State v. Green

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES WASHINGTON GREEN, Appellant.

No. 1 CA-CR 21-0262
FILED 8-4-2022

Appeal from the Superior Court in Mohave County
No. S8015CR201900961
The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Alexander M. Taber
Counsel for Appellee

R&R Law Group, Scottsdale
By Ryan W. Cummings, Robert Francis Gruler, Jr.
Co-Counsel for Appellant

Charity Clark Law, PLLC, Chandler
By Charity Clark
Co-Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 A jury convicted James Washington Green III of unlawful
flight from a pursuing law enforcement vehicle. Green appeals his
conviction, challenging the superior court’s denial of his motion to continue
his trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2019, Green was charged with one count of unlawful
flight from a pursuing law enforcement vehicle after failing to pull over for
a fully marked police car with activated lights and sirens. Green retained
Dwane Cates Law Group as private counsel. In August 2019, Green moved
to continue the pretrial conference from August to September due to an
attorney scheduling conflict. The court granted the continuance. At the
September conference, Attorneys for Freedom Law Firm indicated that the
firm would be moving to substitute as counsel, and the status conference
was continued to October at the court’s suggestion.

¶3 At the end of September, Green again moved to continue the
status conference because Attorneys for Freedom Law Firm had substituted
as counsel. The court continued the status conference to November.

¶4 At the end of October, Green moved to continue the
November status conference because the parties needed additional time to
negotiate a plea deal. The court continued the status conference to
December. At the December status conference, trial was set for April 20,
2020.

¶5 In February 2020, Green moved to continue the trial because
he needed additional time to prepare. After a hearing, the court continued
the trial to May 4, 2020.

¶6 A series of delays occurred because of the COVID-19
pandemic. The court first continued the trial to June 15, 2020. The court
later vacated the June trial date due to the limited number of jury trials, and

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Decision of the Court

scheduled a status conference for June. At the June status conference, trial
was set for September 25, 2020.

¶7 At the final management conference in September, the state
moved to continue the trial because the parties were not prepared. The
court continued the trial to January 25, 2021. In December 2020, Attorneys
for Freedom Law Firm withdrew as counsel because the attorney–client
relationship had broken down. The court appointed a public defender to
represent Green.

¶8 At the final management conference in January 2021, Green
informed the court that he did not want to be represented by a public
defender and would be retaining private counsel. The court then vacated
the January trial date and set a status conference for February.

¶9 Green failed to appear at the February status conference. The
court issued a bench warrant and allowed appointed counsel to withdraw.
At Green’s initial appearance later that month, the court informed Green of
appointed counsel’s withdrawal and acknowledged Green’s statement that
he had retained private counsel.

¶10 At a March status conference, Green requested court-
appointed counsel. The court reappointed the public defender, and trial
was set for May 17, 2021. At the final management conference in April,
Green expressed concern about appointed counsel’s lack of preparedness.
The court found that all parties were ready to proceed with trial. One week
before trial, another public defender, Jon Gillenwater, stepped in as counsel
for Green.

¶11 On the morning of trial, Green moved to continue the trial to
substitute R&R Law Group as counsel and allow them time to prepare. The
state opposed the continuance under State v. Hein, 138 Ariz. 360 (1983),
because Green had been granted previous continuances, the motion was
made the morning of trial, and the trial date had been set for some time.
Green told the court that he had never spoken to Gillenwater, never had a
strategy session, and had no idea who Gillenwater was or where he
worked. Gillenwater assured the court that he was consistently briefed on
the case by former counsel and was prepared for trial. The court denied the
motion, reasoning that it had set the case for trial in May based on Green’s
desire to be tried as quickly as possible.

¶12 The trial proceeded with appointed counsel. The jury found
Green guilty as charged, and the court sentenced him to three years of
supervised probation.

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Decision of the Court

¶13 Green appeals.

DISCUSSION

¶14 Green argues the superior court violated his constitutional
right to counsel of choice by denying his motion to continue to allow his
newly retained attorney time to prepare for trial. We review the court’s
denial of a motion to continue for abuse of discretion. State v. Forde, 233
Ariz. 543, 555, ¶ 18 (2014). We review de novo claims implicating a
defendant’s Sixth Amendment right to counsel. State v. Ramos, 239 Ariz.
501, 505, ¶ 15 (App. 2016). We will affirm the court’s decision if it is “legally
correct for any reason.” State v. Espinoza, 229 Ariz. 421, 424, ¶ 15 (App.
2012).

¶15 The Sixth Amendment guarantees a criminal defendant the
right to counsel of his choice. Hein, 138 Ariz. at 368; see also Ariz. Const. art.
2, § 24. But this right is not absolute, and the court retains “wide latitude in
balancing the right to counsel of choice against the needs of fairness, and
against the demands of its calendar.” State v. Aragon, 221 Ariz. 88, 90, ¶ 5
(App. 2009) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152
(2006)). In weighing these competing interests, the court considers:

whether other continuances were granted; whether the
defendant had other competent counsel prepared to try the
case; the convenience or inconvenience to the litigants,
counsel, witnesses, and the court; the length of the requested
delay; the complexity of the case; and whether the requested
delay was for legitimate reasons or was merely dilatory.

Hein, 138 Ariz. at 369.

¶16 Although the court did not expressly refer to the factors set
forth in Hein in denying Green’s motion to continue, the record supports
the court’s decision under Hein. Green requested and secured prior
continuances for status conferences and trial. The court also continued the
January 2021 trial date to allow Green to retain private counsel. But Green
did not retain private counsel, and the court reappointed the public
defender as counsel.

¶17 Green also had competent counsel. Green told the court that
he had never talked to Gillenwater, but later admitted that Gillenwater had
called him to discuss the case before trial. Gillenwater assured the court he
was prepared for trial, just with a different defense strategy than Green.

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¶18 Green’s motion to continue was raised on the morning of trial.
Green argues the witnesses would not have been inconvenienced by the
continuance because one of the state’s witnesses was already appearing by
Zoom and the only other witnesses were Green and the law enforcement
officer involved in the case. Green admits, however, that the continuance
would have resulted in a slight inconvenience to the jurors who were
present and ready to be sworn. The court was also operating with limited
availability for jury trials due to the COVID-19 pandemic.

¶19 The case was not complex. It consisted of only one count and
was tried within two days including jury selection. See Hein, 138 Ariz. at
369 (suggesting the “straightforward” nature of the case did not support a
continuance).

¶20 Green’s case had been pending for nearly two years. He had
ample time and opportunity to retain private counsel before trial and, in
fact, retained two different law firms throughout the course of the
proceedings. Green also admitted that R&R Law Group had been kept up
to speed on his case since the beginning. The court could reasonably
conclude that Green’s last-minute motion to allow R&R Law Group to
prepare a defense was merely a dilatory tactic.

¶21 On these facts, we cannot say the superior court abused its
discretion in denying Green’s motion to continue. The court therefore did
not infringe upon Green’s Sixth Amendment right to counsel of choice.

¶22 In support of his argument, Green relies on State v. Aragon, 221 Ariz. 88 (App. 2009), contending it controls the outcome here. In
Aragon, the defendant requested a continuance six days before trial to allow
his private counsel to appear and prepare for trial. Id. at 89, ¶ 2. The
defendant had not sought nor been granted prior continuances. Id. at 90,
¶ 6. We concluded the superior court erred in denying the request to
continue under Arizona Rule of Criminal Procedure (“Rule”) 8. Id. at 91, ¶
7. Although Rule 8 requires cases to be tried within a defined timeframe,
we found that the time would have been excludable under Rule 8.4(a) as a
delay occasioned by the defendant. Id. We also found that a request to
continue six days before trial was not inherently unreasonable. Id. We
disagree that Aragon compels reversal on these facts.

¶23 Here, in denying the motion to continue, the court relied on
Green’s previously articulated desire to be tried as soon as possible in the
context of his prior continuances and morning-of-trial motion. The court
did not improperly invoke nor rely on Rule 8.

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CONCLUSION

¶24 We affirm Green’s conviction and probation term.

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

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