State v. Botsford

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DANIEL DUANE BOTSFORD, Appellant.

No. 1 CA-CR 18-0759
FILED 4-9-2020

Appeal from the Superior Court in Yavapai County
No. P1300CR201701094
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

The Zickerman Law Office, P.L.L.C., Flagstaff
By Adam Zickerman
Counsel for Appellant
 STATE v. BOTSFORD
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen1 joined.

J O N E S, Judge:

¶1 Daniel Botsford appeals his conviction and sentence for
aggravated driving under the influence (DUI). Botsford argues the trial
court erred by failing to inform him he could represent himself when it
denied his request for new counsel. Because a trial court has no affirmative
duty to notify a defendant of his right to self-representation, we affirm the
conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 On November 5, 2016, a Yavapai County Sheriff’s Office
deputy stopped a vehicle traveling ten miles per hour under the speed
limit.2 The deputy identified the driver as Botsford, whose driver’s license
was suspended. After observing that Botsford’s hands shook, his eyes were
bloodshot and watering, and he smelled of marijuana, the deputy
administered standardized field sobriety tests. Botsford’s performance was
consistent with impairment, and Botsford admitted having recently
smoked marijuana. The deputy obtained a warrant to take samples of

1 Judge Johnsen was a sitting member of this Court when the matter
was assigned to this panel of the Court. She retired effective February 28,
2020. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to Arizona Revised Statutes (A.R.S.)
§ 12-145, the Chief Justice of the Arizona Supreme Court has designated
Judge Johnsen as a judge pro tempore in the Court of Appeals, Division One,
for the purpose of participating in the resolution of cases assigned to this
panel during her term in office.

2 “We view the facts in the light most favorable to sustaining the
conviction[] with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).

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 STATE v. BOTSFORD
Decision of the Court

Botsford’s blood, which later tested positive for methamphetamine and
amphetamine.

¶3 Botsford was charged with aggravated DUI. The trial court
appointed counsel to represent Botsford, and a two-day jury trial began in
October 2018. On the second day of trial, after the jury was empaneled and
three of five witnesses had testified, Botsford made a request:

THE DEFENDANT: Yeah. I’d like a new lawyer.

THE COURT: Okay. Is there anything else you want to add
to that, Mr. Botsford?

THE DEFENDANT: No. He’s just not doing anything for me.
Nothing is being brought up or nothing.

THE COURT: Mr. Botsford, when you asked for a trial, the
attorney directs the trial with your input. I’ve observed you
communicating with [your attorney]. He knows the rules of
court. I’ve seen him take your suggestions. I’ve seen him ask
additional questions. I’ve seen him not ask additional
questions. That’s his role. So while your request for an
attorney is understood, it is denied. I don’t have any legal
basis to grant that at this time. You’re not entitled to an
attorney of your choice, Mr. Botsford. [Your attorney] is
doing what he’s required to do in this case.

THE DEFENDANT: I thought I had a right to fire my lawyer
at any time.

THE COURT: No. You do not. He’s not a retained attorney.
If he was retained, you would have the right to fire him, but
he’s appointed. And the only way I can appoint a different
attorney for you is if communication is completely broken
down. And even then not in the middle of trial. This is not
the time to address that issue.

Botsford did not raise the issue again, and the same attorney represented
Botsford for the duration of the proceedings. At no point before, during, or
after trial did Botsford express a desire to represent himself.

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 STATE v. BOTSFORD
Decision of the Court

¶4 The jury convicted Botsford of aggravated DUI. See A.R.S.
§§ 28-1381(A)(3),3 -1383(A)(1) (collectively describing the offense of
aggravated DUI); see also A.R.S. § 13-3401(6)(c)(vi), (xxxviii) (defining
methamphetamine and amphetamine as dangerous drugs). The trial court
found that Botsford had two historical prior felony convictions, sentenced
him as a non-dangerous, repetitive offender to the minimum term of eight
years’ imprisonment, and credited him with twenty-nine days of
presentence incarceration. Botsford timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶5 Botsford argues he was denied a fair trial because the trial
court did not sua sponte inform him of his right to self-representation when
it denied his request to change counsel. We review de novo whether a
defendant was denied his constitutional right to self-representation. See
State v. Glassel, 211 Ariz. 33, 50, ¶ 59 (2005).

¶6 “In a criminal case, a defendant has a constitutional right to
represent himself.” State v. Raseley, 148 Ariz. 458, 461 (App. 1986) (citing
U.S. Const. amend. VI; Ariz. Const. art. II, § 24; Faretta v. California, 422 U.S.
806, 819-21 (1975); and State v. Hartford, 130 Ariz. 422, 424 (1981)). But unlike
the right to counsel, “[s]elf-representation does not further any fair trial
interests and is protected solely out of respect for the defendant’s personal
autonomy.” State v. Hanson, 138 Ariz. 296, 300 (App. 1983). “This right is
afforded [to] the defendant despite the fact that its exercise will almost surely
result in detriment to both the defendant and the administration of justice.”
Id. (quoting People v. Salazar, 141 Cal. Rptr. 753, 761 (Ct. App. 1977)).
Therefore, “[t]he trial court ha[s] no obligation to advise [a defendant] of
his right to proceed pro se.” Id.

¶7 To the contrary, a defendant wishing to represent himself has
an affirmative duty to make an “unequivocal and timely” demand to
proceed pro se. Id.; see also State v. Lamar, 205 Ariz. 431, 435-36, ¶ 22 (2003)
(“To exercise [the right to self-representation], a defendant must voluntarily
and knowingly waive his right to counsel and make an unequivocal and
timely request to proceed pro se.”) (citing State v. De Nistor, 143 Ariz. 407,
412 (1985)). To the extent Botsford suggests he made such a demand here,
we disagree. Botsford only requested new counsel; he did not indicate any
desire to waive his right to counsel or represent himself. And even if we

3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.

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 STATE v. BOTSFORD
Decision of the Court

believed otherwise, a request made on the second day of a two-day trial is
not timely, and therefore within the trial court’s discretion to deny. State v.
Cornell, 179 Ariz. 314, 326 (1994) (“It is uniformly held that all motions for
pro per status made after jury selection has begun are untimely. . . . Denial
of a defendant’s untimely motion is not an abuse of discretion.”) (quotation
and citations omitted); accord De Nistor, 143 Ariz. at 412-13. Accordingly,
we find no error.

CONCLUSION

¶8 Botsford’s conviction and sentence are affirmed.

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

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