State v. Mavoides

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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. SAMUEL DAVID MAVOIDES, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/27/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0713 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-149103-001 The Honorable Shellie F. Smith, Judge AFFIRMED ________________________________________________________________ Thomas Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Mavoides armed robbery remand the appeals and case his convictions kidnapping. for a Mavoides hearing on and sentences requests his motions this for court requesting appointment of new counsel that were denied by the trial court. For the following reasons, we affirm Mavoides convictions and sentences. BACKGROUND ¶2 In August 2008, Mavoides was indicted by a grand jury on count one, armed robbery, a class 2 dangerous felony, and count two, kidnapping, a class 2 dangerous felony. The court found Mavoides to be indigent and ordered that he be appointed legal counsel. ¶3 In counsel. April 2009, Mavoides filed a motion to change The motion requested the change due to [appointed counsel s] failure to communicate with [him] and his failure to diligently [pursue] [a] defense in [his] case. The trial court denied the motion, stating [g]ood cause not appearing. ¶4 In May 2009, Mavoides filed a second motion to change counsel. counsel only The motion failed visited to [him] requested maintain to the change communication discuss [his] because with case appointed [him], twice having since August [2008] and refused to file motions [he] asked for, thereby denying [him] [his] right to assist 2 in [his] defense. In addition, the motion stated that Mavoides had filed a formal complaint with the counsel, which Arizona creat[ed] State a Bar against non-workable relationship between Mavoides and counsel. his and appointed distrustful The trial court denied the second motion for no good cause appearing. ¶5 In June 2009, following a four-day trial, the jury found Mavoides guilty on both counts. Mavoides was sentenced to twelve years incarceration on each of counts one and two, with both sentences to be served concurrently. ¶6 Mavoides filed a timely notice of appeal, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21 (2005), 13-4031 (2010), and 13-4033 (2010). DISCUSSION ¶7 court Mavoides sole argument on appeal is that the trial erred by denying his two written motions requesting appointment of new counsel. ¶8 The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to representation by competent counsel. U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24; State v. Torres, 208 Ariz. 340, 342, 93 P.3d 1056, 1058 (2004). An indigent defendant, however, is not entitled to counsel of choice, or to a meaningful relationship with his or her attorney. State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 3 P.2d 578, 580 (1998) (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993)). ¶9 A trial court is required to appoint new counsel when there exists an irreconcilable conflict or a completely fractured relationship between counsel and the accused. State v. Cromwell, 211 Ariz. 181, 186, ¶ 29, 119 P.3d 448, 453 (2005). [A] defendant must allege facts sufficient to support a belief that an irreconcilable conflict exists warranting the appointment of new counsel in order to avoid the clear prospect of an unfair trial. (citation omitted). Id. at 187, ¶ 30, 119 P.3d at 454 Further, the trial court is required to conduct a hearing into a defendant s request for new counsel [i]f a defendant makes sufficiently specific, factually based allegations in support of his request for new counsel. United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (citation omitted); see also Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059. When considering a motion for appointment of new counsel, the trial judge should consider the following factors in order to balance the defendant s rights and judicial economy: whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel. 4 Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580 (quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987)). We review a trial court s denial of a defendant s request for new counsel for an abuse of discretion. Cromwell, 211 Ariz. at 186, ¶ 27, 119 P.3d at 453. ¶10 The motions for trial new court counsel did not because err in Mavoides denying Mavoides motions did not provide sufficient facts to support a finding of the existence of an irreconcilable conflict. ¶ 30, 119 P.3d at 454. See Cromwell, 211 Ariz. at 187, Further, the trial court was not required to hold a hearing on the motions because neither motion included specific, factually based allegations. See Lott, 310 F.3d at 1249; see also Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059. Though Mavoides did allege that counsel refused to file motions that he requested, differences in trial strategy are insufficient to establish an irreconcilable difference between defendant and counsel. Cromwell, 211 Ariz. at 187, ¶ 30, 119 P.3d at 454 (noting that disagreements over defense strategy are insufficient to constitute a colorable claim for substitution of counsel). ¶11 In addition, Mavoides motion mentioned that he filed a bar complaint against his appointed counsel. complaint against one s attorney, however, automatically require substitution of counsel. 5 Filing a bar does not See State v. Michael, 161 Ariz. 382, 384-85, 778 P.2d 1278, 1280-81 (App. 1989) (as a matter of public policy, a defendant s filing of a bar complaint against his attorney should not require removal of that attorney). ¶12 Further, while Mavoides argued that counsel visited him only two times in a nine-month span, he provided no evidence to prove that this constituted such minimal contact as to make meaningful communication impossible. Lott, 310 F.3d at 1249 ( [T]o prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible. ). To the contrary, in addition to the two visits mentioned by Mavoides in his motion, the record actually provides for two additional visits between counsel and Mavoides, within the context of two pretrial hearings, in December 2008 and February 2009. ¶13 We find no abuse of discretion by the trial court in not holding hearings on Mavoides motions. Nor do we find any abuse of discretion in the trial court s denials of the motions. CONCLUSION ¶14 Because we find no error in the trial court s denials of Mavoides motions requesting new counsel, we affirm Mavoides 6 convictions and sentences. _______/s/___________________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge __/s/______________________________ PATRICIA A. OROZCO, Judge 7

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