State v. Tull
Decision Date | 08 November 2016 |
Docket Number | No. 1 CA-CR 14-0622,1 CA-CR 14-0622 |
Parties | STATE OF ARIZONA, Appellee, v. CLARENCE ANDREW TULL, Appellant. |
Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
The Honorable Sherry K. Stephens, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
MEMORANDUM DECISIONJudge Peter B. Swann delivered the decision of the court, in which Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
¶1 A jury found Clarence Andrew Tull ("Defendant") guilty of the following felonies: one count each of illegal control of an enterprise, conspiracy to commit sale or transportation of marijuana in an amount of two pounds or more, possession of marijuana for sale in an amount of more than four pounds, money laundering in the second degree, use of wire communication or electronic communication in drug-related transactions in an amount of two pounds or more; seven counts of use of wire communication or electronic communication in drug-related transactions; and four counts of sale or transportation of marijuana in an amount of two pounds or more. Defendant appeals his convictions and the sentences imposed, arguing the trial court erred by denying his pretrial request to proceed in propria persona ("pro per"), or in the alternative, by denying his trial counsel's motion to withdraw and to have new counsel appointed. For the following reasons, we affirm.
¶2 After a four-month wiretap investigation into a marijuana trafficking ring, Defendant and 15 others were indicted on June 22, 2011. Defendant apparently retained counsel after his arraignment. Fewer than three months later, Defendant retained substitute counsel, who later withdrew from the representation when Defendant failed to substantially fulfill his attorney-client obligations. Meanwhile, the court designated the case as complex.
¶3 The court assigned counsel, who later moved to withdraw because "irreconcilable differences have arisen such that attorney-client communication has totally broken down." The court granted the motion at a case-management conference, and Defendant requested to proceed proper. The court assigned Defendant new counsel to assist the court in determining whether to grant Defendant's request.
¶4 Two weeks later, L.W. represented Defendant at a status conference where she informed the court that Defendant refused to meet with her. The court then addressed Defendant, and the following ensued:
¶5 One year later, and approximately one month before trial was scheduled to begin, L.W. unsuccessfully moved to withdraw on the basis of Defendant's continued refusal to communicate with her. Trial commenced on April 23, 2014, and lasted 33 days over the course of almost four months.2
¶6 We review a trial court's denial of a request to proceed without counsel for an abuse of discretion. State v. Dann, 220 Ariz. 351, 360, ¶ 25 (2009). Similarly, we review a trial court's decision to deny counsel's motion to withdraw for an abuse of discretion. State v. Jones, 185 Ariz. 471, 482 (1996).
¶7 Criminal defendants have a constitutional right to be represented by counsel. State v. LaGrand, 152 Ariz. 483, 486 (1987). Defendants do not, however, have the right to counsel of their choosing, only to competent counsel. Id. "The federal and state constitutions [also] guarantee the right to waive counsel and to represent oneself." Dann, 220 Ariz. at 359, ¶ 16; see also Faretta v. California, 422 U.S. 806, 832-33 (1975). "A defendant may waive his or her rights to counsel . . ., in writing, after the court has ascertained that he or she knowingly, intelligently and voluntarily desires to forego them." Ariz. R. Crim. P. 6.1(c); see also Faretta, 422 U.S. at 835. A request for self-representation must be unequivocal. State v. Henry, 189 Ariz. 542, 548 (1997).
¶8 Here, Defendant's statements when the court inquired into his purported desire to represent himself do not illustrate an unequivocalrequest for self-representation. And assuming Defendant did unequivocally request counsel two weeks before the court's inquiry, he did not do so in writing, and he refused to cooperate with the court so that it could, as required by Ariz. R. Crim. P. 6.1, determine whether Defendant knowingly, intelligently, and voluntarily desired to represent himself. Indeed, Defendant expressly stated that he would not "participate" and would not answer questions. The court acted well within its discretion in not permitting Defendant to proceed pro per.3
¶9 The court also did not abuse its discretion by denying L.W.'s motion to withdraw and to have substitute counsel appointed. When denying a motion to withdraw, an abuse of discretion generally occurs if counsel has established "an ethical conflict requiring withdrawal." Maricopa Cnty. Pub. Defender's Office v. Superior Court (Nelson), 187 Ariz. 162, 167 (App. 1996); see also State v. Bush, 108 Ariz. 148, 151 (1972) ( ); Okeani v. Superior Court (Romley), 178 Ariz. 180, 182 (App. 1993) ( ). A trial court also abuses its discretion in denying a motion to withdraw when, in the...
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