                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                          Respondent,

                               v.

                   ESTEBAN JAVIER TERRAZAS,
                          Petitioner.

                   No. 2 CA-CR 2015-0002-PR
                      Filed April 13, 2015

   Petition for Review from the Superior Court in Pima County
                        No. CR20100580001
              The Honorable Jane L. Eikleberry, Judge

             REVIEW GRANTED; RELIEF DENIED


                           COUNSEL

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent

Law Office of Harley Kurlander, Tucson
By Harley Kurlander
Counsel for Petitioner


                           OPINION

Presiding Judge Kelly authored the opinion of the Court, in which
Judge Howard and Judge Vásquez concurred.
                        STATE v. TERRAZAS
                        Opinion of the Court



K E L L Y, Presiding Judge:

¶1          Esteban Terrazas seeks review of the trial court’s order
summarily denying his petition for post-conviction relief filed
pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that
ruling unless the court clearly abused its discretion. State v. Swoopes,
216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Terrazas has not
met his burden of demonstrating such abuse here.

¶2           After a jury trial, Terrazas was convicted of
manslaughter and sentenced to a 10.5-year prison term. We
affirmed his conviction and sentence on appeal, but vacated the
criminal restitution order entered at sentencing. State v. Terrazas,
No. 2 CA-CR 2011-0341 (memorandum decision filed May 17, 2013).
Terrazas initially had been charged with aggravated assault and
first-degree murder. He was acquitted of aggravated assault, and
the trial court declared a mistrial as to the first-degree murder
charge when the jury failed to reach a verdict. During the first trial,
Terrazas had been represented by an attorney as well as by a law
student who had been certified to practice pursuant to Rule 38(d),
Ariz. R. Sup. Ct.1 The same attorney and the student, who had since
graduated law school and taken the bar exam but had not yet been
admitted to the state bar, represented Terrazas at his second trial.

¶3           After his conviction, Terrazas learned that the former
student’s Rule 38(d) certification had expired before the second trial.
He then sought post-conviction relief, arguing that, as a result, he
had been denied the right to counsel. The trial court summarily
denied relief, concluding that Terrazas had not been denied his right
to counsel because, irrespective of the former student’s lack of
current Rule 38(d) certification, Terrazas had been represented by

      1Rule 38(d) allows qualified law students and recent graduates
to “be deemed an active member of the state bar” and, inter alia,
participate in certain court proceedings, including criminal
proceedings in superior court when accompanied by a supervising
attorney.


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                         STATE v. TERRAZAS
                         Opinion of the Court

the properly licensed attorney throughout his trial. This petition for
review followed.

¶4           On review, Terrazas reurges his claim that
representation by the former student violated his right to counsel
and “require[s] reversal of [his] conviction without the necessity of
showing actual prejudice.” We agree with Terrazas that the
complete deprivation of counsel during a critical stage of the
proceedings is structural error—that is, it is presumptively
prejudicial. See State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d
233, 235-36 & 236 n.2 (2009). Terrazas relies primarily on Solina v.
United States, in which the Second Circuit Court of Appeals
determined that representation by an individual never authorized to
practice law constituted the complete deprivation of counsel and
that a defendant represented by such an individual suffered
prejudice per se. 709 F.2d 160, 167-68 (2d Cir. 1983). The Second
Circuit limited its reasoning to those

              situations where, unbeknown to the
              defendant, his representative was not
              authorized to practice law in any state, and
              the lack of such authorization stemmed
              from failure to seek it or from its denial for
              a reason going to legal ability, such as
              failure to pass a bar examination, or want
              of moral character.

Id. at 167.

¶5           The situation presented in Solina does not exist here, nor
is it remotely analogous. While represented by the uncertified
former student, Terrazas also was represented by a member of the
bar. That attorney was “fully responsible for the manner in which
[the proceedings] [we]re conducted.” Ariz. R. Crim. P. 38(d)(5)(C)(i)(c).
Thus, his right to counsel was not violated. Although Terrazas
complains the attorney’s presence cannot “cure[]” the former
student’s lack of proper certification, he does not support this
argument with citation to authority, and we can discern no reason to




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                       STATE v. TERRAZAS
                       Opinion of the Court

adopt such a rule.2 Indeed, we find authority adverse to Terrazas’s
position. The Illinois Supreme Court has concluded that, “[t]he
presence of the licensed attorney, who certainly is counsel for
constitutional purposes, is not somehow ‘cancelled out’ by the law
student’s participation, even if the law student has not complied
with” the applicable rules. In re Denzel W., 930 N.E.2d 974, 982 (Ill.
2010). We agree.

¶6          Although we grant review, we deny relief.




      2Terrazas asserts the attorney had “no authority” to supervise
the former student due to the lack of Rule 38(d) certification and was
“merely present” during trial. He has identified nothing in the
record suggesting either party or the court was aware of the former
student’s lack of proper certification or that the attorney failed to
adequately supervise the student or be present during all
proceedings as required by Rule 38(d)(5)(C)(i)(c).


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