Opinion
No. 1 CA-CR 12-0001
04-25-2013
STATE OF ARIZONA, Appellee, v. ANTHONY GENE YAKOVICH, Appellant.
Thomas C. Horne, Attorney General by Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant
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(Not for Publication -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. CR 2011-111330-001 DT
The Honorable Michael D. Jones, Judge
The Honorable Susanna C. Pineda, Judge
VACATED AND REMANDED
Thomas C. Horne, Attorney General
by Melissa M. Swearingen, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix HALL, Judge ¶1 Defendant appeals from his convictions and the sentences imposed. For the following reasons, we vacate defendant's convictions and sentences and remand for a new trial.
FACTS AND PROCEDURAL BACKGROUND
¶2 The facts relevant to the issues raised on appeal are not disputed. On March 8, 2011, defendant was charged by information with two counts of aggravated assault (Counts I and II), class two dangerous felonies, one count of criminal trespass in the first degree (Count III), a class six felony and domestic violence offense, one count of aggravated assault (Count IV), a class six felony, and one count of assault (Count V), a class one misdemeanor and domestic violence offense. ¶3 Before trial, defendant's first attorney moved to withdraw. The trial court granted the motion to withdraw and assigned new counsel. ¶4 Shortly after defendant's newly assigned counsel received the case, he requested a continuance to prepare for the impending trial. At a September 1, 2011 status conference, the trial court heard argument on the request for a continuance. During that discussion, defense counsel informed the court that defendant wished to waive counsel and represent himself. Defendant explained that he objected to the request for continuance and stated "I'm so confident in my own nature that I believe I can win trial pro per as it is set for September 9, 2011." ¶5 The trial court then engaged defendant in a lengthy colloquy. The trial court provided defendant with a waiver of counsel form, informed him that he would be significantly disadvantaged by self-representation (such as being unable to directly interview witnesses due to his incarceration), advised him of the sentencing range he faced if convicted, and told him that he would not be permitted to "redo" any portion of the trial if he subsequently changed his mind. Defendant repeatedly affirmed that he understood the consequences of waiving counsel and wished to proceed with self-representation. ¶6 At the close of the colloquy, the following exchange occurred:
COURT: Did anyone force you to make this decision to represent yourself, sir?¶7 The trial court then granted defense counsel's motion for a continuance. Two months later, the matter proceeded to trial before a different judge. ¶8 On November 8, 2011, the day trial commenced, defendant expressed his frustration with his attorney, complaining that his attorney had only visited him twice in jail and failed to keep him apprised on the defense strategy that would be presented at trial. Defense counsel responded that he had spoken with defendant "at length" regarding "the strengths and weaknesses of his case" and explained that there was a "conflict" because defendant "believes completely different . . . what legitimate defenses exist." Defendant then asked the court to prevent the prosecutor from objecting during his testimony, a request the court denied. Defendant did not request new counsel or the opportunity to represent himself. ¶9 The following day, before the jury entered the courtroom, defendant addressed the court:
DEFENDANT: Yes, they did, Your Honor. My lawyer, my attorney did because my constitutional rights are being violated. I feel my equal protection rights are being violated. I haven't equal due process. I haven't even plead not guilty to these charges, Your Honor.
I missed video court. I was put in Rule 11 like I'm some government test rat. Like I don't -- I want to go to trial. I'm innocent, Your Honor.
COURT: So you're saying that the only reason you want to represent yourself is that your prior attorney had not had -- or you feel your prior attorney hasn't done
what he or she was suppose[d] to do. And that the State is at this point in time vindictive in some nature, is that correct?
DEFENDANT: Absolutely, Your Honor.
. . . .
COURT: [Y]ou indicated to me that you're being forced into this decision. And as a result, I cannot find that your waiver of counsel is knowing and intelligent. So I'm not going to grant your motion today.
DEFENDANT: Your Honor, I haven't had any help, so, I mean, in wrong confidence to prove my own innocence, I would just like it to be known I might be willing to try to question the cops personally if it has to come down to that, because I don't feel my lawyer is being competent enough. So I just wanted to say that.¶10 Defendant then explained that he had not had "a decent meal" all week and was not feeling well. The trial court informed defendant that the courtroom deputy would ensure that he had an opportunity to eat. The prosecutor then asked the court to clarify the record as to whether defendant wished to represent himself. The trial court answered that defendant did not invoke his right to self-representation, but instead stated he "might . . . consider[] it." The court continued, however, that "if he decides he wants to, I invited him to tell me." ¶11 After a six-day trial, the jury found defendant guilty as charged. The trial court sentenced defendant to a presumptive term of 10.5 years' imprisonment on Count I, with 287 days' presentence incarceration credit, a concurrent presumptive term of 10.5 years' imprisonment on Count II, a consecutive presumptive term of 1 year imprisonment on Count III, a concurrent mitigated term of .5 years' imprisonment on Count IV, and a period of 10 days in jail on Count V. ¶12 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010).
COURT: The only way I would allow you to question any witness or to represent yourself is if you waived your right to an attorney and chose to represent yourself.
In April 2011, defendant submitted to two Rule 11 competency evaluations. Both evaluators concluded that defendant was not suffering from any mental disease or disorder and was competent to stand trial.
During the interim period, the case was reassigned to another trial judge.
DISCUSSION
¶13 On appeal, defendant argues that the trial court erroneously denied his right to self-representation on the "pretext" that defendant was being forced to waive counsel. ¶14 "The federal and state constitutions guarantee the right to waive counsel and to represent oneself." State v. Dann, 220 Ariz. 351, 359, ¶ 16, 207 P.3d 604, 612 (2009). "Self-representation is a fundamental constitutional right." Id. (internal quotation omitted). "Waiver is voluntary if the choice presented to the defendant is not constitutionally offensive." State v. Moody, 192 Ariz. 505, 509, ¶ 22, 968 P.2d 578, 582 (1998). "In other words, the options must be consistent with the protections of the Sixth Amendment." Id. ¶15 "[A] waiver of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Dann, 220 Ariz. 359, ¶ 16, 207 P.3d at 612 (internal quotation omitted). "Whether an accused has made an intelligent and knowing waiver of counsel is a question of fact." Id. at 358, ¶ 10, 207 P.3d at 611. "A waiver finding is based substantially on the trial judge's observation of the defendant's appearance and actions." Id. In addition, a "trial court may also consider evidence of a defendant's knowledge and understanding when he waived counsel." Id. at 359, ¶ 16, 207 P.3d at 611. Accordingly, we review a trial court's denial of a request to proceed without counsel for an abuse of discretion. Id. at 359, ¶ 25, 207 P.3d at 612. "An abuse of discretion includes an error of law." State v. Burgett, 226 Ariz. 85, 86, ¶ 1, 244 P.3d 89, 90 (App. 2010). ¶16 The State argues defendant's waiver was not voluntary because he was forced to choose between the continuance requested by his attorney and representing himself. We disagree. ¶17 The trial court was understandably concerned about accepting defendant's waiver of counsel when he initially stated he was being forced to make the decision to represent himself. However, considering defendant's statements in context, the choice presented to him was not "constitutionally offensive." When questioned by the trial court, defendant stated that he was "forced" to proceed with self-representation because he disagreed with his attorney and explained that he did not want a continuance. Although defendant was averse to continuing his trial date, that option was not inconsistent with the protections of the Sixth Amendment and did not present a constitutionally cognizable claim of coercion. Moreover, the trial court fully informed defendant of the nature of the charges against him, the dangers and disadvantages of self-representation, and the possible punishment upon conviction. In response, defendant repeatedly and unequivocally stated that he understood the consequences of waiving counsel and wished to proceed with self-representation. Therefore, the trial court erred, as a matter of law, by finding defendant's waiver invalid and denying his motion to waive counsel.
Based on our resolution of this issue, we need not address defendant's additional argument that the trial court erred by failing to properly credit his presentence incarceration.
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CONCLUSION
¶18 For the foregoing reasons, we vacate defendant's convictions and sentences and remand for proceedings consistent with this decision.
____________________
PHILIP HALL, Judge
CONCURRING: ____________________
MARGARET H. DOWNIE, Presiding Judge
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MAURICE PORTLEY, Judge