State v. Espada

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANCISCO ESPADA, Appellant.

No. 1 CA-CR 22-0601
FILED 11-21-2023

Appeal from the Superior Court in Maricopa County
No. CR2021-116801-001
The Honorable Joseph Shayne Kiefer, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Francisco Espada appeals from his convictions of theft of a
means of transportation and endangerment, arguing that the trial court
improperly denied his motion to substitute counsel. For the reasons stated
below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2021, the State charged Espada with stealing a Slurry
Seal work truck and endangering its driver, who clung to the outside of the
vehicle while Espada swerved across lanes and sped down the road.
Espada was released on bail and, upon a finding of indigency, the trial court
appointed counsel.

¶3 Almost a year later, the State filed an allegation that Espada
had prior convictions that enhanced the sentencing ranges for the charged
offenses, see A.R.S. § 13–703, and then extended a plea offer that reflected
the enhanced sentencing ranges. However, due to labeling inconsistencies
in Espada’s federal criminal record, the prosecution erroneously believed
Espada to have four, rather than three, prior felony convictions. Upon
realizing the mistake, the prosecution tendered Espada a revised plea offer,
reducing the possible prison terms from 3.25–6.5 years to 2–3.5 years.

¶4 After this change in the plea offer, Espada orally moved for
change of counsel. In explaining his request, he noted that the original plea
offer was based on the State’s misunderstanding of his criminal history and
stated that he sought “a second opinion” of the revised plea offer to “make
sure there’s no other mistakes or anything.” While Espada’s counsel did not
take a position on the request, the court voiced concerns. The court
explained that the State, not defense counsel, controlled plea offers and
stated that Espada was offered “a significantly better and very favorable
plea,” obtained “through the efforts of [his] attorney.” Espada responded:
“Well, then I guess I’ll—guess we’ll just go to trial. I’ll proceed to trial with
this attorney.”

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¶5 The court closed the matter by ruling on Espada’s motion: “So
at this point in time, I do understand you are requesting a new attorney.
The Court is going to deny that. The Court does not find that you have
shown that she is ineffective or that there’s irreconcilable conflict.” “Okay,”
responded Espada. Upon Espada’s decision to go to trial, the State
withdrew its plea offer.

¶6 A jury ultimately found Espada guilty of stealing the vehicle,
a class two felony, and endangering its driver, a misdemeanor. Espada’s
felony conviction resulted in a nine-year prison sentence; the misdemeanor
conviction resulted in a concurrent six-month sentence. Espada timely
appealed and we have jurisdiction. Ariz. Const. art. II, § 24; A.R.S.
§ 13–4033(A).

DISCUSSION

¶7 Espada asserts that the trial court violated his Sixth
Amendment right to adequate representation by improperly denying his
motion to substitute counsel. The State counters: (1) Espada functionally
withdrew his motion when he stated that he would “proceed . . . with this
attorney[,]” and (2) even had he not withdrawn it, the court adequately
considered the motion in its ruling. While Espada’s remark indicates
possible willingness to withdraw the motion, because the trial court
ultimately ruled on the motion, we consider the merits of that ruling.

¶8 “A trial court’s decision to deny the request for new counsel
will not be disturbed absent an abuse of discretion.” State v. Cromwell, 211
Ariz. 181, 186 ¶ 27 (2005). “An abuse of discretion occurs when the reasons
given by the court for its action are clearly untenable, legally incorrect, or
amount to a denial of justice.” State v. Riley, 248 Ariz. 154, 167 ¶ 7 (2020).
Both the United States and Arizona Constitutions guarantee criminal
defendants the right to representation by counsel. U.S. Const. amend. VI;
Ariz. Const. art. 2, § 24; A.R.S. § 13–114. This right is to competent counsel,
State v. LaGrand, 152 Ariz. 483, 486 (1987), but not to any particular counsel,
nor to a meaningful relationship with the attorney, Cromwell, 211 Ariz. at
186 ¶ 28.

¶9 To protect this constitutional right, the trial court “has the
duty to inquire as to the basis of a defendant’s request for substitution of
counsel.” State v. Torres, 208 Ariz. 340, 343 ¶ 7 (2004). The nature of this
inquiry depends on the nature of the defendant’s request. Id. at 343 ¶ 8.
General complaints about strategic differences may not require a formal
hearing or evidentiary proceeding; however, “sufficiently specific, factually

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based allegations” necessitate a hearing into the request for substitute
counsel. Id. (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.
2002)); State v. Goudeau, 239 Ariz. 421, 447 ¶ 78 (2016). If the defendant’s
allegations are specific, “the trial court should elicit specific on-the-record
responses to the allegations from defense counsel.” State v. Hernandez, 232
Ariz. 313, 320 ¶ 31 (2013).

¶10 Thus, the trial court inquires first into whether “an
irreconcilable conflict or a completely fractured relationship between
counsel and the accused” exists. Cromwell, 211 Ariz. at 186 ¶ 29. Such
conflicts, unlike mere disagreements or tensions, typically necessitate the
appointment of new counsel. Id. When a defendant moves to substitute
counsel, and the conflict is less than irreconcilable, the court considers the
LaGrand factors: (1) “whether new counsel would be confronted with the
same conflict”; (2) “the timing of the motion”; (3) “inconvenience to
witnesses”; (4) “the time period already elapsed between the alleged
offense and trial”; (5) “the proclivity of the defendant to change counsel”;
and (6) the “quality of counsel.” LaGrand, 152 Ariz. at 486–87; Riley, 248
Ariz. at 169 ¶ 19 (quoting Cromwell, 211 Ariz. at 187 ¶ 31).

¶11 While Espada now asserts on appeal that he had an
“irreconcilable conflict” with counsel and that he had low-quality
representation, Espada made no such assertion to the trial court. Although
Espada stated vaguely that he wanted “a second opinion” and he and his
attorney did not “see eye to eye,” such vague assertions do not entitle him
to new counsel. State v. Champagne, 247 Ariz. 116, 129 ¶ 15 (2019) (“[A] mere
allegation of lost confidence in counsel does not require appointing
substitute counsel.” (citation omitted)). Espada’s dissatisfaction was not so
great as to prevent him from agreeing to proceed to trial with his attorney.
Because the record shows that Espada alleged neither an irreconcilable
conflict nor a total breakdown of the relationship, we must examine
whether the court abused its discretion as to the other factors—noting,
however, that failure to consider individually each LaGrand factor
on-record is not an inherent abuse of discretion. See Riley, 248 Ariz. at 169
¶ 21.

¶12 From the record, the court considered two things: the
conflict’s nature and the counsel’s competence. Taking into account
Espada’s statement that he and his attorney did not “see eye to eye,” the
court nonetheless found Espada had not shown that the conflict was
irreconcilable or that Espada’s counsel was ineffective. The record supports
the court’s findings. These findings were sound. A conflict requires far
more contention than exists here to render it irreconcilable. See, e.g., id. at

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167, 169 ¶¶ 9–10, 18 (finding conflict not irreconcilable where counsel was
frequently unreachable, failed to show up at scheduled meetings, and client
had “no trust at all” in counsel); Goudeau, 239 Ariz. at 447, 448 ¶¶ 73, 85
(finding conflict not irreconcilable despite client allegedly having “serious
issues” with and “absolutely no faith” in counsel).

¶13 Espada’s conflict with his attorney was over a single
issue—the discrepancy between the State’s initial and revised plea offers.
However, “[a] single allegation of lost confidence in counsel does not
require the appointment of new counsel.” Cromwell, 211 Ariz. at 186 ¶ 29;
Riley, 248 Ariz. at 169–170 ¶ 22. The court did not abuse its discretion nor
violate Espada’s rights in declining his request for new counsel.

CONCLUSION

¶14 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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