State v. Rasul

• Decision Date: 10 October 2007
• Docket Number: No. 2 CA-CR 1995-0014.,2 CA-CR 1995-0014.
• Citation: 167 P.3d 1286,216 Ariz. 491
• Parties: The STATE of Arizona, Appellee, v. Mikal Omar RASUL, Appellant.
• Court: Arizona Court of Appeals

167 P.3d 1286

216 Ariz. 491

The STATE of Arizona, Appellee, v. Mikal Omar RASUL, Appellant.

No. 2 CA-CR 1995-0014.

Court of Appeals of Arizona, Division 2, Department A.

October 10, 2007.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Alan L. Amann, Tucson, Attorneys for Appellee.

Jeffrey G. Buchella, Tucson, Attorney for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 After a jury trial, appellant Mikal Rasul was convicted of one count each of attempted fraudulent scheme and artifice and forgery. The trial court sentenced him to consecutive, presumptive, enhanced prison terms of 11.25 and ten years, respectively, to be served consecutively to prison terms he was already serving. On appeal, Rasul argues the trial court violated his Sixth Amendment right to counsel and improperly enhanced his sentences based on two prior felony convictions instead of one.¹ We affirm the convictions but vacate the sentences and remand for resentencing.

Background

¶ 2 We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the convictions. See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App.2004). In 1990, Rasul was convicted of one count each of arson of an occupied structure and arson of property having a value of more than $100, and two related counts of conspiracy to commit arson, arising from a fire Rasul and an accomplice had started outside a bank. On appeal, this court reversed one of the conspiracy convictions but otherwise affirmed the convictions and sentences. State v. Rasul, No. 2 CA-CR 90-0907 (memorandum decision filed Aug. 30, 1994). In 1993, Rasul filed a petition for post-conviction relief, pursuant to Rule 32, Ariz. R.Crim. P., claiming the convictions were unlawful because the charges had previously been dismissed with prejudice. He attached to the petition a falsified minute entry and hearing transcript indicating the charges had been dismissed with prejudice.

¶ 3 Based on his submission of the falsified documents, the state charged Rasul with attempted fraudulent scheme and artifice, forgery, and attempted second-degree escape. After eighteen court-appointed attorneys had been allowed to withdraw for various reasons, and Rasul refused to participate in the trial, Rasul was tried in absentia and without counsel representing him. The trial court directed a verdict of acquittal on the attempted second-degree escape charge, and Rasul was convicted of attempted fraudulent scheme and artifice and forgery. After obtaining federal habeas corpus relief because he did not have counsel when he initially appealed in this case, Rasul now appeals.

Right to Counsel

¶ 4 Rasul argues the trial court violated his Sixth Amendment right to counsel. He contends that the record does not support the conclusion he waived that right and that any waiver should have been preceded by a hearing. We review a Sixth Amendment denial of right to counsel claim de novo. See State v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193, 1210 (2005); United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir.1995) (reviewing de novo issue of waiver or forfeiture of Sixth Amendment right to counsel). But we defer to the trial court's factual findings unless they are clearly erroneous. See Mack v. Cruikshank, 196 Ariz. 541, ¶ 6, 2 P.3d 100, 103 (App.1999); see also State v. Chavez, 208 Ariz. 606, ¶ 2, 96 P.3d 1093, 1094 (App.2004) (same standard applies in reviewing denial of motion to suppress).

¶ 5 After allowing Rasul's eighteenth court-appointed attorney to withdraw, the trial court refused to appoint Rasul another attorney, although it appointed advisory counsel. It concluded that Rasul had "waive[d]" his "right to the appointment of different counsel." When Rasul refused the assistance of advisory counsel and chose not to remain present at his trial, the trial proceeded in absentia and without counsel representing Rasul.

¶ 6 "The Sixth Amendment guarantees criminal defendants the right to representation by counsel." State v. Torres, 208 Ariz. 340, ¶ 6, 93 P.3d 1056, 1058 (2004); see also Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). But a defendant "can effectively forgo that assistance through his actions." State v. Hampton, 208 Ariz. 241, ¶ 7, 92 P.3d 871, 873 (2004). Where, as here, the defendant does not expressly waive his right to counsel, he still may forgo the right to counsel if he waives it by conduct or forfeits it. Before a defendant may waive by conduct his right to counsel, the court must both "warn[ ] the defendant that further disruptive conduct may result in the loss of the right to counsel and explain[ ] the implications of such a waiver." Id. But forfeiture, only appropriate in cases of "severe misconduct or a course of disruption aimed at thwarting judicial proceedings," does not require a prior warning. Id. ¶ 8.

¶ 7 The state first contends Rasul waived his right to counsel by conduct. Rasul does not contest the state's contention that the trial court warned Rasul that if he persisted in refusing to work with counsel, the court would eventually stop appointing new counsel. But the record before us does not reflect that the court expressly warned Rasul of the dangers of self-representation. Under Hampton, waiver by conduct requires that the court explain to the defendant "the risks and consequences of waiving the right to counsel." Id. n. 3; see also Daniel Y. v. Ariz. Dep't of Econ. Sec., 206 Ariz. 257, ¶ 16, 77 P.3d 55, 59 (App.2003). Thus, Rasul did not waive by conduct his right to counsel.

¶ 8 The state next contends Rasul forfeited his right to counsel. The cases cited in Hampton "suggest that forfeiture is reserved for the most severe cases of misconduct and should result only when less restrictive measures are inappropriate." 208 Ariz. 241, ¶ 8, 92 P.3d at 874. In Hampton, the defendant had issued credible death threats to two different appointed attorneys. Id. ¶¶ 3-4. The supreme court stated that "it might be possible to conclude Hampton's conduct is so egregious as to constitute forfeiture of his right to counsel on appeal," but chose to remand for the appointment of new appellate counsel and specifically warned Hampton of the consequences of any future misconduct. Id. ¶¶ 9-10. The court ultimately "le[ft] open . . . the question of whether certain serious misconduct by a criminal defendant can result in forfeiture of the right to counsel without prior warning." Id. ¶ 11.

¶ 9 Although no Arizona court has expressly found forfeiture of the right to counsel, courts in other jurisdictions have addressed the issue in various circumstances. For example, courts have generally held that a defendant who physically assaults his counsel has forfeited the right to counsel. See, e.g., Gilchrist v. O'Keefe, 260 F.3d 87, 90, 99-100 (2d Cir.2001); United States v. Leggett, 162 F.3d 237, 240, 251 (3d Cir.1998); State v. Montgomery, 138 N.C.App. 521, 530 S.E.2d 66, 68-69 (2000). But see King v. Superior Court, 107 Cal.App.4th 929, 132 Cal.Rptr.2d 585, 589-90, 600 (2003) (forfeiture not appropriate where defendant assaulted and threatened counsel because trial court did not provide sufficient due process protections).

¶ 10 But courts have also found forfeiture when the defendant's conduct does not rise to the level of physical violence. See Bultron v. State, 897 A.2d 758, 766 (Del.2006) ("Violence is not the sine qua non of extremely serious misconduct."). In Bultron, the defendant had directed "continuing profanity and insulting conduct" at his counsel. Id. Deferring to the trial court's findings "that Bultron's behavior fell just short of violence and was intended to force [counsel] to withdraw," the court upheld a finding of forfeiture. Id.

¶ 11 In United States v. McLeod, 53 F.3d 322, 325 (11th Cir.1995), the defendant, after having dismissed his first attorney, had verbally abused and threatened to harm his second attorney. He had also "threatened, on at least four occasions, to sue [his attorney], and had attempted to persuade him to engage in unethical conduct in connection with the case." Id. The court held McLeod forfeited the right to counsel at a hearing on a motion for new trial. Id. at 326.

¶ 12 In State v. Carruthers, 35 S.W.3d 516, 533-44, 550 (Tenn.2000), a capital case, the defendant threatened and refused to cooperate with three sets of appointed attorneys. The trial court recognized the defendant's "`ploy' to delay the trial." Id. at 550. The Tennessee Supreme Court concluded the defendant both waived by conduct and forfeited his right to counsel. Id. at 549-50. It stated that, "in situations such as this one, a trial court has no other choice but to find that a defendant has forfeited the right to counsel; otherwise, an intelligent defendant `could theoretically go through tens of court-appointed attorneys and delay his trial for years.'" Id. at 550, quoting State v. Cummings, 199 Wis.2d 721, 546 N.W.2d 406, 420 (1996).

¶ 13 In Commonwealth v. Thomas, 879 A.2d 246, ¶¶ 32-33 (Pa.Super.Ct.2005), the defendant had threatened his counsel and insisted that his counsel present no defense at trial. On appeal, the court found that the defendant had "forfeited his right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense." Id. ¶ 32.

¶ 14 Here, the trial court found that Rasul had threatened the personal safety of two of his attorneys and that his "repeated demands for the appointment of different counsel [we]re an attempt to manipulate the criminal justice system for delay or some other advantage." We defer to the trial court's findings because the record supports them. See Mack, 196 Ariz. 541, ¶ 6, 2 P.3d at 103; Bultron, 897 A.2d at 766 (trial court's finding that defendant's "behavior . . . was intended to force [his counsel] to withdraw" was "entitled to deference").

¶ 15 Rasul accused several appointed attorneys in open court...