State v. Esaw

554 P.3d 14

The STATE of Arizona, Appellee,

v.Dewayne ESAW, Appellant.

No. 2 CA-CR 2023-0007

Court of Appeals of Arizona, Division 2.

Filed July 23, 2024

Appeal from the Superior Court in Pima County, No. CR20194300, The Honorable Catherine Woods, Judge. AFFIRMED

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Diane Leigh Hunt, 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 Brearcliffe authored the opinion of the Court, in which Judge Kelly concurred and Judge Eckerstrom dissented.

OPINION

BREARCLIFFE, Presiding Judge:

¶1 Dewayne Esaw appeals from his convictions and sentences for robbery, armed robbery, kidnapping, and burglary. He contends the trial court erred in proceeding with his trial without appointing counsel to represent him. Because Esaw had validly invoked his right to self-representation and then voluntarily absented himself from the trial, we affirm.

Factual and Procedural Background

¶2 We review the facts in the light most favorable to upholding the court’s ruling. State v. Weaver, 244 Ariz. 101, ¶ 2, 418 P.3d 468 (App. 2018). As is relevant here, in September 2019, Esaw was charged with one count of armed robbery, one count of armed robbery while using or threatening to use a simulated deadly weapon, three counts of simple robbery, four counts of kidnapping, and five counts of third-degree burglary.¹ At his arraignment, counsel was appointed to represent him.² One month later, Esaw requested new counsel, and Esaw’s attorney thereafter filed a motion to withdraw citing "[i]rreconcilable difference[s]." Thereafter, the trial court appointed new counsel for him. Nearly two years later, Esaw’s second court-appointed attorney moved to withdraw citing "significant and irreconcilable" conflict. Esaw informed the court that he would be retaining private counsel, and he was instructed to file a notice of appearance as soon as he was able to do so. The court noted that, as of that date and until new counsel is retained, Esaw is "self-represented." Several months later, Esaw had yet to retain counsel, but informed the court that he still intended to retain private counsel; the court vacated the trial date. At a pretrial conference the following week, the court set a new trial date and another status conference to determine whether Esaw had retained new counsel or intended to represent himself at trial.

¶3 Before the next status conference, the state filed a motion reciting Esaw’s history of legal representation and reported efforts to retain counsel. It asked the trial court to maintain the current trial date, but to hold a hearing and engage in a colloquy with Esaw pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and State v. McLemore, 230 Ariz. 571, 288 P.3d 775 (App. 2012). On March 3, 2022, the court held such a hearing, after which it found that Esaw had knowingly, intelligently, and voluntarily waived representation by counsel and advisory counsel. Esaw executed a written waiver of his right to counsel acknowledging that he had been informed of its risks.

¶4 A trial priority hearing was held on April 28, 2022, and Esaw was not present at the hearing. The trial court nonetheless conferred with the state and set the case for trial to begin the following month. Esaw ultimately came to the court later that day, and the court informed him of the coming trial date. Esaw was, then, also absent on the first day of trial. The court proceeded with the trial in his absence noting that Esaw "who is in a self-represented capacity is not present" even though he was "informed of our jury trial starting today."

¶5 Esaw was absent for the entirety of the jury trial—at which he was convicted on all counts—and for the subsequent aggravators trial—at which the jury found several aggravating factors for each count. The trial court issued a warrant for Esaw’s arrest.

¶6 Esaw was arrested in July 2022 and held in custody pending trial on the previously severed counts, a priors trial, and sentencing. The state requested appointment of advisory counsel to assist Esaw for the remaining proceedings. Esaw did not object, and the trial court appointed counsel for him.

¶7 Esaw’s priors trial was held in October 2022, at which nine prior felony convictions were proved, and sentencing was set thereafter. The trial court sentenced Esaw to concurrent prison sentences, the longest of which was twenty years. Esaw appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

¶8 Esaw argues the trial court committed structural error in failing to appoint counsel to represent him at trial despite his self-representation and voluntary absence from trial. He initially asserts that, although h chose to represent himself at trial by expressly waiving his right to counsel, his failure to appear at trial effectively "disrupted" the trial. Accordingly, he claims the court should have appointed him counsel as if he had been present for the trial but excluded from the courtroom, or otherwise denied self-representation by the court, due to disruptive courtroom behavior. In effect, he argues that, irrespective of any actual disruption, due to his mere absence as a self-represented defendant, whether his absence was voluntary or involuntary, the court was obligated to appoint him counsel to protect his constitutional rights. The state argues that no error, structural or otherwise occurred because "Esaw expressly rejected the appointment of government-funded defense counsel in any capacity," including standby advisory counsel. Moreover, even had Esaw engaged in disruptive behavior during trial while representing himself, the court would have had discretion, and was not obligated, to appoint counsel for him.

[1, 2] ¶9 "If an appellate court finds structural error, reversal is mandated regardless of whether an objection is made below or prejudice is found." State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233 (2009), abrogated on other grounds by State v. Escalante, 245 Ariz. 135, ¶¶ 15-16, 425 P.3d 1078 (2018). Structural error has been found in relatively few circumstances, relevant among them, where there is a "complete denial of criminal defense counsel" or "denial of access to criminal defense counsel during an overnight trial recess." State v. Ring, 204 Ariz. 534, ¶ 46, 65 P.3d 915 (2003).³

[3] ¶10 A defendant’s right to counsel is guaranteed by both "the Sixth Amendment to the United States Constitution and Article 2, Section 24, of the Arizona Constitution." State v. Penney, 229 Ariz. 32, ¶ 10, 270 P.3d 859 (App. 2012); see also Faretta, 422 U.S. at 807, 95 S.Ct. 2525. Additionally, "[a] defendant has the right to be represented by counsel in any criminal proceeding" under our criminal rules. Ariz. R. Crim. P. 6.1(a).

[4–6] ¶11 However, this right does not force appointment of a lawyer upon an unwilling defendant who wants to defend himself, LaCount v. Mroz, 253 Ariz, 49, ¶ 5, 508 P.3d 799 (App. 2022). In addition to the right to effective representation by counsel, the Sixth and Fourteenth Amendments to the United States Constitution guarantee the right to self-representation by implication. Faretta, 422 U.S. at 818, 821, 95 S.Ct. 2525 (stating the Sixth Amendment "implies a right of self-representation," and Sixth Amendment rights are "part of the ‘due process of law’ that is guaranteed by the Fourteenth Amendment"); McLemore, 230 Ariz. 571, ¶ 14, 288 P.3d 775. The Arizona Constitution expressly guarantees "criminal defendants the right to represent themselves at trial." State v. Cornell, 179 Ariz. 314, 324, 878 P.2d 1352, 1362 (1994); State v. Martin, 102 Ariz. 142, 144-45, 426 P.2d 639, 641–42 (1967) (Arizona’s constitution "vest[s] in a defendant the ‘explicit’ right to defend himself’ (quoting State v. Westbrook, 99 Ariz. 30, 35, 406 P.2d 388 (1965))); Ariz. Const. art. II, § 24 ("In criminal prosecutions, the accused shall have the right to appear and defend in person.").

[7, 8] ¶12 Although, as here, counsel is typically appointed by the trial court to represent a criminal defendant at the outset of the prosecution, a defendant may waive the right to counsel at any time before trial. See State v. Lamar, 205 Ariz. 431, ¶ 22, 72 P.3d 831 (2003) (a request to waive counsel must be made before empanelment of jury). To waive the right to counsel, the waiver must be "knowing, intelligent, and voluntary." Ariz. R. Crim. P. 6.1(c); see Lamar, 205 Ariz. 431, ¶ 22, 72 P.3d 831 ("To exercise this right, a defendant must voluntarily and knowingly waive his right to counsel and make an unequivocal and timely request to proceed pro se."). Courts assure themselves of a knowing, intelligent, and voluntary waiver by engaging the defendant in a colloquy pursuant to Faretta. See State v. Rigsby, 160 Ariz. 178, 182, 772 P.2d 1, 5 (1989). In accord with Faretta, a court questions the defendant’s understanding of the nature of the charges, of the dangers of self-representation, and of the possible punishment upon conviction. See McLemore, 230 Ariz. 571, ¶ 22, 288 P.3d 775. Here, the court properly conducted a Faretta hearing and colloquy, and Esaw does not challenge the court’s finding of his valid waiver of the right to counsel.

[9, 10] ¶13 Nonetheless, regardless of the nature of his legal representation, "a defendant who voluntarily absents himself from a trial may be tried, convicted and adjudged guilty in absentia," although imposition of sentence must be postponed until such time as the defendant can be present. State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). A trial court retains discretion to proceed with trial in the absence of a defendant, and the court did so here. Id.; see Ariz. R. Crim. P. 9.1 (court can proceed in defendant’s...