State v. Russell

• Decision Date: 24 June 1993
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: 175 Ariz. 529,858 P.2d 674
• Parties: STATE of Arizona, Appellee-Respondent, v. Edward A. RUSSELL, Appellant-Petitioner. 90-1377, 1 92-0097-PR.
• Court: Arizona Court of Appeals

Page 674

858 P.2d 674

175 Ariz. 529

STATE of Arizona, Appellee-Respondent, v. Edward A. RUSSELL, Appellant-Petitioner.

Nos. 1 CA-CR 90-1377, 1 CA-CR 92-0097-PR.

Court of Appeals of Arizona, Division 1, Department D.

June 24, 1993.

Redesignated as Opinion and

Publication Ordered Aug. 24, 1993.

[175 Ariz. 530] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., and Randall M. Howe, Asst. Atty. Gen., Phoenix, for appellee.

Richard M. Romley, Maricopa County Atty. by Jessica Funkhouser, Deputy County Atty., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Helene F. Abrams, Deputy Public Defender, Phoenix, for appellant.

OPINION

TOCI, Judge.

Edward A. Russell ("defendant") appeals from his jury conviction of burglary in the second degree, a class 3 felony, and from the sentence imposed. Defendant claims that the trial court erred in allowing him to waive his right to counsel, in instructing the jury on burglary, and in sentencing him to an aggravated prison term. We conclude that the trial court did not err in allowing defendant to represent himself because the record adequately shows that defendant's waiver was knowing, intelligent, and voluntary. In addition, the trial court's instruction to the jury on burglary did not constitute fundamental error because the instruction did not negate defendant's defenses and the parties' opening and closing statements clarified any confusion. Finally, the trial court properly aggravated defendant's sentence pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 13- 702(D)(13). Thus, we affirm defendant's conviction and sentence.

Defendant has also filed a petition for review of the denial of his motion for rehearing. We have consolidated the petition with defendant's direct appeal. In the petition for review, defendant claims that he was denied effective assistance of counsel and the right to compulsory process. We accept jurisdiction but conclude that: (1) the trial court properly denied defendant's claim of ineffective assistance of advisory counsel because such claim is not cognizable under former Rule 32, Arizona Rules of Criminal Procedure; and (2) the trial court did not violate defendant's right to compulsory process because defendant neither called nor attempted to call the witness whose testimony he now claims would have changed the result in his case. Accordingly, we deny relief.

BACKGROUND

Jones Olsen, who died on February 2, 1989, owned a trailer in the Green Haven mobile home park located in Phoenix. Although Olsen's daughter arranged for someone to take care of the trailer and dispose of Olsen's effects, the trailer was unoccupied after his death. Defendant lived in a neighboring mobile home at the same park. On August 31, 1989, he and Ron Chevalier entered Olsen's mobile home and removed various household items. A neighbor observed defendant and Chevalier removing the property and called the police. Later, when the police arrested defendant, he gave conflicting explanations for his possession of the stolen items. First, defendant claimed that a neighbor, Michael Charlie, permitted the entry and paid him to remove the items from Olsen's mobile home. Second, defendant claimed that after he and Chevalier got drunk, Chevalier convinced him to enter the vacant mobile home.

After a trial in which defendant proceeded in propria persona with the assistance of advisory counsel, a jury found defendant guilty of the pending charges. ¹ Defendant then timely filed this appeal. Defendant also filed a petition for post-conviction relief pursuant to former Rule 32, Arizona Rules of Criminal Procedure ("Rule 32"). ² After the trial court appointed an attorney for defendant and held an evidentiary hearing, it denied the Rule 32 petition. When the trial court denied defendant's motion for rehearing, defendant filed this petition for review, which we consolidated with defendant's direct appeal.

I. DIRECT APPEAL

A. Self-Representation

Defendant first argues that the trial court erred in allowing him to waive his right to counsel. He claims that the trial court failed to make a sufficient record that the defendant made the waiver knowingly, voluntarily, and intelligently. We disagree.

As a preliminary matter, we observe that matters that require an extended record to resolve should normally be brought in Rule 32 proceedings. See State v. Crowder, 155 Ariz. 477, 747 P.2d 1176 (1987) (voluntariness of plea). But, where a claim can be resolved from the record on appeal, we will not defer to post-conviction proceedings. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Because we can resolve this claim from the record on appeal, we reach the merits of this issue.

The right to waive counsel and proceed in propria persona is a constitutionally guaranteed right. State v. Cook, 170 Ariz. 40, 48, 821 P.2d 731, 739 (1992), cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90 (1992). Similarly, the right to be effectively assisted by counsel is constitutionally protected. State v. Schaaf 169 Ariz. 323, 330, 819 P.2d 909, 916 (1991). The trial court strikes a balance between these two seemingly conflicting rights by assuring itself that a defendant proceeds in propria persona knowingly, intelligently, and voluntarily. Cook, 170 Ariz. at 48, 821 P.2d at 739; see also Ariz.R.Crim.P. 6.1(c).

Here, although both defendant and the trial court signed a waiver of counsel form, the trial court did not, on the record, advise defendant about the dangers of waiving counsel and did not state that defendant's waiver was knowing, intelligent, and voluntary. See State v. Raseley, 148 Ariz. 458, 461-62, 715 P.2d 314, 317-18 (App.1986) (because court did not, on the record, explain dangers and disadvantages to self-representation, remand was necessary). Albeit the better practice would be for the trial judge to make specific findings regarding defendant's waiver, the absence of such findings does not amount to reversible error if the record adequately shows that defendant's waiver was knowing, intelligent, and voluntary. See State v. Evans 125 Ariz. 401, 403, 610 P.2d 35, 37 (1980).

The record in this case adequately shows that defendant's waiver of counsel was knowing, intelligent, and voluntary. Defendant moved to represent himself well in advance of trial. Compare Raseley 148 Ariz. at 459, 715 P.2d at 315 (when defendant waived counsel after opening statements, court remanded to assure that such waiver proper) with State v. Rigsby, 160 Ariz. 178, 182, 772 P.2d 1, 4 (1989) (when defendant waived counsel two weeks before trial began, and court found him competent to make knowing waiver, no remand was necessary). His written motion specifically requested that the trial court allow him to proceed on his own and distinguished his case from both State v. Jones, 146 Ariz. 278, 279, 705 P.2d 955, 956 (App.1985) (where court did not question defendant's presence at the trial without counsel) and Raseley, 148 Ariz. at 459, 715 P.2d at 315 (where defendant orally requested self-representation during trial because he defendant was unsatisfied with his attorney's opening statement). He also demonstrated adequate familiarity with legal proceedings by citing and discussing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Finally, he specifically noted in his request for self-representation that "[t]he defendant and not his lawyer or the state will bear the personal consequences of a conviction."

Furthermore, the facts in this case are similar to those in Rigsby. There, the defendant argued that trial court erred in allowing him to represent himself because, although the trial court specifically stated that there was a knowing, intelligent, and voluntary waiver, it did not inform him of the dangers and disadvantages of self-representation. The supreme court, however, observed that the defendant adequately presented his opening and closing statements and had considerable experience with the criminal justice system. Id., 160 Ariz. at 182, 772 P.2d at 4; see also State v. Binder, 170 Ariz. 519, 520, 826 P.2d 816, 817 (App.1992) (court may consider background, experience and understanding); State v. Martin, 102 Ariz. 142, 146, 426 P.2d 639, 643 (1967) ("All factors relating to the determination of whether the defendant knew exactly what he was doing when he waived his right to counsel are relevant."). It also observed that the trial court allowed the defendant to represent himself only after "a discussion where [the defendant], in an articulate manner, expressed a desire to defend himself" and it "took the added precaution of appointing advisory counsel...." Rigsby, 160 Ariz. at 182, 772 P.2d at 4. Thus, it held that the trial court did not err in allowing the defendant, who clearly knew of the dangers of self-representation, to proceed without counsel.

Here, defendant's background and experience demonstrates his knowledge of legal proceedings. For example, an Arkansas jury convicted him on two counts of rape, two counts of burglary, and one count of robbery, and, on a previous occasion, an Arizona jury convicted him on one count of larceny. In addition, because defendant had counsel during the first trial in this case, which resulted in a mistrial, and represented himself in the second trial, which resulted in a hung jury, defendant knew of the ramifications of self-representation. Furthermore, defendant not only had the benefit of advisory counsel but he clearly stated a desire to represent himself. In response to the trial judge's question about why he wanted to represent himself, he stated, "I have more faith in me."

Although the trial court in this case did not specifically state that defendant's waiver was knowing, intelligent, and voluntary, we imply such a finding because the record strongly supports it. H.M.L. v. State, 131...