                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

            IKEMEFULA CHARLES IBEABUCHI, Appellant.

                         No. 1 CA-CR 18-0098
                           FILED 2-25-2020


          Appeal from the Superior Court in Maricopa County
                         No. CR1999-095310
           The Honorable John R. Doody, Judge Pro Tempore

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                          STATE v. IBEABUCHI
                           Opinion of the Court



                                OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.



C R U Z, Judge:

¶1             The Sixth Amendment guarantees the right to self-
representation. In this case, we hold that when a defendant is competent to
stand trial, but lacks the mental capacity to conduct that trial himself, the
superior court may, over his objection, appoint counsel to undertake his
representation or deny his motion to represent himself.

¶2            Ikemefula Charles Ibeabuchi appeals from the revocation of
his probation and imposition of a presumptive 3.5 years’ prison term for
attempted sexual assault. He argues the superior court erred by denying
his motion to waive counsel and represent himself. We affirm.

                  FACTS AND PROCEDURAL HISTORY

¶3            In July 2002, Ibeabuchi was convicted of an offense in Nevada
and was sentenced to prison. Additionally, in Arizona in February 2003,
Ibeabuchi pled guilty to attempted sexual assault, a class 3 felony, and to
sexual abuse, a class 5 felony. In May 2003, the superior court sentenced
Ibeabuchi to two years’ imprisonment on the sexual abuse count and
lifetime probation on the attempted sexual assault count.

¶4            Ibeabuchi was released from prison and subsequently
reported to the Maricopa County Adult Probation Department to begin his
probationary term.

¶5           In 2016, the superior court found Ibeabuchi had violated
probation terms and reinstated him to lifetime intensive probation with
continuing sex-offender conditions. Later, the Probation Department filed
a second petition to revoke Ibeabuchi’s probation, citing new violations of
intensive-probation and sex-offender conditions.

¶6           Ibeabuchi was arrested pursuant to a probation warrant. The
superior court granted several continuances of the resulting hearing when
Ibeabuchi refused to be transported to court or refused to participate in the


                                     2
                           STATE v. IBEABUCHI
                            Opinion of the Court

proceedings when he was transported against his will. After Ibeabuchi
refused to meet with his court-appointed attorney, the superior court
granted a motion for a mental health examination to determine whether he
was competent to proceed with a probation violation hearing. Ariz. R.
Crim. P. 11.2. One of the three experts who evaluated Ibeabuchi opined
that he was “illogical, irrational, lacked insight into his condition, [and] he
was not reality based in his thinking.” Two other experts, however,
concluded Ibeabuchi was competent to stand trial. The court found
Ibeabuchi competent to proceed to the violation hearing, which was set
pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-4510(B).

¶7            After Ibeabuchi refused to attend no fewer than eight court
hearings, the court ordered Ibeabuchi, who had remained in custody, to be
brought to court by all means necessary. At the next scheduled hearing,
Ibeabuchi was brought to the courthouse, but he refused to enter the
courtroom, asserting that as a result of a pending appeal regarding the first
probation violation finding, the court lacked jurisdiction to hear the instant
violation of probation matter. Ibeabuchi’s discontent only grew when he
learned that the court had permitted his counsel in the first probation
violation matter to withdraw and appointed him counsel for the instant
probation violation proceedings.         In protest, Ibeabuchi refused to
participate in further proceedings for a time.

¶8             Eventually, before the probation violation hearing, Ibeabuchi
filed a motion to represent himself. Ibeabuchi’s motion was largely
incoherent; he continued to object to the court’s order allowing his counsel
in the first probation violation proceedings to withdraw. After reviewing
its own file, the court engaged Ibeabuchi in a colloquy to determine the
basis for his request and also to ascertain whether Ibeabuchi was competent
to waive his right to counsel and represent himself. Ibeabuchi explained he
wanted to represent himself because he “had a run-in with [his] attorneys”
and believed he could “help [himself] better.” His reference to a conflict
with counsel, however, was not germane to the court’s line of questioning.
Instead, Ibeabuchi’s response continued to refer to the attorneys he had
retained in the first probation violation proceedings.

¶9            In addition, Ibeabuchi explained that he thought the court did
not have jurisdiction over him, and said he had discovery supporting that
argument. Specifically, Ibeabuchi believed that because he had filed a
notice of appeal, he could not be subjected to violation of probation
proceedings before the superior court, even though he continued to be on
probation. He also complained that his appointed attorney refused to file a
motion based on this incorrect jurisdictional argument.


                                      3
                          STATE v. IBEABUCHI
                           Opinion of the Court

¶10            After further questioning, the court found Ibeabuchi’s
answers were “not responsive to [the court’s] questions and that some of
the things that [Ibeabuchi] said [were] at variance with what’s been in the
record.” The court noted that case law required a “higher degree of
competence in order for the person to represent themselves.” In denying
Ibeabuchi’s motion to represent himself, the superior court found Ibeabuchi
had failed to respond appropriately to questions, demonstrated in court
that he did not understand applicable law, had failed to comply with court
orders, filed nonsensical pleadings, and had refused numerous times to be
transported to court for hearings. Based on these findings, the court
concluded it was not likely that Ibeabuchi could competently represent
himself, denied the motion, and allowed appointed counsel to continue to
represent him.

¶11           The superior court held the probation violation hearing a few
weeks later, at which Ibeabuchi was represented by counsel and testified.
The court found the State proved Ibeabuchi violated several terms and
conditions of probation. As a result, the superior court revoked Ibeabuchi’s
probation and imposed a presumptive 3.5 years’ prison term for his
attempted sexual assault conviction and granted 505 days of presentence
incarceration credit.

¶12            Though he was represented by counsel, Ibeabuchi filed a pro
se notice of appeal from the revocation of his probation. Three weeks later,
Ibeabuchi’s public defender filed a second notice of appeal challenging the
revocation proceeding and sentence. Ibeabuchi then filed a motion to
represent himself on appeal. This court denied Ibeabuchi’s motion as
untimely.

¶13         We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A).

                              DISCUSSION

¶14           On appeal, Ibeabuchi does not challenge the superior court’s
ruling that he violated terms of his probation. Instead, he contends that,
because the superior court found him competent to stand trial, the court
committed structural error by denying his request to represent himself at
the probation violation hearing.1 We disagree.


1     Although the proceeding at which Ibeabuchi sought to represent
himself was a violation of probation hearing, not a trial on the original



                                     4
                             STATE v. IBEABUCHI
                              Opinion of the Court

¶15           We review for an abuse of discretion a superior court’s ruling
that a criminal defendant is not competent to represent himself. State v.
Gunches, 225 Ariz. 22, 24, ¶ 8 (2010). We look to whether reasonable
evidence supports the superior court’s finding, considering the facts in the
light most favorable to sustaining the superior court’s ruling. State v.
Glassel, 211 Ariz. 33, 44, ¶ 27 (2005). “However, regardless of the standard
of review, an 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 (App. 2012).

¶16              Both the United States and Arizona Constitutions recognize
an individual’s right to forgo legal counsel and represent himself against
allegations of criminal conduct. U.S. Const. amends. VI, XIV; Ariz. Const.
art. 2, § 24; see also Faretta v. California, 422 U.S. 806, 807 (1975); Gunches, 225
Ariz. at 24, ¶ 9. However, the Supreme Court has recognized that some
defendants deemed competent to stand trial may, at the same time, be
“unable to carry out the basic tasks needed to present his own defense
without the help of counsel.” Indiana v. Edwards, 554 U.S. 164, 175-76 (2008).
These defendants are sometimes referred to as “gray-area” defendants. Id.
at 172-73. Such defendants may be unable to represent themselves because,
while they are competent to stand trial in that they have “sufficient present
ability to consult with [their] lawyer with a reasonable degree of rational
understanding” and a “rational as well as factual understanding of the
proceedings against [them],” Dusky v. United States, 362 U.S. 402, 402 (1960)
(internal quotations omitted), self-representation at trial requires more than
that. Self-representation at trial requires the mental capacity to minimally
participate in the process as an advocate. An advocate must have sufficient
mental capacity to understand the nature of the dispute; formulate a
defense strategy; and engage with the court, counsel, witnesses and, in
some cases, the jury. See Edwards, 554 U.S. at 175-77. By contrast,
competency to stand trial requires the defendant only understand the
proceedings and make decisions about his case as the matter progresses.
See Dusky, 362 U.S. at 402. Without a doubt, the role of advocate requires
more in the way of mental capacity.

¶17         In Edwards, the Supreme Court addressed whether a trial
court may deny self-representation to a criminal defendant who is mentally




charges, there is not a material difference between the two hearings for
purposes of our analysis of his right to self-representation.


                                         5
                           STATE v. IBEABUCHI
                            Opinion of the Court

competent to stand trial but “not mentally competent to conduct that trial
himself.” 554 U.S. at 167. The Supreme Court stated,

       In certain instances an individual may well be able to satisfy
       Dusky’s mental competence standard, for he will be able to
       work with counsel at trial, yet at the same time he may be
       unable to carry out the basic tasks needed to present his own
       defense without the help of counsel. See, e.g., N. Poythress, R.
       Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative
       Competence: The MacArthur Studies 103 (2002) (“Within
       each domain of adjudicative competence (competence to
       assist counsel; decisional competence) the data indicate that
       understanding, reasoning, and appreciation [of the charges
       against a defendant] are separable and somewhat
       independent aspects of functional legal ability.”). See also
       [McKaskle v. Wiggins, 465 U.S. 168, 174 (1984)] (describing trial
       tasks as including organization of defense, making motions,
       arguing points of law, participating in voir dire, questioning
       witnesses, and addressing the court and jury).

Edwards, 554 U.S. at 175-76.

¶18            Then, while a defendant need only show the ability to
rationally communicate with counsel and a rational and factual
understanding of the proceedings to stand trial, Dusky, 362 U.S. at 402, to
represent himself at that trial, the superior court may require that the
defendant also have sufficient ability to manage the most basic of trial tasks.
McKaskle, 465 U.S. at 174. Edwards also explained that “insofar as a
defendant’s lack of capacity threatens an improper conviction or sentence,
self-representation in that exceptional context undercuts the most basic of
the Constitution’s criminal law objectives, providing a fair trial.” 554 U.S.
at 176-77; see also Martinez v. Court of Appeal of California, Fourth Appellate
Dist., 528 U.S. 152, 162 (2000) (“Even at the trial level . . . the government’s
interest in ensuring the integrity and efficiency of the trial at times
outweighs the defendant’s interest in acting as his own lawyer.”). Trials
must be both fair and “appear fair to all who observe them.” Edwards, 554
U.S. at 177 (quotation omitted). The Constitution allows the superior court
to assess a defendant’s mental capacities and “to insist upon representation
by counsel for [gray-area defendants].” Id. at 178.

¶19          In Gunches, the Arizona Supreme Court acknowledged
Edwards’ holding, but the issue of whether Arizona courts may apply a
heightened standard of competency for gray-area defendants invoking


                                       6
                            STATE v. IBEABUCHI
                             Opinion of the Court

their right of self-representation was not before that court and, therefore,
was not decided. 225 Ariz. at 25, ¶ 11. The issue is now squarely presented
here, and we hold that, pursuant to Edwards, when a criminal defendant is
mentally competent to stand trial, but not mentally competent to conduct
that trial or hearing himself, the superior court may, in its sound discretion,
deny the defendant the right to represent himself.

¶20           We now consider whether the superior court acted within its
discretion in denying Ibeabuchi’s request to represent himself.2

¶21           The record contains sufficient evidence to support the
superior court’s ruling that Ibeabuchi was a gray-area defendant and
“unable to carry out the basic tasks needed to present his own defense
without the help of counsel.” Gunches, 225 Ariz. at 25, ¶ 12 (quoting
Edwards, 554 U.S. at 175-76). During the court’s colloquy with Ibeabuchi,
the court noted that Ibeabuchi’s answers were “not responsive to [the
court’s] questions and that some of the things [Ibeabuchi] said [were] at
variance with what’s been in the record.” Ibeabuchi’s answers to the court’s
questions were, at times, non-responsive and showed he did not
understand the history of his case.

¶22           Ibeabuchi’s exchange with the court also showed his
misunderstanding of the law. Specifically, in reviewing Ibeabuchi’s May 5,
2017 pro se motion regarding the withdrawal of previously retained counsel,
the court noted that it was nonsensical.3 Earlier in his case, Ibeabuchi was




2      Ibeabuchi argues for the first time on appeal that the Arizona
Constitution provides greater protection of the right to self-representation
than the United States Constitution. Accordingly, the argument was not
timely raised and is deemed waived. Ariz. R. Crim. P. 31.10(a)(7)(B); see
Cont’l Lightning & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz.
382, 386, ¶ 12 (App. 2011) (providing that “legal theories must be presented
timely to the trial court so that the court may have an opportunity to
address all issues on their merits,” and if not, they are waived on appeal).

3      The motion stated:

              This Motion is made pursuant to the Arizona Rules of
       Civil Procedure, 58(a), for signed Orders of the Judge, and
       timely, pursuant to the Receipt of Copy, from Public



                                       7
                          STATE v. IBEABUCHI
                           Opinion of the Court

represented by private trial counsel. That attorney was allowed to
withdraw from further representation in 2016, once the terms of the
representation were satisfied. Over a year later, once Ibeabuchi found
himself in probation violation proceedings, he persisted in filing repeated
motions objecting to the withdrawal of that same trial counsel, even though
the matter of that counsel’s representation was long resolved.

¶23           Ibeabuchi’s noncompliance with court orders requiring his
transportation to court for probation violation hearings further illustrates
that Ibeabuchi lacked the mental state required to represent himself. As the
court noted, Ibeabuchi’s approach to dealing with an adverse ruling on his
motion regarding his prior counsel’s withdrawal was to refuse to be

      Defender, James Harris, esq. on April 19, 2017, in the
      Courtroom of MQPV3.

              Notwithstanding the erroneous statement of the
      MOTION TO WITHDRAW AS COUNSEL, filed
      electronically on “8/12/2016 3:45:14 PM, (Citing, Pg. 1. ln. 16-
      18, of the attached, Evidence, herein, for review), which states
      that, “COMES NOW the Defendant, by and through counsel
      undersigned, and hereby moves to withdraw as counsel of
      record for all future proceedings in the matter.”

             This error concluded that the defendant submitted and
      filed, the foregoing, MOTION, therein, and wished to
      “withdraw as counsel of record…” And, further, on line 19, of
      the same page, misrepresented the Name of the Client to the
      Retainer, as executed of December 28, 2015, for Post-
      Conviction Relief, See, Ikemefula Ibeabuchi, and upon, which
      the Earned Fee, may apply, therein, at-law.

               Therefore, Counsel’s erroneous motion may not be
      permitted, for the foregoing Reasons, and, Should be directed
      to file an Amended Motion to Clarify, these errors, before the
      Honorable Court, may proceed, with the Hearings, scheduled
      for May 3, 2017 and, May 8, 2017, of, Petition to Revoke
      Probation, (Non-witness and Witness Hearings), and, by and
      through the Public Defender James Harris, esq. at-law, as
      counsel for Petitioner, IBEABUCHI, IKEMEFULA CHARLES.

             Wherefore, the defendant, respectfully, requests that
      his Objection be granted, in the premises and the law.



                                     8
                            STATE v. IBEABUCHI
                             Opinion of the Court

transported to his probation violation hearings. His absences resulted in
several continuances of the probation violation hearing and stalled
resolution of the allegations for months. In denying Ibeabuchi’s motion to
represent himself at the probation violation hearing, and by appointing
counsel over his own objection, the superior court ensured Ibeabuchi
received a fair probation violation hearing and helped maintain the
integrity of the proceeding. On this record, we conclude the court did not
abuse its discretion when it determined Ibeabuchi was a gray-area
defendant unable to competently defend himself in his own probation
violation hearing and appointed counsel to undertake his representation
over Ibeabuchi’s objection.

                    FUNDAMENTAL ERROR REVIEW

¶24            Without elaboration, Ibeabuchi argues his structural error
analysis also supports his prayer for relief under fundamental error review.
“A defendant establishes fundamental error by showing that (1) the error
went to the foundation of the case, (2) the error took from the defendant a
right essential to his defense, or (3) the error was so egregious that he could
not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142,
¶ 21 (2018).

¶25           Imposition of legal counsel to assist in defending the violation
of probation proceedings was not error, let alone fundamental error. Under
the first prong, an error goes to the foundation of a case “if it relieves the
prosecution of its burden to prove a crime’s elements, directly impacts a
key factual dispute, or deprives the defendant of constitutionally
guaranteed procedures.” Id. at 141, ¶ 18. Appointing an attorney to
Ibeabuchi had no relation to or effect on proving the elements of his
probation violation or the facts surrounding his probation violation. It also
did not deprive Ibeabuchi of constitutionally protected procedures, and
instead was intended to ensure his constitutional rights were safeguarded.

¶26            Additionally, the second prong was not met, as Ibeabuchi was
not deprived “of a constitutional or statutory right necessary to establish a
viable defense or rebut the prosecution’s case.” Id. at ¶ 19. Ibeabuchi’s
inability to represent himself did not prevent him from establishing a
defense or rebutting prosecution. Ibeabuchi was assigned counsel to
present his defense, and he fails to allege that his appointed counsel failed
to competently do so. Finally, under the third prong, there is nothing in the
record to indicate that the appointment of an attorney for Ibeabuchi led to
an inability for him to receive a fair proceeding.




                                       9
                  STATE v. IBEABUCHI
                   Opinion of the Court

                       CONCLUSION

¶27   For the foregoing reasons, we affirm.




                AMY M. WOOD • Clerk of the Court
                FILED: AA




                                10
