State v. Torres

SUPREME COURT OF ARIZONA
En Banc

) Arizona Supreme Court
) No. CR-03-0326-PR
STATE OF ARIZONA, )
) Court of Appeals
Appellee, ) Division One
) Nos. 1 CA-CR 02-0278
v. ) 1 CA-CR 02-0279
) (Consolidated)
VICTOR TORRES, )
) Maricopa County
Appellant. ) Superior Court
) Nos. CR 1992-010210
) CR 2001-005372
)
__________________________________) O P I N I O N

Appeal from Maricopa County Superior Court
Nos. CR 1992-010210, CR 2001-005372
The Honorable Stephen A. Gerst, Judge
The Honorable Jeffrey A. Hotham, Judge

REMANDED

Court of Appeals, Division One
206 Ariz. 52, 75 P.3d 142 (App. 2003)

VACATED IN PART
________________________________________________________________

TERRY GODDARD, Arizona Attorney General Phoenix
By: Randall M. Howe, Chief Counsel
Criminal Appeals Section
and Karla Hotis Delord, Assistant Attorney General
Attorneys for Appellee

SUSAN SHERWIN, Office of the Legal Advocate Phoenix
By: Tennie B. Martin, Deputy Legal Advocate
Attorneys for Appellant
________________________________________________________________

R Y A N, Justice
¶1 The question this case presents is whether a trial

court’s failure to conduct an inquiry into an indigent

defendant’s request to change appointed counsel mandates an

automatic reversal of the defendant’s conviction. We conclude

that it does not. Instead, we hold that the matter must be

remanded for a hearing on the defendant’s request.

I.

¶2 The State charged Victor Torres with several felonies.

Because Torres was indigent, the trial court appointed the

Maricopa County Public Defender’s Office to represent him. Two

months before Torres’ original trial date, he filed a written

motion in propria persona asking for a change in his appointed

counsel. Torres claimed that he could no longer speak with his

lawyer about the case, he did not trust him, he felt threatened

and intimidated by him, there was no confidentiality between

them, and his counsel was no longer behaving in a professional

manner. The trial judge denied the motion, stating that he did

not have the authority to appoint new counsel, but suggested

that Torres contact the Public Defender’s Office. Subsequently,

Torres went to trial with his appointed counsel and was

convicted. At sentencing before another judge, Torres renewed

his request for new counsel, which the judge granted.

¶3 On appeal, Torres argued that the trial court’s

failure to consider his motion to substitute counsel violated

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his constitutional right to adequate representation under the

Sixth Amendment. State v. Torres, 206 Ariz. 52, 53, ¶ 2, 75

P.3d 142, 143 (App. 2003). Because the trial judge had not

conducted an inquiry into Torres’ claims, the court of appeals

concluded it could not decide if an irreconcilable conflict

existed between Torres and his counsel. Id. at 56, ¶ 15, 75

P.3d at 146. Nevertheless, the court held that the trial

judge’s “summary denial” of Torres’ motion “violated his Sixth

Amendment right to counsel because it may have subjected him to

‘representation by a lawyer with whom he had a completely

fractured relationship.’” Id. at 57, ¶ 17, 75 P.3d at 147

(quoting State v. Moody, 192 Ariz. 505, 509, ¶ 23, 968 P.2d 578,

582 (1998)) (emphasis added). Concluding that the “[f]ailure to

hold a hearing on an allegation of a fundamental constitutional

violation is reversible error,” id., the court of appeals

reversed Torres’ convictions and ordered a new trial, id. at 58,

¶ 22, 75 P.3d at 148.

¶4 The State petitioned for review, arguing that a trial

court’s failure to inquire into a defendant’s request for

appointment of new counsel should not require automatic

reversal. We granted review because of the statewide importance

of the issue. We have jurisdiction under Article 6, Section

5(3), of the Arizona Constitution and Arizona Revised Statutes

(“A.R.S.”) sections 13-4031 and -4032(3) (2001).

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 II.

¶5 In analyzing the question presented by this case, we

must address two core issues. First, we must decide whether a

trial judge has a duty to inquire when a defendant requests

substitution of counsel. If so, we must define the scope of

that duty in light of the nature of a defendant’s request.

Second, if the trial judge does not conduct an inquiry, we must

determine the appropriate remedy.

A.

¶6 The Sixth Amendment guarantees criminal defendants the

right to representation by counsel. U.S. Const. amend. VI; see

also Ariz. Const. art. 2, § 24. The Supreme Court extended that

right to indigent defendants charged with felonies in state

courts. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).

And, not only does an indigent criminal defendant have the right

to counsel, but he also has the right to competent counsel.

State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987)

(citing State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124

(1974)). Nevertheless, an indigent defendant is not “entitled

to counsel of choice, or to a meaningful relationship with his

or her attorney.” Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at

580 (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152,

1194 (1993)). But when there is a complete breakdown in

communication or an irreconcilable conflict between a defendant

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and his appointed counsel, that defendant’s Sixth Amendment

right to counsel has been violated. See id. Accordingly, this

court has held that if a defendant is forced to go to trial with

counsel with whom he has an irreconcilable conflict or a

complete breakdown in communication, a resulting conviction must

be reversed. See id. at 509, ¶ 23, 968 P.2d at 582 (holding

that a trial court’s erroneous denial of a request to change

counsel deprives a defendant of his Sixth Amendment right to

counsel, which “infect[s] the entire trial process,” requiring

automatic reversal (quoting Bland v. Cal. Dep’t of Corr., 20

F.3d 1469, 1478 (9th Cir. 1994), overruled on other grounds by

Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000))).

¶7 Therefore, as the court of appeals correctly concluded

in this matter, to protect a defendant’s Sixth Amendment right

to counsel, a trial judge has the duty to inquire as to the

basis of a defendant’s request for substitution of counsel.

Torres, 206 Ariz. at 57, ¶ 18, 75 P.3d at 147; e.g., Smith v.

Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (finding that

“[w]hen a defendant raises a seemingly substantial complaint

about counsel, the judge ‘has an obligation to inquire

thoroughly into the factual basis of defendant’s

dissatisfaction’” (quoting United States v. Hart, 557 F.2d 162,

163 (8th Cir. 1977) (per curiam))); United States v. Lott, 310

F.3d 1231, 1249 (10th Cir. 2002) (“If a defendant makes

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sufficiently specific, factually based allegations in support of

his request for new counsel, the . . . court must conduct a

hearing into his complaint.”). It is not sufficient to advise

the defendant to contact the Public Defender’s Office, as the

trial court did in this case. Instead, the court must make an

inquiry on the record. See, e.g., United States v. Morrison,

946 F.2d 484, 499 (7th Cir. 1991) (finding that the court must

make some inquiry into the reasons for the defendant’s

dissatisfaction with his lawyer).

¶8 The nature of the inquiry will depend upon the nature

of the defendant’s request. For example, generalized complaints

about differences in strategy may not require a formal hearing

or an evidentiary proceeding. See State v. Henry, 189 Ariz.

542, 547, 944 P.2d 57, 62 (1997) (finding that a disagreement

over tactical decisions that may raise concerns about an

attorney’s competence is more properly analyzed in a post-

conviction relief proceeding); State v. Tejeda, 677 N.W.2d 744,

751 (Iowa 2004) (stating that courts are not required to

“conduct a hearing every time a dissatisfied defendant lodges a

complaint about his attorney”). However, “[i]f a defendant

makes sufficiently specific, factually based allegations in

support of his request for new counsel, the . . . court must

conduct a hearing into his complaint.” Lott, 310 F.3d at 1249.

At such a hearing, the defendant bears the burden of

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demonstrating that he has a genuine irreconcilable conflict with

his counsel or that there has been a total breakdown in

communications. Id. (stating that “to prove a total breakdown

in communication, a defendant must put forth evidence . . . that

he had such minimal contact with the attorney that meaningful

communication was not possible”). If a defendant establishes a

total breakdown in communication, or an irreconcilable conflict

with his attorney, then the trial judge must grant the request

for new counsel. Henry, 189 Ariz. at 547, 944 P.2d at 62.

¶9 In this case, Torres presented specific factual

allegations that raised a colorable claim that he had an

irreconcilable conflict with his appointed counsel. In light of

Torres’ allegations, the trial judge abused his discretion by

not conducting an inquiry into Torres’ request for substitution

of counsel. See United States v. Morris, 714 F.2d 669, 673 (7th

Cir. 1983) (“In order to exercise its discretion properly the

court must elicit from the defendant the reasons for his

objection to counsel . . . .”). Accordingly, we must decide the

appropriate remedy when a trial judge does not conduct an

inquiry into a defendant’s colorable claim of an irreconcilable

conflict with his counsel.

B.

¶10 The court of appeals in this case held that the

failure to conduct an inquiry into a colorable claim for

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substitution of counsel requires automatic reversal. Torres,

206 Ariz. at 57, ¶ 17, 75 P.3d at 147. In effect, this holding

classifies a trial court’s failure to conduct such an inquiry as

structural error. Two factors lead us to a contrary conclusion.

First, very few errors have been found to be of such magnitude

that they constitute structural errors. Second, a trial court’s

error in not conducting an inquiry often can be remedied without

having to reverse the conviction in the first instance.

¶11 The United States Supreme Court has defined

“structural error” as error that affects “the framework within

which the trial proceeds, rather than simply an error in the

trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310

(1991). The Court has limited structural errors to the

following: the complete denial of counsel; a biased trial

judge; the unlawful exclusion of members of defendant’s race

from the jury; the denial of self-representation at trial; the

denial of a public trial; and a defective reasonable doubt

instruction. Neder v. United States, 527 U.S. 1, 8 (1999);

Fulminante, 499 U.S. at 309-10. Thus, the Court finds

structural errors in a “very limited class of cases.” Neder,

527 U.S. at 8 (quoting Johnson v. United States, 520 U.S. 461,

468 (1997)).

¶12 As mentioned previously, we have held that forcing a

defendant to go to trial with counsel with whom he has a

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completely fractured relationship constitutes a deprivation of

the right to counsel, which is structural error. Moody, 192

Ariz. at 509, ¶ 23, 968 P.2d at 582. But it does not

necessarily follow that a superior court’s failure to conduct an

inquiry into a request for change of counsel violates the

defendant’s Sixth Amendment right to counsel. The court of

appeals here implicitly conceded as much when it speculated that

the trial court’s error “may have subjected [Torres] to

‘representation by a lawyer with whom he had a completely

fractured relationship.’” Torres, 206 Ariz. at 57, ¶ 17, 75

P.3d at 147 (quoting Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at

582) (emphasis added). The mere possibility that the defendant

had a fractured relationship with counsel does not amount to

structural error. Rather, most courts apply a harmless error

analysis to a trial court’s erroneous summary denial of a

request to change counsel. See Lott, 310 F.3d at 1250-52;

Morrison, 946 F.2d at 499; McKee v. Harris, 649 F.2d 927, 933-

34 (2d Cir. 1981). We agree with those courts and hold that a

trial judge’s summary denial of a defendant’s motion to change

counsel is not structural error requiring automatic reversal.

¶13 Instead, we conclude that the appropriate remedy for a

trial court’s error in this situation is to remand for a hearing

on the defendant’s allegations. See, e.g., Lott, 310 F.3d at

1250 (remanding the case to the district court to conduct a

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hearing regarding the defendant’s allegation of total breakdown

in communication); People v. Olivencia, 251 Cal. Rptr. 880, 885-

86 (Ct. App. 1988) (holding that the appropriate remedy for a

trial court’s refusal to consider an indigent defendant’s

request for new counsel is to remand for a hearing); City of

Billings v. Smith, 932 P.2d 1058, 1063 (Mont. 1997) (same);

State v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998) (same).

If on remand the trial judge rules that the defendant was not

entitled to a change in counsel, that decision can then be

reviewed on appeal. See, e.g., People v. Maese, 214 Cal. Rptr.

365 (Ct. App. 1985) (reviewing case on appeal after remand for

hearing on defendant’s request for new counsel).

¶14 Having decided that the appropriate remedy for the

trial court’s failure to conduct an inquiry into Torres’ request

is to remand for a hearing, we now turn to the factors and

procedures that the trial court should apply on remand.

II.

¶15 A trial judge confronted with an indigent defendant’s

request to change counsel should consider the following factors:

[W]hether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.

Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580 (quoting LaGrand,

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152 Ariz. at 486-87, 733 P.2d at 1069-70). However, in most

cases, the “quality of counsel” factor will not be a

consideration when a defendant requests substitution of counsel.

In essence, this factor generally relates more to a claim of

ineffective assistance of counsel, which we have since concluded

must be raised in a Rule 32 proceeding. See State v. Spreitz,

202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (“[I]neffective

assistance of counsel claims are to be brought in Rule 32

proceedings.”).

¶16 In applying these factors to Torres’ motion on remand,

the trial judge should not consider itself limited to the facts

as they existed at the time it denied the motion. Indeed,

subsequent events may be relevant to prove or disprove whether

an irreconcilable conflict or a total breakdown in communication

occurred. For instance, Torres’ motion may have prompted his

attorney to address Torres’ complaints, thereby resolving the

alleged conflict. E.g., Bass v. United States, 580 A.2d 669,

671 (D.C. 1990) (“[We] agree with the government that it would

be unreasonable to ignore any relevant preparation that counsel

might have conducted in the three months between the date of

[defendant’s complaint about the ineffectiveness of his counsel]

and the beginning of the trial.”). The trial court, therefore,

may consider the motion to substitute counsel in light of the

facts and circumstances both when the motion was originally made

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and also after it was denied.

¶17 We emphasize, however, that the issue at the hearing

will not be whether Torres received effective assistance of

counsel under the standards set forth in Strickland v.

Washington, 466 U.S. 668 (1984), as some jurisdictions require.

See, e.g., United States v. Graham, 91 F.3d 213, 217, 221-22

(D.C. Cir. 1996) (holding that the defendant must demonstrate

not only that the district court abused its discretion in

denying a motion for substitution of counsel, but that the

defendant was prejudiced by that error under Strickland).

Ineffective assistance of counsel is a separate issue that can

be raised only in a proceeding for post-conviction relief.

Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527; see also Lott, 310

F.3d at 1252 (noting that ineffectiveness claims “must almost

always be brought on collateral attack”). Applying a Strickland

standard would, in effect, “eliminate a defendant’s ability to

bring a right to counsel claim on direct appeal.” Lott, 310

F.3d at 1252. Moreover, it is possible for a clearly guilty

defendant and his counsel to have an irreconcilable conflict.

The fact that the defendant would have been convicted absent the

conflict does not obviate the Sixth Amendment violation when the

trial court errs in denying a motion to substitute counsel. See

Henry, 189 Ariz. at 547, 944 P.2d at 62 (“Unlike other factors,

the presence of a genuine irreconcilable conflict requires the

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appointment of new counsel.”).

¶18 Accordingly, the trial court’s inquiry on remand is

limited to whether Torres can establish that he had a completely

fractured relationship with his appointed counsel either because

of an irreconcilable conflict or because of a total breakdown in

communications. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 582.

If Torres establishes that he had a fractured relationship with

his lawyer, the trial court must vacate the convictions and

order a new trial.

III.

¶19 For the foregoing reasons, we vacate that portion of

the court of appeals opinion that reversed Torres’ conviction.

We remand the case to the trial court for further proceedings

consistent with this opinion.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Rebecca White Berch, Justice

_________________________________________
Andrew D. Hurwitz, Justice

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