Lashauna Coleman v. Hon. Johnsen/state Ex Rel. State

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
LASHAUNA COLEMAN,
Petitioner,

v.

HONORABLE DIANE M. JOHNSEN, HONORABLE KENT E. CATTANI,
HONORABLE JON W. THOMPSON, JUDGES OF THE COURT OF APPEALS, STATE
OF ARIZONA, DIVISION ONE, DEPARTMENT M,
Respondent Judges,

THE STATE OF ARIZONA, EX REL. THOMAS C. HORNE, ATTORNEY GENERAL,
Real Party in Interest.

No. CV-13-0350-SA
Filed June 13, 2014

Special Action from the Superior Court in Maricopa County
The Honorable Margaret R. Mahoney, Judge
No. CR2012-135642-001

Decision Order of the Court of Appeals, Division One
Filed October 22, 2013

VACATED AND REMANDED

COUNSEL:
Maricopa County Public Defender, Stephen Whelihan (argued), Deputy
Public Defender, Phoenix, for Lashauna Coleman

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals
Section, Myles A. Braccio (argued), Assistant Attorney General, Phoenix,
for State of Arizona

VICE CHIEF JUSTICE BALES authored the opinion of the Court, in which
CHIEF JUSTICE BERCH, JUSTICE PELANDER, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.

VICE CHIEF JUSTICE BALES, opinion of the Court:
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

¶1 We granted review to determine whether the Arizona
Constitution provides a right for defendants in criminal cases to represent
themselves on appeal and, if so, when defendants must exercise that right.
We hold that there is a state constitutional right to self-representation on
appeal and that defendants must give notice of their intent to exercise that
right within thirty days of the filing of the notice of appeal.

I.

¶2 On April 23, 2013, the trial court placed Lashauna Coleman
on two years’ probation for her conviction of disorderly conduct. The
next day, her appointed counsel filed a notice of appeal. Fifty-five days
later, on June 18, Coleman filed a notice in the trial court stating she
intended to represent herself on appeal. The trial court did not respond to
the notice.

¶3 On June 19, the court of appeals filed a Notice of Completion
of Record. The next day, the Office of the Public Defender assigned the
case to attorney Stephen Whelihan. Upon meeting him, Coleman said she
wanted to represent herself, but Whelihan advised her that she had no
right to do so and persuaded her to allow him to review the record. After
Whelihan reviewed the case, he and Coleman spoke again, and Coleman
reiterated her desire to represent herself.

¶4 On August 16, Whelihan filed a motion with the court of
appeals seeking leave for Coleman to represent herself based on Article 2,
Section 24 of the Arizona Constitution. The court of appeals denied the
motion, holding that there is no right to self-representation and that, even
if there were, Coleman’s motion was untimely.

¶5 After Whelihan moved for reconsideration, the court of
appeals modified its decision order. The court explained that although
there is no constitutional right to self-representation on appeal, self-
representation is permitted if the request is timely. Coleman’s request
was untimely, the court concluded, because she did not make it until after
the appeal had commenced.
II.

¶6 We review matters involving constitutional law de novo.
State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006).

2
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

¶7 Although the federal constitution guarantees the right to
self-representation in the trial court, see Faretta v. California, 422 U.S. 806
(1975), the United States Supreme Court has held that this right does not
extend to appeals. Martinez v. Court of Appeal of California, Fourth Appellate
Dist., 528 U.S. 152, 160 (2000). The Court recognized that its holding
would “not preclude the States from recognizing such a right under their
own constitutions.” Id. at 163.

¶8 Article 2, Section 24 of the Arizona Constitution identifies
several rights held by an accused:

In criminal prosecutions, the accused shall have the right to
appear and defend in person, and by counsel, to demand the
nature and cause of the accusation against him, to have a
copy thereof, to testify in his own behalf, to meet the
witnesses against him face to face, to have compulsory
process to compel the attendance of witnesses in his own
behalf, to have a speedy public trial by an impartial jury of
the county in which the offense is alleged to have been
committed, and the right to appeal in all cases . . . .

The Arizona Constitution thus recognizes the right to appeal in a way that
the United States Constitution does not. Compare Martinez, 528 U.S. at
159–60. The State argues, however, that this appellate right is contained in
a clause separate from the accused’s other rights, which the State contends
are all personally held trial rights. Under this reading, the “right to
appear and defend in person” would apply only to trial court
proceedings.

¶9 We are not persuaded. When the Arizona Constitution was
adopted, the state penal code permitted, but did not require, courts to
assign counsel to indigent defendants:

If the defendant appear[s] for arraignment without counsel,
he shall be informed by the court that it is his right to have
counsel before being arraigned, and shall be asked if he
desire[s] the aid of counsel. If the defendant desires counsel,
and declares upon examination by the court, under oath,

3
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

that he has no means to employ the same, the court, in its
discretion, may assign some member of the bar to that duty.

Ariz. Penal Code § 858 (1901).

¶10 By 1939, Arizona had changed this permissive stance to a
requirement: “Before the defendant is arraigned on a charge of felony if
he is without counsel the court shall, unless the defendant objects, assign
him counsel to represent him in the cause.” A.R.S. § 44-904 (1939)
(emphasis added). Decades later, the United States Supreme Court
followed suit and held that the Sixth Amendment generally guarantees
indigent defendants a right to appointed counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The same day Gideon was issued, the Supreme Court
held that this right to counsel also extends to the first direct appeal as of
right. Douglas v. California, 372 U.S. 353, 356–58 (1963).

¶11 This historical background conflicts with the State’s
argument that the “right to appear and defend in person” must be limited
to trials. Because the Arizona penal code allowed, but did not require,
appointment of counsel when the framers drafted our state constitution,
there was no guarantee of counsel’s assistance during trial, much less
during an appeal. The State’s reading of Article 2, Section 24 would thus
have prohibited defendants who lacked counsel from pursing an appeal,
thereby limiting the constitutional right to appeal to the subset of
defendants who either could afford or were appointed counsel.

¶12 The State’s reading effectively would rewrite the
constitution to state: “the accused shall have . . . the right to appeal in all
cases [if represented].” But appellate review is important “to a correct
adjudication of guilt or innocence,” Illinois v. Griffith, 351 U.S. 12, 18 (1956),
whether or not a defendant is represented. Nothing suggests the framers
intended to limit the right to appeal to represented defendants, and the
historical context indicates otherwise. We therefore hold there is a
constitutional right to self-representation on appeal under Article 2,
Section 24 of the Arizona Constitution.

¶13 Our holding comports with State v. Stevens, 107 Ariz. 565,
490 P.2d 571 (1971), which noted that the defendant “has and did exercise
his right to appeal in his own behalf . . . [a]nd this right has been deemed
of ‘equal stature’ with the right of counsel.” Id. at 567, 490 P.2d at 573

4
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

(quoting State v. Westbrook, 99 Ariz. 30, 35, 406 P.2d 388, 391 (1965)). In
reaching this conclusion, the Stevens court specifically cited Article 2,
Section 24 of the Arizona Constitution. Id. The Court did not, however,
analyze the constitutional language, and we recognize that Stevens
supports, rather than compels, our holding here.

¶14 We find additional support in case law from the State of
Washington. The Washington Constitution was the model for many of
our constitutional provisions, and we thus consider the judicial decisions
from Washington persuasive, though not controlling, when we interpret
parallel provisions in the Arizona Constitution. Clouse ex rel. Clouse v.
State, 199 Ariz. 196, 200 ¶ 17, 16 P.3d 757, 761 (2001).

¶15 The Washington Supreme Court has interpreted the
equivalent of our Article 2, Section 24 as granting a defendant the right to
self-representation on appeal. State v. Rafay, 222 P.3d 86, 89 ¶ 12 (Wash.
2009). The Rafay court noted that Washington was the first state to
recognize a defendant’s general right to appeal, expressly guaranteeing
the right in the state’s constitution, unlike the United States Constitution’s
silence on this point. Id. at 89 ¶ 11. The court reasoned that this deliberate
choice implied that “the framers of [the Washington Constitution]
intended to provide for broader rights under article I, section 22 than
those guaranteed under the Sixth Amendment.” Id. Because the Arizona
Constitution likewise guarantees a right to appeal, Rafay also supports our
holding.

¶16 This right to self-representation on appeal, however, is not
without limits. See id. at 90 ¶ 14, 91 ¶ 20 (“As with the right of self-
representation at trial, the right of self-representation on appeal is neither
self-executing nor absolute,” and “is not without limits or
qualifications.”); cf. State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242
(1985) (noting that right to self-representation at trial “cannot . . . exist in a
vacuum”). In the trial context, because proceedings must be conducted in
an orderly fashion, we have held that requests for self-representation are
timely only if made before a jury is empanelled. See State v. Lamar, 205
Ariz. 431, 435 ¶ 22, 72 P.3d 831, 835 (2003). This rule recognizes “the
defendant’s right in conjunction with a victim’s constitutional right to a
speedy trial and the trial court’s prerogative to control its own docket.”
Id. at 436 ¶ 27, 72 P.3d at 836 (footnote omitted).

5
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

¶17 Attempting to strike a similar balance between respecting
the right to self-representation on appeal, ensuring orderly proceedings,
and recognizing victims’ rights to a “prompt and final conclusion of the
case after the conviction and sentence,” Ariz. Const. art. II, § 2.1(10), we
hold that previously represented defendants must give notice of their
request to represent themselves no later than thirty days after filing the
notice of appeal. (Defendants who have represented themselves at trial
should not be required to provide separate notice of their intent to
represent themselves on appeal.) This thirty-day rule is a compromise.
On the one hand, it gives counsel time to advise defendants of the
potential risks of proceeding pro se and gives defendants time to weigh
the benefits and costs of waiving representation. On the other hand, it
acknowledges the need to protect “the orderly administration of the
judicial process.” De Nistor, 143 Ariz. at 413, 694 P.2d at 243.

¶18 Other courts have held that a defendant waives the right to
self-representation on appeal if it is not exercised before the filing of the
opening brief. See, e.g., Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
But opening briefs may not be filed until several months after the filing of
the notice of appeal, and in the meantime counsel may have expended
significant time in reviewing the record or otherwise working on the
appeal. Allowing requests for self-representation on appeal to be made
any time before the opening brief is filed could result in unnecessary delay
in the appellate proceedings. We believe the thirty-day rule better
balances the defendant’s interest in making an informed decision with the
other interests at stake.

¶19 If a request is made before the filing of a notice of appeal, the
trial court shall conduct a hearing to determine whether the defendant’s
waiver of counsel on appeal is made knowingly, intelligently, and
voluntarily, just as the court would if the request for self-representation
were made at trial. See Faretta, 422 U.S. at 834; Ariz. R. Crim. P. 6.1(c). If
the request is made after the filing of the notice of appeal, the court of
appeals may revest jurisdiction in the trial court pursuant to Arizona Rule
of Criminal Procedure 31.17(a) to conduct this Faretta-like hearing.

¶20 If the defendant makes an untimely request (after the thirty
days have expired), the court of appeals may exercise its discretion. Cf. De
Nistor, 143 Ariz. at 413, 694 P.2d at 243 (stating that if a defendant makes
an untimely request to proceed pro se at the trial court level, “then

6
 COLEMAN V. JOHNSEN (STATE)
Opinion of the Court

whether defendant will be given the opportunity to waive counsel is
within the discretion of the trial court”). The court may consider the same
factors that a trial court does when a request for self-representation is
made during trial. These factors include “the reasons for the defendant’s
request, the quality of counsel, the defendant’s proclivity to substitute
counsel, and the disruption and delay expected in the proceedings if the
request were to be granted.” Id. Delay may result because of the need to
revest the trial court with jurisdiction to conduct a Faretta-like hearing.
Requests made after the filing of the opening brief should be disfavored,
as defendants are not entitled to switch back and forth between
representation and self-representation. Cf. State v. Cornell, 179 Ariz. 314,
326, 878 P.2d 1352, 1364 (1994) (recognizing that, at the trial level, once
defendant has invoked right to counsel, the trial court has discretion to
deny a request to “switch back” to self-representation).

III.

¶21 Article 2, Section 24 of the Arizona Constitution provides a
defendant with a right to self-representation on appeal. We therefore
vacate the court of appeals’ decision order. To be timely, however, a
request for self-representation on appeal must be made no later than thirty
days after the filing of the notice of appeal. Because Coleman’s request
was untimely, we remand the case to the court of appeals so it may
consider, in its discretion, whether to grant the request.

7