Opinion
No. 1 CA-CR 09-0804 No. 1 CA-CR 09-08 08
10-11-2011
STATE OF ARIZONA, Appellee, v. DONALD LEE COOK, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24(Consolidated)
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2005-032990-001 SE
No. CR2005-104441-001 SE
The Honorable Connie Contes, Judge
SENTENCES VACATED; REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And Myles A. Braccio, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix
BARKER, Judge
¶1 Cook appeals his sentences on eight counts of sexual exploitation of a minor, class two felonies and dangerous crimes against children, on the ground the trial court erred in terminating his self-representation before it sentenced him. For the reasons that follow, we find reversible error requiring us to vacate the sentences.
¶2 The procedural background on this issue is as follows. A grand jury indicted Cook in CR 2005-032990 on seven counts of sexual exploitation of a minor, and in CR 2005-104441 on one count of sexual exploitation of a minor, all class two felonies and dangerous crimes against children. In August 2006, the trial court granted Cook's request to represent himself in these cases and in a related case, CR 2005-033017, in which he faced charges of molestation and sexual conduct with a minor under twelve years of age. Cook continued to represent himself through trial in February 2008 on the eight counts of sexual exploitation charged in CR 2005-032990 and CR 2005-104441 at issue in this appeal, which the court had consolidated for trial.
¶3 A jury convicted Cook on February 20, 2008, of the sexual exploitation charges. With Cook's consent, the court postponed sentencing on the sexual exploitation convictions until the disposition of the charges in CR 2005-033017, which alleged molestation and sexual conduct with a minor. Cook continued to represent himself for another year and one-half before the same judge who had presided over his trial on the sexual exploitation charges.
¶4 On September 11, 2009, ten days before trial was set to begin in CR 2005-033017, however, over Cook's objection, the court terminated his self-representation and appointed advisory counsel to represent him for all further proceedings. In the minute entries in CR 2005-104441 and CR 2005-032990, the sexual exploitation cases on which he was awaiting sentencing and which are the subject of this appeal, the court noted that the record should reflect that it had appointed advisory counsel to represent Cook for further proceedings in these cases based on her finding that he "cannot effectively represent himself in his pending case [CR 2005-033017]." A jury subsequently convicted Cook in CR 2005-033017 of two counts of sexual conduct with a minor.
¶5 On October 23, 2009, in a consolidated sentencing proceeding, the court sentenced Cook to consecutive sentences of two life terms for his convictions on two counts of sexual conduct with a minor in CR 2005-033017, and seventeen years on each of eight counts of sexual exploitation of a minor in CR 2005-032990 and CR 2005-104441. At that time, Cook did not explicitly renew his objection to representation by counsel but argued that his counsel had been ineffective and that the court, defense counsel, and the prosecutor had trampled on his constitutional rights and prevented him from presenting his defense.
¶6 Cook timely appealed his convictions and sentences in all three cases. On Cook's motion, this court consolidated the appeals of his convictions in CR 2005-032990 and CR 2005-104441 under 1 CA-CR 09-0804, this appeal. This court previously heard Cook's separate appeal from the convictions in CR 2005-033017, under 1 CA-CR 09-0801.
¶7 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), -2101(B)(2003), 13-4031, 13-4033(A)(2010).
¶8 In this appeal, Cook raises only one issue: he argues that the trial court committed reversible error by denying his constitutional right to represent himself at sentencing on the sexual exploitation convictions in CR 2005-032990 and CR 2005-104441. Specifically, Cook argues that the trial court erred by terminating his self-representation on September 11, 2009, shortly before he was to go to trial in CR 2005-033017, and before sentencing him on his convictions in CR 2005-032990 and CR 2005-104441. Cook's separate appeal of his convictions in CR 2005-033017 raised the same issue: he argued that the trial court committed reversible error by denying him his constitutional right to represent himself when it terminated his self-representation on September 11, 2009. In a Memorandum Decision in 1 CA-CR 09-0801, filed on July 28, 2011, this court concluded that the court had erred in terminating Cook's self-representation on September 11, 2009, requiring reversal of his convictions in CR 2005-033017.
The Arizona Supreme Court has pending before it the State's petition for review of this decision.
¶9 We are not persuaded by the State's argument that Cook implicitly "acquiesced in counsel's representation" at sentencing on these convictions, thereby waiving his right to self-representation, by failing to expressly renew his previous objection to termination of his self-representation. Cook objected at the time the court terminated his self-representation on September 11, 2009, and the State has not identified any portion of the record indicating that he subsequently changed his mind. Moreover, at the consolidated sentencing proceeding a month and a half later, he complained that appointed counsel had been ineffective and that his counsel, the prosecutor, and the trial court had trampled on his constitutional rights.
¶10 These facts distinguish this case from the cases on which the State relies for its argument that Cook acquiesced in counsel's representation at sentencing. Unlike in this case, in the cases on which the State relies, each defendant's affirmative conduct indicated he acquiesced in counsel's representation. See McKaskle v. Wiggins, 465 U.S. 168, 181-83 (1984) (noting that "[t]he record in this case reveals that Wiggins' pro se efforts were undermined primarily by his own frequent changes of mind regarding counsel's role"); State v. Boggs, 218 Ariz. 325, 338, ¶¶ 60-62, 185 P.3d 111, 124 (2008) (holding that defendant waived his right to self-representation at sentencing when he relinquished his right to proceed pro per at trial, despite warning from the court that his decision would be irrevocable). On this record, we decline to find that Cook implicitly waived his right to self-representation at his sentencing on these convictions by not explicitly renewing his earlier objection. Further, separate and apart from the reasons given in our previous Memorandum Decision in 1 CA-CR 09-0801, the reasons given by the trial court to terminate self-representation for that trial do not justify terminating self-representation for sentencing on these distinct counts. We accordingly conclude that the trial court's decision to terminate Cook's self-representation was erroneous and that this error requires that his sentences in CR 2005-032990 and CR 2005-104441 be vacated.
The State also misplaces its reliance on State v. Moody, 208 Ariz. 424, 462, ¶ 165, 94 P.3d 1119, 1157 (2004). In the cited paragraph in Moody, the court held only that defendant's request for a mistrial for "misconduct" failed to preserve a claim of error on hearsay and confrontation grounds, and that defendant's failure to make a contemporaneous objection on the latter grounds constituted waiver of these claims for appellate purposes. See id. ¶¶ 165, 202 n.13. We find that Cook's objection on September 11, 2009, to termination of his self-representation was sufficient to preserve for appellate purposes his objection to representation by counsel at the consolidated sentencing proceedings a month and a half later. See State v. Hughes, 193 Ariz. 72, 85, ¶ 58, 969 P.2d 1174, 1198 (1998) (holding that "when counsel [makes] the court aware of his objection through a previous motion, failure to object at trial does not then waive the issue on appeal").
--------
¶11 For the foregoing reasons, we vacate Cook's sentences and remand for proceedings consistent with this decision.
DANIEL A. BARKER, Judge
CONCURRING:
ANN A. SCOTT TIMMER, Judge
PATRICK IRVINE, Judge