Opinion
No. 2 CA-CR 2013-0398
10-21-2014
THE STATE OF ARIZONA, Appellee, v. DONNIE RAY MATTHEWS, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20122919001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Following a jury trial, Donnie Matthews was convicted of two counts of third-degree burglary. The trial court sentenced him to concurrent, minimum prison terms of eight years for each count. Matthews argues he was denied his constitutional rights to due process of law and self-representation when the court failed to properly rule on his motion for change of judge. He also contends the court abused its direction by denying his motion to vacate the judgment. For the following reasons, we affirm Matthews's convictions and sentences.
Factual and Procedural Background
¶2 In July 2012, Matthews broke into a café and a jewelry store and stole a decorative item. He was charged with two counts of third-degree burglary. The case initially was assigned to Judge Teresa Godoy. Matthews filed a request for a change of judge pursuant to Rule 10.1, Ariz. R. Crim. P., which the presiding judge denied. Shortly thereafter, Matthews filed a pro se motion to waive his right to legal counsel and signed a "Waiver of Right to Lawyer" form. The court accepted his waiver and appointed advisory counsel. Matthews then filed a "complaint" with the presiding judge, claiming Judge Godoy had "shown bias" and "made prejudicial remarks against [him]." The presiding judge denied his requests for relief. Judge Godoy eventually recused herself from the case, and it was reassigned to Judge Christopher Browning.
¶3 Matthews then filed a Request for a Change of Judge pursuant to Rules 10.1 and 10.2, asserting that Judge Browning had "issued the search warrant in this case" and "may not be able to conduct any fair and impartial hearings in this case," and that he "has no care nor respect for pro se motions." The request was granted two months later on the day before trial, and the case was reassigned to Judge Howard Fell. It then was reassigned immediately to Judge Casey McGinley. The same day, Judge McGinley held an unscheduled status conference, at which he explained the court was trying to accommodate Matthews by ensuring he went to trial on schedule. Matthews repeatedly stated he was objecting "to the proceedings" generally, without any further elaboration as to the basis of his objection. Trial before Judge McGinley began the following day, and Matthews continued to object "to the proceedings." After the prosecutor's opening statement, Matthews chose to be represented by his advisory counsel.
The trial court indicated in its ruling on Matthews's motion to vacate the judgment that the case was reassigned to Judge McGinley due to "scheduling conflicts."
¶4 The jury found Matthews guilty as charged, and the trial court sentenced him as described above. He then filed a motion to vacate the judgment. Before the court ruled on the motion, Matthews filed a timely notice of appeal from "the judgment of guilt and sentence imposed." After the court denied his motion to vacate the judgment, Matthews filed a timely notice of appeal from the denial.
Discussion
Motion for Change of Judge
¶5 Matthews argues he was "deprived of due process when his Rule 10.1 motion for change of [Judge Browning] for cause . . . was ignored." Rule 10.1(a), Ariz. R. Crim. P., provides that the state or a criminal defendant is entitled to a change of judge for cause "if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge." Rule 10.1(c) requires the presiding judge to provide for a hearing on the matter "[p]romptly after the filing" of a motion for change of judge. Rule 10.1(c) also requires the presiding judge, "as quickly as possible" to "assign the action back to the original judge or make a new assignment, depending on the findings of the hearing judge."
¶6 Due process claims generally will be denied absent a showing of prejudice. See, e.g., State v. Lacy, 187 Ariz. 340, 346, 929 P.2d 1288, 1294 (1996) (due process claims in cases of pre-indictment delay require showing of actual prejudice); State v. Apelt, 176 Ariz. 349, 364, 861 P.2d 634, 649 (1993) (finding no due process violation when defendant not prejudiced by admission of incriminating letters); State v. Stuard, 176 Ariz. 589, 596, 599-600, 863 P.2d 881, 888, 891-92 (1993) (rejecting due process argument when defendant established no prejudice arising from denial of motion to sever). Although Matthews was not provided a hearing on his motion for change of judge, the motion ultimately was granted when the case was reassigned to Judge Fell. Matthews thus was afforded the relief he sought: Judge Browning did not conduct any pretrial proceedings, rule on any motions, or preside over the trial. Matthews raises no claim of prejudice in his argument regarding his Rule 10.1 motion, and we find none. We therefore reject Matthews's due process argument.
¶7 Matthews next argues he was "deprived of due process when his peremptory Rule 10.2 motion for change of Judge Browning . . . was not ruled on until the day before trial two months later." He asserts he was "unable to file the motions he had prepared; unable to use the investigator he requested; and unable to compel the further disclosure he sought from the County Attorney."
¶8 The pendency of Matthews's Rule 10.2 motion did not prevent him from filing motions. Rule 5(h), Ariz. R. Crim. P., provides, "The filing of pleadings and other papers with the court . . . shall be made by filing them with the clerk of the court." Although Rule 5(h) also provides that a judge may permit papers to be filed with the judge, that is the exception, not the rule. In addition, Rule 28.1(a), Ariz. R. Crim. P., provides, "The clerk of the court shall receive and maintain all papers, documents and records filed . . . in criminal cases." Matthews also was required to file all motions no later than twenty days before trial. See Ariz. R. Crim. P. 16.1. Matthews, as a pro se litigant, is held to the same standards as attorneys, and it is his responsibility to read and follow the Arizona Rules of Criminal Procedure. See Higgins v. Higgins, 194 Ariz. 266, ¶ 12, 981 P.2d 134, 138 (App. 1999). Moreover, Matthews had an opportunity at the status conference to inform Judge McGinley that he had motions he wished to file and to request a continuance, but he failed to do so. His motion for change of judge ultimately was granted, and Matthews has not shown he was prejudiced by any delay.
¶9 Matthews asserts he was "unable to use the investigator he requested" and "unable to compel the further disclosure he sought from the County Attorney," but he does not elaborate on how his pending motion for change of judge affected his ability to prepare his defense. Thus, his argument is waived for failure to adequately develop it on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (issue waived when argument insufficient to permit appellate review).
¶10 Matthews argues that the denial of his right to due process in the Rule 10 proceedings also denied him his Sixth Amendment right to self-representation. He claims the delay in ruling on his motion "denied [him] the power to control his defense, to make motions, and to argue the law." We review de novo whether a defendant was denied his constitutional right to self-representation. See State v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193, 1210 (2005). The denial of a defendant's right to prepare a defense occurs "only when a defendant is denied all meaningful opportunity to prepare a defense." State v. Henry, 176 Ariz. 569, 584, 863 P.2d 861, 876 (1993) (emphasis omitted).
¶11 Here, Matthews was not "denied all meaningful opportunity to prepare a defense." He filed numerous pro se motions in the months before his trial, and, as discussed above, nothing prevented him from filing the other motions he had prepared. We conclude the delay in ruling on his motion for change of judge did not violate Matthews's right to self-representation.
Motion to Vacate Judgment
¶12 Matthews argues the trial court abused its discretion in denying his motion to vacate the judgment. We review a trial court's decision to deny a motion to vacate judgment for an abuse of discretion. See State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991). Rule 24.2(a), Ariz. R. Crim. P., provides that the court may vacate the judgment if "the conviction was obtained in violation of the United States or Arizona Constitutions."
¶13 In his motion, Matthews argued he was "denied his constitutional right to a fair and impartial trial before a fair and impartial judge" but did not specify how the court or his trial was not fair or impartial. He also contended "the trial court disregarded a timely filed notice of change of judge," which denied him a "right to a peremptory disqualification" of a judge. He further asserted that the court had exceeded its legal authority and jurisdiction when it "gave to him an unschedule[d] status conference and trial," thereby depriving him of "rights essential to his defense" and a "fair and impartial trial before [a] fair and impartial judge." Finally, he argued that the court's delay in deciding his motion for change of judge denied him the right to file motions he had prepared, to investigate his case, to make discovery, and to be "heard according to law."
Matthews also argued the state had filed a Rule 10.2 Notice of Change of Judge against Judge Chon-Lopez—whom it apparently believed was assigned to the case—"for improper purposes . . . that prejudice[d] [his] case." The trial court concluded that Matthews "only offers assertions as to when it is improper to file such a Notice; he does not establish that the State improperly filed [its] notice, or did so for an improper cause." As the state acknowledges, the case never was assigned to Judge Chon-Lopez, and Matthews does not challenge the court's conclusion on appeal.
¶14 Regarding Matthews's argument that the trial judge was not fair and impartial, Judge McGinley noted that he had advised Matthews of his prior affiliation with the Pima County Attorney's Office and provided him an opportunity to object. Judge McGinley found that Matthews "chose to object to the proceedings generally, refused to articulate the nature of his objection, and refused to answer whether he had any objections to [the] Court presiding over his trial." Rejecting the argument that he was required to recuse himself based on his prior employment, Judge McGinley stated, "[Matthews] waived any objection he had to this Court presiding over his trial."
¶15 With respect to the delay in ruling on Matthews's motion for change of judge, Judge McGinley stated, "it is clear from the record that [Matthews's] objection to Judge Browning's consideration of the case was honored" because Matthews "was never required to appear in front of Judge Browning, nor did Judge Browning make any ruling on any issue in the case." In response to Matthews's argument that he was denied the opportunity to file motions and have them heard prior to trial, Judge McGinley stated, "At the status conference before trial, [Matthews] had the opportunity to advise the Court that he felt he was unable to file motions that he considered important to his defense. He did not do so." Judge McGinley concluded that Matthews had "waived any right he had to have the Court determine the validity of such motions."
¶16 On appeal, Matthews argues "the trial court was incorrect as a matter of law when it ruled that [his] ability to file motions was unimpeded by the Rule 10.2 process given [him]." He claims that, once he filed his motion for change of judge, Judge Browning was "precluded by law from ruling on any subsequent motions that might have been filed," and since he had no notice that the case had been reassigned to Judge Fell until after he had been convicted, he could not have filed his motions before Judge Fell, either.
¶17 As noted above, Rule 5(h) requires pleadings and other papers to be filed with the clerk of the court, and Rule 28.1(a) requires the clerk to receive all papers filed in criminal cases. The rules thus required Matthews to file his motions with the clerk of the court, rather than with the assigned judge. His ability to file his motions with the clerk was not hindered by the pendency of his motion for change of judge.
Although Rule 3.1, Pima Cnty. Super. Ct. Loc. R. P., required him to provide courtesy copies of his motions to the assigned judge, the copies would have been transferred to the newly assigned judge when his motion was granted, or could have been delivered to the Court Administrator.
¶18 Matthews also argues "the trial court's ruling implicitly approves of the way [his] Rule 10.2 motion for peremptory change of judge was handled" and this constitutes an abuse of discretion because the court "completely ignored that [his] Rule 10.2 motion languished for two months when both Rule 10.2(d) and 10.5(a) mandate that a 10.2 motion be processed 'immediately.'" A court does not abuse its discretion by "implicitly approv[ing]" the handling of a motion. Instead, the abuse of discretion standard contemplates some action by the court. See State v. Chapple, 135 Ariz. 281, n.18, 660 P.2d 1208, 1224 n.18 (1983) (A court abuses its discretion when "the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice."). We do not agree the court implicitly approved the handling of Matthews's motion, and, in any event, Matthews has not established that the court's purported implicit approval here was a discretionary act that this court can review.
¶19 Matthews contends the trial court "placed undue emphasis on the fact that [he] did not object more specifically at the July 15 status conference and at the July 16 trial, and abused its discretion in finding that [Matthews] thereby waived his claims." He argues his "exasperated, constantly repeated 'objection to the proceedings' seems particularly apt and should be deemed sufficient to preserve his issues for review."
¶20 First, as the state points out, the trial court did not conclude that all of Matthews's claims were waived. Rather, the court found that because Matthews did not specifically object to Judge McGinley presiding over the trial, that issue was waived.
¶21 At the status conference and on the first day of trial, Matthews objected only generally to "the proceedings"; he did not specifically object to Judge McGinley presiding over his trial. Although we have found no Arizona case requiring a defendant to specifically object to a certain judge presiding over his trial, we have required specific objections in other contexts. See, e.g., State v. Butler, 230 Ariz. 465, ¶ 21, 286 P.3d 1074, 1080 (App. 2012) (requiring "'specific, contemporaneous objection'" to preserve challenge to admission of evidence), quoting State v. Moody, 208 Ariz. 424, ¶ 39, 94 P.3d 1119, 1136 (2004); State v. Pierce, 170 Ariz. 527, 529, 826 P.2d 1153, 1155 (App. 1991) (requiring specific objection to preserve objection to jury instruction). We have stated, "The purpose of the rule requiring that specific grounds of objection be stated is to allow the adverse party to address the objection and to permit the trial court to intelligently rule on the objection and avoid error." State v. Granados, 235 Ariz. 321, ¶ 19, 332 P.3d 68, 74 (App. 2014). That reasoning applies equally to objections to a certain judge presiding over a trial based on claims of bias.
¶22 We conclude that, in order to preserve his challenge to Judge McGinley presiding over his trial, Matthews was required to make a specific objection. Because he did not, the trial court did not abuse its discretion in deciding his objection was waived.
Matthews suggests his status as a pro se litigant means his objections should be construed more liberally, but, as noted above, pro se litigants are held to the same standards as attorneys. See Higgins, 194 Ariz. 266, ¶ 12, 981 P.2d at 138.
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Disposition
¶23 For the foregoing reasons, we affirm Matthews's convictions and sentences.