State v. Rowan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELIJAH ROWAN, Appellant.

No. 1 CA-CR 21-0390
FILED 9-6-2022

Appeal from the Superior Court in Maricopa County
No. CR2020-129240-001
The Honorable Margaret LaBianca, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Dawnese Hustad
Counsel for Appellant

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.

STATE v. ROWAN
Decision of the Court

P A T O N, Judge:

¶1 Elijah Jeavoh Rowan appeals his convictions from a jury trial
in absentia, arguing his absence was involuntary. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the facts in the light most favorable to sustaining
the jury’s verdicts,” resolving all reasonable inferences against Rowan. See
State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 In August 2020, the State charged Rowan with aggravated
assault (count 1), unlawful discharge of a firearm (count 2), and misconduct
involving weapons (count 3). The State later dismissed count 1.

¶4 Rowan was present and in custody at his arraignment. The
superior court asked Rowan several questions and determined that he
knowingly, intelligently, and voluntarily waived his right to a preliminary
hearing. The court informed Rowan of his upcoming court dates and said
that if he failed to appear while out of custody, the court could issue a
warrant for his arrest. The court told Rowan to stay in contact with his
counsel and cautioned him that the trial could proceed in his absence,
which Rowan verbally acknowledged understanding. He signed a release
order warning the same and posted bond in October 2020.

¶5 Rowan was present at his December 2020 hearing and his
counsel told the superior court she had not heard from Rowan since mid-
November. After the court told Rowan he needed to stay in touch with his
counsel, Rowan said he needed her phone number. Defense counsel
responded that Rowan had her number when he previously texted her but
she would give it to him again.

¶6 Rowan was thirty minutes late to a hearing in early February
2021. The superior court reminded Rowan that he needed to timely appear,
discussed the consequences of non-appearance, and noted the upcoming
hearing dates. Rowan told the court he understood.

¶7 Rowan was present at the mid-February 2021 settlement
conference and confirmed several times that he understood what was being
discussed. He rejected the State’s plea offer. The superior court affirmed
the Final Trial Management Conference (“FTMC”) date. After Rowan twice
confirmed he understood the consequences of non-appearance, the court
adjourned.

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STATE v. ROWAN
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¶8 After the settlement conference, Rowan attempted suicide
and was hospitalized. In early March 2021, defense counsel filed a motion
to continue the FTMC and Trial Assignment hearing, informing the
superior court she visited Rowan at the hospital and was told he was stable
but may require psychological observation. The court granted the motion.
The State later moved to continue the same two proceedings, noting in its
motion that Rowan had “been in an in-patient mental health facility for a
few weeks.” The court granted the motion.

¶9 Rowan was not present at the FTMC in late May 2021.
Defense counsel told the FTMC court she last spoke to Rowan “a couple
weeks ago” after his release from a psychiatric center. The State asked the
court to issue a bench warrant and moved to proceed in absentia. Defense
counsel objected, stating that when she last spoke to Rowan she “did not
necessarily talk to him about this next upcoming court date to be sure he
had the details.” The court granted the State’s request for a warrant. It did
not directly rule on the State’s request to proceed in absentia but affirmed
the Trial Assignment hearing date.

¶10 Rowan’s Trial Assignment hearing took place in early June
2021 before a different judicial officer. Rowan’s appearance at this hearing
had previously been waived. At the outset, the Trial Assignment court said
it wanted to make a record of what notice Rowan had of the FTMC. Defense
counsel told the court that (1) she visited Rowan at the hospital after his
suicide attempt, (2) Rowan was transferred to a psychiatric treatment center
and stayed there “for quite some time,” (3) she spoke to Rowan “several
times” when he was at the psychiatric treatment center, (4) after Rowan was
discharged, she had one phone conversation with him on April 13, 2021, (5)
during the phone call, she told Rowan there would be a continuance, (6) she
was unable to contact Rowan after the continuance was granted to inform
him of the new court date, (7) her investigator was unable to locate Rowan,
and (8) she contacted the mother of Rowan’s children who had not been in
contact with Rowan.

¶11 Defense counsel generally objected to the proceeding moving
forward, stating she had concerns about notice and whether Rowan
voluntarily absented himself from the FTMC due to his “questionable
mental state.” The Trial Assignment court asked defense counsel: “And
you’ve given all of this information to [the FTMC Judge], and she affirmed
the trial date anyway?” Defense counsel replied that although she told the
FTMC court about Rowan’s “mental health situation in the past,” she had
not provided all the details. The State argued that Rowan was aware the
case was pending and should have apprised himself of the court dates.

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STATE v. ROWAN
Decision of the Court

Defense counsel responded she was uncomfortable waiving Rowan’s
presence at trial given recent events. She argued that even if Rowan had
stayed in contact with her, there would still be mental health questions to
address, stating: “[I]f [Rowan] were to appear and then I would have
competency concerns, I think that’s a whole can of worms that I would
rather not be opening.”

¶12 The State asked defense counsel: “[I]f there [were] . . .
competency concerns, then why didn’t this case go through—or why
haven’t we put [Rowan] through Rule 11?” Defense counsel replied that
following their April 13 phone call, she planned to meet with Rowan in
person but he stopped contacting her, thus preventing her from addressing
potential competency issues. The State responded that any competency
concern was “hypothetical,” and it was ready to proceed to trial. The Trial
Assignment court set the case for trial.

¶13 Rowan was not present at his mid-June 2021 trial. The jury
convicted him on counts 2 and 3. In late June, police arrested Rowan after
contacting him regarding other charges. At sentencing, the superior court
found aggravating and mitigating factors present—including mental health
as a mitigator. The court imposed the presumptive term of 3.5 years on
count 2 and a slightly mitigated, concurrent term of seven years on count 3.

¶14 Rowan timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4033(A)(1).

DISCUSSION

¶15 On appeal, Rowan argues (1) the superior court improperly
inferred his absence was voluntary under Arizona Rule of Criminal
Procedure 9.1 and (2) the Trial Assignment court abused its discretion by
setting the case for trial despite receiving evidence suggesting his absence
was involuntary due to potential incompetency.

I. The superior court did not err in inferring that Rowan’s absence
was voluntary under Rule 9.1.

¶16 Rowan contends the superior court improperly inferred his
absence was voluntary under Rule 9.1. We disagree.

¶17 A defendant has a constitutionally protected right to be
present at trial. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; State v.
Levato, 186 Ariz. 441, 443 (1996). But a defendant may voluntarily relinquish

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STATE v. ROWAN
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this right. State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9 (1998). A
defendant who is out of custody has a responsibility to maintain contact
with his counsel and the superior court. State v. Love, 147 Ariz. 567, 570
(App. 1985). His failure to do so may be considered by the court in
determining whether his absence was voluntary. See id.; see also State v.
Sanchez, 116 Ariz. 118, 120 (App. 1977) (a defendant who fails to ascertain
when his trial would begin and fails to communicate with counsel permits
the inference that his absence is voluntary). The superior court’s
determination of whether a defendant’s absence was voluntary or
involuntary is a factual finding we review for an abuse of discretion. State
v. Reed, 196 Ariz. 37, 38, ¶ 2 (App. 1999).

¶18 Under Arizona Rule of Criminal Procedure 9.1, the superior
court “may infer that a defendant’s absence is voluntary if the defendant
had [1] actual notice of the date and time of the proceeding, [2] notice of the
right to be present, and [3] notice that the proceeding would go forward in
the defendant’s absence.” See State v. Hall, 136 Ariz. 219, 222 (App. 1983)
(defendant’s absence at trial presumed voluntary and construed as valid
waiver of the right to be present when circumstances indicate Rule 9.1 has
been satisfied).

¶19 Here, defense counsel told Rowan the proceeding would be
continued during their April 13 phone call. And, even if defense counsel
did not provide him with the continued dates, he was instructed by the
court to maintain contact with his counsel but failed to do so. See State v.
Muniz-Caudillo, 185 Ariz. 261, 262 (App. 1996) (absence voluntary where
defendant did not have personal notice of the continued trial dates but
failed to maintain contact with counsel or appear at subsequent
proceedings despite the superior court admonishing defendant of the
consequences of absence).

¶20 Rowan was aware he had a right to be present at trial and was
warned several times that trial could proceed in his absence, yet he failed
to stay in consistent contact with his counsel and failed to appear at
hearings following his suicide attempt. See State v. Fristoe, 135 Ariz. 25, 34-
35 (App. 1982). Under these circumstances, the superior court was
permitted to infer that Rowan’s absence was voluntary.

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STATE v. ROWAN
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II. The Trial Assignment court did not abuse its discretion in setting
the case for trial.

¶21 Rowan next argues the Trial Assignment court failed to give
proper weight to information presented by his counsel suggesting his
absence was involuntary due to potential incompetency. We disagree.

¶22 Rowan concedes that a suicide attempt does not require a
finding that a defendant’s absence from trial was involuntary. See Reed, 196
Ariz. at 39, ¶ 7 (“[D]epending on the circumstances, absence occasioned by
attempted suicide may be a voluntary waiver of the right to be present at
trial.”). But he contends that, when combined with his hospitalization and
psychiatric treatment, his suicide attempt was sufficient to indicate serious
mental illness and potential incompetence.

¶23 A mentally incompetent defendant is incapable of knowingly
or intelligently waiving constitutional rights. State v. Evans, 125 Ariz. 401,
402 (1980) (citing Pate v. Robinson, 383 U.S. 375 (1966)). A defendant has a
right to a mental health examination to determine competency when
reasonable grounds for an examination exist. See Ariz. R. Crim. P. 11.3; see
also State v. Messier, 114 Ariz. 522, 525 (App. 1977) (the superior court has
broad discretion in determining whether reasonable grounds for a
competency examination exist). Such grounds exist if “there is sufficient
evidence to indicate that the defendant is not able to understand the nature
of the proceeding against him and to assist in his defense.” State v. Amaya-
Ruiz, 166 Ariz. 152, 162 (1990) (quoting State v. Borbon, 146 Ariz. 392, 395
(1985)).

¶24 Although the superior court must consider information a
defendant provides regarding the voluntariness of his absence, it is not
required to conduct a hearing unless the defendant meets the burden of
establishing a colorable claim that his absence was involuntary. Reed, 196
Ariz. at 39, ¶ 4; Fristoe, 135 Ariz. at 34-35.

¶25 Rowan asserts the record contains evidence of “persistent and
pervasive competency concerns.” We disagree. Rowan appeared at
multiple pretrial hearings, during which no competency concerns were
raised. At his arraignment, the superior court determined his preliminary
hearing waiver was made knowingly, intelligently, and voluntarily.
Rowan actively engaged in and confirmed he understood what was
occurring at the pretrial proceedings he attended, including the settlement
conference where he asked several questions. The record does not support

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STATE v. ROWAN
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Rowan’s claim that his pretrial appearances displayed a “pattern of mental
deterioration.”

¶26 Moreover, at the Trial Assignment hearing, when pressed by
the State as to why Rowan had not undergone a Rule 11 evaluation if
competency was a concern, defense counsel said she would have addressed
competency issues if she had met with Rowan in person after he was
discharged. But defense counsel had been in contact with Rowan. She
visited him at the hospital after his suicide attempt and spoke to him during
treatment and after his discharge in April 2021. Yet no Rule 11 motion was
made and no competency concerns were mentioned at the May 2021 FTMC.
See Ariz. R. Crim. P. 11.2(a)(1) (either party may move, or the superior court
may order sua sponte, for a defendant to undergo an examination to
determine his competence to stand trial). Additionally, when defense
counsel discussed competency concerns at the Trial Assignment hearing,
they were speculative and grounded in the fact that she was unable to meet
with Rowan in person because he had absconded.

¶27 We cannot say the Trial Assignment court abused its
discretion in determining there were not reasonable grounds to sua sponte
inquire into Rowan’s competency. Indeed, the record before it did not show
Rowan lacked a rational and factual understanding of the proceedings
against him or that he could not rationally consult with his counsel. See
Amaya-Ruiz, 166 Ariz. at 162 (citation omitted); see also Fristoe, 135 Ariz. at
34 (superior court required to conduct a hearing only when defendant
establishes a colorable claim of involuntary absence). Although a better
practice might be to make specific findings to determine whether a
competent waiver exists, the absence of such findings is not reversible error
if the record is adequate. See State v. Howland, 134 Ariz. 541, 549 (App. 1982);
see also LaCount v. Mroz, 253 Ariz. 49, 52-54, ¶¶ 8-11 (App. 2022) (although
it may have been prudent for the superior court to take the “limited step”
of ordering a preliminary examination under Rule 11.2(c) “to assist the
court in determining if reasonable grounds exist[ed] to order the
defendant’s further examination,” such an order was discretionary).

¶28 In short, aside from defense counsel stating she was “not sure
where [Rowan was] at mentally right now,” Rowan’s suicide attempt and
treatment was the only information in the record concerning his
competency. Based on this speculative assertion, we cannot say the Trial
Assignment court erred in determining the case could proceed to trial in
Rowan’s absence. See State v. Sainz, 186 Ariz. 470, 473 (App. 1996) (in
determining whether a defendant’s absence is voluntary or involuntary, the
superior court must consider all the facts presented to it on the issue); see

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STATE v. ROWAN
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also Reed, 196 Ariz. at 39, ¶ 7 (because the defendant “made a voluntary
decision to try to end his life and thereby avoid his trial, the trial court did
not err in finding that his suicide attempt and consequent hospitalization
constituted a voluntary waiver of his right to be present at the remainder of
his trial.”).

¶29 Based on the record before it, we find that the Trial
Assignment court did not abuse its “broad discretion” by not sua sponte
ordering inquiry into Rowan’s competency. See State v. Romero, 130 Ariz.
142, 147 (1981) (superior court has broad discretion in determining if
reasonable grounds exist and such determination is upheld absent a
“manifest abuse of discretion.”); see also State v. Armstrong, 208 Ariz. 345,
354, ¶ 40 (2004) (abuse of discretion occurs when “no reasonable judge
would have reached the same result under the circumstances.”).

CONCLUSION

¶30 We affirm.

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

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