State v. Trejo ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BENNY GENARO TREJO, Appellant.
No. 1 CA-CR 14-0097
FILED 4-28-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-150337-001
The Honorable Cynthia J. Bailey, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant
STATE v. TREJO
Decision of the Court
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
J O H N S E N, Judge:
¶1 Benny Genaro Trejo appeals his conviction of discharge of a
firearm at a residential structure and the resulting sentence. For the
following reasons, we affirm the conviction and sentence as modified.
FACTS AND PROCEDURAL BACKGROUND
¶2 After Trejo fired a shotgun at a trailer that was occupied as a
residence, the State charged him with discharge of a firearm at a residential
structure, a Class 2 felony.1 The court found Trejo indigent and appointed
him a lawyer.
¶3 A year later, at a pretrial management conference a few weeks
before trial, Trejo told the superior court he had "no confidence" in his
appointed lawyer and said his family was going to try to retain counsel for
him. Construing Trejo's statements as a request for a different appointed
lawyer, the court held Trejo had not offered "anything that would meet the
legal criteria" requiring a change of appointed counsel and denied his
request. The following day, Trejo executed a written motion to change
counsel, which, for the most part, repeated the concerns and arguments he
had made at the management conference.
¶4 Two weeks later, on the day trial was to begin, Trejo moved
to proceed in propria persona. At the time of the hearing on the motion, two
days later, Trejo presented the court with a waiver-of-counsel form. After
reviewing the form, the court permitted Trejo to represent himself and
appointed his attorney as advisory counsel. Without any objection from
Trejo, the court then set a "firm trial date" for four days later.
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Trejo. State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. TREJO
Decision of the Court
¶5 On the day trial was to begin, Trejo told the court he was not
ready to proceed and requested a 60-day continuance. The court denied the
motion. Trejo renewed his motion two days later, and the court again
denied it. At that point, Trejo withdrew his self-representation request and
the court re-appointed his advisory counsel to represent him through trial.
¶6 After a seven-day trial, the jury found Trejo guilty as charged,
and the court sentenced him to 13 years' incarceration. Trejo timely
appealed. 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), 13-4031, -4033 (2015).2
DISCUSSION
A. Denial of Request to Change Counsel.
¶7 Trejo argues the superior court's denial of his request to
change counsel violated his Sixth Amendment right to be represented by
competent counsel. We review the denial for a clear abuse of discretion.
State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8 (App. 2007).
¶8 A criminal defendant has a Sixth Amendment right to be
represented by competent counsel. State v. Moody, 192 Ariz. 505, 507, ¶ 11
(1998). "A defendant is not, however, entitled to counsel of choice, or to a
meaningful relationship with his or her attorney." Id. Generally, a
defendant must show "a complete breakdown in communication or an
irreconcilable conflict between [the] defendant and his appointed counsel."
See State v. Torres, 208 Ariz. 340, 342, ¶ 6 (2004). "To satisfy this burden, the
defendant must present 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." State v. Hernandez, 232
Ariz. 313, 318, ¶ 15 (2013) (quotation omitted).
¶9 The superior court did not abuse its discretion in denying
Trejo's motion. In asking for a new appointed lawyer, Trejo told the court
that he had "no confidence in [his attorney] whatsoever." But "[a] single
allegation of lost confidence in counsel does not require the appointment of
new counsel." State v. Cromwell, 211 Ariz. 181, 186, ¶ 29 (2005). Trejo also
complained that his attorney had not shown him any discovery. He did not
explain, however, what kinds of evidence in particular his lawyer had not
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. TREJO
Decision of the Court
shared with him, and did not tell the court when he had asked to see the
evidence or why he needed to see it. Trejo told the court that his attorney
had not "filed any motions." But she had filed several motions, including a
successful motion to sever the firearms charge from other charges. Trejo
also complained that his attorney had not "seen [him] in a month." Given,
however, that his attorney had represented several times that she was
prepared for trial, the court could conclude she had sufficient contact and
communication with her client. See Paris-Sheldon, 214 Ariz. at 507, ¶ 19 (no
irreconcilable conflict where, among other things, "[the defendant's]
attorney avowed he was prepared for trial and expressed no animosity
toward his client or unwillingness to proceed as her attorney"); see also
Hernandez, 232 Ariz. at 318, ¶ 15. Finally, in his subsequent written motion
for new counsel, Trejo asserted that his lawyer had disregarded his "wishes
and opinions concerning case direction," but he offered no specifics.3
¶10 Trejo alternatively argues that a lesser conflict existed, which
should have tipped the scale in favor of appointing new counsel.
"Something less than irreconcilable conflict becomes merely 'one factor for
a [trial] court to consider' in determining whether to appoint new counsel."
Hernandez, 232 Ariz. at 321, ¶ 34 (alteration in original) (quoting Cromwell,
211 Ariz. at 186, ¶ 29). The court also should consider: (1) whether new
counsel would be confronted with the same conflict; (2) the timing of the
request; (3) the inconvenience to witnesses; (4) the time period already
elapsed between the alleged offense and trial; (5) the proclivity of the
defendant to change counsel; and (6) the quality of counsel. See id. In
weighing these factors, the court must "balance the rights and interests of
the defendant against the public interest in judicial economy, efficiency,
and fairness." Cromwell, 211 Ariz. at 187, ¶ 31; see also Hernandez, 232 Ariz.
at 321, ¶ 34.
¶11 Although the superior court did not explicitly refer to the
foregoing factors, it was not required to, see Hernandez, 232 Ariz. at 321, ¶
35, and the record supports its conclusion that the factors weighed in favor
3 Trejo argues that the fact that he was willing to represent himself
"further evidences the amount of the breakdown in communications
between Trejo and his attorney." In the absence of more information,
however, the superior court did not abuse its discretion in concluding Trejo
had failed to demonstrate an irreconcilable conflict.
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STATE v. TREJO
Decision of the Court
of denying Trejo's request.4 Accordingly, we conclude the court did not
abuse its discretion in denying his request for different counsel.
B. Right to Self-Representation and Denial of Motion to Continue.
¶12 Trejo also argues that the court made his self-representation
impossible by denying his motion to continue after he elected to represent
himself. See Faretta v. California, 422 U.S. 806, 819 (1975); State v. De Nistor,
143 Ariz. 407, 412 (1985). He tries to fit his case within the framework of
State v. Lamar, 205 Ariz. 431, 436-37, ¶ 27 (2003), which reasoned that "an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the defendant's constitutional right to
self-representation." By contrast to the facts in Lamar, however, nothing in
our record reveals that Trejo requested a continuance in conjunction with
his request to proceed in propria persona. See id. at 438, ¶ 33. Nothing in the
record demonstrates that, at the hearing at which the court granted Trejo's
self-representation request, Trejo objected to the court's affirming the "firm
trial date" or otherwise indicated he needed more time to prepare for trial.
According to our record, he did not ask for a continuance until four days
later, on the day trial was to begin. Thus, Trejo's decision to proceed in
propria persona was not made contingent upon the grant of a continuance.
¶13 More broadly, Trejo has not demonstrated that, under the
circumstances, the superior court abused its discretion or acted arbitrarily
in denying his request for a continuance. He argues he required a
4 Nearly all of the factors weigh in favor of denying the change-of-
counsel request. For example, (1) Trejo stated he had "no confidence in [the]
state attorneys whatsoever." This conflict would persist regardless of who
the court appointed. (2) Trejo did not complain about his attorney until just
a few weeks before trial, more than ten months into the representation,
which might suggest his request was motivated by something other than
an "irreconcilable conflict." (3) Because Trejo's request came close to trial, a
change of counsel could have disrupted the trial schedule and
inconvenienced witnesses. (4) More than a year had passed since the
alleged offense, see Arizona Rule of Criminal Procedure 8.2(a)(1) (generally
a defendant in custody should be tried within 150 days of arraignment),
and "[t]he trial had already been postponed numerous times." State v.
LaGrand, 152 Ariz. 483, 487 (1987). (5) This factor weighs in favor of
granting the request because Trejo had not requested a prior change of
counsel. (6) Trejo had a quality attorney who, among other things, had filed
pretrial motions and eventually convinced the court to impose a mitigated
sentence.
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STATE v. TREJO
Decision of the Court
continuance because he had not seen the evidence but does not specify what
trial tactics he would have been able to employ had he been familiar with
the evidence and does not otherwise contend he was prejudiced by the
court's denial of his request. See State v. Forde, 233 Ariz. 543, 555, ¶ 18 (2014)
("We review a trial court's denial of a motion to continue for an abuse of
discretion, which we will find only if the defendant demonstrates
prejudice.") (citations omitted). For these reasons, the superior court did
not abuse its discretion or violate his right to self-representation when it
denied his motion to continue.
C. Sentencing Issue.
¶14 According to the transcript of the sentencing hearing, the
superior court sentenced Trejo to a mitigated term of incarceration as a
repetitive offender. The sentencing order, however, reflects that he was
sentenced to an aggravated term as a dangerous (non-repetitive) offender.
The State agrees with Trejo's contention on appeal that the oral
pronouncement was correct and controls. See State v. Ovante, 231 Ariz. 180,
188, ¶ 38 (2013). Accordingly, we correct the sentencing order to reflect that
Trejo was sentenced as a category-three repetitive offender under A.R.S. §
13-703 (2015), not a dangerous offender under A.R.S. § 13-704 (2015). See id.
CONCLUSION
¶15 For the foregoing reasons, we affirm Trejo's conviction but
modify the sentencing order to reflect that Trejo was sentenced to a
mitigated term as a repetitive offender, not a dangerous offender.
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