State v. Helman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANDREW WILSON HELMAN, Appellant.

No. 1 CA-CR 20-0264
FILED 2-18-2021

Appeal from the Superior Court in Maricopa County
No. CR 2019-107182-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
The Honorable Sally Schneider Duncan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
 STATE v. HELMAN
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Andrew Wilson Helman appeals his conviction and sentence
for possession of dangerous drugs. He argues the superior court erred by
failing to inquire into the basis of his oral request for substitution of counsel
as required by State v. Torres, 208 Ariz. 340, 343, ¶ 7 (2004). Finding no error,
we affirm.

BACKGROUND

¶2 The State charged Helman with one count of sale or
transportation of dangerous drugs, and the superior court appointed
counsel to represent Helman. At the final trial management conference,
defense counsel informed the court that Helman desired a change of
counsel:

[Defense Counsel]: [M]y client . . . would like to make a record
this morning regarding counsel. I believe he would like a
change of counsel --

[Defendant]: Yes.

[Defense Counsel]: -- and not pro per status. But I told him
he would normally have to file that in writing. But --

[The Court]: Well, . . . I’m not going to take it up orally. . . . If
you have something to communicate, it needs to be in writing.
And as long as you have a lawyer, your lawyer needs to
present it to the Court -- which your lawyer can do. And . . .
you all need to try to work it out. But I am going to tell you
ahead of time: You have a right to be represented by counsel.

[Defendant]: Uh-huh.

[The Court]: You have a right to have one appointed at no cost
if you can’t afford one. You don’t get to just pick your lawyer.

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[Defendant]: Right.

[The Court]: If your lawyer is telling you things you don’t like
to hear, that is not a reason to get rid of your lawyer. Okay?
Just understand that. Frequently lawyers and clients have to
have conversations that are difficult. That is not a basis to fire
a lawyer. Okay? So I will look at any reason very closely
before I would consider removing your lawyer and changing
counsel. I’m just letting you know that. I have to follow the
law. And there are legal reasons to end a relationship, and
that’s the only basis under which I would give it any real
consideration. So you just need to know that.

¶3 The discussion then moved to plea negotiations. After
Helman rejected the State’s plea offer, he stated, “I would like to change my
counsel.” In response, the superior court stated: “We’re not doing that. Let
me just review one thing at a time.” When the court finished the Donald
advisement, the court re-affirmed that any motion must be in writing: “I’m
not talking to you ever orally about any motion. I made that clear. So don’t
talk about that again.” Substitution of counsel was not mentioned again,
and defense counsel continued representing Helman.

¶4 A jury found Helman guilty of a lesser-included offense,
possession of dangerous drugs, and the superior court sentenced him to
prison for two and a half years. This timely appeal followed.

DISCUSSION

¶5 Helman argues the superior court erred by refusing to
consider his oral request for new counsel, in violation of its duty to inquire
into the basis for such a request. We review a denial of a motion to
substitute counsel for an abuse of discretion. State v. Riley, 248 Ariz. 154,
167, ¶ 7 (2020). A court abuses its discretion when it denies such a motion
without inquiring into the “specific factual allegations that raised a
colorable claim” of violation of the right to counsel. Torres, 208 Ariz. at 343,
¶ 9.

¶6 The Sixth Amendment establishes a right to counsel that has
been extended to indigent criminal defendants. U.S. Const. amend. VI;
Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963); see also Ariz. Const. art. 2,
§ 24. This right is violated when a defendant and his appointed counsel
develop a “complete breakdown in communication” or an “irreconcilable
conflict.” Torres, 208 Ariz. at 342, ¶ 6. Thus, a defendant is entitled to
competent counsel, but he has no right to “counsel of choice, or to a

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meaningful relationship” with his attorney. Id. (quoting State v. Moody, 192
Ariz. 505, 507, ¶ 11 (1998).

¶7 When a defendant requests substitute counsel, the “trial judge
has the duty to inquire as to the basis of a defendant’s request” to protect
his or her Sixth Amendment right to counsel. Id. at 343, ¶ 7. “The nature
of the inquiry will depend upon the nature of the defendant’s request.” Id.
at ¶ 8. For instance, “generalized complaints . . . may not require a formal
hearing or an evidentiary proceeding.” Id. However, “[i]f a defendant
makes sufficiently specific, factually based allegations in support of his
request,” a hearing would be required to determine whether the defendant
can establish a Sixth Amendment violation. Id. at ¶ 7 (quoting United States
v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).

¶8 The superior court did not deny Helman’s request for change
of counsel outright, instead stating any such motion would need to be
submitted in writing before the court would consider it. At the hearing,
Helman twice expressed a desire for substitute counsel, but the court
confirmed it would only consider a written motion. Neither Helman nor
his attorney objected to that requirement. Defense counsel continued in his
role through the trial and sentencing, and the issue was not raised again.
On this record, no error occurred.

¶9 The superior court acted within its discretion in requiring that
the motion be submitted in writing. See Arizona Rule of Criminal
Procedure (“Rule”) 16.1(b), (c) (requiring all pretrial motions to be filed no
later than 20 days before trial); see also Rule 1.6 (rules for preparing
documents filed with the court); Rule 1.9(a) (motions must include facts,
arguments, and authorities). Thus, without a written motion the court did
not need to ask about the basis for Helman’s oral request for new counsel.

¶10 Helman also abandoned his request. In State v. McLemore, a
defendant filed a motion to proceed pro se that was not addressed by the
court, but in the year before trial, he never requested a ruling, stated an
intent to abandon the motion, or objected to his counsel’s conduct. 230 Ariz.
571, 574–75, ¶¶ 11–13 (App. 2012). We held the defendant had abandoned
his motion, noting his ample “opportunity and ability to ask the court to
rule . . . reflect[ed] an intent to abandon.” Id. at 582, ¶ 36. In determining
whether a motion has been abandoned, we consider “the totality of the
circumstances,” including but not limited to (1) “the defendant’s
opportunities to remind the court of a pending motion,” (2) “defense
counsel’s awareness of the motion,” (3) any “affirmative conduct by the
defendant” conflicting with his motion, (4) “whether the defendant waited

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until after a conviction to complain about the court’s failure to rule on his
or her motion,” and (5) “the defendant’s experience in the criminal justice
system.” Id. at 580, ¶ 29; 582, ¶ 35.

¶11 Here, the superior court told Helman it would consider a
written motion, but he failed to file one. Nor did he raise any concerns at
the final pretrial hearing or at trial. Absent later complaints about defense
counsel, the court had no reason to revisit the issue.

CONCLUSION

¶12 We affirm Helman’s conviction and sentence.

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

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