Opinion
1 CA-CR 12-0206
04-11-2013
STATE OF ARIZONA, Appellee, v. JOAQUIN MENDOZA, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix Marty Lieberman, Maricopa County Legal Defender by Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-138211-001
The Honorable William L. Brotherton, Jr., Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix Marty Lieberman, Maricopa County Legal Defender
by Cynthia Dawn Beck, Deputy Legal Defender
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 Defendant Joaquin Mendoza appeals his conviction and sentence for drug possession. He contends the trial court erred by denying his request for new counsel. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mendoza was charged by direct complaint with possession of methamphetamine, a class four felony. A lawyer was appointed to represent him. ¶3 Just prior to jury selection, Mendoza unsuccessfully requested a sixty-day continuance to disclose and interview defense witnesses. Mendoza then requested a different lawyer because he and his attorney "[were] not seeing eye-to-eye" and she had "said something mean" to someone involved with his case. The court denied his motion, and the case proceeded. Mendoza was convicted, subsequently apprehended and sentenced. We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033 (West 2013).
Mendoza failed to timely appear on the original trial date and a bench warrant was issued for his arrest. After it was determined he was an hour late and unable to reach his lawyer, the warrant was quashed and the trial was rescheduled.
After his motion for new counsel was denied, there was a recess but Mendoza did not return. He was tried in absentia.
DISCUSSION
¶4 Mendoza contends the court erred by denying his request for new counsel. Specifically, he argues the court erred by failing to conduct a hearing and consider the factors identified in State v. LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987). We review the court's denial of his request for substitute counsel for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). ¶5 "The Sixth Amendment to the United States Constitution entitles a criminal defendant to competent representation but does not guarantee a defendant counsel of choice, or a meaningful relationship with his or her attorney." Id. at ¶ 9 (internal quotation marks omitted). Consequently, new counsel is required only if there is "an irreconcilable conflict or a completely fractured relationship between counsel and the accused." State v. Cromwell, 211 Ariz. 181, 186, ¶ 29, 119 P.3d 448, 453 (2005). "A single allegation of lost confidence in counsel does not require the appointment of new counsel, and disagreements over defense strategies do not constitute an irreconcilable conflict." Id. ¶6 The nature of a defendant's allegations determines the level of a court's inquiry. State v. Torres, 208 Ariz. 340, 343, ¶ 8, 93 P.3d 1056, 1059 (2009). "[G]eneralized complaints about differences in strategy may not require a formal hearing." Id.; see also State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993) (affirming the court's denial of a motion for new counsel after an informal hearing where the court concluded defendant had "some feelings of not getting along so well together" with his attorney). An evidentiary proceeding is required, however, if the defendant makes specific, factually based allegations demonstrating a genuine irreconcilable difference or total breakdown in communication between himself and his counsel. Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059. ¶7 Here, just before the venire panel was called for jury selection, Mendoza asked for a new lawyer. The trial court asked him on the record why he wanted new counsel. Mendoza stated that he and his attorney "[were] not seeing eye-to-eye," that she had failed to inform him that there was a time limit to disclose potential witnesses, and that she had "said something mean" to someone involved in his case. He also complained that she had failed to call his family members when he showed up late for court four days earlier, and had said something to a codefendant in another case who was going to file a complaint against Mendoza. The court then denied his request. ¶8 Mendoza's complaints were not specific, and did not demonstrate a fractured attorney-client relationship or a total breakdown in communication that deprived him of his right to counsel. See Paris-Sheldon, 214 Ariz. at 505-06, ¶¶ 12-14, 154 P.3d at 1051-52. At best, the complaints amounted to a loss of confidence and "feelings of not getting along so well together." Bible, 175 Ariz. at 591, 858 P.2d at 1194. Consequently, the court did not abuse its discretion by denying Mendoza's last minute request for new counsel without conducting a formal hearing or addressing the LaGrand factors. Paris-Sheldon, 214 Ariz. at 505, ¶ 11, 154 P.3d at 1051 (stating that the court is not required "to make explicit findings in support of its decision to deny a motion for substitute counsel" but rather, must only "inquire [on the record] as to the basis of a defendant's request, and, if necessary, conduct a hearing") (internal quotation marks omitted) (alteration in original).
The court listed seven factors for trial courts to consider when evaluating a request for a new lawyer: (1) whether an irreconcilable conflict exists between counsel and the accused, (2) whether new counsel would be confronted with the same conflict, (3) the timing of the motion, (4) the inconvenience to witnesses, (5) the time period already elapsed between the alleged offense and trial, (6) the proclivity of the defendant to change counsel, and (7) the quality of counsel. Id. at 486-87, 733 P.2d at 1069-70.
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CONCLUSION
¶9 Based on the foregoing, we affirm Mendoza's conviction and sentence.
_________________________
MAURICE PORTLEY, Judge
CONCURRING: _________________________
MARGARET H. DOWNIE, Presiding Judge
_________________________
PHILIP HALL, Judge