 1101 (3d Cir. 1995). ¶19 Here, Gill did not expressly waive his right to counsel, and the record does not demonstrate he waived his right to counsel by conduct because it is devoid of the required warnings. As discussed above, at the February 12, 2008 trial management conference, the superior 14 court found Gill had forfeited his forfeited his right right to to counsel. 2 counsel, Therefore, he was denied unless his Gill right to counsel and we must vacate his convictions and sentences. ¶20 The record does not show Gill forfeited his right to counsel. Specifically, the record fails to demonstrate Gill engaged in severe misconduct. Although the record reflects at various times the court told Gill he needed to obtain counsel, and Gill failed to do so, Gill s failure to do so did not delay trial. His motions to proceeded as scheduled. continue engaged in any denied, and the case The court continued trial only once and that was at the State s request. or were misconduct Further, Gill made no threats directed towards counsel. His retained counsel withdrew after months of representation because of nonpayment of the remainder of fees. 3 The record reflects Gill attempted to retain other counsel. ¶21 Moreover, even if Gill s conduct could be considered severe misconduct or a course of disruption aimed at thwarting judicial proceedings, before it could conclude Gill had forfeited his right to counsel, the superior court was required 2 In denying Gill s petition for post-conviction relief, the court found the record supported the superior court s finding Gill had forfeited his right to counsel. 3 At least one court has suggested that under similar circumstances, the trial court has a due process obligation to independently evaluate a defendant s financial circumstances for purposes of appointment of counsel. Potter v. State, 547 A.2d 595, 599 (Del. 1988). 15 to consider less restrictive appear with counsel. P.3d at 874. For measures when Gill failed to See Hampton, 208 Ariz. at 244, ¶ 8, 92 example, the court could have appointed counsel and ordered Gill to contribute to the cost if he were able. See Ariz. R. Crim. P. 6.7(d). The superior court, however, never considered any less restrictive measures. ¶22 P.3d Both parties agree State v. Rasul, 216 Ariz. 491, 167 1286 counsel. (App. 2007), governs forfeiture of the right to The Rasul court noted no Arizona court had expressly found forfeiture of the right to counsel. P.3d at 1289. Id. at 494, ¶ 9, 161 The court then surveyed jurisdictions that had found forfeiture, and concluded forfeiture is reserved for those cases in which the defendant s conduct is extremely egregious. Id. at 494-95, ¶¶ 9-17, 167 P.3d at 1289-90. Rasul, most, though not all, cases of As detailed in forfeiture violence, or threats of violence by the defendant. ¶23 Id. On the record presented, the Rasul court agreed the defendant there had forfeited his right to counsel. ¶ 17, 167 P.3d at 1290. court-appointed lawyers, ¶ 5, 167 P.3d at 1288. attorneys, different made counsel, Id. at 495, He had gone through a succession of 18 refused the assistance counsel, and chose to absent himself from trial. his involve of advisory Id. at 493, He had threatened the safety of two of repeated accused demands several 16 for lawyers appointment of of unsatisfactory representation, and filed state bar complaints against some of them. Id. at 495, ¶¶ 14-15, 167 P.3d at 1290. One of his 18 lawyers stated in open court, after expressing fear for his personal safety, that he would not continue to represent Rasul, even if it meant being held in contempt of court. Further, the restrictive behavior by trial measures court in appointing had attempted response to replacement to Id. at ¶ 16. implement Rasul s initial lawyers. Id. less improper at ¶ 15. Simply put, the facts presented in this case stand in stark contrast with the facts presented in Rasul. 4 ¶24 The record, we acknowledge, supports a finding Gill was dilatory in obtaining counsel or requesting court appointed counsel. Indeed, at the July 26, 2007 hearing, the court told Gill he was representing himself because he had appeared at the hearing without counsel after previously being told he needed to obtain counsel. continued At that point, if the court had warned Gill his conduct could constitute 4 a waiver of his right to Even in Hampton, in which the defendant made credible death threats against two of his lawyers causing each to withdraw from further representation, our supreme court refused to find forfeiture. Although it might be possible to conclude Hampton's conduct is so egregious as to constitute a forfeiture of his right to counsel on appeal, we do not today so hold. 208 Ariz. at 245, ¶ 9, 92 P.3d at 875. Instead, the court remanded the matter and warned Hampton that any future misconduct can be deemed a waiver of his right to counsel and may result in him being forced to represent himself. Id. at ¶ 10. 17 counsel and informed him of the dangers and disadvantages of self-representation, it would be possible to conclude Gill had waived his right to counsel by his conduct. No court is required to tolerate a defendant s manipulation of the right to counsel for the purpose of securing delay. But, the court did not take that step, and instead subsequently decided 5 Gill had forfeited his right to counsel. As discussed, however, Gill s conduct was not sufficiently egregious to support a finding of forfeiture, especially when the court failed to consider less restrictive means to control his conduct. See Daniel Y. v. Ariz. Dep t of Econ. Sec., 206 Ariz. 257, 262-63, ¶¶ 24-25, 77 P.3d 55, 60-61 (App. 2003). CONCLUSION ¶25 The record does not support a finding Gill s conduct constituted a forfeiture of his right to counsel, deprivation of this right is structural error. and the Therefore, we grant review and grant relief in Cause Nos. CR 2006-012840-002 DT and CR 2007-009308-001 DT. We vacate the court s orders dated May 7, 2009, and September 14, 2009, which denied relief. We remand this matter to the superior court with instructions to 5 In its response to Gill s petition, the State asserts the record reflects Gill was officially and unofficially represented by counsel throughout this case. Although the record reflects Gill was working with Werksman and eventually counsel in the second case in settlement discussions with the State, the record contains no evidence Gill had obtained counsel to represent him at trial. 18 vacate the convictions and sentences in both cases, and reinstate all charges in those cases. /s/ _________________________________ PATRICIA K. NORRIS, Judge /s/ ___________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 19 to

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