Opinion
2 CA-CR 2021-0069
01-06-2023
The State of Arizona, Appellee, v. Kevin Dunbar, Appellant.
Kris Mayes, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20152260001 The Honorable Catherine M. Woods, Judge
Kris Mayes, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring concurred and Judge Brearcliffe concurred in part and dissented in part.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Kevin Dunbar appeals from his resentencing for attempted first-degree murder, kidnapping, possession of a deadly weapon by a prohibited possessor, and aggravated assault, after this court affirmed his convictions but vacated the sentences on all counts. See State v. Dunbar, 249 Ariz. 37, ¶ 1 (App. 2020), review denied (Ariz. Dec. 15, 2020). Dunbar argues that his sentences should be vacated because he was denied the right to self-representation at his resentencing. He also contends the trial court erred in imposing an aggravated sentence on the attempted first-degree murder count and in ordering certain sentences to be served consecutively. For the following reasons, we remand this case for further proceedings consistent with this decision.
Factual and Procedural Background
¶2 The facts relevant to this appeal are summarized below, and a detailed recitation supporting Dunbar's convictions is set forth in our prior opinion. See id. ¶¶ 2-4. After a jury trial, Dunbar was convicted of attempted first-degree murder, kidnapping, possession of a deadly weapon by a prohibited possessor, and aggravated assault. The trial court imposed concurrent and consecutive prison terms totaling thirty-seven years. Dunbar appealed, raising a number of issues, including that the court had erred by denying his request for self-representation at trial and had erred in sentencing.
¶3 We affirmed his convictions, but agreed that the trial court had improperly imposed enhanced sentences on the counts of attempted first-degree murder, kidnapping, and possession of a deadly weapon by a prohibited possessor. Id. ¶¶ 38-39, 55. We also agreed that the court had erred in aggravating the counts of possession of a deadly weapon by a prohibited possessor and aggravated assault. Id. ¶¶ 42-43, 45-46. Finally, although we concluded the court had not erred in imposing consecutive sentences for attempted first-degree murder and kidnapping because that conduct did not constitute a single act, we determined the court had erred by imposing consecutive sentences for attempted first-degree murder and possession of a deadly weapon by a prohibited possessor. Id. ¶¶ 47, 51-54. We therefore vacated Dunbar's sentences on all counts and remanded for resentencing. Id. ¶ 55.
¶4 On remand, Dunbar was sentenced to twenty years' imprisonment: concurrent sentences for attempted first-degree murder, possession of a deadly weapon by a prohibited possessor, and aggravated assault, the longest of which is ten years, followed by a term of ten years for kidnapping. Dunbar appealed, and we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(4).
Discussion
Right to Self-Representation
¶5 Dunbar argues the trial court committed structural error at his resentencing by denying his request for self-representation. We review a court's denial of a motion to proceed pro se for an abuse of discretion. State v. Weaver, 244 Ariz. 101, ¶ 7 (App. 2018).
¶6 Before his trial, Dunbar chose to represent himself, and the trial court appointed advisory counsel. However, about a year later, Dunbar began to vacillate as to whether he wished to proceed pro se. He agreed that he wanted advisory counsel to represent him in the future, however, at a later hearing, he told the court he had decided to proceed pro se. The court warned him that he would "have to live with [his] decision." Shortly after, Dunbar filed a motion agreeing to relinquish his right to self-representation "until and through the trial." He acknowledged he understood that the court "may not allow him to reassert his right to proceed in propria persona between now and the trial." Nonetheless, on the morning of trial, before the jury had been empaneled, Dunbar attempted to raise a motion on his own behalf, which the court refused to consider because he was represented by counsel. Dunbar objected, and indicated he wished to represent himself but the court denied his request. On appeal, we concluded "Dunbar [had] forfeited his right to self-representation through his vacillating positions." Dunbar, 249 Ariz. 37, ¶ 17.
¶7 At Dunbar's resentencing, he was represented by counsel. After hearing a statement from the victim and arguments from the state and Dunbar's counsel, the trial court asked if Dunbar wanted to speak. Dunbar stated that he had not had an opportunity to consult with his attorney before the hearing or to review the sentencing memorandum filed on his behalf. The court told him, "[I]f you're asking me to give you a continuance so that you can talk directly with your lawyer before I pronounce your sentence, I'm willing to do that." The court found good cause to continue the hearing and stated that it had already fully heard from the victim, the state, and from defense counsel. It stated "we're not going to rehash all that the next time" but it would hear from Dunbar and then pronounce sentence.
¶8 At the continued hearing, the trial court noted that Dunbar had filed a request to proceed pro se. The court denied the request, finding it "the law of this case" that he had "forfeited his right to self-representation through his vacillating positions and his signed waiver," relying on our opinion in Dunbar, 249 Ariz. 37, ¶¶ 17-18. The court also found his request untimely. Nonetheless, it told Dunbar that it had read his two pro se memoranda on sentencing and would take those into account.
¶9 Dunbar objected to the court's finding that he had forfeited his right to self-representation, telling the court he did not intend to delay and that he had still not spoken to counsel but disagreed with counsel's position on sentencing. The court responded that it had not stated that he was delaying, and recessed the hearing so that Dunbar could speak with counsel. After the recess, Dunbar renewed his objection to representation by counsel and the court then pronounced his sentence.
¶10 On appeal, Dunbar asserts that the law of the case doctrine is inapplicable to this context. We agree. Law of the case is a procedural doctrine providing that,
the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal . . . provided the facts and issues are substantially the same as those on which the first decision rested.State v. King, 180 Ariz. 268, 278 (1994) (quoting In re Monaghan's Est., 71 Ariz. 334, 336 (1951)). In Dunbar's first appeal from his convictions and sentences, we affirmed that the trial court had not erred in denying his request to represent himself at trial because of his vacillation and signed waiver. Dunbar, 249 Ariz. 37, ¶¶ 17-18. Dunbar's 2017 signed waiver stated that he agreed "to relinquish his right to represent himself until and through the trial currently scheduled for [November 2017]." Id. ¶¶ 8, 17. Thus, Dunbar waived his right to self-representation up to and through trial, the waiver did not address the penalty phase of the proceedings. Id. Likewise, our opinion addressed whether or not he had forfeited his right to self-representation at trial, not at sentencing, an issue Dunbar did not raise in his first appeal. Id. ¶¶ 10-18; see Appellant's Opening Brief, ¶¶ 9-24, Dunbar, 249 Ariz. 37 (No. 2 CA-CR 2018-0064). And our opinion certainly did not address the issue of waiver of counsel at resentencing. Given that both the facts and the issue at hand are different from what we decided in Dunbar's first appeal, the court erred in applying law of the case doctrine here.
¶11 The state distinguishes waiver from forfeiture of the right to self-representation, arguing that Dunbar's prior forfeiture means the trial court was within its discretion to bar him from asserting his pro se right in resentencing some years later. This argument is unavailing for the same reasons that the law of the case doctrine does not apply-Dunbar's forfeiture was based on his conditional waiver and on his previous vacillation, see Dunbar, 249 Ariz. 37, ¶¶ 17-18, neither of which occurred at resentencing.
¶12 Dunbar further argues that his request for self-representation was timely, and even if it were not, the trial court erred because it failed to weigh the relevant factors in denying an untimely request. He asserts that his motion to proceed pro se and his sentencing memoranda were all filed one week into the approximately three-week continuance, thus well in advance and without causing delay. Furthermore, he contends he had good cause to assert his right to self-representation: he disagreed with counsel's memorandum, which he asserts did not present mitigation evidence, and he and counsel had not consulted before its filing. The state counters that because the request was untimely, it was within the court's discretion to deny it, and the United States Supreme Court "has not separately extended [the right to self-representation] beyond a defendant's trial."
¶13 The Sixth Amendment to the United States Constitution guarantees a defendant the right to represent himself. Faretta v. California, 422 U.S. 806, 819 (1975). There is no question that Dunbar had a Sixth Amendment right to counsel at resentencing, see Mempa v. Rhay, 389 U.S. 128, 133-37 (1967), and the correlative right to waive assistance of counsel, see Faretta, 422 U.S. at 819; State v. Lamar, 205 Ariz. 431, ¶ 22 (2003); Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000). In the context of self-representation at trial, our supreme court has directed that if a competent defendant's request for self-representation is timely, unequivocal, voluntary, knowing, and not for purposes of delay, it should be granted. See Lamar, 205 Ariz. 431, ¶ 22; Weaver, 244 Ariz. 101, ¶ 8.
¶14 As the state points out, in that context our supreme court has said a motion is timely if made before the jury is empaneled. But the situation here-a request made during a remanded sentencing proceeding-is distinct from cases involving requests at trial. See, e.g., State v. De Nistor, 143 Ariz. 407, 412-13 (1985) (request made mid-trial); Lamar, 205 Ariz. 431, ¶¶ 22-23 (request made pre-trial); cf. Coleman v. Johnsen, 235 Ariz. 195, ¶¶ 17, 20 (2014) (defendant may file request to self-represent in appeal no later than thirty days after filing notice of appeal). Generally, a timely request is one made "before meaningful trial proceedings have commenced." Weaver, 244 Ariz. 101, ¶ 9 (quoting Lamar, 205 Ariz. 431, ¶ 22). If the request is untimely, the trial court has discretion to grant or deny it and in so doing should consider factors including "the reasons for the defendant's request, the quality of counsel, the defendant's proclivity to substitute counsel, and the disruption and delay expected in the proceedings if the request were to be granted." De Nistor, 143 Ariz. at 413 (quoting People v. Barnes, 636 P.2d 1323, 1325 (Colo.App. 1981)); cf. Coleman, 235 Ariz. 195, ¶ 20 (appellate court also may consider De Nistor factors if defendant makes untimely request for self-representation on appeal). This framework "gives the defendant the opportunity to assert the right of self-representation but not at the expense of the orderly administration of the judicial process." De Nistor, 143 Ariz. at 413.
¶15 "[T]he right to appear pro se exists to affirm the accused's individual dignity and autonomy," and its impermissible denial "cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 &178 (1984). A defendant need not show prejudice; such structural error requires reversal. State v. McLemore, 230 Ariz. 571, ¶ 15 (App. 2012). "Even at sentencing, where the complexities of trial and the difficult strategic choices are past, a court must respect the wishes of a defendant who unequivocally wishes to exercise his or her right to proceed pro se." United States v. Mancillas, 880 F.3d 297, 302 (7th Cir. 2018) (denial of right to self-represent during sentencing not subject to harmless-error analysis); accord United States v. Sanders, 843 F.3d 1050, 1054-55 (5th Cir. 2016); United States v. Loya-Rodriguez, 672 F.3d 849, 859 (10th Cir. 2012). But see United States v. Maness, 566 F.3d 894, 897 (9th Cir. 2009) (improper denial of defendant's request to proceed pro se at sentencing subject to harmless-error analysis).
¶16 Our dissenting colleague's focus on Dunbar's failure to establish that the purported deprivation of his right to self-representation affected the guilt phase of trial misses the significance of his right to self-representation at the post-remand sentencing proceeding held years later. In cases such as this one, where the evidence of guilt is overwhelming, the implications of the trial court's broad sentencing discretion-the exercise of which can result in many more years of incarceration-often are, as a practical matter, of as much consequence as a determination of guilt. In our view, the denial of the right to self-representation under such circumstances constitutes structural error not subject to a harmless error analysis.
And, while the dissent speculates that the trial judge would have necessarily imposed an identical sentence regardless of the identity of the advocate, a defendant's right to self-representation is not contingent upon a showing that he or she would have achieved a better result than counsel.
¶17 At Dunbar's resentencing, meaningful proceedings commenced at the start of the hearing. When it granted the continuance, the trial court observed that it had already heard fully from the victim, the state, and Dunbar's counsel. Dunbar's request, which came during the approximately three-week continuance, was thus untimely. Cf. Weaver, 244 Ariz. 101, ¶ 9.
¶18 However, the trial court's primary reason for denying Dunbar's request for self-representation was not its untimeliness, but that he had forfeited his right to self-representation. As a result of the court's mistaken belief that it was bound by the law of the case, it is unclear if it considered any of the De Nistor factors. The only factor it addressed was delay-commenting in response to Dunbar's objection that his request did not delay the proceedings-and that factor would favor granting even an untimely request for self-representation. See De Nistor, 143 Ariz. at 413.
¶19 Further, on the record before us, three of the other De Nistor factors appear to weigh in favor of granting Dunbar's request, despite its untimeliness. See id. Dunbar had good reason for his request given that he disagreed with the positions taken by his counsel, he had submitted his pro se request and sentencing memoranda in time for the court to be able to read and consider them, and he did not vacillate in his desire for self-representation during resentencing. As to the remaining factor, "quality of counsel," id., nothing in the record suggests it was a relevant factor.
¶20 Thus, the record here suggests that the trial court, believing it was bound by the law of the case, failed to exercise its discretion in determining whether Dunbar's untimely request for self-representation should be granted. Cf. State v. Vermuele, 226 Ariz. 399, ¶ 15 (App. 2011) (court abuses its discretion in failing to consider mitigating evidence based on mistaken belief it is "barred from doing so"). As described above, the De Nistor factors generally seemed to favor granting even an untimely request for self-representation, suggesting the court did not consider them. We therefore remand with instructions to the trial court to consider the De Nistor factors to determine whether Dunbar's request should have been granted, and if so, to vacate his sentences and schedule a resentencing. See McLemore, 230 Ariz. 571, ¶ 15.
Sentencing
¶21 Although we remand to the trial court to consider Dunbar's request in light of De Nistor, we nonetheless address the remaining issues raised in the event the court determines Dunbar's sentences should be vacated, as these issues are likely to recur during resentencing. See State v. May, 210 Ariz. 452, ¶ 1 (App. 2005).
Aggravated Sentences
¶22 In Dunbar's first appeal, we concluded that "the use and possession of a deadly weapon could properly be applied as a statutory aggravating factor under [A.R.S.] § 13-701(D)(2) to expose [him] to a maximum sentence for [attempted first-degree murder] and [kidnapping]." Dunbar, 249 Ariz. 37, ¶ 44. Dunbar had challenged the trial court's application of his use of a deadly weapon as an aggravating factor in sentencing for attempted first-degree murder "because it was not alleged, proven, or inherent to [that] crime[]." Appellant's Opening Brief, ¶¶ 32, 35-36, Dunbar, 249 Ariz. 37 (No. 2 CA-CR 2018-0064). At that time, Dunbar argued "attempted murder may be a completed offense without the use, threatened use, or possession of a deadly weapon or dangerous instrument." Id. ¶ 35. Dunbar now raises a different issue, that his attempted first-degree murder sentence could not be aggravated by the use of a deadly weapon because it was "an essential element of the offense." We review de novo whether a particular aggravating factor is an element of the offense that may not be used to aggravate a sentence. State v. Tschilar, 200 Ariz. 427, ¶ 32 (App. 2001).
¶23 The "[u]se, threatened use or possession of a deadly weapon" in the commission of a crime may be an aggravating circumstance unless it is "an essential element of the offense of conviction." § 13-701(D)(2). The criminal attempt statute requires intent and "any step in a course of conduct planned to culminate in commission of an offense." A.R.S. § 13-1001(A)(2). A person commits first-degree murder if by "[i]ntending or knowing that the person's conduct will cause death, the person causes the death of another," with premeditation. A.R.S. § 13-1105(A)(1). Thus, the use of a deadly weapon is not an essential element of attempted first-degree murder. See State v. King, 226 Ariz. 253, ¶¶ 5, 21-28 (App. 2011) (possible to commit homicide without using dangerous instrument); cf. State v. Cleere, 213 Ariz. 54, ¶ 6 (App. 2006) (serious physical injury permissible aggravating circumstance because "one could commit attempted murder by taking a step far short of inflicting or even threatening serious physical injury"). We previously determined that the trial court could properly consider the use and possession of a deadly weapon as a statutory aggravating factor for Dunbar's attempted first-degree murder conviction because he had admitted to its possession at trial. Dunbar, 249 Ariz. 37, ¶ 44. Because the use or possession of a deadly weapon was not an essential element of the crime, the court did not err in imposing an aggravated sentence for attempted first-degree murder.
Consecutive Sentences
¶24 We previously reviewed whether the trial court could impose consecutive sentences for Dunbar's convictions for attempted first-degree murder and kidnapping. Id. ¶¶ 47-53. We determined that because those convictions were supported by conduct that was not a single act, consecutive sentences could be imposed without violating A.R.S. § 13-116. Id. ¶ 52. In this appeal, Dunbar again argues that his conduct underlying his convictions for attempted murder and kidnapping constituted a single act. Because the facts and circumstances of the conduct underlying Dunbar's convictions are unchanged, our previous decision on this issue is the law of the case. See King, 180 Ariz. at 278; State v. Youngblood, 173 Ariz. 502, 504-05 (1993) ("preclusion should occur on remand after direct appellate review has been exhausted").
Disposition
¶25 For the foregoing reasons, we remand this case for further proceedings consistent with this decision.
BREARCLIFFE, Judge, concurring in part and dissenting in part:
¶26 I concur in the decision as to the issue of consecutive sentencing. I respectfully dissent from the decision as to its extension of structural error analysis to the denial of a motion for self-representation at sentencing. Rather than structural error analysis, I would apply harmless error analysis and, seeing no prejudice, affirm.
Structural Error
¶27 The majority extends structural error analysis beyond its appropriate bounds. Structural errors "'infect[] the entire trial process' from beginning to end." State v. Ring, 204 Ariz. 534, ¶ 46 (2003) (quoting Neder v. United States, 527 U.S. 1, 8 (1999)). These structural errors "render a trial fundamentally unfair," and "deprive defendants of 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.'" Neder, 527 U.S. at 1, 8-9 (omission in Neder) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
¶28 The United States Supreme Court has found structural error only in a "a very limited class of cases." Johnson v. United States, 520 U.S. 461, 468-69 (1997); Ring, 204 Ariz. 534, ¶ 46 ("The Supreme Court has defined relatively few instances in which we should regard error as structural."). These cases, listed in Johnson and Ring, include a biased trial judge, Tumey v. Ohio, 273 U.S. 510 (1927), a total deprivation of the right to counsel, Gideon v. Wainwright, 372 U.S. 335 (1963), denying the right to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168 (1984), denying access to criminal defense counsel during key moment of trial, Geders v. United States, 425 U.S. 80 (1976), excluding a grand juror on the basis of race, Vasquez v. Hillery, 474 U.S. 254 (1986), excluding a juror for his views on capital punishment, Gray v. Mississippi, 481 U.S. 648 (1987), denying a public trial, Waller v. Georgia, 467 U.S. 39 (1984), and erroneous reasonable doubt instructions, Sullivan v. Louisiana, 508 U.S. 275 (1993). "For all other constitutional errors, reviewing courts must apply harmless-error analysis." Neder, 527 U.S. at 1-2. Indeed, "most trial error, and even most constitutional error, is reviewed for harmless error." State v. Hickman, 205 Ariz. 192, ¶ 28 (2003).
¶29 Such is true of errors, even constitutional ones, at sentencing. For example, in Hickman, 205 Ariz. 192, ¶ 29, our supreme court recounted that whether evidence was admitted in the sentencing phase of a criminal trial in violation of the Sixth Amendment as one of "numerous instances . . . in which constitutional violations are subject to harmless error analysis." Accord Satterwhite v. Texas, 486 U.S. 249 (1988) (applying harmless error review when defense counsel was not given notice of adverse expert testimony at sentencing phase of capital case in violation of the Sixth Amendment right to counsel).
¶30 The majority relies on McKaskle, 465 U.S. 168, 177 n.8 &178, and State v. McLemore, 230 Ariz. 571, ¶ 15 (App. 2012), in concluding that denial of the right to proceed pro se "cannot be harmless" and must be subject to structural error analysis. In doing so, it disregards the chief distinguishing features of those cases that self-representation was denied throughout the trial, from start to finish. McKaskle, 465 U.S. 168, n.8 ("[T]he defendant's right to proceed pro se exists in the larger context of the criminal trial designed to determine whether or not a defendant is guilty of the offense with which he is charged." (second emphasis added)); McLemore, 230 Ariz. 571, ¶ 11 (trial court ignored defendant's request to proceed pro se made as early as a year before trial began). The majority also disregards Supreme Court cases Rose, Johnson, and Neder-which post-dated McKaskle-and uniformly hold that structural error is only applied when the entirety of the trial process is tainted, from start to finish. Rose, 478 U.S. at 577-79; Johnson, 520 U.S. at 468-69; Neder, 527 U.S. at 8-9.
¶31 The majority's extension of structural error analysis even to these circumstances goes too far. The Arizona Supreme Court's partial affirmance in State v. Henderson, 210 Ariz. 561 (2005), is instructive. In its opinion, citing, among other cases, Neder, 527 U.S. 1, our supreme court agreed with this court's determination that Blakely error in the sentencing phase of a trial is subject to harmless error analysis because it "does not infect the entire trial process." Id. ¶¶ 12-17. In the court of appeals' opinion, the court first had to determine whether Blakely error was structural error, requiring a reversal irrespective of prejudice, or merely trial error, requiring a finding of prejudice and either harmless or fundamental error. State v. Henderson, 209 Ariz. 300, ¶ 10 (App. 2004), vacated in part on other grounds, 210 Ariz. 561, ¶ 12 (2005). The court concluded that the failure to submit aggravating factors to a jury as required by Blakely did not amount to structural error because it did not infect the entire trial process, but rather only one aspect of the trial. Id. ¶ 30 (citing Neder, 527 U.S. at 8).
Although the delayed resentencing in this case is not the typical circumstance in which these principles have been applied, it remains that it is not our role to extend the application of structural error analysis beyond the limits set by higher courts.
Blakely v. Washington, 542 U.S. 296, 304 (2004) ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' and the judge exceeds his proper authority." (citation omitted) (quoting J. Bishop, Criminal Procedure § 87, at 55 (2nd ed. 1872))).
¶32 As part of its analysis, the court of appeals had rejected the argument that the guilt phase and the sentencing phase of a trial should be viewed in isolation as distinct stages, such that an error affecting only the sentencing phase is subject to structural error analysis if that same error would have been subject to structural error analysis in the guilt phase. Id. ¶¶ 48-51. It looked to Ring, 204 Ariz. 534, ¶ 50 &n.19, where, in the capital context, the Arizona Supreme Court had rejected the idea that the guilt phase and sentencing phase of a capital trial are essentially distinct. Henderson, 209 Ariz. 300, ¶¶ 48-49. The court in Ring rejected the conclusion that, because it is structural error to deny the right to a jury in the guilt phase, it must be structural error to fail to present an element of the case to a jury in the sentencing phase. Ring, 204 Ariz. 534, ¶ 50 &n.19. The majority in Ring had explained that "[a] capital trial comprises just one trial, divided into guilt and sentencing phases, and has always been understood as such, both by this court and by the U.S. Supreme Court." Id. n.19. As a consequence, any error in submitting one element of the offense to a jury at the sentencing phase was not structural error because it only affected "the submission of one element rather than the entire trial and did not render the entire trial fundamentally unfair." Id. ¶ 50 (citing Neder, 527 U.S. at 9). In accord with Ring, we found no reason to apply a different analysis to the guilt and sentencing phase of a non-capital case, Henderson, 209 Ariz. 300, n.13, and neither did the Arizona Supreme Court, which agreed with our structural error analysis although reversing on other grounds, Henderson, 210 Ariz. 561, ¶ 17.
¶33 In accord with Ring and Henderson, as well as the litany of cases cited by the United States Supreme Court above, we ought not apply structural error to the trial court's single denial of the right to self-representation at sentencing, merely because the denial of the right to self-representation during the guilt phase of a trial is structural error. Instead, we must look to whether such a denial at sentencing "infect[s] the entire trial process," Neder, 527 U.S. at 8 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)), from start to finish and rendered Dunbar's trial "fundamentally unfair," id. (quoting Rose, 478 U.S. at 577). It manifestly did not. Here, Dunbar "had counsel and was tried by an impartial adjudicator," so there is a "strong presumption" that the error is subject to harmless-error review. Rose, 478 U.S. at 579.
¶34 If a denial of constitutional rights is subject to structural error analysis during the guilt phase-where the entire trial process becomes tainted-but is amenable to harmless error when only violated at sentencing, then I do not see any grounds to extend structural error analysis to the right of self-representation denied here. To do so would be to go beyond what the United States Supreme Court and our supreme court command for a denial of the right to self-representation. Structural error analysis ought to be reserved for those instances where an error infects the entire trial process, McKaskle, 465 U.S. 168, and trial-error analysis to an isolated error at sentencing, where it does not, see United States v. Maness, 566 F.3d 894, 896-97 (9th Cir. 2009) ("We hold that an improper denial of a defendant's motion to proceed pro se at sentencing, rather than at trial, is not a structural error and is thus subject to harmless error analysis. The error is not intrinsically harmful to the entire proceedings."); cf. United States v. Walters, 309 F.3d 589, 592-93 (9th Cir. 2002) (reviewing denial of right to counsel for harmless error if violation occurred at sentencing, and not the guilt phase of trial). Here, we ought to apply harmless error review.
Harmless Error
¶35 Under harmless error review, we disregard errors that are harmless beyond a reasonable doubt. State v. Riley, 248 Ariz. 154, ¶ 68 (2020). If a sentence imposed was "surely unattributable" to some cited error, the error is harmless. Sullivan, 508 U.S. at 279; Maness, 566 F.3d at 897 ("The appellate court may review the sentencing proceedings and ascertain beyond a reasonable doubt whether the error contributed to the sentence imposed."). Here, even assuming the trial court committed error, it is clear that its denial of Dunbar's motion to represent himself at sentencing did not contribute to the sentence imposed, and thus no prejudice occurred.
¶36 Dunbar submitted his own pro se memoranda on sentencing and mitigation. The trial court read these submissions, and said it would "take it into account" for sentencing. Dunbar's counsel had calculated that twenty years was the maximum sentence that Dunbar could receive, "assuming the Court finds the same aggravators as Judge Fields and chooses to run the sentences for [count one] and [count five] consecutively." Dunbar calculated the same in his pro se motion.
¶37 For count one, the trial court imposed a ten-year sentence, stating: "having considered all the mitigating factors the defendant has presented, whether through counsel and/or his own behalf, the Court finds that the aggravating factors in this case do very heavily outweigh any mitigating factor that could be applied in his favor." For count five, the court determined that "emotional harm to the victim and lying in wait" were aggravating factors, and again stated that "aggravating factors very heavily outweigh any mitigating factors that the defendant has presented either through counsel or on his own behalf" and imposed a consecutive, ten-year sentence. The court took pains to emphasize that even if it "did not apply the emotional harm to the victim and lying in wait" as aggravating factors, it would "very heavily still place substantial weight on the aggravating factors of use and possession of a deadly weapon" and find that it "very heavily outweigh[s] any mitigation that defendant or his counsel have presented to the Court."
¶38 The twenty-year sentence imposed is attributable to the trial court's determination that the aggravating factors outweighed any mitigating ones, regardless of whether those mitigating factors were advocated for by counsel or by Dunbar himself. I therefore conclude, beyond a reasonable doubt, that the court's denial of Dunbar's motion for self-representation did not contribute to the sentence given. Riley, 248 Ariz. 154, ¶ 68. Dunbar received a fair hearing and a sentence within the allowable range supported by the evidence presented and I would therefore affirm. Ariz. Const. art. VI, § 27 ("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.").
Although the majority claims that "a defendant's right to self-representation is not contingent upon a showing that he or she would have achieved a better result than counsel," that is, of course, precisely the standard we must apply in a harmless error prejudice analysis.