State v. Branch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KARAE JUSTIN BRANCH, Appellant.

No. 1 CA-CR 19-0222
FILED 8-25-2020

Appeal from the Superior Court in Yavapai County
No. P1300CR201600356
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Yavapai County Public Defender’s Office, Prescott
By Blake Cormie
Counsel for Appellant
 STATE v. BRANCH
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.

T H U M M A, Judge:

¶1 Defendant Karae Justin Branch appeals from seven felony
convictions and resulting sentences. Branch argues the superior court
committed structural error when it forced an attorney to represent him after
he had waived his right to counsel. Because Branch was represented by
counsel at the time of this claimed error, withdrawal of his waiver of
counsel was not at issue. Accordingly, and because Branch did not reassert
his desire to represent himself, the convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In February 2016, police officers, responding to a rollover car
accident, recovered guns, drugs and drug paraphernalia. The officers
arrested Branch, the owner of the car, at the scene. The State charged Branch
with seven felony offenses: possession of narcotic drugs, a Class 2 felony
(Count 1); three counts of misconduct involving weapons, Class 4 felonies
(Counts 2-4); possession or use of marijuana, a Class 6 felony (Count 5); and
two counts of possession or use of drug paraphernalia, Class 6 felonies
(Counts 6-7).

¶3 Branch had six different attorneys over the course of pretrial
and trial proceedings. Three withdrew because of conflicts, one was
internally reassigned, and one withdrew because of a communication
breakdown. In March 2018, Alex Harris was appointed to represent Branch.
The next month, Branch asked to represent himself. After Branch signed a
waiver of counsel form and after a colloquy, the court found Branch had
knowingly, intelligently and voluntarily waived his right to counsel. See
Ariz. R. Crim. P. 6.1(c) (2020).1 Harris then served as advisory counsel.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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Decision of the Court

¶4 Over the next two months, Branch filed several motions as a
self-represented party, including an unsuccessful motion to remove Harris
as advisory counsel. In June 2018, given concerns about Branch’s
competence to proceed to trial and to represent himself, the court ordered
a preliminary competency evaluation. See Ariz. R. Crim. P. 11. In October
2018, based on two preliminary reports questioning Branch’s competency,
the court ordered a Rule 11 competency hearing, and again appointed
Harris to represent Branch. The State asked the court to clarify the extent of
her representation:

[THE STATE]: Is Ms. Harris appointed from
here forward or just for purposes of competency
proceedings or --

THE COURT: Right now, . . . and just for the
record, I have two evaluations advising me that
they don’t believe that Mr. Branch is competent
. . . . Given that, I don’t believe I have an option
but [to] appoint Ms. Harris for purposes of the
Rule 11 proceedings for now. She will conduct
the hearing. And then, at the end of that
hearing, I’ll make a decision about who should
represent Mr. Branch from here on out.

¶5 At the competency hearing, Harris appeared as counsel for
Branch and represented him. After testimony from two experts, the court
found Branch competent. The court then asked Branch whether he wanted
to represent himself or if he wanted Harris to represent him:

THE COURT: [I]f . . . [Mr. Branch] desires to
continue to [represent himself], . . . he should be
able to continue to represent himself. If he
wants to have Ms. Harris as counsel, he’s
always free to change his mind on that at any
time. I do believe that Ms. Harris is appropriate
to continue as advisory counsel. . . . Mr. Branch,
did you wish to have Ms. Harris represent you
or did you wish to continue to represent
yourself as you did previously?

Branch responded “[w]ell, I don’t know.” The court then scheduled a status
conference two weeks later, allowing Branch to consider the issue. The

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Decision of the Court

court added that “[f]or now . . . [Ms. Harris is] still on the case until Mr.
Branch tells me otherwise.”

¶6 At the November 2018 status conference, Branch was present
and represented by Harris. Branch expressed his frustration with the
proceedings, stating he did not want to be present in the courtroom
anymore:

MR. BRANCH: I will not -- no longer come to
this courtroom. Keep me in your jail as long you
-- I been in there for a year, I might as well stay
in there for a few more. I’m ready to go.

...

THE COURT: Mr. Branch . . . before you go, can
I ask you one more question? . . . All I need to
know is whether you want to continue . . . with
Ms. Harris, or do you want to represent yourself
now?

...

MR. BRANCH: I have no control of it . . . . I’d
just rather just go on ahead and go about my
business, sit in the cell, and let your officers
continue to harass me. I don’t give a [expletive].
I care less.

THE COURT: All right.

MR. BRANCH: I’m ready to go.

THE COURT: All right. Thank you, Mr. Branch.

MR. BRANCH: Got me in here for no reason.

THE COURT: Ms. Harris, I’m going to take that
as an acceptance of your representation in this
matter. I’m going to allow you to continue on
the matter.

(Whereupon, Mr. Branch exits the courtroom.)

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This exchange is confirmed in the court’s resulting minute entry, in which
the court stated it would allow Harris to continue to represent Branch.
Harris continued to represent Branch moving forward. Branch never again
requested to represent himself.

¶7 After a jury trial in early 2019, where Harris represented
Branch and where Branch elected to testify, the jury found him guilty as
charged. The court later sentenced him to concurrent prison terms, the
longest of which was for ten years. This court has jurisdiction over Branch’s
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) sections 12–120.21(A)(1), 13–4031
and 13–4033(A).

DISCUSSION

¶8 Branch argues that the court violated his constitutional right
to represent himself by “forcing an attorney on a defendant who properly
waived his right to counsel [and] who wanted to represent himself” at and
after the November 2018 status conference.

¶9 “The right to counsel under both the United States and
Arizona Constitutions includes an accused’s right to proceed without
counsel and represent himself.” State v. Lamar, 205 Ariz. 431, 435 ¶ 22 (2003).
To be valid, the waiver of the right to counsel “must be made knowingly,
intelligently, and voluntarily.” State v. Cornell, 179 Ariz. 314, 322 (1994)
(citing Edwards v. Arizona, 451 U.S. 477, 482 (1981); Faretta v. California, 422
U.S. 806, 835 (1975)). After waiving the right to counsel, a defendant may
withdraw that waiver at any time, Ariz. R. Crim. P 6.1(e), as long as the
withdrawal is “unequivocal” and “clear.” State v. Gonzales, 181 Ariz. 502,
510 (1995) (citing State v. Rickman, 148 Ariz. 499, 503 (1986)). The court’s
“decision to revoke a defendant’s self-representation is reviewed for an
abuse of discretion.” State v. Gomez, 231 Ariz. 219, 222 ¶ 8 (2012).

¶10 Branch insists he waived his right to counsel in March 2018
and “never ‘clearly indicated’ that he changed his mind” before the
November 2018 hearing. That argument, however, misconstrues the facts
and procedural history. Although Branch properly waived his right to
counsel in April 2018, Harris was reinstated as Branch’s attorney, without
objection, to represent him for the Rule 11 competency evaluation and
hearings. Harris then remained his counsel going forward, without
objection, through trial and sentencing. Thus, the premise of Branch’s
argument that the superior court forced him to accept Harris as counsel
after the November 2018 status conference is incorrect. In fact, at the time

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of that status conference, Harris had been representing Branch for more
than a month and the court had clarified at the competency hearing that
Harris is “still on the case until Mr. Branch tells me otherwise.” Branch
never told the court otherwise. Therefore, because Harris was Branch’s
attorney at the November 2018 status conference, withdrawal of Branch’s
waiver of counsel was not, and could not have been, at issue.

¶11 Instead, the issue is whether Branch sought to waive his right
to counsel for a second time at the November 2018 status conference and, if
so, whether he did so properly. Although Branch expressed his
dissatisfaction with Harris and the criminal justice system in general, the
record does not show that Branch reasserted his wish to represent himself
at the November 2018 status conference, or at any later time. Indeed, the
November 2018 status conference was specifically set to allow Branch to
decide whether he wanted to represent himself. During that hearing,
however, Branch never expressed any desire to represent himself. Instead,
Branch conveyed his frustration with the court proceedings and then left,
answering “I don’t care” when the court asked if he “want[ed] to continue
. . . with Ms. Harris [as counsel], or do you want to represent yourself now.”

¶12 At the November 2018 status conference, Branch never said
he wanted to represent himself. Moreover, Branch neither tendered a
written waiver nor requested a colloquy so the court could ensure any such
waiver was proper. See Ariz. R. Crim. P. 6.1(c); see also Cornell, 179 Ariz. at
322 (“The right to waive counsel is . . . limited in several ways.”); Johnson v.
Zerbst, 304 U.S. 458, 464 (1938) (“[C]ourts indulge every reasonable
presumption against waiver of fundamental constitutional rights,”
including waiver of counsel. (citation omitted)). Because Branch walked out
of the courtroom without stating he wanted to represent himself, the court
did not violate Branch’s right to represent himself.

¶13 Finally, Branch contends he “was literally silenced at his own
trial, [because] his attorney forced the court to put his mic on mute.”
Typically, single sentence arguments are waived. See MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011) (“Merely mentioning an argument in an
appellate opening brief is insufficient.”). Moreover, the record does not
support this contention. Indeed, Branch testified at trial in his own defense.
In any event, Branch has shown no error in his microphone being muted at
trial.

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CONCLUSION

¶14 Branch’s convictions and sentences are affirmed.

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

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