Opinion
No. 2 CA-CR 2019-0216-PR
05-18-2020
THE STATE OF ARIZONA, Respondent, v. MARCUS DELEON MOSBY, Petitioner.
COUNSEL Law Offices of Erin E. Duffy P.L.L.C., Tucson By Erin E. Duffy Counsel for Petitioner
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR201437430001
The Honorable Danelle B. Liwski, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Offices of Erin E. Duffy P.L.L.C., Tucson
By Erin E. Duffy
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Petitioner Marcus Mosby seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. Mosby argued in that petition that he was improperly forced to choose between his right to a speedy trial under Rule 8, Ariz. R. Crim. P., and his right to counsel. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Mosby has not sustained his burden of establishing such abuse here.
¶2 In August 2014, Mosby repeatedly choked his girlfriend, held her head underwater in a full bathtub, and held her head in the toilet. He was appointed counsel, and his probable cause hearing was continued by stipulation. Thereafter, Mosby wrote a letter to the trial court, stating he had not wanted to continue the hearing and he was "also requesting to enjoy his right to a speedy and public trial[,] impartial jury, etc." But, at a case management conference a few weeks later, Mosby waived time, and did so again at the next case management conference two weeks later, at the end of October. Mosby rejected a plea offer and again waived time at a Donald hearing in November. The matter was set for a jury trial on February 18, 2015.
State v. Donald, 198 Ariz. 406 (App. 2000).
¶3 In December 2014, Mosby's attorney, his second from the Pima County Public Defender's Office, moved to withdraw explaining Mosby had "indicated that he cannot work with either lawyer or with the office in general." The trial court granted the motion and appointed new counsel. Counsel requested a continuation of trial in January 2015, arguing that previous counsel had not adequately investigated the matter and that, despite Mosby having "asserted his constitutional right to a speedy trial," she needed additional time to "be adequately prepared to represent him at trial." After a hearing on January 21, at which the court and the parties discussed the delays that would occur in obtaining discovery of juvenile records of the victim, the court vacated the February trial date. Mosby was present, but did not object.
¶4 At the next status conference, on February 3, however, Mosby's counsel informed the trial court that he wished to assert his Rule 8 trial rights. Mosby explained to the court that he had "a change of heart concerning the evidence on [his] behalf" and now believed it to be "unnecessary." Noting that the evidence counsel was seeking seemed quite relevant to his defense and that counsel would likely be ineffective without obtaining it, the court stated it found "extraordinary circumstances" existed and would "extend the . . . speedy trial time." The trial was set for April 14.
¶5 At a status conference on March 31, counsel informed the trial court that she could not "adequately represent the defendant if the trial were to proceed on April 14," but that Mosby did "not want to waive any additional time." Counsel indicated she had not been able to finish interviews and would be unavailable from April 2 through 7. She stated that between her schedule and the prosecutor's, August would be the soonest "we could really realistically do this case." Mosby stated that despite the evidence counsel was working to procure, he would "not waive any more time." The court explained to Mosby that it had seen some of the evidence in question and reiterated that counsel could not be effective without completing the work arising from it. The court again stated it would move the trial "in the interest of justice."
¶6 In response, the prosecutor noted that he believed such an order was a violation of Mosby's rights, because he was entitled to make a poor decision if he wished and the trial court could not "force him to give up his Rule 8." The prosecutor raised an unpublished decision of this court, State v. Bullock, No. 2 CA-CR 2007-0002 (Ariz. App. Oct. 2, 2008) (mem. decision), in which a trial court had been reversed after denying a defendant's request to represent himself in light of the complexity of his case. Neither the court nor defense counsel was familiar with the case, and defense counsel was uncertain if Mosby would want to proceed "[o]n his own" in order to go to trial on April 14, so the court set another status conference for April 9 and directed Mosby to think about the options.
¶7 At the conference on April 9, defense counsel indicated that Mosby "would like to represent himself, pro se, and he would like to keep the trial date of April 14." The trial court spoke at length with Mosby about what he would be waiving, including not only those rights associated with his right to counsel, but the evidence he would be unable to obtain. Mosby then discussed the matter with counsel, and Mosby stated he wanted to "keep the [trial] date" and when the court asked if he understood he would then "end up representing [him]self" he responded affirmatively. The court then engaged in another colloquy with Mosby, affirming he understood the rights he was waiving, and Mosby signed a waiver of his right to counsel.
¶8 A week later, defense counsel, in her new role as advisory counsel, filed a notice suggesting an evaluation pursuant to Rule 11, Ariz. R. Crim. P. The trial court appointed doctors to conduct the evaluation, but subsequently found Mosby competent in July 2015. At the competency hearing the court confirmed Mosby was "still representing himself." Mosby again asserted he "would not waive any time." Advisory counsel also informed the court that Mosby had "reasserted his request that new counsel be appointed." At a status conference a few days later, counsel explained Mosby had filed a complaint against her with the Arizona Attorney General and various other agencies. Mosby stated, "I do think I need advisory counsel" and counsel's performance had not been "up to my standards." The court allowed counsel to withdraw, and appointed new advisory counsel.
¶9 At an omnibus hearing the week before trial, the trial court and the parties discussed at length the scope of advisory counsel's role during the remaining preparation and at trial. The court asked Mosby if he had "[a]ny concerns . . . that we did not address." Mosby replied that he did not. The matter went to trial on August 11, 2015, with Mosby representing himself.
¶10 Mosby was convicted of kidnapping and two counts of aggravated assault, all domestic violence offenses. He was sentenced to concurrent and consecutive prison terms totaling 25.75 years. This court affirmed his convictions and sentences on appeal. State v. Mosby, No. 2 CA-CR 2015-0355 (Ariz. App. Dec. 13, 2016) (mem. decision).
¶11 Mosby sought post-conviction relief, arguing he had received ineffective assistance of appellate counsel based on counsel's failure to "obtain the records necessary to evaluate the issue of self-representation" and to "raise the issue of structural error with regard to the [trial court] forcing [him] to abandon his right to counsel." The court summarily denied relief.
¶12 On review, Mosby contends the trial court abused its discretion in summarily denying relief. He broadly asserts that the "right to counsel is so sacred that its waiver must be knowingly, intelligently, and voluntarily made." And he argues he "wanted a speedy trial and an attorney to represent him but that was not the option he was given." Thus, he contends his appellate counsel was ineffective in failing to argue on appeal that his waiver of counsel was effectively involuntary. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶13 A defendant's waiver of the right to counsel must be knowing, intelligent, and voluntary. State v. Moody, 192 Ariz. 505, ¶ 22 (1998). Whether a defendant has made such a waiver is a question of fact, and "[a] waiver finding is based substantially on the trial judge's observation of the defendant's appearance and actions." State v. Dann, 220 Ariz. 351, ¶ 10 (2009). In view of this standard and the record before us, which demonstrates that the trial court discussed at length with Mosby the rights he would be waiving, we agree with the court's determination that he has not established prejudice arising from counsel's failure to raise the issue on appeal. Mosby has not shown he would have prevailed on appeal, and the court therefore did not abuse its discretion in denying relief. See State v. Salazar, 146 Ariz. 540, 541 (1985) (if defendant fails to make sufficient showing on either prong of Strickland test, court need not address the other).
¶14 "Waiver is voluntary if the choice presented to the defendant is not constitutionally offensive." Moody, 192 Ariz. 505, ¶ 22. In this case, although Mosby's choice was undoubtedly a difficult one, he has not established it was constitutionally offensive. He cites no authority in his petition for review to support the contention that a defendant may not be constitutionally required to choose between asserting his rights pursuant to Rule 8, and his right to counsel when counsel credibly avows she cannot prepare in the time provided by the rule. As noted above, the trial court explained Mosby's choices to him and he indicated he understood and wished to proceed. Even after trial was delayed due to Rule 11 proceedings, when the court and the parties discussed the role of advisory counsel before trial, Mosby at no point indicated an interest in withdrawing his decision to represent himself. Thus, although Mosby contends, "[a]t no time between the April 9th hearing" at which he waived his right to counsel, "and August 11th, did the trial court ever revisit the waiver of the right to counsel," nothing in the record shows Mosby raised doubts about the waiver requiring the court to do so.
"Rule 8.2 does not define the sixth amendment's boundaries"; "constitutional speedy trial rights are relative and court will examine delays under the circumstances of each case." State v. Guerrero, 159 Ariz. 568, 570 n.2 (1989) (citing United States v. Ewell, 383 U.S. 116, 120 (1966)).
¶15 For these reasons, although we grant the petition for review, we deny relief.