Opinion
No. 1 CA-CR 21-0439
03-28-2023
STATE of Arizona, Appellee, v. Archie UNDERWOOD, Appellant.
Arizona Attorney General's Office, Phoenix, By Alice Jones, Counsel for Appellee Maricopa County Public Defender's Office, Phoenix, By Damon A. Rossi, Counsel for Appellant
Arizona Attorney General's Office, Phoenix, By Alice Jones, Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix, By Damon A. Rossi, Counsel for Appellant
Presiding Judge David D. Weinzweig delivered the opinion of the Court, in which Judge Randall M. Howe and Judge D. Steven Williams joined.
OPINION
WEINZWEIG, Judge:
¶1 A criminal defendant holds a constitutional right to self-representation, which is not absolute and may be revoked if the defendant deliberately engages in serious and obstructionist misconduct. On appeal here, Defendant Archie Underwood challenges the superior court's revocation of his right to self-representation, which occurred just 27 minutes after the court granted that right, when Defendant refused to sign a comprehensive pretrial conference statement he did not prepare or understand. We vacate and remand Defendant's convictions and sentences because his conduct did not rise to the level of serious and obstructionist misconduct, and the court neither warned Defendant nor tried less severe methods to gain his compliance.
FACTS AND PROCEDURAL BACKGROUND
¶2 Defendant fled from police in a car he stole at gunpoint, causing a high-speed chase that lasted nearly forty minutes and ended only after Defendant crashed into several motorists. Defendant was arrested and charged with seven felonies: armed robbery, aggravated assault, aggravated robbery, theft of means of transportation, endangerment, unlawful flight from a law enforcement vehicle, and leaving the scene of a damage accident.
¶3 A public defender, Raymond Kimble ("Counsel Kimble"), was appointed to represent Defendant. At the initial pretrial conference, Defendant told the court he wanted to represent himself, and the court told Defendant he "could file something in writing." After that hearing, Defendant signed and filed a waiver-of-counsel form, along with a motion to represent himself and release his public defender.
¶4 A month later, the superior court held a comprehensive pretrial conference, and a different judicial officer presided. Counsel Kimble and Defendant attended. Defendant reminded the court that he wanted to represent himself, and the court asked him a series of questions to ensure his decision was voluntary and informed. See Ariz. R. Crim. P. 6.1(c). The court asked Defendant whether he understood "an attorney can be of great value and assistance in a criminal case," that "[t]here are serious dangers and disadvantages to representing yourself," and that self-represented defendants are "held to the same standard as an attorney." Defendant said he understood, and the court granted his request to represent himself. It found that Defendant "made a knowing, intelligent, and voluntary waiver of representation by an attorney," and designated Counsel Kimble as advisory counsel.
¶5 As the hearing closed, Counsel Kimble asked the court if he should complete the comprehensive pretrial conference form used by the court, and then have Defendant sign it. This form posed questions about the status of disclosure and interviews, plea negotiations, the anticipated length of the trial, the anticipated number of lay and expert witnesses, special jury instructions and anticipated pretrial motion practice. The court answered, "I appreciate it if you could," and recessed for 27 minutes.
¶6 After that recess, the court went back on the record and terminated Defendant's right to self-representation. The exchange is captured here:
COURT: I am told that [Defendant] refuses to sign and complete the forms, which means he's not abiding by the rules, which means you cannot represent yourself because you're not going to hold yourself ––
DEFENDANT: Well, I don't agree with this contract.
COURT: It isn't a contract. It's a statement to the Court about the facts of the case.
DEFENDANT: So why does it need my signature if it's not a contract?
COURT: Then, Mr. Underwood, don't sign it. It's a required –– it's a document that's required by rules. If you don't want to follow the rules, then don't follow it. You're not going to represent yourself.
I'm terminating his right to represent himself at this time. I'm just going to reappoint his attorney. Prior dates are affirmed.
DEFENDANT: That's why I petitioned against the State anyway, so ––
COURT: If you wish to request to represent yourself and agree to abide by the rules, sir, then I'll allow it at a future date.
Good luck to you.
Mr. Kimble, thank you for coming back.
¶7 At that point, Counsel Kimble signed and filed the comprehensive pretrial form on Defendant's behalf. The post-hearing minute entry stated that Defendant lost his right to self-representation because he "refused to follow direction of the Court." Defendant never made a second request to represent himself.
¶8 Defendant was found guilty on all counts, and the court sentenced him to 28 years in prison for armed robbery, with concurrent sentences on the remaining counts, minus 942 days of presentence incarceration credit. Defendant timely appealed his convictions and sentences, and we have jurisdiction. See Ariz. Const. art. 6, § 9 ; A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶9 Defendant contends the superior court erroneously revoked his right to self-representation. We review the court's revocation of that right for an abuse of discretion. State v. Gomez , 231 Ariz. 219, 222, ¶ 8, 293 P.3d 495, 498 (2012). "[A]n erroneous failure to accord a defendant his properly asserted right to represent himself when he is competent to waive counsel in a criminal case is structural error requiring reversal without a showing of prejudice." State v. McLemore , 230 Ariz. 571, 575–76, ¶ 15, 288 P.3d 775, 779–80 (App. 2012).
¶10 Criminal defendants hold a constitutional right to self-representation. State v. Lamar , 205 Ariz. 431, 435, ¶ 22, 72 P.3d 831, 835 (2003) ("The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself."). The U.S. Constitution impliedly guarantees a defendant's right to forgo counsel and conduct his own defense. See U.S. Const. Amend. VI. The Arizona Constitution expressly recognizes "the accused shall have the right to appear and defend in person." Ariz. Const. art. 2, § 24. And "once it is determined that a competent waiver has been made[,] it is not within the province of the trial judge to thrust counsel upon the defendant." State v. Martin , 102 Ariz. 142, 145, 426 P.2d 639, 642 (1967).
¶11 But the right to represent oneself is not absolute and may be terminated when a defendant "deliberately engages in serious and obstructionist misconduct." Faretta v. California , 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law."). ¶12 The Arizona Supreme Court has interpreted "serious and obstructionist misconduct" to include "serious violations of court orders and rules" when the conduct signifies that "continued self-representation would undermine the court's authority and ability to conduct the proceeding in an efficient and orderly manner." Gomez , 231 Ariz. at 223–24, ¶¶ 15–16, 293 P.3d at 499–500.
¶13 The superior court erroneously revoked Defendant's right to self-representation. From the record presented, it appears that right was revoked because Defendant was reluctant to sign a document he had just received and did not fully understand. That is not serious and obstructionist misconduct. See Gomez , 231 Ariz. at 223, ¶ 15, 293 P.3d at 499 (revocation of the right to counsel appropriate where the defendant commits "serious violations of court orders and rules"). Defendant's conduct at the pretrial conference did not demonstrate a contemptuous refusal to comply with court orders, did not threaten the dignity of the courtroom, and did not defy or undermine the court's authority and ability to conduct the proceeding in an efficient and orderly manner.
¶14 What is more, the constitutional right to self-representation should not be reflexively revoked once granted. See id. at 223–24, ¶ 16, 293 P.3d at 499–500 (affirming revocation when the defendant "demonstrated over several years that he could not comply with court deadlines and the disclosure rules" after being "repeatedly warned"). Before a court revokes that right, it must offer "clear, unambiguous, and timely warnings." State v. Whalen , 192 Ariz. 103, 108, 961 P.2d 1051, 1056 (App. 1997) ; see also State v. Hidalgo , 241 Ariz. 543, 554, ¶ 45, 390 P.3d 783, 794 (2017) (affirming the trial court's revocation of the defendant's right to self-representation where, "contrary to the court's repeated warnings and orders," the defendant "was unwilling to proceed on the scheduled trial date"). The court offered no warnings here. Nor did it pursue any less severe means to gain compliance. At a minimum, Defendant should have had a chance to carefully review the document before his constitutional right was revoked for not signing it.
¶15 The State counters that Defendant waived his right to self-representation because he never moved a second time to represent himself. But we do not presume a defendant acquiesces in the loss of fundamental rights. State v. Anderson , 96 Ariz. 123, 131, 392 P.2d 784 (1964) ; see also State v. Rickman , 148 Ariz. 499, 503, 715 P.2d 752, 756 (1986) (the court must "indulge every reasonable presumption against waiver of fundamental constitutional rights"). Indeed, "[t]o force a lawyer on a defendant can only lead him to believe that the law contrives against him." Faretta , 422 U.S. at 834, 95 S.Ct. 2525.
¶16 The State also stresses Defendant's conduct after his right was revoked, arguing this later behavior justified the court's earlier revocation. We disagree. On appeal, we review the record as it existed when the trial court revoked Defendant's constitutional right. See Washington v. Boughton , 884 F.3d 692, 705 (7th Cir. 2018) (trial court's "constitutionally infirm decision" to deny a defendant's request to self-represent cannot be "rehabilitate[d] ... by pointing to [the defendant's] conduct after the decision was made"); Cf. State v. Allen , 253 Ariz. 306, ¶ 20, 513 P.3d 282 (2022) (appellate courts "consider only the evidence presented at the suppression hearing" in reviewing a suppression order).
CONCLUSION
¶17 We vacate and remand Defendant's convictions and sentences.