§ 4.14.3 Rights of Parties - Rules 6-11.

• Jurisdiction: Arizona

§ 4.14.3 Rights of Parties - Rules 6-11.

Rule 6.1(a) - Right To Representation By Counsel. The standard of review for the question of whether a defendant was denied the constitutional right to counsel at a critical stage of the case is de novo. State v. Boggs, 218 Ariz. 325, 332, ¶ 25, 185 P.3d 111, 118 (2008); State v. Moody, 208 Ariz. 424, 445-47, ¶¶ 62-70, 94 P.3d 1119, 1140-42 (2004) (denial of attorney prior to execution of search); State v. Davolt, 207 Ariz. 191, 202, ¶¶ 25-26, 84 P.3d 456, 467 (2004) (denial of attorney during interview); State v. Martinez, 221 Ariz. 383, 386, ¶ 10, 212 P.3d 75, 78 (App. 2009).

The appellate court reviews a trial court’s decision whether to disqualify defense counsel for an abuse of discretion. State v. Tucker, 205 Ariz. 157, 162, ¶ 23, 68 P.3d 110, 115 (2003); State v. Jones, 185 Ariz. 471, 482, 917 P.2d 200, 211 (1996); cf. State v. Lucas, 123 Ariz. 39, 41, 597 P.2d 192, 194 (App. 1979) (ruling on motion to disqualify prosecutor’s office reviewed for abuse of discretion). A decision whether to grant or deny a request for hybrid representation is reviewed for an abuse of discretion. State v. Dixon, 226 Ariz. 545, 553, ¶ 38, 250 P.3d 1174, 1182 (2011).

Whether a defendant has “forfeited” his right to counsel through threats and other actions is reviewed de novo, although all factual findings made by the trial court to decide the issue are accepted unless clearly erroneous. State v. Rasul, 216 Ariz. 491, 493, ¶ 4, 167 P.3d 1286, 1288 (App. 2007).

A decision whether to approve the expenditure of money to assist the defense is reviewed for an abuse of discretion. State v. Cornell, 179 Ariz. 314, 321, 878 P.2d 1352, 1359 (1994).

Rule 6.1 - Motion For Change of Counsel. The trial court’s decision on a motion for substitution of counsel will not be disturbed absent a clear abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27, 119 P.3d 448, 453 (2005); State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998); State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). Whether a trial court should have held a hearing on a motion for change of counsel is reviewed for an abuse of discretion. State v. Gomez, 231 Ariz. 219, 224, ¶ 18, 293 P.3d 495, 500 (2012).

A trial court’s decision on a motion to disqualify counsel for a conflict of interest is reviewed for an abuse of discretion. State v. Tucker, 205 Ariz. 157, 162, ¶ 23, 68 P.3d 110, 115 (2003).

Rule 6.1(c) - Waiver of Right To Counsel. The standard of review for the waiver of the right to counsel is not settled in Arizona. See State v. Djerf, 191 Ariz. 583, 592 n.2, ¶ 25, 959 P.2d 1274, 1283 n.2 (1998); State v. Cornell, 179 Ariz. 314, 321, 878 P.2d 1352, 1359 (1994). The supreme court described such a waiver as a question of fact, calling for a deferential standard in State v. Doss, 116 Ariz. 156, 160, 568 P.2d 1054, 1058 (1977). More recently, the supreme court stated that when a defendant has relinquished his right to self-representation during trial, the issue of whether the trial court properly denied the defendant’s subsequent request to waive counsel for the death penalty phase of a case is reviewed for an abuse of discretion. State v. Boggs, 218 Ariz. 325, 338, ¶ 61, 185 P.3d 111, 124 (2008). The Ninth Circuit has stated that the question mixes law and fact and should be reviewed de novo. See Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987). Arizona courts also apply de novo review to mixed questions of fact and law that implicate constitutional rights. State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App. 2007); State v. Soto, 195 Ariz. 429, 430, ¶ 7, 990 P.2d 23, 24 (App. 1999).

A trial court’s decision to deny a continuance of a trial date in connection with the waiver of the right to counsel is reviewed for an abuse of discretion. State v. Lamar, 205 Ariz. 431, 436, ¶¶ 26-27, 72 P.3d 831, 836 (2003).

The violation of the right to self-representation recognized in Faretta v. California, 422 U.S. 806 (1975), is structural and thus is not susceptible to harmless error review. Frantz v. Hazey, 533 F.3d 724, 734-35 (9th Cir. 2008) (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)). Cf. State v. Guadagni, 218 Ariz. 1, 7, ¶ 21, 178 P.3d 473, 479 (App. 2008) (when defendant is entitled to assistance of counsel under Sixth Amendment, “[a]ctual or constructive denial of th[at] assistance . . . is legally presumed to result in prejudice.”) (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).

Rule 6.3 - Withdrawal of Counsel. An appellate court will overturn a trial court’s decision on a motion to withdraw only if the trial court abused its discretion. See State v. Hausner, 230 Ariz. 60, 86, ¶ 123, 280 P.3d 604, 631 (2012); Robinson v. Hotham, 211 Ariz. 165, 168, ¶ 9, 118 P.3d 1129, 1132 (App. 2005).

Rule 6.4 - Determination of Indigency. A trial court’s ruling on a defendant’s indigent status is reviewed for an abuse of discretion. Tripati v. Tucker, 222 Ariz. 372, 373, ¶ 3, 214 P.3d 1013-14 (App. 2009).

Rule 6.7(d) - Order For Reimbursement of Attorneys’ Fees. A trial court’s order directing a defendant to reimburse the county for the cost of state-provided counsel is reviewed for an abuse of discretion. Espinoza v. Superior Court, 166 Ariz. 557, 562, 804 P.2d 90, 95 (1991); State v. Torres-Soto, 187 Ariz. 144, 145-46, 927 P.2d 804, 805-06 (App. 1996).

What type of income to include in making determination of financial ability to reimburse for representation costs involves the interpretation of statutes and rules, and is decided de novo. State v. Taylor, 216 Ariz. 327, 333-34, ¶¶ 17-24, 166 P.3d 118, 124-25 (App. 2007).

When a defendant does not object to a trial court’s failure to make the necessary findings to enter an order of reimbursement for representation costs, the error is not automatically reversed on appeal; rather, the court engages in fundamental error analysis as required by State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). See § 4.11.5. See generally State v. Moreno-Medrano, 218 Ariz. 349, 352-54, ¶¶ 7-15, 185 P.3d 135, 138-40 (App. 2008). But see State v. Taylor, 216 Ariz. 327, 334-35, ¶ 25, 166 P.3d 118, 125-26 (App. 2007) (failure to make findings required for reimbursement order requires post-conviction relief).

Rule 7.2 - Release Pending Trial. The trial court’s decisions in setting bail are reviewed for an abuse of discretion. Costa v. Mackey, 227 Ariz. 565, 569, ¶ 7, 261 P.3d 449, 453 (App. 2011); Fragoso v. Fell, 210 Ariz. 427, 434, ¶ 22, 111 P.3d 1027, 1034 (App. 2005) (trial court has discretion to set conditions of bail, but such discretion is not “unfettered”).

Whether a defendant who has been released on her own recognizance is “admitted to bail” for purposes of the admitted-to-bail exception to the state constitutional provision that persons charged with a crime are bailable by sufficient sureties, ARIZ. CONST. art. II, § 22, presents a...