In re MH 2009-002064

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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 ) ) IN RE MH2009-002064 ) ) ) ) ) ) ) __________________________________) DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0079 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2009-002064 The Honorable Michael D. Hintze, Judge Pro Tempore AFFIRMED Richard M. Romley, Maricopa County Attorney by Anne C. Longo Bruce P. White Deputy County Attorneys, Civil Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 R.J. challenges the order involuntarily committing him for treatment. denying his Specifically, he argues that the court erred in request commitment hearing. to represent himself at the involuntary For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Dr. Michael Hughes filed a petition for court-ordered treatment on September 2, 2009, and alleged that R.J. was [p]ersistently or acutely disabled as a result of a mental disorder. outpatient He sought treatment an for order R.J. for combined pursuant to inpatient Arizona and Revised Statutes ( A.R.S. ) section 36-540(A)(2) (Supp. 2009) ¶3 to At the start of the treatment hearing, R.J. requested represent himself. The trial court summarily denied request, concluding that R.J. was not permitted to do so. the R.J. objected and argued that he had never had any mental health problems. The court noted that it had taken judicial notice of three prior mental health findings, one in 2007, and two in 2008, and again denied the request, stating that court-appointed counsel was very able to assist [him]. ¶4 R.J. At the conclusion of the hearing, the court found that was persistently or acutely disabled as a result of a mental disorder, and ordered him to undergo [t]reatment in a 2 program of combined inpatient and outpatient treatment for a period of no longer than 365 days. ¶5 R.J. appeals, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 36-546.01 (2009). DISCUSSION ¶6 R.J. argues that he has a right to waive counsel, and that the trial court violated his due process rights by denying his request to represent himself. We review the ruling denying waiver of the right to counsel for an abuse of discretion. See State v. Harding, 137 Ariz. 278, 286, 670 P.2d 383, 391 (1983). ¶7 A person facing an involuntary commitment proceeding has a right to counsel in Arizona. See A.R.S. § 36-528(D) (2009); In re Jesse M., 217 Ariz. 74, 76-77, ¶¶ 11-14, 170 P.3d 683, 685-86 (App. 2007). We have previously held, however, that an individual may waive the right to counsel in an involuntary commitment hearing if the waiver intelligently, and voluntarily. 1 is done knowingly, See Jesse M., 217 Ariz. at 77- 79, ¶¶ 16, 18, 24, 170 P.3d at 686-88 (stating that Arizona 1 R.J. contends that, in Jesse M., we held that an alleged mentally ill person has the right to waive counsel at an involuntary commitment proceeding. Although we concluded that an alleged mentally-ill person may waive the right to counsel, we did not address whether there was a constitutional or statutory right to self-representation in this context. See generally Jesse M., 217 Ariz. 74, 170 P.3d 683. Because we conclude that the trial court did not abuse its discretion in denying R.J. s request to waive his right to counsel, we need not address whether there is a constitutional or statutory right to self-representation in mental health cases. 3 cases stand for the proposition that a person with a mental health diagnosis can waive his right to counsel so long as he is competent to make the decision and the record supports the trial court s decision ); see also State v. Evans, 125 Ariz. 401, 403, 610 P.2d 35, 37 (1980) (holding that a mental health diagnosis does not mean that [a defendant] is unable to make competent choices ); Lanett v. State, 750 S.W.2d 302, 305 (Tex. App. 1988) (holding that a court should not summarily deny [a request to waive right to counsel] simply because of the nature of the proceedings ). ¶8 In Jesse M., we set forth the procedure a trial court should follow when considering a request to waive the right to counsel. steps, 217 Ariz. at 80, ¶ 30, 170 P.3d at 689. the court should learn whether the Among other patient has any education, skill or training that may be important to deciding whether he determine has the whether understanding of the competence the to make patient has proceedings and understands the right he is waiving. the decision, some procedures Id. and rudimentary to show he After the on-the- record discussion and inquiry are complete, the court should make specific factual findings supporting the grant or denial of the waiver. ¶9 Id. Here, R.J. argues, and the State agrees, that the trial court failed to fully comply with the procedures outlined 4 in Jesse M. R.J. argues that we should consequently overturn his commitment. denial of The State, on the other hand, argues that the [R.J. s] request for self-representation was [nevertheless] reasonable, and supported by the record. ¶10 In Jesse M., we affirmed a denial of a request to waive the right to counsel despite the fact that the trial court did not follow the procedures we outlined. 31, 170 P.3d at 689. 217 Ariz. at 80, ¶ We concluded, despite the failures, that the record present[ed] serious concerns about [the patient s] capability to make a knowing waiver. P.3d at 690. Id. at 81, ¶¶ 34-35, 170 Similarly, in Lanett, the Texas Court of Appeals reviewed whether a trial court erred when it denied a patient s request to represent herself after concluding that it would be unwise for her to do so. trial court incapable did of not 750 S.W.2d at 304. expressly competently Although the find that the patient was her right to counsel, the waiving appellate court nevertheless concluded that, from the record, the court could have found that [she] was not capable of knowingly and intelligently waiving her right of court-appointed counsel. Id. at 305 (emphasis added). The appellate court recognized that the trial court had taken judicial notice of three certificates of medical examination on file, that all three examining psychiatrists had concluded that the patient was 5 mentally ill, and that the trial court had the opportunity to observe her behavior in court multiple times. ¶11 Id. at 304-05. Here, the State argues that the record supports the conclusion that R.J. was not competent to waive his right to counsel regardless of the trial court s failure to follow Jesse M. We agree. ¶12 As in Jesse M. and Lanett, the trial court here had sufficient evidence to conclude that R.J. could not knowingly and intelligently waive his right to counsel. The court expressly noted that it had taken judicial notice of three prior mental health findings from cases involving R.J. in 2007 and 2008. Additionally, the court had affidavits provided with the petition for court-ordered court-ordered treatment. evaluation and the petition for Those filings indicated that R.J. was homeless, had a history of psychosis, was considered severely mentally ill by Magellan 2 in an open case, was chronically noncompliant, and had multiple arrests due to behavior related to his delusions. insight illness. demeanor and Two judgment medical were doctors both concluded impaired R.J. s of because that mental Additionally, the court was able to witness R.J. s and hear his disjointed objection to the court s preliminary ruling. 2 Magellan Health Services of Arizona, Inc., is the Regional Behavioral Health Authority of Maricopa County, and manages the publicly funded behavioral health care delivery system. 6 ¶13 Based on the evidence, the trial court could have concluded that R.J. was not competent to waive his right to counsel, and it was not an abuse of discretion to deny his request. CONCLUSION ¶14 Based on the foregoing, we affirm. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 7

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