State v. Atondo-Renteria

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

OLEGARIO ATONDO-RENTERIA, Appellant.

No. 1 CA-CR 22-0582
FILED 1-23-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-153040-001
The Honorable Margaret LaBianca, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Kathryn A. Damstra
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
 STATE v. ATONDO-RENTERIA
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Anni Hill Foster joined.

C A T T A N I, Judge:

¶1 Olegario Atondo-Renteria appeals his convictions and
sentences for robbery, attempted robbery, and criminal trespass. Atondo-
Renteria argues the superior court erred by denying his request for self-
representation and by sentencing him as a repetitive offender. For reasons
that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2019, Atondo-Renteria robbed the cashier at a grocery
store, attempted to rob the cashier at a butcher shop, and trespassed at
another business. The State charged Atondo-Renteria with armed robbery,
attempt to commit armed robbery, and second-degree criminal trespass.1
Several months before trial, Atondo-Renteria asked to represent himself.
The superior court denied the request, finding he lacked the capacity for
self-representation. Atondo-Renteria was later found competent to stand
trial.

¶3 Atondo-Renteria testified on his own behalf at trial, largely
admitting the allegations but maintaining that he was not armed. While
testifying, Atondo-Renteria admitted he had been convicted of a felony
offense in 2015. The jury found Atondo-Renteria guilty of criminal trespass
as charged and of the lesser-included offenses of robbery and attempt to
commit robbery. Based on the prior conviction Atondo-Renteria admitted
on the stand, the court sentenced him as a category two repetitive offender.
See A.R.S. § 13-703(B).

¶4 Atondo-Renteria timely appealed, and we have jurisdiction
under A.R.S. § 13-4033(A).

1 Although the State initially charged two counts of first-degree
criminal trespass as well, those counts were dismissed without prejudice
on the State’s motion.

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DISCUSSION

I. Self-Representation.

¶5 Atondo-Renteria argues the superior court violated his Sixth
Amendment right to self-representation by denying what he contends was
his knowing, intelligent, and voluntary request to represent himself at trial.
We review the denial of a defendant’s request for self-representation for an
abuse of discretion, State v. Underwood, 255 Ariz. 86, 88, ¶ 9 (App. 2023),
assessing whether, when considering the facts in the light most favorable to
sustaining the ruling, reasonable evidence supports it. State v. Ibeabuchi, 248
Ariz. 412, 416, ¶ 15 (App. 2020). Wrongful denial of self-representation is
structural error requiring reversal without a showing of prejudice.
Underwood, 255 Ariz. at 88, ¶ 9.

¶6 A criminal defendant has a fundamental constitutional right
to self-representation. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; Faretta
v. California, 422 U.S. 806, 821 (1975). But to opt for self-representation, a
defendant must waive the right to counsel and “knowingly and
intelligently” choose to forgo the benefits of having such counsel. Faretta,
422 U.S. at 835; see also Ariz. R. Crim. P. 6.1(c). The defendant thus must
have the capacity to make such a waiver before being allowed to proceed
pro se. State v. McLemore, 230 Ariz. 571, 577, ¶ 21 (App. 2012). This requires
that the defendant have the ability to at least “minimally participate in the
process as an advocate,” as by “understand[ing] the nature of the dispute;
formulat[ing] a defense strategy; and engag[ing] with the court, counsel,
witnesses and, in some cases, the jury.” Ibeabuchi, 248 Ariz. at 416, ¶ 16.
Likewise, the defendant must be “able and willing to abide by rules of
procedure and courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173
(1984).

¶7 Atondo-Renteria contends the court erred by denying his
request to represent himself because the record shows that he understood
the nature of the charges against him, the dangers and disadvantages of
self-representation, and possible punishment upon conviction. But
although that evidence established that he was competent to stand trial, see
Dusky v. United States, 362 U.S. 402, 402 (1960), competency to stand trial
does not automatically establish capacity for self-representation. See
Indiana v. Edwards, 554 U.S. 164, 178 (2008) (“States [may] insist upon
representation by counsel for those competent enough to stand trial [] but
who still suffer from severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves.”); see also Ibeabuchi,
248 Ariz. at 412, ¶ 19 (describing “gray-area” defendants).

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¶8 Here, the record shows that Atondo-Renteria lacked
knowledge of basic trial procedures and did not understand how to defend
himself in his case. Although he stated he would listen to what the court,
counsel, and witnesses said, he admitted he did not know what questions
to ask witnesses and did not understand basic trial concepts. He admitted
he did not know what constituted an opening statement, a closing
argument, cross-examination, redirect examination, objections, or what
defenses he might have other than that he “didn’t do it.” And Atondo-
Renteria admitted he only had an elementary school education and limited
ability to read and understand English, which could have hindered his
ability to pick up the skills needed to defend himself.

¶9 As the superior court observed after a lengthy discussion with
Atondo-Renteria, he—by his own admission—“[did]n’t know or
understand many of the basic principles that would have to be applied . . .
to defend [himself] in this case.” The record thus supports the court’s ruling
that Atondo-Renteria was a gray-area defendant who, although competent
to stand trial, was unable to perform “the basic tasks needed to present his
own defense without the help of counsel.” Edwards, 554 U.S. at 175–76.
Accordingly, the superior court acted within its discretion by denying
Atondo-Renteria’s request for self-representation.

II. Repetitive Offender Sentence Enhancement.

¶10 Before trial, the State alleged Atondo-Renteria had two
historical prior felony convictions. Atondo-Renteria admitted having one
of those priors while testifying: a federal felony conviction for illegal
reentry of a removed alien committed in 2015. The superior court found
that the admitted felony qualified as a historical prior felony conviction and
sentenced Atondo-Renteria to enhanced terms of imprisonment as a
category two repetitive offender. See A.R.S. §§ 13-105(22)(e), -703(B), (I).

¶11 Atondo-Renteria now contends the superior court erred by
sentencing him as a repetitive offender because there was no showing of
conformity between the elements of his out-of-jurisdiction prior conviction
and an Arizona felony offense. He did not raise this issue before the
superior court, so we review only for fundamental, prejudicial error. See
State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Regardless of the standard
of review, however, Atondo-Renteria’s argument is based on a faulty
premise.

¶12 As of 2012, the Legislature eliminated the requirement that an
out-of-jurisdiction offense have an Arizona analogue to qualify as a

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historical prior felony conviction warranting an enhanced sentence. See
2012 Ariz. Sess. Laws, ch. 190, §§ 1–2; see also State v. Large, 234 Ariz. 274,
281, ¶ 23 (App. 2014). Instead, an out-of-jurisdiction offense qualifies as a
historical prior felony conviction for sentence enhancement purposes if it
“was punishable by that jurisdiction as a felony and . . . was committed
within the five years immediately preceding the date of the present
offense.” A.R.S. § 13-105(22)(e); see also A.R.S. § 13-703(M) (similar). And
an individual with one such historical prior felony conviction is subject to
enhanced sentencing as a category two repetitive offender. A.R.S. § 13-
703(B). Because Atondo-Renteria admitted a prior felony conviction
committed less than five years before the present offenses, the offense
qualified as a historical prior felony conviction and the superior court
properly sentenced him as a category two repetitive offender. See A.R.S. §§
13-105(22)(e), -703(B).

CONCLUSION

¶13 For the foregoing reasons, we affirm.

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

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