                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  JACK BUCHANAN SCALPH, Appellant.

                             No. 1 CA-CR 17-0525
                               FILED 7-19-2018


           Appeal from the Superior Court in Maricopa County
                       No. CR2016-005574-001 DT
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                             STATE v. SCALPH
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.


W I N T H R O P, Judge:

              Jack Buchanan Scalph appeals his convictions and sentences
for possession of dangerous drugs for sale, possession of marijuana for sale,
possession of drug paraphernalia, and four counts of misconduct involving
weapons. Because only one issue from Scalph’s appeal merits publication,
we have addressed that argument in a separate, published opinion issued
simultaneously with this unpublished memorandum decision. See Ariz. R.
Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f). For the following reasons, and for
reasons addressed in the accompanying published opinion, we affirm
Scalph’s convictions and sentences.

                FACTS AND PROCEDURAL HISTORY1

              Police officers searched Scalph’s home pursuant to a warrant
and discovered four guns. In a hidden compartment behind a shower,
police found illicit drugs, a digital scale, and plastic baggies. The State
charged Scalph with one count each of possession of dangerous drugs for
sale (methamphetamine), a class 2 felony; possession of narcotic drugs for
sale (heroin), a class 2 felony; possession of marijuana for sale, a class 4
felony; possession of drug paraphernalia, a class 6 felony; and eight counts
of misconduct involving weapons, class 4 felonies.

             The State proceeded to trial on the drug charges and the four
weapons charges that were based on allegations Scalph possessed the
firearms during the commission of the drug offenses. 2 See A.R.S. § 13-


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Scalph. See State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 3 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2     Four weapons charges that were based on Scalph’s status as a
prohibited possessor were severed prior to trial. After the jury convicted



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                             STATE v. SCALPH
                            Decision of the Court

3102(A)(8) (West 2018).3 The jury could not reach a verdict regarding the
heroin offense, but found Scalph guilty of the other charges. The jury also
found the State sufficiently proved aggravating factors, including that
Scalph was on probation for a felony conviction at the time he committed
the offenses. The court subsequently found Scalph had two historical prior
felony convictions. Pursuant to A.R.S. § 13-703(C) and (J), the court
sentenced Scalph to presumptive concurrent prison terms as a category 3
repetitive offender, including a 15.75-year sentence on Count 1 (the
methamphetamine offense), a 3.75-year sentence on Count 4
(paraphernalia), and 10-year sentences on the remaining counts. With
respect to Count 1, the court ordered Scalph’s prison sentence to be served
day-for-day, or “flat-time,” in accordance with A.R.S. § 13-3407(A)(2), (F).
Scalph timely appealed, and we have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

                                 ANALYSIS

               Scalph argues the trial court erred in summarily denying his
request for new counsel without conducting a hearing or considering the
factors in State v. LaGrand, 152 Ariz. 483 (1987). He specifically claims trial
counsel failed to communicate with him “about discovery” and there was
no “discussion about progress and preparation for trial.” We review a
superior court’s decision to deny a request for new counsel for an abuse of
discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27 (2005).

              Although a criminal defendant has the right to be represented
by competent counsel, an accused is not entitled to counsel of his choice or
to a meaningful relationship with an attorney. Id. at ¶ 28. However, “when
there is a complete breakdown in communication or an irreconcilable
conflict between a defendant and his appointed counsel, that defendant’s
Sixth Amendment right to counsel has been violated.” State v. Torres, 208
Ariz. 340, 342, ¶ 6 (2004). “A single allegation of lost confidence in counsel
does not require the appointment of new counsel, and disagreements over
defense strategies do not constitute an irreconcilable conflict.” Cromwell,
211 Ariz. at 186, ¶ 29.



Scalph, the State dismissed those other four weapons charges. See Ariz.
Rev. Stat. (“A.R.S.”) section 13-3102(A)(4).

3     We cite the current versions of all applicable statutes as no revisions
material to this decision have occurred.


                                      3
                            STATE v. SCALPH
                           Decision of the Court

              If a defendant alleges sufficient facts that raise a colorable
claim of an irreconcilable conflict or of a complete breakdown in
communication with counsel, the court must conduct a hearing. Torres, 208
Ariz. at 343, ¶¶ 8-9. However, not every complaint requires a formal
hearing or an evidentiary proceeding. Id. at ¶ 8. “For example, generalized
complaints about differences in strategy may not require a formal hearing
or an evidentiary proceeding.” Id. Thus, the scope of the court’s inquiry
depends upon the nature of a defendant’s allegations. Id.

               At the final trial management conference, eleven days before
trial, Scalph unsuccessfully requested new counsel. Scalph explained his
reasons for requesting new counsel as follows:

      I’ve waited 14 months for [the suppression] hearing that we
      had last week and I was really disappointed in the way it was
      handled. I have personally not seen any discovery. I have no
      idea who’s been interviewed, if anybody has been
      interviewed. I have no idea what the prosecutors have. I just
      don’t feel like I’ve been represented. I was misled at the
      beginning by [previous defense counsel], [who] told me that
      it wasn’t a very good plea offer, told me that there was [sic]
      problems with the search, basically not to take it, and it’s gone
      down hill from there.

The trial court asked defense counsel whether he had any concerns about
continuing to represent Scalph, and counsel responded:

      No, your Honor. We’ve done almost all of the interviews in
      the case, we’re going to do the last three today and tomorrow,
      so we’ll be ready to go to trial on June 1. I was -- as the Court
      knows, I was several attorneys down on the case. This was a
      case that was initially filed under an old case number. After
      a number of settlement attempts, it was dismissed and refiled
      under this case number, and that’s when I came on to the case
      and there’s not ever been a plea offer in this case number. I
      was informed today that Mr. Scalph had not received any of
      his previous discovery. He had received, as he described it,
      as kind of a summary of information from his prior attorney
      at the Public Defender’s Office under the old case number, but
      he had not informed me that they did not have any discovery
      in this case. I will send him everything later today so he’ll
      have it to review, at least prior to trial, but otherwise, I’m
      ready to go.


                                     4
                             STATE v. SCALPH
                            Decision of the Court

                Scalph failed to sufficiently identify specific facts that would
require the court to conduct an evidentiary hearing. Scalph had at least one
attorney prior to trial counsel, and his allegation that a previous lawyer
“misled” him was not a proper basis to substitute current trial counsel. And
based on trial counsel’s statements to the court, he and Scalph did indeed
communicate about discovery when Scalph informed counsel of the
“summary of information” he received from his previous lawyer. Scalph’s
failure, until the final trial management conference, to inform counsel that
he received “no discovery” indicates a lack of communication on Scalph’s
part, not a lack of communication by trial counsel.

               Significantly, Scalph does not articulate how the purportedly
undisclosed information prejudiced his defense at trial. Additionally,
Scalph’s “disappointment” in counsel’s “handl[ing]” of the suppression
hearing, and Scalph’s complaint of not knowing who his lawyer
interviewed are not sufficient to require a formal hearing.4 State v. Hidalgo,
241 Ariz. 543, 557, ¶ 61 (2017) (noting disagreement between defendant and
counsel over pretrial witness interviews is a difference in strategy), cert.
denied, 138 S. Ct. 1054 (2018). Finally, Scalph’s assertion that he did not “feel
like [he had] been represented” is belied by the record; counsel, on Scalph’s
behalf, filed multiple motions and appeared at numerous pretrial
proceedings.

              On this record, the trial court’s decision to do no more than
question counsel in response to Scalph’s allegations was sufficient for Sixth
Amendment purposes. Accordingly, the court did not abuse its discretion
by denying Scalph’s request for new counsel without holding a hearing. See
Hidalgo, 241 Ariz. at 557, ¶ 61; State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 11
(App. 2007) (concluding trial court’s “informally” questioning defendant
and counsel properly explored basis of defendant’s request for new
counsel).

              Finally, we summarily reject Scalph’s implication that the
court was required to make LaGrand findings to support its denial of
Scalph’s request for new counsel. Scalph cites no authority supporting such
a proposition. See Paris-Sheldon, 214 Ariz. at 505, ¶ 11 (“Paris–Sheldon cites
no authority, . . . and we find none, requiring a trial court to make explicit
findings in support of its decision to deny a motion for substitute counsel.”).




4     Scalph raises no issues on appeal regarding the court’s denial of his
motion to suppress.


                                       5
                           STATE v. SCALPH
                          Decision of the Court

                             CONCLUSION

            For the foregoing reasons, and for the reasons addressed in
the accompanying published opinion, we affirm Scalph’s convictions and
sentences.




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




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