                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      ANTHONY MERRICK, Appellant.

                             No. 1 CA-CR 11-0549
                               FILED 10-02-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-005367-001
                  The Honorable Janet E. Barton, Judge

                REQUEST FOR SELF-REPRESENTATION
                  ON APPEAL: DENIED AS WAIVED
                   ________________________________

                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Miles A. Braccio
Counsel for Appellee

Ballecer & Segal, Phoenix
By Natalee E. Segal
Counsel for Appellant

Anthony Merrick
Appellant
                           STATE v. MERRICK
                           Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.


P O R T L E Y, Judge:

¶1            The Arizona Supreme Court granted Appellant Anthony
Merrick’s petition for review on August 26, 2014, and directed this court to
determine whether Appellant timely made a request to represent himself
on appeal in light of Coleman v. Johnsen, 235 Ariz. 195, 330 P.3d 952 (2014).
After considering Coleman and the record, we conclude that Appellant did
not make a timely request and waived his right to represent himself on
appeal.

                    PROCEDURAL BACKGROUND

¶2           The facts of the case are outlined in State v. Merrick,
1 CA-CR 11-0549, 2012 WL 4955425, at *1 (Ariz. App. Oct. 18, 2012) (mem.
decision). After the jury found Appellant guilty, the trial court granted
Appellant’s request to waive counsel and act as his own lawyer. He filed a
number of unsuccessful motions, including one for new trial. He was
subsequently sentenced and filed a notice of appeal on August 2, 2011.

¶3              This court appointed appellate counsel for Appellant ten days
later. Counsel filed the opening brief on March 13, 2012. One week later,
Appellant filed an unsuccessful pro se motion for permission to “file a
supplemental brief raising additional issues or in the alternative to strike
the brief filed and allow appellant to file another brief.” He then moved for
reconsideration on March 27, 2012, and argued that he did not authorize
the opening brief to be filed and “ask[ed] this court to allow him his
constitutional right to file his own appellate brief, pro per.” The motion
also stated that: Appellant did not want counsel; counsel does not speak
for him; and counsel was supposed to have notified this court that he
wanted to proceed pro per. The motion was denied.

¶4          Appellant then filed an unsuccessful motion to file a
supplemental brief on April 10, 2012. In resolving the merits of the appeal,
we vacated four of the nine convictions and sentences for theft, Merrick,
1 CA-CR 11-0549, at *4, ¶ 18. Appellant filed a pro se petition for review,


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                            STATE v. MERRICK
                            Decision of the Court

raising two substantive challenges to the decision and asserting that he was
precluded from representing himself on appeal. Review was denied on his
first two issues, but our supreme court directed this court to address
whether Appellant timely requested to represent himself on appeal.

¶5            After we decided the issue, Appellant’s subsequent petition
for review was granted. Our decision order was vacated and we were
directed to consider the issue in light of Coleman.

                                 ANALYSIS

¶6             In Coleman, our supreme court clearly and unequivocally
stated that “there is a constitutional right to self-representation on appeal
under Article 2, Section 24 of the Arizona Constitution.” Coleman, 235 Ariz.
at 197, ¶ 12, 330 P.3d at 954. The court also stated that “[t]his right to self-
representation on appeal, however, is not without limits,” id. at 198, ¶ 16,
330 P.3d at 955, and held that defendants who were represented “must give
notice of their request to represent themselves no later than thirty days after
filing the notice of appeal.” Id. at 198, ¶ 17, 330 P.3d at 955. The court also
noted parenthetically that “[d]efendants who have represented themselves
at trial should not be required to provide separate notice of their intent to
represent themselves on appeal.” Id.; State v. Stevens, 107 Ariz. 565, 566, 490
P.2d 571, 572 (1971). The court also stated that “[i]f the defendant makes an
untimely request (after the thirty days have expired), the court of appeals
may exercise its discretion.” Coleman, 235 Ariz. at 199, ¶ 20, 330 P.3d at 956.

¶7             Although Appellant represented himself at sentencing and
filed his notice of appeal, he did not challenge the appointment of appellate
counsel ten days later. He did not make a request to represent himself
within thirty days of filing his notice of appeal. He did not request to
represent himself after appellate counsel was appointed or even after
substitute appellate counsel was appointed in December 2011. He did not
make his request known until after the filing of the opening brief. As a
result, the thirty-day notice rule is the lodestar for our analysis.

¶8             In the exercise of our discretion, we deny Appellant’s belated
request to represent himself before this court on appeal without aid of
counsel. First, as Coleman noted, requests made after an opening brief has
been filed “should be disfavored.”             Coleman, 235 Ariz. at 199,
¶ 20, 330 P.3d at 956. Second, a grant of his request at the end of March
2012 would have resulted in disruption and delay of the appellate process;
specifically, this court may have been required to revest jurisdiction in the




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                             STATE v. MERRICK
                             Decision of the Court

trial court to conduct a Faretta1-like hearing, id. at 198, ¶ 19, 330 P.3d at 955;
counsel would have been directed to transfer the record to Appellant; and
the appeal process would have had to start anew.2 Third, the delay and
disruption would have deprived the victim of justice in an orderly appellate
process. See Ariz. Rev. Stat. § 13-4411. And, finally, despite Appellant’s
claims he lost issues because he could not file an opening brief, counsel’s
opening brief forced the State to concede “that fundamental error occurred
when the use of the same gift card formed the basis for multiple convictions
for theft of the same credit card,” which resulted in some appellate relief.
Merrick, 1 CA-CR 11-0549, at *1, *4, ¶¶ 5, 18.

                                CONCLUSION

¶9         Based on the foregoing, and in the exercise of our discretion,
we deny Appellant the right to represent himself in this appeal without
counsel.




                                  :gsh




1Faretta v. California, 422 U.S. 806 (1975).
2Appellant filed a Motion for Judicial Notice in this court on May 13, 2013,
and asked us to take judicial notice of certain documents. In addition to
correspondence with his appellate lawyer, he included a copy of a letter
dated February 20, 2012, “Re: State v. Merrick, CR 2010-005367-001
Appeal,” with the salutation “Dear Clerk.” The letter is not addressed, but
advises the “clerk” that he has asked his appellate lawyer to withdraw and
asks for an extension of time to file a brief. If the letter was sent, there is no
record of the letter being received by either the Clerk of the Court for the
Maricopa County Superior Court or the Clerk of the Court for the Arizona
Court of Appeals. But even assuming the letter was delivered for mailing
by the Department of Corrections in February 2012, the letter would have
been well beyond the thirty-day rule in Coleman and would not change our
analysis.


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