State v. Sanchez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOE ARTHUR SANCHEZ, Appellant.

No. 1 CA-CR 19-0109
FILED 6-2-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-151752-001
The Honorable Erin Otis, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Joe Arthur Sanchez appeals his convictions and sentences for
misconduct involving weapons (prohibited possessor), resisting arrest, and
possession of a dangerous drug. Sanchez contends that he was deprived of
his right to counsel because he had an irreconcilable conflict and complete
breakdown of communication with his appointed attorney. For reasons
that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In November 2017, Sanchez was arrested after shooting the
victim in the leg. At Sanchez’s initial appearance, the superior court found
Sanchez indigent, appointed counsel, and set release conditions including
a $75,000 bond, electronic monitoring, and pretrial supervision.

¶3 Approximately three months later, Sanchez filed a pro se
motion requesting a change of counsel. Sanchez explained that he wanted
new counsel because he had not received all his relevant paperwork and
counsel had not filed the motions Sanchez requested (specifically motions
for bond reduction and change of counsel). The court granted Sanchez’s
request for new counsel but informed him that extraordinary circumstances
would be required to justify a second change of counsel.

¶4 At the hearing in which the court granted Sanchez’s request
to change counsel, Sanchez sought a bond reduction. When asked to
explain what changed circumstances warranted reconsideration of the
bond amount, Sanchez explained that he believed his bond was excessive,
he had not yet received all his paperwork from his attorney, he was
previously kicked out of the judge’s courtroom ten years ago, and the judge
had sentenced his brother. The court did not rule on Sanchez’s motion
because there was no written motion on the docket. Sanchez’s new counsel
did not file a motion seeking a bond reduction, and Sanchez’s prior motion
never appeared on the docket.

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Decision of the Court

¶5 Trial was set for May 30, 2018. Three weeks before the trial
date, defense counsel indicated that although he was in the middle of
another trial, he intended to interview witnesses and be ready for trial
because Sanchez wished to proceed as soon as possible. A week before the
scheduled trial date, Sanchez filed a second motion for new counsel. Then,
just before trial was scheduled to begin, defense counsel filed a motion to
continue because of scheduling conflicts. Sanchez individually objected to
the continuance. The court inquired whether Sanchez’s motion to have new
counsel appointed was based on the continuance or for other reasons.
Sanchez explained that his motion was based partially on his counsel’s
request to continue trial and partially on his belief that defense counsel
would not be able to visit him in jail. The court denied the motion and
rescheduled the trial for August 7, explaining that if it granted Sanchez’s
request for a new attorney, his new counsel might have similar trial
conflicts. The court then ordered Sanchez’s attorney to meet with Sanchez
after the attorney concluded his pending trial.

¶6 Just before trial was to begin on August 7, defense counsel
again sought a continuance because he was set to start another trial with
four attorneys whose schedules had been difficult to coordinate. The court
granted the continuance despite Sanchez’s objection, resetting trial for
September 18. The State then sought a continuance of that trial date because
the prosecutor was starting a different trial that day. And although Sanchez
again objected to a continuance, the court granted the motion and reset trial
for November 7 because both defense counsel and the prosecutor had trial
conflicts.

¶7 After the third continuance, trial began on November 7. The
jury found Sanchez guilty of misconduct involving weapons, resisting
arrest, and possession of a dangerous drug; found him not guilty on one
count of aggravated assault; and hung on another aggravated-assault
count.1 The superior court sentenced him to concurrent terms of
imprisonment, the longest of which is 7.5 years.

¶8 Sanchez timely appealed, and we have jurisdiction under
A.R.S. § 13-4033(A).

1 Sanchez later pleaded no contest to this count of aggravated assault
and does not challenge the conviction on appeal.

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DISCUSSION

¶9 Sanchez contends that he was deprived of his right to counsel
when the superior court denied his second request for new counsel. We
review the superior court’s decision on a motion to change counsel for
abuse of discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998).

¶10 Although the Sixth Amendment entitles a criminal defendant
to competent representation, an indigent defendant is not entitled to
“counsel of choice” or to “a meaningful relationship with his or her
attorney.” Id. Ordinarily, only “an irreconcilable conflict or a completely
fractured relationship between counsel and the accused” will require the
appointment of new counsel. State v. Cromwell, 211 Ariz. 181, 186, ¶ 29
(2005). The court’s failure to inquire into the basis for the defendant’s
dissatisfaction with defense counsel or failure to hold a hearing after being
presented with specific supporting factual allegations may constitute an
abuse of discretion in this context. State v. Paris-Sheldon, 214 Ariz. 500, 504,
¶ 8 (App. 2007).

¶11 Sanchez contends the court erred by denying his request
without conducting a sufficient hearing and asks that we remand for a more
extensive evidentiary hearing on his claims. Although the superior court
must inquire into the basis for a request for substitution of counsel on the
record, the nature of the inquiry depends on the nature of the request. State
v. Hernandez, 232 Ariz. 313, 318, ¶¶ 13–14 (2013). While “generalized
complaints about differences in strategy may not require a formal hearing
or an evidentiary proceeding[,] . . . if the defendant sets forth sufficiently
specific, factually based allegations, the court must conduct a hearing into
his complaint.” Id. at ¶ 14 (quotation and alterations omitted); see also State
v. Gomez, 231 Ariz. 219, 225–26, ¶ 29 (2012) (“A [court] is not required to
hold an evidentiary hearing . . . if the motion fails to allege specific facts
suggesting an irreconcilable conflict or a complete breakdown in
communication, or if there is no indication that a hearing would elicit
additional facts beyond those already before the court.”).

¶12 Here, Sanchez filed a one-sentence motion that did not
include any factual allegations suggesting an irreconcilable conflict or a
completely fractured relationship. Nevertheless, the superior court
followed up to determine why Sanchez was requesting a change of counsel.
Sanchez asserted that he did not want his trial to be continued, counsel had
not shown him evidence, and he felt that counsel would be unable to visit
him because of counsel’s busy trial schedule. But Sanchez indicated that he

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did not want to waive time for new counsel to be appointed.2 And based
on Sanchez’s concerns that his attorney’s rigorous trial schedule would
prevent him from visiting him in jail, the court ordered counsel to meet with
Sanchez. Sanchez also failed to explain how counsel’s trial schedule would
prejudice him or what additional evidence counsel should have provided
him. Although the court’s inquiry was brief, given the paucity of
information Sanchez offered, it was sufficient.

¶13 Sanchez further contends that, sufficiency of the inquiry
aside, the court’s denial of his motion for new counsel was an abuse of
discretion. Specifically, he alleges structural error because the court forced
him to trial with an attorney who (1) failed to seek a bond reduction, (2)
repeatedly asked for trial continuances to avoid scheduling conflicts, and
(3) failed to communicate with Sanchez while he was incarcerated.

¶14 To compel a change of counsel, a defendant must show more
than personality conflicts or disagreements about trial strategy. Cromwell,
211 Ariz. at 187, ¶ 30. Instead, a defendant must establish a “severe and
pervasive conflict” with the appointed attorney or “such minimal contact
with the attorney that meaningful communication was not possible.” State
v. Peralta, 221 Ariz. 359, 361, ¶ 5 (App. 2009) (citation omitted). In
evaluating a motion to change counsel, the court should consider:

[W]hether an irreconcilable conflict exists between counsel
and the accused, and whether new counsel would be
confronted with the same conflict; the timing of the motion;
inconvenience to witnesses; the time period already elapsed
between the alleged offense and trial; the proclivity of the
defendant to change counsel; and quality of counsel.

State v. Torres, 208 Ariz. 340, 344, ¶ 15 (2004) (alteration in original and
citation omitted). The court is not, however, required to make express
factual findings regarding these factors. Peralta, 221 Ariz. at 361–62, ¶ 9.

2 To the extent Sanchez suggests a possible speedy trial violation,
Sanchez was bound by his counsel’s requests for continuances and
acquiescence to the State’s request to postpone trial. See State v. Zuck, 134
Ariz. 509, 515 (1982) (noting that delays sought by defense counsel are
binding on the defendant and waive his right to a speedy trial even if done
without his consent). And in any event, Sanchez has shown no cognizable
prejudice from the delay.

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¶15 Here, Sanchez failed to present a colorable claim of an
irreconcilable conflict, a completely fractured relationship, or a complete
breakdown of communication. When asked why he wanted new counsel
appointed, Sanchez complained that in the three months since being
appointed, defense counsel had not come to see him and had not given him
any evidence. Sanchez did not, however, explain how that lapse in
communication amounted to a severe and pervasive conflict or caused a
complete breakdown in communication.

¶16 Further, Sanchez’s newly appointed counsel attended three
court appearances with Sanchez, allowing them to discuss the case and trial
strategies. And when determining the appropriateness of continuing the
trial over Sanchez’s objections, the court discussed defense counsel’s
scheduling conflicts and concluded that Sanchez’s current attorney was the
best possible option given the potential for future conflicts with a new
attorney. See State v. Champagne, 247 Ariz. 116, 129, ¶ 16 (2019) (affirming
denial of a change in counsel based in part on the superior court’s finding
that “a change in counsel would likely result in the same purported conflict
because new counsel might also be unable to visit and confer with
[defendant] as often as he would like”).

¶17 Sanchez also contends that the court should have appointed
new counsel because his attorney failed to seek a modification of his bond
amount. But when the court directly asked Sanchez what change of
circumstances had occurred that would warrant a reduction, Sanchez did
not provide any relevant new information. See Ariz. R. Crim. P. 7.4(c)(1)
(“[A] court may reexamine bail eligibility or the conditions of release if . . .
a motion alleges the existence of material facts not previously presented to
the court.”). Moreover, issues involving release conditions and bail are
moot once a trial has been conducted and an appeal has been filed. Costa v.
Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 2011). We thus decline to address this
issue further.

¶18 Accordingly, the superior court did not abuse its discretion
by denying Sanchez’s request to change appointed counsel. 3

3 To the extent Sanchez argues ineffective assistance of counsel, that
claim may only be brought in post-conviction proceedings, not on direct
appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007).

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 STATE v. SANCHEZ
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CONCLUSION

¶19 For the foregoing reasons, we affirm Sanchez’s convictions
and sentences.

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

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