State of Arizona v. Demirus Ananda Koepke

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

DEMIRUS ANANDA KOEPKE,
Appellant.

No. 2 CA-CR 2015-0308
Filed June 29, 2016

Appeal from the Superior Court in Pima County
No. CR20144294001
The Honorable Carmine Cornelio, Judge
The Honorable Jane L. Eikleberry, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Adele G. Ponce, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Rebecca A. McLean, Assistant Public Defender, Tucson
Counsel for Appellant

STATE v. KOEPKE
Opinion of the Court

OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.

M I L L E R, Judge:

¶1 Demirus Koepke appeals her conviction for second-
degree burglary, for which she was ordered to complete two years’
supervised probation. She argues her attorney’s assistance by a law
student under Rule 38(d), Ariz. R. Sup. Ct. without her written
consent amounted to a denial of her right to counsel. For the
reasons that follow, we affirm.

Factual and Procedural Background

¶2 The undisputed evidence showed that in October 2014,
Koepke entered her neighbors’ house without permission while they
were away on vacation and took some jewelry. A licensed attorney
from the public defender’s office was appointed to represent Koepke
one week after she was indicted. The attorney filed several motions
in limine before trial. The court held a hearing on the motions in
April 2015. Koepke, who was not in custody, did not attend the
hearing and her presence was waived. Koepke’s attorney was
present, together with a law student who told the court he was
appearing on Koepke’s behalf as a certified limited practice student
pursuant to Rule 38(d)(5). The law student and the attorney both
substantially participated in arguing the motions, some of which the
court granted and others it denied.

¶3 The case proceeded to a jury trial, at which Koepke’s
attorney and the law student were again present. The law student
gave the opening statement, cross-examined several of the state’s
witnesses, and conducted the direct and redirect examination of
Koepke. She was convicted and sentenced as outlined above, and

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STATE v. KOEPKE
Opinion of the Court

we have jurisdiction over her appeal pursuant to A.R.S. §§ 13-4031
and 13-4033(A)(1).

Right to Counsel

¶4 The record reveals, and Koepke does not dispute, that a
licensed attorney represented her and was present in all
proceedings. However, the record contains no written consent to a
law student’s appearance on Koepke’s behalf, nor any indication
that such written consent (if it existed) was ever “brought to the
attention of the judge,” a twofold violation of Rule 38(d)(5)(C)(i).
Koepke argues that counsel’s failure to strictly comply with Rule
38(d) meant that she lacked “licensed counsel” at the hearing on her
motions in limine and at trial in violation of her right to counsel.

¶5 It is “axiomatic” that a criminal defendant threatened
with a loss of liberty has the right to assistance of competent counsel
at trial and on appeal. Zarabia v. Bradshaw, 185 Ariz. 1, 3, 912 P.2d 5,
7 (1996); see U.S. Const. amends. VI, XIV; Ariz. Const. art. II, §§ 4, 24;
A.R.S. § 13-114(2); Ariz. R. Crim. P. 6.1. The right to counsel attaches
at “every critical stage of criminal proceedings”; that is, every stage
at which “‘substantial rights of the accused may be affected.’”
State v. Conner, 163 Ariz. 97, 104, 786 P.2d 948, 955 (1990), quoting
Mempa v. Rhay, 389 U.S. 128, 134 (1967). For an indigent defendant,
the right to counsel includes the right to appointed counsel, but
includes neither a right to counsel of choice nor a guarantee of a
“‘meaningful relationship’” with counsel. State v. Hernandez, 232
Ariz. 313, ¶ 12, 305 P.3d 378, 383 (2013), quoting State v. Gomez, 231
Ariz. 219, ¶ 19, 293 P.3d 495, 500 (2012).

¶6 We review Sixth Amendment issues de novo. See State
v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193, 1210 (2005). A complete
denial of the right to counsel is structural error requiring reversal. 1

1 It is not entirely clear from Koepke’s briefs whether her
argument is one of complete denial of counsel, a structural error,
see State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 233, 235-36 &
n.2 (2009), or rather an argument that counsel’s failure to strictly
comply with Rule 38(d) constitutes fundamental, prejudicial error,
see State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08

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STATE v. KOEPKE
Opinion of the Court

State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 233, 235-36 & n.2
(2009); State v. Moody, 192 Ariz. 505, ¶ 23, 968 P.2d 578, 582 (1998);
see also United States v. Cronic, 466 U.S. 648, 658-59 (1984) (complete
denial of counsel, or counsel’s utter failure to subject state’s case to
meaningful adversarial testing, renders adversary process
presumptively unreliable).

¶7 In State v. Terrazas, 237 Ariz. 170, ¶¶ 2-5, 347 P.3d 1151,
1151-52 (App. 2015), we faced a situation similar to the one before
us. Terrazas was represented by an attorney who was supervising a
law student properly certified to practice pursuant to Rule 38(d).
Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. However, the
student’s Rule 38(d) certification expired before the representation
was complete. Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. We
rejected Terrazas’s argument that he had been completely deprived
of counsel as a result of the student’s appearance after the
expiration. See id. ¶¶ 4-5 (“we can discern no reason to adopt . . . a
rule” regarding failure to strictly comply with Rule 38(d) as
structural error). Notwithstanding the Rule 38(d) violation, we
emphasized that Terrazas was at all times represented by a licensed
attorney who was “‘fully responsible for the manner in which [the
proceedings] [we]re conducted.’” Terrazas, 237 Ariz. 170, ¶ 5, 347
P.3d at 1152, quoting Ariz. R. Sup. Ct. 38(d)(5)(C)(i)(c) (alterations in
Terrazas); see also Ariz. R. Sup. Ct. 38(d)(5)(E)(iii) (supervising
attorney “assume[s] personal professional responsibility for any
work performed” by law student). We expressly adopted the
reasoning of the Illinois Supreme Court, holding that “‘[t]he
presence of the licensed attorney, who certainly is counsel for
constitutional purposes, is not somehow “cancelled out” by the law
student’s participation, even if the law student has not complied
with’ the applicable rules.” Terrazas, 237 Ariz. 170, ¶ 5, 347 P.3d at

(2005) (fundamental error review applies when defendant fails to
object to alleged trial error). Although failure to obtain a
defendant’s consent to representation by a law student in violation
of Rule 38(d) could constitute fundamental error, Koepke has not
met her burden of showing prejudice in this case. Thus, we proceed
with our analysis under a structural error framework.

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STATE v. KOEPKE
Opinion of the Court

1152, quoting In re Denzel W., 930 N.E.2d 974, 982 (Ill. 2010)
(alteration in Terrazas).

¶8 Koepke attempts to distinguish Terrazas and Denzel W.
on their facts. She argues that Terrazas did not consider the question
of the client’s consent to representation by a Rule 38(d) student and
that the student in her case was involved with the representation to
a greater degree than the student in Denzel W. We find these
arguments unpersuasive, because they do not address the critical
issue for purposes of a structural error analysis—was the defendant
completely denied counsel at any critical stage of the proceeding?
See Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d at 235-36 & n.2;
cf. City of Seattle v. Ratliff, 667 P.2d 630, 631, 634-35 (Wash. 1983)
(representation solely by non-attorney legal intern denied defendant
right to counsel; intern was apparently prevented from contacting
supervising attorney, who was not present during trial).

¶9 Koepke’s reliance on State v. Coghill, 216 Ariz. 578,
¶¶ 40-45, 169 P.3d 942, 952-53 (App. 2007) is misplaced. In that case
we concluded the trial court did not err by rejecting the defendant’s
motion permitting his father, an Illinois attorney, to appear pro hac
vice on his behalf, because the defendant did not attach a
certification form from the State Bar of Arizona as required by
Rule 38(a)(3)(B). Coghill, 216 Ariz. 578, ¶¶ 40, 42, 169 P.3d at 952. In
contrast, we are not presented with the question of whether a trial
court errs by preventing a law student who has not strictly followed
Rule 38(d) from appearing on a defendant’s behalf. Nothing in
Coghill suggests that a defendant’s right to counsel is vitiated when,
although the defendant is represented by an attorney, a law student
working with the attorney is not in compliance with Rule 38(d).

¶10 The record leaves no doubt that Koepke was
represented by a licensed attorney at all critical stages. Her attorney
was personally present at all proceedings in which the law student
participated, and the attorney retained full responsibility for the
representation. See Ariz. R. Sup. Ct. 38(d)(5)(C)(i)(c), (E)(iii).

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STATE v. KOEPKE
Opinion of the Court

Koepke’s argument that she was completely denied her right to
counsel therefore fails.2 Terrazas, 237 Ariz. 170, ¶ 5, 347 P.3d at 1152.

Effective Assistance of Counsel

¶11 A criminal defendant’s claim that she was completely
denied her right to counsel at a critical stage of the proceedings is
cognizable on direct appeal, as illustrated above.3 See, e.g., State v.
Kiles, 222 Ariz. 25, ¶¶ 3, 39-45, 213 P.3d 174, 178, 183-84 (2009);
Moody, 192 Ariz. 505, ¶¶ 1, 23, 968 P.2d at 578-79, 582. In contrast, a
claim that counsel of record was ineffective is properly raised in
post-conviction proceedings pursuant to Rule 32, Ariz. R. Crim. P.
State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). To the extent
Koepke indirectly contends that the absence of her written consent
for Rule 38(d) counsel means that her licensed counsel was
ineffective, we do not address it because it can be litigated only
under Rule 32. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d at 527 (appellate
court “will not address” ineffective assistance of counsel on direct
appeal); see Ariz. R. Crim. P. 32.1(a); see also Denzel W., 930 N.E.2d at
983-84 (ineffective assistance of counsel standard from Strickland v.
Washington, 466 U.S. 668, 687-88 (1984) provides appropriate

2Although the record does not support Koepke’s contention
that structural error occurred in this case, we do not minimize the
seriousness of counsel’s failure to secure a defendant’s written
consent to representation by a Rule 38(d) student. The mandatory
consent requirement of Rule 38(d)(5)(C)(i) operates in the shadow of
a defendant’s Sixth Amendment rights—it is not a “‘mere
suggestion[].’” Denzel W., 930 N.E.2d at 980, quoting People v.
Houston, 874 N.E.2d 23, 27 (Ill. 2007); see also Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
3 Given that the right to counsel is of constitutional stature,
such a claim can also be cognizable in post-conviction proceedings if
it is not precluded by Rule 32.2, Ariz. R. Crim. P. See Ariz. R. Crim.
P. 32.1(a); see also Terrazas, 237 Ariz. 170, ¶¶ 3-5, 347 P.3d at 1152
(considering merits of deprivation of counsel claim in Rule 32
proceedings when defendant learned only after conviction that law
student’s Rule 38(d) certification had expired during representation).

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STATE v. KOEPKE
Opinion of the Court

framework for reviewing court where law student aiding defense
has not complied with applicable certification rules).

Disposition

¶12 We affirm for the reasons stated above.

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