State v. Torres

Citation206 Ariz. 52,75 P.3d 142
Decision Date28 August 2003
Docket NumberNo. 1CA-CR 02-0278, 1CA-CR 02-0279.,1CA-CR 02-0278, 1CA-CR 02-0279.
PartiesSTATE of Arizona, Appellee, v. Victor TORRES, Appellant.
CourtCourt of Appeals of Arizona

Terry Goddard, Attorney General, Phoenix, By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Karla Hotis Delord, Assistant Attorney General, for Appellee.

Susan Sherwin, Office of the Legal Advocate, Phoenix, By Tennie B. Martin, Deputy Legal Advocate, for Appellant.

OPINION

LANKFORD, J.

¶ 1 This appeal requires us to decide whether a trial court may—and indeed must—conduct an inquiry and decide an indigent criminal defendant's motion to substitute appointed counsel. We hold that a court must decide such a motion after adequately inquiring into the grounds for it, and that failure to do so is reversible error that requires a new trial.

¶ 2 Defendant Victor Torres appealed from two cases, and we consolidated the two appeals.1 His appeal first asserts that the superior court's failure to consider his motion to substitute appointed counsel violated his constitutional right to adequate representation. We agree and therefore reverse and remand for a new trial. Although Defendant also contends that the superior court deprived him of his constitutional right to a speedy trial, that contention lacks merit.

¶ 3 We first address Defendant's argument that he was denied his constitutional right to adequate representation, see U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24, because the superior court declined to consider his motion for new counsel. Two months before his original trial date, Defendant filed a written motion in propria persona2 alleging that he could no longer speak with his appointed counsel about his case, that he did not trust his appointed counsel, that he felt "threatened and intimidated" by him, that he no longer felt there was "confidentiality" between them, and that the attorney was no longer behaving in a professional manner. Defendant also raised this issue at the pre-trial hearing. In response, the superior court judge then assigned to the case, Judge Stephen A. Gerst, stated: "I don't have the authority as a judicial officer to say, you know, Sam's taken off and Maria is put on [as appointed counsel].... I don't have that authority, but if you contact the Public Defender's Office, perhaps they can, you know, work with you on that." The judge denied the motion without considering the basis for Defendant's allegations.

¶ 4 After the jury convicted Defendant, he appeared at a sentencing hearing before Judge Jeffrey A. Hotham. At that hearing, Defendant again expressed his dissatisfaction with appointed counsel, stating that counsel had waived Defendant's speedy trial rights despite Defendant's desire not to do so, had visited Defendant only two weeks before his trial, and had never asked Defendant if he "was guilty or what happened."

¶ 5 In response, Judge Hotham decided to appoint new counsel, stating:

If you are not comfortable or pleased with [trial counsel's] services, and you don't want him to represent you for your sentencing today, I will have to appoint another lawyer, and we can wait 30 or 60 days until another lawyer is prepared. On the other hand, if you are comfortable with [trial counsel] to represent you for the sentencing today, then we can go ahead and do that today. But obviously if you are not pleased with his services and don't want him to represent you today, I will appoint another lawyer for you. What do you want to do?

After Defendant indicated that he wanted different appointed counsel for sentencing, Judge Hotham continued the sentencing hearing, allowed the Public Defender to withdraw, and appointed the Office of Court Appointed Counsel to represent Defendant. Thus, the two judges who presided over this case ruled differently on Defendant's requests for new counsel.

¶ 6 This case presents questions of law—whether a superior court presented with a defendant's motion for new appointed counsel must decide the motion, whether the court must conduct an inquiry, and if so, the nature of that inquiry. We therefore review de novo. Compare State v. Paxson, 203 Ariz. 38, 42,

¶ 19, 49 P.3d 310, 314 (App.2002) (appellate court reviews questions of law de novo), with LaGrand, 152 Ariz. at 487, 733 P.2d at 1070 (appellate court will not disturb a superior court's decision to deny a defendant's request for new counsel absent an abuse of discretion).

¶ 7 We hold that the superior court not only has the authority but, indeed, the duty to decide the motion after conducting an adequate inquiry of a defendant's motion for substitute counsel. The court thus erred in declining to consider and decide the motion on its merits.

¶ 8 The superior court had the authority and obligation to protect Defendant's constitutional right to counsel by deciding Defendant's motion. The Sixth Amendment guarantees that defendants are entitled to be represented by counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The defendant is entitled not merely to counsel, but to adequate legal representation: "A criminal defendant is entitled to full and fair representation within the bounds of the law." State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984); see Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("the right to counsel is the right to the effective assistance of counsel") (citation omitted); State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998) ("A criminal defendant has a Sixth Amendment right to representation by competent counsel.") (emphasis added).

¶ 9 Protecting a defendant's Sixth Amendment right is squarely within the court's authority: "It is the court's duty to protect constitutional rights." Bristor v. Cheatham, 75 Ariz. 227, 234, 255 P.2d 173, 177 (1953); see also Von Moltke v. Gillies, 332 U.S. 708, 722, 68 S.Ct. 316, 92 L.Ed. 309 (1948)

("It is the solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings.").

¶ 10 In fact, if the court fails to protect a defendant's right to counsel, that right is vulnerable to violation. If a defendant lacks competent counsel, then his attorney cannot protect him. Defendant himself cannot be expected to know how to protect his rights: That is the very "purpose of the constitutional guaranty of a right to counsel ...." Johnson, 304 U.S. at 465, 58 S.Ct. 1019. Nor can the State be expected to act outside its role as defendant's adversary to zealously protect his right to counsel.

¶ 11 When a defendant alleges that his present counsel cannot effectively represent him, and he requests new counsel, the court must at least consider and decide that allegation. "Given the commands of Sixth Amendment jurisprudence, a state trial court has no discretion to ignore an indigent defendant's timely motion to relieve an appointed attorney." Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir.2000); see Wayne R. LaFave et al., 3 Criminal Procedure § 11.4(b) (2d ed. 1999) ("When an indigent defendant makes a timely and good faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant's dissatisfaction with his current counsel.") (footnotes omitted); see also LaGrand, 152 Ariz. at 486, 733 P.2d at 1070 ("a request for new counsel should be examined with the rights and interest of the defendant in mind tempered by exigencies of judicial economy") (emphasis added).3

¶ 12 Not only must a trial court rule on a motion for new counsel, it must determine its basis before ruling. See United States v. Gallop, 838 F.2d 105, 108 (4th Cir.1988)

(stating that "adequacy of the court's inquiry into the defendant's complaint" is one factor to be considered by the appellate court evaluating whether the trial court's denial of motion for new counsel was an abuse of discretion) (citing United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986), and United States v. Whaley, 788 F.2d 581, 583 (9th Cir.1986)).

¶ 13 Our supreme court, too, has recognized that the decision must be made in an informed and careful way:

[A] request for new counsel should be examined with the rights and interest of the defendant in mind tempered by exigencies of judicial economy. We have identified several factors to be considered by the trial judge: whether 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.

LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70.

¶ 14 The trial court must ascertain the facts that bear on the decision. While the court need do no more than review the record to determine such factors as the timing of the motion and trial delay, it must inquire to determine other factors such as the nature of the alleged conflict between counsel and client.4 In this case, the failure to conduct an adequate inquiry prevented consideration of at least some of the factors set forth by our supreme court.

¶ 15 We do not decide that an irreconcilable conflict existed or that defense counsel was ineffective. Because no inquiry was made into the basis for Defendant's allegations, we lack the record to make such determinations.5 However, the allegations Defendant made were sufficiently colorable to require investigation. If his allegations proved true, they would necessitate new counsel, because "the presence of a...

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    ...Acuna argues the trial court had a duty to protect his constitutional rights, relying upon State v. Torres , 206 Ariz. 52, 58 ¶ 18, 75 P.3d 142 (App. 2003), vacated in part , 208 Ariz. 340, 93 P.3d 1056 (2004). Torres , however, is distinguishable as it addressed a defendant’s right to comp......
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    • Arizona Supreme Court
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    • Arizona Supreme Court
    • July 1, 2004
    ...his motion to substitute counsel violated 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 conclu......

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