State v. Balli

• Decision Date: 17 March 2020
• Docket Number: No. 1 CA-CR 18-0904,1 CA-CR 18-0904
• Parties: STATE OF ARIZONA, Appellee, v. TYLER RAY BALLI, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. TYLER RAY BALLI, Appellant.

No. 1 CA-CR 18-0904

ARIZONA COURT OF APPEALS DIVISION ONE

March 17, 2020

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Mohave County

No. S8015CR201800084

The Honorable Richard D. Lambert, Judge

AFFIRMED IN PART, REVERSED IN PART, REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joshua C. Smith

Counsel for Appellee

Mohave County Legal Advocate, Kingman

By Jill L. Evans

Counsel for Appellant

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

CAMPBELL, Judge:

¶1 Tyler Ray Balli appeals from his convictions and sentences for first-degree burglary and aggravated harassment by domestic violence. We affirm the convictions and his sentence for aggravated harassment but reverse his sentence for first-degree burglary and remand to the superior court for further proceedings.

BACKGROUND¹

¶2 Balli was the step-son of the victim². Balli has a step-sister and two adult step-nephews, E.B. and B.B. (the victim's grandsons). In January 2017, the victim obtained an order of protection against Balli. The order listed the victim's residence as a protected location and prohibited Balli from having any contact with the victim.

¶3 In the early hours of Christmas morning 2017, Balli entered the victim's home through an unlocked back door without knocking. He was carrying a large homemade knife. A security camera recorded Balli entering the house. The camera system alerted one of the grandsons on his phone. The grandson reviewed the video and saw Balli enter the back door with a knife. He first called the police and then called the victim to alert him that Balli was in the house, and the police were on the way. Over an hour later, Balli exited the house through the same back door. He was still holding the knife. The grandson who was still watching a live-feed from the security camera, observed Balli leaving and saw him hide an object behind a clay pot. Police found Balli trying to climb over the block wall surrounding the back yard. They found the knife near the back door.³ The victim's daughter arrived minutes later and observed that the victim was"physically and emotionally shaken" and frightened after the incident. The victim's wife, Balli's mother, had dementia. By the time the daughter arrived, Balli's mother had already forgotten about the incident.

¶4 After his arrest, Balli mailed his mother a postcard apologizing for "harassing your household/or your home." He wrote that he had meant no harm and that he had the knife because there were "wild animals" around the couple's house, including "wild snakes, donkeys, mountain cats and . . . wild fish."

¶5 A Mohave County grand jury charged Balli, by indictment, with one count of first-degree burglary (count 1), one count of aggravated harassment by domestic violence (count 2), and one count of possession of drug paraphernalia (count 3). The State dismissed count 3 before trial. The superior court ordered a Rule 11 evaluation of Balli, and he was found to be competent.

¶6 A jury found Balli guilty of counts 1 and 2. The superior court found that count 1 was a dangerous offense and sentenced Balli to a mitigated sentence of nine years in prison. The court sentenced Balli to a presumptive sentence of one year in prison for count 2 and ordered the sentences to be served concurrently. Balli timely appealed. He raises ten issues in his opening brief.

DISCUSSION

A. Request for Change of Counsel

¶7 Balli first argues that the superior court denied him his Sixth Amendment right to counsel by denying his request for a new attorney. We review the court's denial of a request for change of counsel for an abuse of discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998) (citation omitted).

¶8 Balli requested a change of counsel in writing twice before trial. He claimed that his attorney, Ron Gilleo, was "dragging [his] feet" and "withholding evidence to slow play my case," and that Gilleo was "refusing to file motions for release conditions, Donald hearing, for suppression, dismissal," and to "take[] the indictment back to the grand jury." Balli alleged that Gilleo had a conflict of interest and indicated that he would be filing a complaint against Gilleo with the bar association.⁴

¶9 Balli claimed that Gilleo was "indifferent" towards his case, that Gilleo had "done no work in 7 months besides one ineffective interview and phone call," that Gilleo had failed to communicate with him and that Gilleo was a "Prosecutor Assistant." He also complained that Gilleo had requested a Rule 11 screening.

¶10 The superior court addressed Balli's request for a change of counsel at a status conference in August 2018. Gilleo explained that:

[W]hen [he] tried to talk to [Balli] . . . he won't let [him] explain the law and the evidence. . . . [H]e'll either hang up on [him], or he'll say the phone is currently not working. He doesn't allow [him] to do [his] job, which is to explain the law and the evidence as to how it's going to play out at trial. We had a trial date that was set, and it was actually [Balli] who said we're not ready for trial . . . whether a different attorney would be more successful, maybe, I don't know.

Balli told the court that he believed Gilleo was ineffective and that he had not contacted any witnesses, including his mother. He claimed that his case was the result of a "living estate battle," that he was the victim, "[a]nd [Gilleo] declined to do any inquiring after 8 months of my version of the case."

¶11 The court told Balli that it sounded like he was not cooperating, not letting Gilleo explain his legal situation, and "if you're not going to allow him to do that, I don't see how any attorney in that situation can be effective." The court denied Balli's request for change of counsel and expressed that Balli was "lucky to have gotten [Gilleo] as a lawyer."

¶12 A criminal defendant has a constitutional right to representation by competent counsel. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; State v. LaGrand, 152 Ariz. 483, 486 (1987). "A defendant is not, however, entitled to counsel of choice, or to a meaningful relationship with his attorney." Moody, 192 Ariz. at 507, ¶ 11 (citation omitted). "But when there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel, that defendant's Sixth Amendment right to counsel has been violated," and any resulting conviction must be reversed. State v. Torres, 208 Ariz. 340, 342, ¶ 6 (2004) (citations omitted). The defendant has the burden of demonstrating either "a total breakdown in communications" or an "irreconcilable conflict with his attorney." Id. at 343, ¶ 8 (citation omitted). "To satisfy this burden, the defendant must present evidence of a 'severe and pervasive conflict withhis attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.'" State v. Hernandez, 232 Ariz. 313, 318, ¶ 15 (2013) (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). A colorable claim "must go beyond personality conflicts or disagreements with counsel over trial strategy." Id. (quoting State v. Cromwell, 211 Ariz. 181, 187, ¶ 30 (2005)). A defendant's rights must be balanced with judicial economy. LaGrand, 152 Ariz. at 486. In balancing these interests, the court should consider whether an irreconcilable conflict exists, whether new counsel would be confronted with the same conflict, the timing of the motion, inconvenience to witnesses, time already elapsed between the offense and trial, proclivity to change counsel, and quality of counsel. Id. at 486-87 (citations omitted).

¶13 Balli argues that he had an irreconcilable conflict with Gilleo, and that there was a complete breakdown of the attorney-client relationship. Based on this conflict, he asks that his convictions be reversed. The State contends that Balli's request for change of counsel merely evidenced differences in trial strategy and not a complete breakdown in the attorney-client relationship.

¶14 On this record, we find no abuse of discretion. Balli failed to establish that his relationship with Gilleo was completely fractured either because of an irreconcilable conflict or because of a total breakdown in communication. We discern no "severe and pervasive" conflict between Balli and Gilleo.⁵ At a subsequent pre-trial conference when Gilleo and Balli informed the court that he wanted to represent himself, Balli told the court that he wanted Gilleo to remain as advisory counsel, stating, "I have confidence in [Gilleo]. He's a professional." And the court had previously noted that Gilleo was "one of the best defense attorneys in the county." To the extent that Balli argues that Gilleo was ineffective, we will not consider those arguments in this direct appeal. See Torres, 208 Ariz. at 345, ¶ 17 ("Ineffective assistance of counsel is a separate issue that can be raised only in a proceeding for post-conviction relief.").

B. Request for Continuance

¶15 Balli next argues that the superior court denied him his right to meaningful self-representation and his right to prepare and present a defense by failing to grant his request to continue the trial. We review a defendant's request for a continuance to accommodate self-representation for an abuse of discretion. State v. Lamar, 205 Ariz. 431, 436, ¶ 26 (2003). Whether denying a continuance violates a defendant's constitutional rights depends on the circumstances of a particular case. State v. Hein, 138 Ariz. 360, 369 (1983) (citations omitted). The "trial court maintains discretion because a defendant's right to represent himself does not exist in a vacuum. The court must consider the defendant's right in conjunction...