                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                   ROBERT ALLEN WALKER, Appellant.

                             No. 1 CA-CR 14-0171
                              FILED 7-23-2015


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201300378
                  The Honorable Dan R. Slayton, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

David Goldberg Attorney at Law, Fort Collins, CO
By David Goldberg
Counsel for Appellant
                            STATE v. WALKER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.


O R O Z C O, Judge:

¶1             Robert Allen Walker appeals from his convictions and
sentences for two counts of aggravated driving under the influence, both
class 4 felonies. On appeal, Walker argues that his waiver of counsel was
involuntary and requires a remand for a new trial. Finding no error with
his waiver of counsel, we affirm Walker’s convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            After being charged with two counts of aggravated driving
under the influence, Walker entered an initial “not guilty” plea. Through
counsel, Walker thereafter negotiated a plea agreement with the State. At
the change-of-plea and sentencing hearing, however, Walker changed his
mind and rejected the plea agreement.

¶3             Soon after, Walker filed several pro per motions stating his
belief that, among other things, he was receiving inadequate representation
from the Coconino County Public Defender’s Office. At a later hearing, the
trial court stated it could not accept these motions because Walker was
represented by counsel at the time and because the motions were
“completely without legal basis.” The trial court nevertheless told Walker
that he could file a determination of counsel motion. Walker then stated
his belief that the Public Defender’s office was not defending him
adequately because his counsel had stated in an email to the prosecutor that
“if [Walker] continues to stick to his position, the trial followed by prison
looks like the only way.” Walker further stated:

       It seems a poor choice to give up my rights . . . in order to have
       probation. And what I am looking to do is to make sure that
       this goes on the [appellate record], because I have no hope of
       winning a trial in this [c]ourt . . . because my attorney said so.

The trial court told Walker that “[y]ou and I are interpreting this [email] a
little bit different then” and that counsel was “giving a realistic expectation



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                            STATE v. WALKER
                            Decision of the Court

of your outcome if you go to trial and you lose[.]” Walker maintained his
position, however, that he would “sacrifice none of [his] rights at any time.”

¶4            After the hearing, Walker again filed pro per motions that, in
part, sought removal of his Public Defender counsel and stated a general
refusal to accept representation from the county Public Defender’s office.
Walker’s counsel then filed a motion to withdraw because “Mr. Walker has
indicated that he wants to represent himself.” The trial court set two
hearings to discuss whether Walker wanted to represent himself, and
Walker failed to appear both times.

¶5            Walker again filed a motion to dismiss his court appointed
counsel, and he appeared at the third hearing set by the trial court to discuss
his representation. At the hearing, Walker stated that “[his] goal . . . [was]
just to make sure that [he was] not represented by the Coconino County
Public Defender’s Office.” The trial court explained that Walker either
would have to hire his own attorney or accept court-appointed counsel.
Walker stated that he did not wish to waive his right to counsel, but he
could not afford a private attorney. After more discussion, Walker declared
“I knowingly, willingly and voluntarily refuse the counsel of any actors
from the Coconino County [Public] Defender’s Office, and say here and
now that I am willing to represent myself.”

¶6             After this statement, the trial court asked if Walker was
waiving his right to representation and asserting his right to represent
himself. More discussion followed, with the trial court eventually
appointing advisory counsel from the Coconino County Legal Defender’s
office. The trial court again inquired if Walker wished to represent himself.
Although Walker stated that he felt he had no choice, he also stated that he
was making the decision “of [his] own free will.” The trial court found that
Walker had knowingly, intelligently, and voluntarily waived his right to
counsel, but it emphasized that an attorney would be appointed if Walker
changed his mind at any time.

¶7               Within a few weeks, Walker sought to have his advisory
counsel removed from the case, and he stated once again that “I do not wish
to have a public defender sitting next to me[.]” The trial court told Walker
that he “did not have to utilize advisory counsel” and “[i]t is your discretion
. . . to use advisory counsel.” The court ultimately stated:

       I want to make sure that as a self-represented litigant that you
       have that ability and you have that opportunity, whether or
       not at this stage of the trial [or the] beginning stages, you



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                             Decision of the Court

       believe that you may not use him. You may not ask him [for]
       any advice. I am going to keep him on board, just in case
       sometime during the trial you find a necessity to do so.

The trial court concluded that advisory counsel would sit in the back of the
courtroom during proceedings to be available for Walker as needed.

¶8             Walker’s case proceeded to trial and Walker represented
himself throughout. At trial, the State presented evidence that after being
pulled over for failing to stay in his lane while driving, Walker admitted to
police that his driver’s license was suspended and that he had consumed
several alcoholic beverages. Walker failed two field sobriety tests and a
horizontal gaze nystagmus test. After his arrest, Walker took two breath
tests that reported blood alcohol contents of .142 and .127, respectively.

¶9            A jury convicted Walker on both counts. Walker was
sentenced to four months’ imprisonment and three years’ probation. This
timely appeal followed, and we have jurisdiction pursuant to Article 9,
Section 6, of the Arizona Constitution and Arizona Revised Statutes
sections 12-120.21.A.1, 13-4031, and -4033.A.1 (West 2015).1

                                 DISCUSSION

¶10           The sole issue on appeal is whether Walker’s expressed lack
of confidence about his relationship with the Coconino County Public
Defender’s Office amounted to an “irreconcilable conflict,” which would
invalidate his otherwise knowing, intelligent, and voluntary waiver of
counsel. We review a trial court determination about substitution of
counsel for an abuse of discretion. State v. LaGrand, 152 Ariz. 483, 487 (1987).

¶11            If represented, criminal defendants are entitled to the
effective assistance of counsel. U.S. Const. amend. VI; Ariz. Const. art. 2, §
24; Faretta v. California, 422 U.S. 806, 819 (1975); State v. Lee, 142 Ariz. 210,
216 (1984). However, defendants are not entitled to an attorney of their
choosing or to a meaningful relationship with counsel. Morris v. Slappy, 461
U.S. 1, 13-14 (1983); State v. Henry, 189 Ariz. 542, 546 (1997). Defendants
may elect to waive counsel and self-represent. U.S. Const. amends. VI, XIV;
Ariz. Const. art 2, § 24; Faretta, 422 U.S. at 818-19; State v. De Nistor, 143 Ariz.
407, 412 (1985). If a defendant elects to self-represent, the trial court must
determine if the defendant is knowingly, intelligently, and voluntarily
waiving the right to counsel. State v. Cornell, 179 Ariz. 314, 322 (1994). An

1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                            STATE v. WALKER
                            Decision of the Court

otherwise knowing, intelligent, and voluntary waiver of counsel may be
deemed involuntary if the record reveals an “irreconcilable conflict”
between a defendant and attorney that deprives the defendant of effective
assistance of counsel. See State v. Moody, 192 Ariz. 505, 508-09, ¶¶ 21-23
(1998).

¶12            Walker argues that his case is substantially similar to the facts
analyzed by the Arizona Supreme Court in Moody. In that case, the
supreme court found a “deep and irreconcilable conflict” existed between
the defendant and his attorney. Id. at 507, ¶ 13. The court noted that the
trial court “refused to allow a substitution [of counsel] even once” and there
was no evidence “that this defendant would have repeatedly requested a
change [of counsel].” Id. at 508-09, ¶ 21. As a result of the case’s specific
facts, the court concluded that “the choices presented to [the defendant]
were either representation by a lawyer with whom he had a completely
fractured relationship . . . or self-representation.” Id. at 509, ¶ 23.
Accordingly, the court found that these circumstances “rendered [the
defendant’s] waiver involuntary.” Id.

¶13           The court distinguished its holding in Moody, however, by
noting that the facts compelled a reversal because they were unlike other
cases in which defendants “repeatedly claimed irreconcilable conflict” and
showed a “proclivity to change lawyers.” Id. at 508, ¶ 21 (citing Henry, 189
Ariz. at 547; LaGrand, 152 Ariz. at 486) (internal punctuation omitted).
Additionally, Henry and LaGrand established that a trial court should
determine whether an “irreconcilable conflict” exists by analyzing “the
rights and interest of the defendant . . . tempered by exigencies of judicial
economy[;]” and specifically, “whether new counsel would be confronted
with the same conflict; the timing of the motion; inconvenience to
witnesses; the time period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change counsel; and quality of
counsel.” Henry, 189 Ariz. at 546-47 (quoting LaGrand, 152 Ariz. at 486-87).

¶14          In analyzing these factors, the supreme court in Henry
determined that the defendant’s claimed irreconcilable conflict was
“nothing more than a disagreement over appropriate defense strategies.”
Henry, 189 Ariz. at 547. The court noted that the defendant’s multiple
motions either requesting new counsel or electing self-representation
strongly supported the trial court’s ultimate denial of any further motions.
Id.

¶15         Additionally, in a case that preceded both Moody and Henry,
the supreme court found no error in the waiver of counsel by a defendant


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                           STATE v. WALKER
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who argued he was “forced” to self-represent because he would not accept
representation from the county public defender’s office. State v. DeLuna,
110 Ariz. 497, 498-501 (1974). As particularly relevant to the case before us,
the supreme court noted:

       A reading of the record indicates that the defendant knew full
       well of his right to have counsel represent him and that he
       clearly waived counsel. We find no error in the court's failure
       to appoint counsel other than the public defender. A
       defendant is entitled to the appointment of competent
       counsel, but not of a particular counsel[.]

Id. at 500. Although the supreme court has revisited what constitutes the
effective assistance of counsel since DeLuna, this particular holding—that a
criminal defendant is not entitled to appointment of a particular counsel—
remains and was reaffirmed by the court in Henry. See supra ¶ 11.

¶16           We conclude this case is more akin to DeLuna and Henry than
Moody. The record reflects less an irreconcilable conflict with counsel, as
Walker claims, than a distinct effort on Walker’s part to avoid
representation by any counsel who, in Walker’s mind, was associated with
a public defender’s office. As the record shows, this extended even to
Walker’s advisory counsel, who Walker sought to have removed, although
counsel was not associated with the Coconino County Public Defender’s
office, because Walker believed advisory counsel’s advice “not to be on
point” and because Walker had a previous relationship with counsel “as a
public defender.” This suggests that Walker’s problems with his initial
appointed counsel stemmed more from counsel’s status as a public
defender than from any irreconcilable conflict arising out of counsel’s
actions. Thus, the trial court did not err by refusing Walker appointed
counsel from outside the county public defender’s office.

¶17           Additionally, nothing in the record indicates that the trial
court abused its discretion in determining Walker’s waiver of counsel. The
record reflects that in August 2013, when Walker began filing motions to
have his public defender counsel removed, the public defender told the trial
court that Walker wished to represent himself. The court then scheduled
three separate hearings—three because Walker failed to appear at the first
two—to discuss how to proceed. Walker refused to waive any time related
to his speedy trial rights, adding additional pressure on the trial court to
resolve how Walker would be represented. In light of Walker’s insistence
on proceeding to trial, Walker’s failure to appear at two hearings to discuss
his representation, and his repeated demands for non-public defender


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                           STATE v. WALKER
                           Decision of the Court

appointed counsel, the trial court did not abuse its discretion in acting on
the “exigencies of judicial economy” by requiring Walker to either self-
represent or accept counsel from the Coconino County Public Defender’s
office. See Henry, 189 Ariz. at 546-47; supra ¶ 13.

                             CONCLUSION

¶18          Finding no error in the trial court’s determination that Walker
knowingly, intelligently, and voluntarily waived his right to counsel, we
affirm Walker’s convictions and sentences.




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