State v. Hennings

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KARL FREDDRICK HENNINGS,
Appellant.
No. 1 CA-CR 22-0040
Appeal from the Superior Court in Mohave County
No. S8015CR201801742
The Honorable Douglas Camacho, Judge
AFFIRMED
COUNSEL
Arizona Attorney General′s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee
Rideout Law, PLLC, Lake Havasu
By Bradlee H. Rideout, Wendy Marcus
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Karl Hennings appeals his felony convictions and sentences
for third-degree burglary and theft. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view and recount the facts in the light most favorable to
sustaining the jury’s verdict. See State v. Payne, 233 Ariz. 484, 509, ¶ 93
(2013).
¶3 Hennings hatched a plan to steal an ATM machine and
recruited help. As captured by a surveillance camera, Hennings and two
men broke into a Texaco gas station in the wee hours of October 10, 2018,
carried an ATM machine from inside the store to an all-terrain vehicle
parked near the front door, and drove away. After driving through a field
to the bank of the Colorado River, the men opened the ATM and took the
cash.
¶4 Hennings was indicted for third-degree burglary and theft;
the state alleged nine prior felony convictions as aggravators. He was
represented by counsel at his arrangement on November 13, 2018, but a
second attorney was appointed to represent him on November 19. That
attorney later moved for permission to withdraw as counsel, which the
court granted on December 27. A week later, on January 4, 2019, the court
noted that Hennings had been assigned a third attorney. That attorney
soon moved for permission to withdraw, which the court granted on
January 14. Then the superior court ordered Indigent Defense Services to
appoint new counsel. A fourth attorney named Gerald Gavin then
appeared for Hennings on February 4.
¶5 At some point, never identified in the record, the state offered
Hennings a plea agreement. The plea agreement was set to expire on April
1, but the court held a Donald hearing1 on May 22 at which it “advise[d] the
1 State v. Donald, 198 Ariz. 406, 418, ¶ 46 (App. 2000).
STATE v. HENNINGS
Decision of the Court
Defendant of the possible range of penalties involved if he chose to accept
the plea offer.” Hennings affirmed to the court he understood the risks of
going to trial. Gavin said his client “was not interested in the deal,” which
was “completely up to [the client].” Hennings then asked the court for
permission to fire Gavin because Gavin had allegedly made an
inappropriate comment to him and would not listen or respond to his
instructions on how to defend the case. Gavin denied making any
inappropriate comments. He confirmed, however, that “I’m the lawyer,”
and Hennings “doesn’t get to play the lawyer.” The court refused
Hennings’ request for new counsel.
¶6 A unanimous jury convicted Hennings on both counts,
finding the value of the stolen property exceeded $3,000, the offenses were
committed for pecuniary gain, and accomplices were present. The court
sentenced Hennings to 12 years’ imprisonment for the burglary count and
six years’ imprisonment for the theft count, served concurrently. Hennings
timely appealed. We have jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§
12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶7 Hennings raises two arguments on appeal. We take them in
turn.
I. Deprivation of Counsel
¶8 Hennings first argues he was deprived his right to counsel
under the Sixth Amendment because “[t]he first three assigned attorneys
withdrew quickly due to conflict,” and Gavin never discussed the plea deal
with him before it expired. We review deprivation of counsel claims de
novo because they implicate a defendant’s Sixth Amendment rights. See
State v. Koepke, 240 Ariz. 188, 190, ¶ 6 (App. 2016). The “complete denial of
the right to counsel constitutes structural error requiring reversal,” id., and
requires a “deprivation of counsel entirely, or denial of access to counsel at
a critical stage in the trial process,” State v. Tucker, 205 Ariz. 157, 162, ¶ 23
(2003).
¶9 We are not persuaded. The court was mindful to protect
Hennings’ rights as he shuffled from counsel to counsel, frequently
continuing pre-trial proceedings for defense counsel to be hired and
brought up to speed. Beyond that, Hennings had counsel at all critical
stages of the trial process. The record also shows that Hennings was told
about and rejected the plea deal.
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STATE v. HENNINGS
Decision of the Court
II. Refusal to Disqualify Counsel
¶10 Hennings next argues the superior court erred by refusing to
disqualify Gavin. We review a “court’s decision on the disqualification of
counsel for abuse of discretion.” State v. Marner, 251 Ariz. 198, 200, ¶ 8
(2021). To prevail, Hennings had to show “either a complete breakdown in
communication or an irreconcilable conflict.” State v. Riley, 248 Ariz. 154,
168, ¶ 13 (2020) (cleaned up). He did neither.
¶11 The superior court did not abuse its discretion. Hennings
accused Gavin of an implied insult, which Gavin denied; Gavin then
assured the court he would “do [his] best to assist” his client going forward.
We will not second-guess the superior court. See Amparano v. ASARCO,
Inc., 208 Ariz. 370, 379, ¶ 34 (App. 2004) (affirming superior court’s refusal
to disqualify counsel when reasonable basis existed to support its decision).
CONCLUSION
¶12 We affirm.
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