State v. Shockey ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DARREN LEE SHOCKEY,
Appellant.
No. 1 CA-CR 16-0704
FILED 10-26-2017
Appeal from the Superior Court in Mohave County
No. S8015CR201500617
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. SHOCKEY
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O H N S E N, Judge:
¶1 Darren Lee Shockey appeals his convictions and sentences for
resisting arrest, aggravated assault, misconduct involving weapons and
possession of marijuana. Shockey argues on appeal that the superior court
erred in denying his request for new counsel and in failing to hold a hearing
on the issue. For the following reasons, we affirm Shockey's convictions
and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 Shockey was arrested after a traffic stop and charged with
resisting arrest, a Class 6 felony; aggravated assault, a Class 4 felony;
misconduct involving weapons, a Class 1 misdemeanor; and possession of
marijuana, a Class 6 felony.
¶3 The court appointed the public defender's office to represent
Shockey. Before trial, Shockey submitted several handwritten "notices" to
the court, and at trial, he refused to sit with his appointed lawyer in the
courtroom. The jury found him guilty on the felony charges, and the court
convicted him of the misdemeanor. The court imposed concurrent terms of
incarceration, the longest of which was one year.
¶4 We have jurisdiction over Shockey's timely appeal pursuant
to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2017), 13-4031, and -4033(A).1
DISCUSSION
¶5 Shockey argues the superior court violated his Sixth
Amendment right to counsel by failing to conduct a hearing pursuant to
1 Absent material revision since the date of the offense, we cite to the
current version of statutes.
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STATE v. SHOCKEY
Decision of the Court
State v. Torres, 208 Ariz. 340 (2004), and appoint new counsel because he
had an "irreconcilable conflict" with his court-appointed attorney. We
review a superior court's decision on a motion to substitute counsel for an
abuse of discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998).2
¶6 "The Sixth Amendment guarantees criminal defendants the
right to representation by counsel." Torres, 208 Ariz. at 342, ¶ 6. Indigent
defendants charged with felonies are entitled to have competent counsel
appointed to represent them. Id. However, the Sixth Amendment does not
entitle a defendant to his "counsel of choice, or to a meaningful relationship
with his or her attorney." Id. (citation omitted). When a defendant asks the
court to appoint him a new lawyer, the "judge has the duty to inquire as to
the basis" for the request. Id. at 343, ¶ 7 (citation omitted). "The nature of
the inquiry will depend upon the nature of the defendant's request. . . .
[G]eneralized complaints about differences in strategy may not require a
formal hearing or an evidentiary proceeding." Id. at ¶ 8. The court is
required to conduct a formal hearing only if the defendant "makes
sufficiently specific, factually based allegations in support of his request for
new counsel." Id. (quotation and citation omitted).
¶7 Shockey argues he repeatedly asked the court to appoint new
counsel and "request[ed] a hearing" on the issue, but the court "denied the
request without holding a hearing to allowing him to state his grounds."
Our review of the record, however, does not reveal that Shockey ever asked
for a hearing regarding the issue of new counsel. Nor did Shockey ever
assert "specific, factually based allegations" showing that he had an
irreconcilable conflict with his counsel. See Torres, 208 Ariz. at 343, ¶ 8
(quotation and citation omitted).
¶8 Soon after he was indicted, Shockey submitted a handwritten
letter to the court asking it to "quash this case," but making no request
regarding representation. Then, at the first omnibus hearing on September
21, 2016, Shockey's court-appointed counsel told the court his client wished
to represent himself. The court asked Shockey, "[I]s that correct, that it is
your preference to represent yourself in each of these matters?" Shockey
responded by handing the court another handwritten letter containing no
request regarding his representation, but requesting that the charges
2 On appeal, Shockey offers some criticism of his appointed counsel's
actions at trial. Any contention that his trial lawyer was ineffective,
however, may not be raised on appeal but rather must be raised under
Arizona Rule of Criminal Procedure 32.1. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9
(2002).
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STATE v. SHOCKEY
Decision of the Court
against him be dismissed. The court again asked Shockey whether he
desired to represent himself, to which Shockey replied, "I just don't
understand. I object to everything."
¶9 At a status conference on October 23, 2016, the court noted the
previous discussion regarding Shockey's purported desire to represent
himself and stated that it considered Shockey to be represented by counsel.
Before that status conference, Shockey had filed with the court a "Bill of
Particulars," which did not address the issue of his representation. On
October 26, 2015, Shockey's counsel filed a "Motion to Withdraw and Have
New Counsel Appointed." The motion stated that Shockey had expressed
an interest in representing himself and that there was "little to no
communication between counsel and client." The motion further expressed
counsel's concern that "no amount of information" counsel could give
Shockey could obviate Shockey's concerns and desire to represent himself,
and stated that Shockey had been advised to put his request to represent
himself in writing, but he had not done so. The court denied counsel's
motion at a December 2, 2015 status conference. During the status
conference, counsel reiterated Shockey's expressed desire to represent
himself and recommended that the court appoint new counsel. Upon
denying the motion, the court stated:
The reason I'm denying the motion is it sounds like []
the issue that [counsel] is having with Mr. Shockey is that Mr.
Shockey simply does not want to cooperate with [counsel] in
his representation.
I have admonished Mr. Shockey in the past that he
needs to take advantage of his attorney's services and he
needs to cooperate with his attorney in his representation. If
he fails to do so, he's certainly going to do so at his own peril.
I am certain that any attorney I appoint to represent
Mr. Shockey may very well have the same issues with Mr.
Shockey[.]
¶10 After denying counsel's motion to withdraw, the court further
advised Shockey that if he wished to represent himself, he would have to
put the request in writing and the court would hold a hearing. The court
asked Shockey if he intended to make such a request, to which Shockey
responded, "[I]t's all on the notice, for the record, that I filed today." In
Shockey's handwritten "notice," he requested a continuance "so that [he]
may seek law counsel assistance" and stated, "[I] object to court appointed
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STATE v. SHOCKEY
Decision of the Court
public defender. [I] am sui juris." Shockey filed a similar notice on January
7, 2016, which stated, in part, "[I] am self present (sui juris) [sic]of my own
right to settle the matter and offer restoration." At the status conference on
that date, the prosecutor addressed Shockey's notice and asked the court
whether it should "clarify" whether Shockey was making a request to
represent himself. The court replied:
Well, I did read that, and I did not interpret that as the
defendant's request to represent himself. I took that as his
objection to having [counsel] represent him because I believe
we've had some hearings in the past where the defendant
wanted new counsel and I denied those requests.
I have also mentioned to the defendant, probably on
more than one occasion that if, in fact, he does want to
represent himself he needs to file a request with the Court;
making it very clear that he is requesting to represent himself.
If so, then we'll have a hearing, at which time I'll be
required to make a determination whether or not the
defendant is basically mentally competent to waive his right
to have an attorney represent him.
¶11 Shockey subsequently filed two other "notices" with the court
that contained only the following general statements regarding
representation: "[I] do not consent to court appointed public defender. . . .
[I] seek law counsel assistance," and "[I] seek counsel assistance in law. [I]
as a man object to, and [I] do not accept appointed public defender from the
B.A.R. and [I] a man do not accept being a defendant." Then, on the first
day of trial, after refusing to sit with his counsel, Shockey stated in court, "I
wish to have proper law counsel assistance." The court responded: "Mr.
Shockey, you do have proper law counsel for your assistance. The fact that
you have chosen not to cooperate with [your counsel] is a decision that you
have made."
¶12 Throughout the proceedings, Shockey made only vague
statements regarding his legal representation. He did not articulate any
"specific, factually based allegations" regarding his appointed attorney,
cited no "differences in strategy," and did not allege any "breakdown in
communication, or an irreconcilable conflict" between himself and his
counsel. See Torres, 208 Ariz. at 343, ¶ 8 (quotation and citation omitted).
Therefore, even if we construe Shockey's statement that he wished to "seek
counsel assistance in law" as a request for a change of counsel, the request
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STATE v. SHOCKEY
Decision of the Court
was insufficient to require a hearing under Torres. See id. Further, given the
general nature of Shockey's requests, the superior court made a sufficient
inquiry when it repeatedly asked him whether he wanted to represent
himself and when it addressed his counsel's motion to withdraw. Based on
that inquiry, the court could properly conclude that the problem was
Shockey's own refusal to cooperate or communicate with counsel. See State
v. LaGrand, 152 Ariz. 483, 486 (1987) (among factors relevant to motion for
change of counsel are "whether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would be confronted
with the same conflict").
¶13 Moreover, the court admonished Shockey several times that
he should participate in his representation and communicate with his
attorney and that failure to do so would be "at his own peril," and Shockey
never raised any reason preventing him from doing so. The court also gave
Shockey multiple opportunities to submit a written request regarding his
expressed desire to represent himself, if that were what he really wanted,
and stated several times that it would be willing to hold a hearing on the
subject of Shockey's representation if he made his request explicit and
submitted it to the court in writing. See Ariz. R. Crim. P. 6.1(c) ("A
defendant may waive his or her rights to counsel . . . in writing, after the
court has ascertained that he or she knowingly, intelligently and voluntarily
desires to forego them.") Accordingly, the superior court did not abuse its
discretion in responding to Shockey's requests regarding his legal
representation.
CONCLUSION
¶14 For the foregoing reasons, we affirm Shockey's convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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