State v. Petrovich

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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. JUAN TAMERIN PETROVICH, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0173 DIVISION ONE FILED: 08/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-165837-001 The Honorable Timothy J. Ryan, Judge The Honorable Susanna C. Pineda, Judge AFFIRMED Thomas C. 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 by Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant, Juan Tamerin Petrovich, challenges his convictions and sentences for two counts of child molestation and one count of sexual conduct with a minor. FACTUAL BACKGROUND ¶2 Petrovich was accused of sexual sexual contact with a ten-year-old boy. and the trial court and oral After the boy s family notified police, Petrovich was arrested. indicted contact appointed He was subsequently the Maricopa County Petrovich filed a motion to change counsel. 1 At a Public Defender s Office to represent him. ¶3 pretrial conference prior to jury selection, the trial court summarily dismissed the motion because it was conclusory in nature. The next day, and after the jury had been impaneled, Petrovich orally requested new counsel. He expressed concerns about his lawyer s preparation for trial. 2 his His request was denied. 1 The motion was written on a pre-printed form. It stated that: I, Juan Petrovich, hereby request that William Fisher be withdrawn as my counsel of record, and that another public defender be substituted as my attorney in all future proceedings in the trial court. 2 He told the court that he was concerned that his attorney had been unable to interview certain witnesses. He also explained that he had filed a bar complaint against his lawyer prior to filing the written motion. 2 ¶4 Petrovich was found guilty as charged. He was sentenced to twenty years in prison for sexual conduct with a minor along with consecutive seventeen-year sentences for each count of molestation. He was given 470 days of presentence incarceration credit. He appealed, 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(A)(1) (2003), 13-4031 and -4033(A)(4) (2010). DISCUSSION ¶5 The sole issue on appeal is whether it was error for the trial court to summarily dismiss Petrovich s written motion without inquiring into why he wanted to change counsel. We review the denial of a defendant s request to change counsel for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). ¶6 right The Sixth Amendment guarantees criminal defendants the to representation by competent counsel. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; State v. LaGrand, 152 Ariz. 483, however, is 486, not 733 P.2d entitled 1066, to 1069 counsel (1987). of A choice, meaningful relationship with his or her attorney. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, defendant, or to a State v. 580 (1998) (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993)). 3 ¶7 We find State v. Torres, 208 Ariz. 340, 93 P.3d 1056 (2004), instructive. In Torres, the defendant filed a motion requesting a new lawyer. 58. Id. at 341-42, ¶ 2, 93 P.3d at 1057- Torres asserted 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 his counsel manner. denied was no longer behaving in Id. at 342, ¶ 2, 93 P.3d at 1058. the motion and advised public defender s office. Id. the a professional The trial court defendant to contact the The case proceeded to trial and the defendant was convicted, and he appealed. Id. We reversed, and the supreme court agreed that the trial court abused its discretion when it failed to conduct an inquiry into Torres request. Id. at 342-43, ¶¶ 3, 7, 93 P.3d at 1058-59. ¶8 Our supreme court held that once a request for new counsel is made, the trial court has the duty to inquire as to the basis of a defendant s request for substitution of counsel if the defendant s sufficiently specific. nature of the if it are factually based Id. at 343, ¶ 7, 93 P.3d at 1059. inquiry defendant s request. discretion allegations will depend Id. at ¶ 8. fails to inquire upon the nature of and The the A trial court abuses its into the basis for the defendant s dissatisfaction with counsel or fails to conduct a hearing on the defendant s complaint after being presented with 4 specific factual allegations in support of the request for new counsel. Paris-Sheldon, 214 Ariz. at 504, ¶ 8, 154 P.3d at 1050. ¶9 Here, there was no abuse of discretion. Petrovich filed a conclusory motion asking the trial court to replace his counsel with another public defender. any facts. further. The court was not The motion did not allege legally required to inquire See Torres, 208 Ariz. at 343, ¶ 7, 93 P.3d at 1059. Consequently, the court did not err when it summarily dismissed the written motion. 3 CONCLUSION ¶10 For the foregoing reasons, we affirm Petrovich s convictions and sentences. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ MICHAEL J. BROWN, Judge 3 Petrovich did not appeal the denial of his oral motion to change counsel after the jury was impaneled. 5

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