In Re Mh2014-003678 ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE MH2014-003678
No. 1 CA-MH 15-0004
FILED 11-10-2015
Appeal from the Superior Court in Maricopa County
No. MH2014-003678
The Honorable Susan G. White, Commissioner
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Anne Phillips
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Bruce P. White, Anne C. Longo
Counsel for Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
In re MH2014-003678
Decision of the Court
N O R R I S, Judge:
¶1 After conducting an evidentiary hearing, the superior court
found by clear and convincing evidence Appellant was, as a result of a
mental disorder, persistently or acutely disabled, in need of psychiatric
treatment, but unwilling and unable to accept voluntary treatment.
Accordingly, the superior court ordered Appellant to undergo a
combination of inpatient and outpatient treatment. On appeal, Appellant
argues we should vacate the treatment order because the superior court did
not allow her additional time to retain private counsel. We disagree.
¶2 By statute, Appellant had the right to retain private counsel.
See Arizona Revised Statutes (“A.R.S.”) sections 36-528(D), -536(A), -
537(B)(1) (Supp. 2015). The superior court, however, has “wide latitude in
balancing the right to counsel of choice against the needs of fairness, and
against the demands of its calendar,” though the court’s decision may not
be “unreasoning and arbitrary.” State v. Aragon, 221 Ariz. 88, 90, ¶ 5, 210
P.3d 1259, 1261 (App. 2009) (citations omitted); see also In re MH 2003-
000240, 206 Ariz. 367, 369, ¶ 9, 78 P.3d 1088, 1090 (App. 2003) (superior court
has discretion to grant motion to continue); A.R.S. § 36-535(B) (Supp. 2015)
(superior court may grant a patient a continuance of up to 30 days). On
review, we consider the particular circumstances of this case, including:
whether other continuances were granted;
whether the defendant had other competent
counsel prepared to try the case; the
convenience or inconvenience to the litigants,
counsel, witnesses, and the court; the length of
the requested delay; the complexity of the case;
and whether the requested delay was for
legitimate reasons or was merely dilatory.
Aragon, 221 Ariz. at 90, ¶ 5, 210 P.3d at 1261 (citation omitted);1 see also MH
2003-000240, 206 Ariz. at 369-70, ¶ 10, 78 P.3d at 1090-91 (no abuse of
discretion in denying motion to continue when appellant first raised the
1Although Aragon arose out of a criminal prosecution, it
discusses relevant factors a court should consider in deciding whether to
allow a continuance to retain private counsel. See In re Jesse M., 217 Ariz.
74, 78, ¶ 19, 170 P.3d 683, 687 (App. 2007) (“[a]lthough a civil commitment
proceeding cannot be equated to a criminal prosecution, . . . the standards
in criminal cases have been examined” in various analogous contexts.)
(internal quotations and citations omitted).
2
In re MH2014-003678
Decision of the Court
issue at the hearing, witnesses were ready and waiting, delay would result
in significant expense to the hospital, and appellant could not pay for
private counsel).
¶3 The petition for court-ordered evaluation (served on
Appellant on November 3, 2014) and the petition for court-ordered
treatment (served on Appellant on November 4, 2014) informed Appellant
of her right to private counsel. Appellant did not request an opportunity to
retain private counsel, however, until November 12, 2014, the first day
scheduled for the evidentiary hearing, although she had been detained in
an inpatient setting for nine days. At the evidentiary hearing, Appellant
did not move to continue, and in fact, her counsel opposed Petitioner’s
motion to continue; Appellant did, however, advise the court of her
differences with court-appointed counsel and requested the opportunity to
retain private counsel.
¶4 Although Appellant requested private counsel, she failed to
present any information to the court that would have led it to reasonably
believe she would be able to retain private counsel. A.R.S. § 36-535(B)
(Supp. 2015). She presented only contradictory and ambiguous
information to support her request, including: she had not yet retained
private counsel; she was unable to retain private counsel because of the
hospital’s phone restrictions; yet she had contacted many attorneys by
phone since her hospitalization; and she may or may not have been able to
pay for private counsel. Furthermore, Appellant’s court-appointed counsel
and counsel’s supervisor both stated counsel was “very thoroughly
prepared” to proceed with the hearing, and Appellant did not present any
evidence—and indeed does not even argue on appeal—counsel failed to
adequately represent her or perform her statutory duties. A.R.S. § 36-537.
Petitioner’s witnesses were ready to proceed the next day, and Appellant
did not say when she might be able to retain counsel.
¶5 Under these circumstances, and given the personal liberty
interest at stake, In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 14, 152 P.3d
1201, 1204 (App. 2007), the superior court was not “unreasoning and
arbitrary” in refusing to delay the evidentiary hearing so that Appellant
could retain private counsel. See supra ¶ 2.
3
In re MH2014-003678
Decision of the Court
¶6 For the foregoing reasons, we affirm the superior court’s
treatment order.
:ama
4