State v. Dunbar

• Decision Date: 06 January 2023
• Docket Number: 2 CA-CR 2021-0069
• Parties: The State of Arizona, Appellee, v. Kevin Dunbar, Appellant.
• Court: Arizona Court of Appeals

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The State of Arizona, Appellee, v. Kevin Dunbar, Appellant.

No. 2 CA-CR 2021-0069

Court of Appeals of Arizona, Second Division

January 6, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. CR20152260001 The Honorable Catherine M. Woods, Judge

Kris Mayes, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Alexander M Taber, Assistant Attorney General, Tucson Counsel for Appellee

James Fullin, Pima County Legal Defender By Robb P. Holmes Assistant Legal Defender, Tucson Counsel for Appellant

Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring concurred and Judge Brearcliffe concurred in part and dissented in part.

MEMORANDUM DECISION

EPPICH, Presiding Judge

¶1 Kevin Dunbar appeals from his resentencing for attempted first-degree murder, kidnapping, possession of a deadly weapon by a prohibited possessor, and aggravated assault, after this court affirmed his convictions but vacated the sentences on all counts. See State v. Dunbar, 249 Ariz. 37, ¶ 1 (App. 2020), review denied (Ariz. Dec. 15, 2020). Dunbar argues that his sentences should be vacated because he was denied the right to self-representation at his resentencing. He also contends the trial court erred in imposing an aggravated sentence on the attempted first-degree murder count and in ordering certain sentences to be served consecutively. For the following reasons, we remand this case for further proceedings consistent with this decision.

Factual and Procedural Background

¶2 The facts relevant to this appeal are summarized below, and a detailed recitation supporting Dunbar's convictions is set forth in our prior opinion. See id. ¶¶ 2-4. After a jury trial, Dunbar was convicted of attempted first-degree murder, kidnapping, possession of a deadly weapon by a prohibited possessor, and aggravated assault. The trial court imposed concurrent and consecutive prison terms totaling thirty-seven years. Dunbar appealed, raising a number of issues, including that the court had erred by denying his request for self-representation at trial and had erred in sentencing.

¶3 We affirmed his convictions, but agreed that the trial court had improperly imposed enhanced sentences on the counts of attempted first-degree murder, kidnapping, and possession of a deadly weapon by a prohibited possessor. Id. ¶¶ 38-39, 55. We also agreed that the court had erred in aggravating the counts of possession of a deadly weapon by a prohibited possessor and aggravated assault. Id. ¶¶ 42-43, 45-46. Finally, although we concluded the court had not erred in imposing consecutive sentences for attempted first-degree murder and kidnapping because that conduct did not constitute a single act, we determined the court had erred by imposing consecutive sentences for attempted first-degree murder and possession of a deadly weapon by a prohibited possessor. Id. ¶¶ 47, 51-54. We therefore vacated Dunbar's sentences on all counts and remanded for resentencing. Id. ¶ 55.

¶4 On remand, Dunbar was sentenced to twenty years' imprisonment: concurrent sentences for attempted first-degree murder, possession of a deadly weapon by a prohibited possessor, and aggravated assault, the longest of which is ten years, followed by a term of ten years for kidnapping. Dunbar appealed, and we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(4).

Discussion

Right to Self-Representation

¶5 Dunbar argues the trial court committed structural error at his resentencing by denying his request for self-representation. We review a court's denial of a motion to proceed pro se for an abuse of discretion. State v Weaver, 244 Ariz. 101, ¶ 7 (App. 2018).

¶6 Before his trial, Dunbar chose to represent himself, and the trial court appointed advisory counsel. However, about a year later, Dunbar began to vacillate as to whether he wished to proceed pro se. He agreed that he wanted advisory counsel to represent him in the future, however, at a later hearing, he told the court he had decided to proceed pro se. The court warned him that he would "have to live with [his] decision." Shortly after, Dunbar filed a motion agreeing to relinquish his right to self-representation "until and through the trial." He acknowledged he understood that the court "may not allow him to reassert his right to proceed in propria persona between now and the trial." Nonetheless, on the morning of trial, before the jury had been empaneled, Dunbar attempted to raise a motion on his own behalf, which the court refused to consider because he was represented by counsel. Dunbar objected, and indicated he wished to represent himself but the court denied his request. On appeal, we concluded "Dunbar [had] forfeited his right to self-representation through his vacillating positions." Dunbar, 249 Ariz. 37 ¶ 17.

¶7 At Dunbar's resentencing, he was represented by counsel. After hearing a statement from the victim and arguments from the state and Dunbar's counsel, the trial court asked if Dunbar wanted to speak. Dunbar stated that he had not had an opportunity to consult with his attorney before the hearing or to review the sentencing memorandum filed on his behalf. The court told him, "[I]f you're asking me to give you a continuance so that you can talk directly with your lawyer before I pronounce your sentence, I'm willing to do that." The court found good cause to continue the hearing and stated that it had already fully heard from the victim, the state, and from defense counsel. It stated "we're not going to rehash all that the next time" but it would hear from Dunbar and then pronounce sentence.

¶8 At the continued hearing, the trial court noted that Dunbar had filed a request to proceed pro se. The court denied the request, finding it "the law of this case" that he had "forfeited his right to self-representation through his vacillating positions and his signed waiver," relying on our opinion in Dunbar, 249 Ariz. 37, ¶¶ 17-18. The court also found his request untimely. Nonetheless, it told Dunbar that it had read his two pro se memoranda on sentencing and would take those into account.

¶9 Dunbar objected to the court's finding that he had forfeited his right to self-representation, telling the court he did not intend to delay and that he had still not spoken to counsel but disagreed with counsel's position on sentencing. The court responded that it had not stated that he was delaying, and recessed the hearing so that Dunbar could speak with counsel. After the recess, Dunbar renewed his objection to representation by counsel and the court then pronounced his sentence.

¶10 On appeal, Dunbar asserts that the law of the case doctrine is inapplicable to this context. We agree. Law of the case is a procedural doctrine providing that,

the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal . . . provided the facts and issues are substantially the same as those on which the first decision rested.

State v. King, 180 Ariz. 268, 278 (1994) (quoting In re Monaghan's Est., 71 Ariz. 334, 336 (1951)). In Dunbar's first appeal from his convictions and sentences, we affirmed that the trial court had not erred in denying his request to represent himself at trial because of his vacillation and signed waiver. Dunbar, 249 Ariz. 37, ¶¶ 17-18. Dunbar's 2017 signed waiver stated that he agreed "to relinquish his right to represent himself until and through the trial currently scheduled for [November 2017]." Id. ¶¶ 8, 17. Thus, Dunbar waived his right to self-representation up to and through trial, the waiver did not address the penalty phase of the proceedings. Id. Likewise, our opinion addressed whether or not he had forfeited his right to self-representation at trial, not at sentencing, an issue Dunbar did not raise in his first appeal. Id. ¶¶ 10-18; see Appellant's Opening Brief, ¶¶ 9-24, Dunbar, 249 Ariz. 37 (No. 2 CA-CR 2018-0064). And our opinion certainly did not address the issue of waiver of counsel at resentencing. Given that both the facts and the issue at hand are different from what we decided in Dunbar's first appeal, the court erred in applying law of the case doctrine here.

¶11 The state distinguishes waiver from forfeiture of the right to self-representation, arguing that Dunbar's prior forfeiture means the trial court was within its discretion to bar him from asserting his pro se right in resentencing some years later. This argument is unavailing for the same reasons that the law of the case doctrine does not apply-Dunbar's forfeiture was based on his conditional waiver and on his previous vacillation, see Dunbar, 249 Ariz. 37, ¶¶ 17-18, neither of which occurred at resentencing.

¶12 Dunbar further argues that his request for self-representation was timely, and even if it were not, the trial court erred because it failed to weigh the relevant factors in denying an untimely request. He asserts that his motion to proceed pro se and his sentencing memoranda were all filed one week into the approximately three-week continuance, thus well in advance and without causing delay. Furthermore, he contends he had good cause to assert his right to self-representation: he disagreed with counsel's memorandum, which he asserts did not present mitigation evidence, and he and counsel had not consulted before its filing. The state counters that because the request was untimely, it was within the...