                                                                     FILED BY CLERK
                                                                        OCT 10 2007
                              IN THE COURT OF APPEALS                    COURT OF APPEALS
                                  STATE OF ARIZONA                         DIVISION TWO
                                    DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )         2 CA-CR 1995-0014
                                  Appellee,   )         DEPARTMENT A
                                              )
                      v.                      )         OPINION
                                              )
MIKAL OMAR RASUL,                             )
                                              )
                                 Appellant.   )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. CR-41583

                             Honorable John S. Leonardo, Judge

                                 AFFIRMED IN PART;
                           VACATED AND REMANDED IN PART


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Alan L. Amann                                           Tucson
                                                                 Attorneys for Appellee

Jeffrey G. Buchella                                                             Tucson
                                                                 Attorney for Appellant


H O W A R D, Presiding Judge.
¶1            After a jury trial, appellant Mikal Rasul was convicted of one count each of

attempted fraudulent scheme and artifice and forgery. The trial court sentenced him to

consecutive, presumptive, enhanced prison terms of 11.25 and ten years, respectively, to be

served consecutively to prison terms he was already serving. On appeal, Rasul argues the

trial court violated his Sixth Amendment right to counsel and improperly enhanced his

sentences based on two prior felony convictions instead of one.1 We affirm the convictions

but vacate the sentences and remand for resentencing.

                                       Background

¶2            We view the facts and reasonable inferences therefrom in the light most

favorable to sustaining the convictions. See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d

950, 950 (App. 2004). In 1990, Rasul was convicted of one count each of arson of an

occupied structure and arson of property having a value of more than $100, and two related

counts of conspiracy to commit arson, arising from a fire Rasul and an accomplice had

started outside a bank. On appeal, this court reversed one of the conspiracy convictions but

otherwise affirmed the convictions and sentences. State v. Rasul, No. 2 CA-CR 90-0907

(memorandum decision filed Aug. 30, 1994). In 1993, Rasul filed a petition for post-

conviction relief, pursuant to Rule 32, Ariz. R. Crim. P., claiming the convictions were

unlawful because the charges had previously been dismissed with prejudice. He attached


       1
       Rasul raises other issues that do not meet the criteria for publication. See Ariz. R.
Sup. Ct. 111(b). We address them in a separate, contemporaneously filed memorandum
decision. See Ariz. R. Sup. Ct. 111(h).

                                             2
to the petition a falsified minute entry and hearing transcript indicating the charges had been

dismissed with prejudice.

¶3            Based on his submission of the falsified documents, the state charged Rasul

with attempted fraudulent scheme and artifice, forgery, and attempted second-degree escape.

After eighteen court-appointed attorneys had been allowed to withdraw for various reasons,

and Rasul refused to participate in the trial, Rasul was tried in absentia and without counsel

representing him. The trial court directed a verdict of acquittal on the attempted second-

degree escape charge, and Rasul was convicted of attempted fraudulent scheme and artifice

and forgery. After obtaining federal habeas corpus relief because he did not have counsel

when he initially appealed in this case, Rasul now appeals.

                                     Right to Counsel

¶4            Rasul argues the trial court violated his Sixth Amendment right to counsel.

He contends that the record does not support the conclusion he waived that right and that

any waiver should have been preceded by a hearing. We review a Sixth Amendment denial

of right to counsel claim de novo. See State v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193,

1210 (2005); United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995) (reviewing de

novo issue of waiver or forfeiture of Sixth Amendment right to counsel). But we defer to the

trial court’s factual findings unless they are clearly erroneous. See Mack v. Cruikshank, 196

Ariz. 541, ¶ 6, 2 P.3d 100, 103 (App. 1999); see also State v. Chavez, 208 Ariz. 606, ¶ 2,




                                              3
96 P.3d 1093, 1094 (App. 2004) (same standard applies in reviewing denial of motion to

suppress).

¶5            After allowing Rasul’s eighteenth court-appointed attorney to withdraw, the

trial court refused to appoint Rasul another attorney, although it appointed advisory counsel.

It concluded that Rasul had “waive[d]” his “right to the appointment of different counsel.”

When Rasul refused the assistance of advisory counsel and chose not to remain present at

his trial, the trial proceeded in absentia and without counsel representing Rasul.

¶6            “The Sixth Amendment guarantees criminal defendants the right to

representation by counsel.” State v. Torres, 208 Ariz. 340, ¶ 6, 93 P.3d 1056, 1058 (2004);

see also Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975). But a

defendant “can effectively forgo that assistance through his actions.” State v. Hampton, 208

Ariz. 241, ¶ 7, 92 P.3d 871, 873 (2004). Where, as here, the defendant does not expressly

waive his right to counsel, he still may forgo the right to counsel if he waives it by conduct

or forfeits it. Before a defendant may waive by conduct his right to counsel, the court must

both “warn[] the defendant that further disruptive conduct may result in the loss of the right

to counsel and explain[] the implications of such a waiver.” Id. But forfeiture, only

appropriate in cases of “severe misconduct or a course of disruption aimed at thwarting

judicial proceedings,” does not require a prior warning. Id. ¶ 8.

¶7            The state first contends Rasul waived his right to counsel by conduct. Rasul

does not contest the state’s contention that the trial court warned Rasul that if he persisted


                                              4
in refusing to work with counsel, the court would eventually stop appointing new counsel.

But the record before us does not reflect that the court expressly warned Rasul of the

dangers of self-representation. Under Hampton, waiver by conduct requires that the court

explain to the defendant “the risks and consequences of waiving the right to counsel.” Id.

n.3; see also Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz. 257, ¶ 16, 77 P.3d 55, 59

(App. 2003). Thus, Rasul did not waive by conduct his right to counsel.

¶8            The state next contends Rasul forfeited his right to counsel. The cases cited

in Hampton “suggest that forfeiture is reserved for the most severe cases of misconduct and

should result only when less restrictive measures are inappropriate.” 208 Ariz. 241, ¶ 8, 92

P.3d at 874. In Hampton, the defendant had issued credible death threats to two different

appointed attorneys. Id. ¶¶ 3-4. The supreme court stated that “it might be possible to

conclude Hampton’s conduct is so egregious as to constitute forfeiture of his right to counsel

on appeal,” but chose to remand for the appointment of new appellate counsel and

specifically warned Hampton of the consequences of any future misconduct. Id. ¶¶ 9-10.

The court ultimately “le[ft] open . . . the question of whether certain serious misconduct by

a criminal defendant can result in forfeiture of the right to counsel without prior warning.”

Id. ¶ 11.

¶9            Although no Arizona court has expressly found forfeiture of the right to

counsel, courts in other jurisdictions have addressed the issue in various circumstances. For

example, courts have generally held that a defendant who physically assaults his counsel has


                                              5
forfeited the right to counsel. See, e.g., Gilchrist v. O’Keefe, 260 F.3d 87, 90, 99-100 (2d

Cir. 2001); United States v. Leggett, 162 F.3d 237, 240, 251 (3d Cir. 1998); State v.

Montgomery, 530 S.E.2d 66, 68-69 (N.C. Ct. App. 2000). But see King v. Superior Court,

132 Cal. Rptr. 2d 585, 589-90, 600 (Ct. App. 2003) (forfeiture not appropriate where

defendant assaulted and threatened counsel because trial court did not provide sufficient due

process protections).

¶10           But courts have also found forfeiture when the defendant’s conduct does not

rise to the level of physical violence. See Bultron v. State, 897 A.2d 758, 766 (Del. 2006)

(“Violence is not the sine qua non of extremely serious misconduct.”). In Bultron, the

defendant had directed “continuing profanity and insulting conduct” at his counsel. Id.

Deferring to the trial court’s findings “that Bultron’s behavior fell just short of violence and

was intended to force [counsel] to withdraw,” the court upheld a finding of forfeiture. Id.

¶11           In United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995), the defendant,

after having dismissed his first attorney, had verbally abused and threatened to harm his

second attorney. He had also “threatened, on at least four occasions, to sue [his attorney],

and had attempted to persuade him to engage in unethical conduct in connection with the

case.” Id. The court held McLeod forfeited the right to counsel at a hearing on a motion

for new trial. Id. at 326.

¶12           In State v. Carruthers, 35 S.W.3d 516, 533-44, 550 (Tenn. 2000), a capital

case, the defendant threatened and refused to cooperate with three sets of appointed


                                               6
attorneys. The trial court recognized the defendant’s “‘ploy’ to delay the trial.” Id. at 550.

The Tennessee Supreme Court concluded the defendant both waived by conduct and

forfeited his right to counsel. Id. at 549-50. It stated that, “in situations such as this one,

a trial court has no other choice but to find that a defendant has forfeited the right to

counsel; otherwise, an intelligent defendant ‘could theoretically go through tens of court-

appointed attorneys and delay his trial for years.’” Id. at 550, quoting State v. Cummings,

546 N.W.2d 406, 420 (Wis. 1996).

¶13           In Commonwealth v. Thomas, 879 A.2d 246, ¶¶ 32-33 (Pa. Super. Ct. 2005),

the defendant had threatened his counsel and insisted that his counsel present no defense

at trial. On appeal, the court found that the defendant had “forfeited his right to counsel

through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in

his own defense.” Id. ¶ 32.

¶14           Here, the trial court found that Rasul had threatened the personal safety of two

of his attorneys and that his “repeated demands for the appointment of different counsel

[we]re an attempt to manipulate the criminal justice system for delay or some other

advantage.” We defer to the trial court’s findings because the record supports them. See

Mack, 196 Ariz. 541, ¶ 6, 2 P.3d at 103; Bultron, 897 A.2d at 766 (trial court’s finding that

defendant’s “behavior . . . was intended to force [his counsel] to withdraw” was “entitled

to deference”).




                                              7
¶15           Rasul accused several appointed attorneys in open court of unsatisfactory

representation and admitted filing complaints with the state bar against some of them. He

also suggested some of the attorneys “believe[d] the State’s evidence” and were in fact

working against him. He accused one attorney of “disrespect[ing] [his] wife” and lying.

Then, in addressing the court concerning a motion to withdraw filed by David Sherman,

Rasul’s eighteenth court-appointed attorney, Rasul stated that he had a “conflict” problem

with twelve or thirteen lawyers that had been appointed to represent him. He stated that

none of them “g[o]t [his] case,” suggesting that they did not want to use the defense he

wanted to use. And he stated he was going to apply the same standard to any future

attorneys appointed to represent him.

¶16           Sherman stated in open court, after expressing fear for his personal safety, that

he would not continue to represent Rasul, even if it meant being held in contempt of court.

In a subsequent affidavit, filed the same day the trial court dated its minute entry allowing

Sherman to withdraw and denying new counsel, Sherman avowed that Rasul had told him,

“I guarantee 100% you are off my case. If you don’t do it, I’ll do it”; “I don’t care if I pick

up new charges. I’m going to do whatever it takes to make sure you are off my case”; and

“I know you know what I am saying. I’ll fix it so you can’t go to court with me ever again.”

¶17           Rasul’s threatening behavior and refusal to cooperate with multiple attorneys

can be nothing less than part of a “‘ploy’ to delay trial.” Carruthers, 35 S.W.3d at 550; see

also Bultron, 897 A.2d at 766 (noting defendant’s conduct fell just short of violence and


                                              8
was intended to force his attorney to withdraw). As we have noted, he accused several

attorneys of unsatisfactory representation and filed complaints with the state bar. Cf.

McLeod, 53 F.3d at 325 (defendant’s threats to sue counsel were factors in forfeiture

decision). We conclude that Rasul’s conduct was egregious enough to amount to forfeiture

of the right to counsel.

¶18           Our supreme court in Hampton suggested forfeiture “should result only when

less restrictive measures are inappropriate.” 208 Ariz. 241, ¶ 8, 92 P.3d at 874. The trial

court took the least restrictive measure in response to Rasul’s initial improper behavior by

reappointing one counsel after another. Given the court’s conclusion that Rasul was

“manipulat[ing] the criminal justice system for delay or some other advantage,” appointing

new counsel would only have permitted Rasul to continue that tactic. Additionally, forcing

Sherman to continue representing Rasul apparently would have been futile. Finally, the trial

court appointed advisory counsel, with whom Rasul refused to consult. Under the

circumstances, there was no less restrictive measure available to the court. Accordingly, we

agree with the state that Rasul forfeited his right to counsel.

¶19           Rasul contends the trial court should have conducted a Faretta2 inquiry at a

hearing before finding Rasul had waived his right to counsel. But, although the court’s



       2
         Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). In Faretta, the
Supreme Court held that a defendant wishing to waive the right to counsel must do so
“‘knowingly and intelligently’” and “should be made aware of the dangers and disadvantages
of self-representation.” Id. at 835, 95 S. Ct. at 2541.

                                              9
ruling used the term “waiver,” Rasul’s actions are more properly viewed in terms of

forfeiture.3 See Goldberg, 67 F.3d at 1100 (when trial court finds “waiver” without

discussing Faretta implications, the court’s decision “rest[s] on notions of forfeiture, not

waiver”). Forfeiture does not require the type of “‘searching or formal’ inquiry” Rasul

suggests.

                                      Prior Convictions

¶20            Rasul argues the trial court erred by enhancing his sentences with two prior

felony convictions because the prior convictions occurred on the same occasion. Although

Rasul failed to raise this issue below, and thus forfeited his right to appellate relief absent

fundamental error, see State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005),

“[t]he improper use of two prior convictions rather than one for purposes of sentence

enhancement constitutes fundamental error.” State v. Derello, 199 Ariz. 435, ¶ 6, 18 P.3d

1234, 1236 (App. 2001); see also State v. Kelly, 190 Ariz. 532, ¶ 5, 950 P.2d 1153, 1155

(1997). “A trial court’s determination that a prior conviction constitutes an historical prior

felony conviction for purposes of sentence enhancement involves a mixed question of law




       3
        It is not surprising that the trial court referred to waiver rather than forfeiture, given
that the distinction between the two concepts in this context was not well-defined in the
case law at the time the court issued its order in 1994. Goldberg and McLeod, both decided
in 1995, were perhaps the first cases to recognize that distinction. See Goldberg, 67 F.3d
at 1100. And the Arizona case explaining the proper procedure, State v. Hampton, was not
issued until 2004.

                                               10
and fact.” Derello, 199 Ariz. 435, ¶ 8, 18 P.3d at 1236. We review that question de novo.

Id.

¶21           The state alleged that Rasul had previously been convicted of arson and

conspiracy to commit arson of property having a value of more than $100.4 The jury found

the allegation proven and the trial court imposed presumptive sentences enhanced by two

prior convictions. See A.R.S. § 13-604(C), (D).

¶22           “Convictions for two or more offenses committed on the same occasion shall

be counted as only one conviction for purposes of this section.” § 13-604(M). Unlike

A.R.S. § 13-116, which bars “consecutive sentences for a single act,” State v. Siddle, 202

Ariz. 512, ¶ 16, 47 P.3d 1150, 1155 (App. 2002), § 13-604(M) “recogniz[es] that separate

crimes can be committed on the ‘same occasion.’” State v. Sheppard, 179 Ariz. 83, 84, 876

P.2d 579, 580 (1994), quoting State v. Sheppard, 178 Ariz. 24, 29, 870 P.2d 1120, 1125

(App. 1993) (Jacobson, J., dissenting). “The common meaning of the phrase ‘same

occasion’ is same time, same place.” State v. Henry, 152 Ariz. 608, 611, 734 P.2d 93, 96

(1987).




       4
        Rasul is correct that this court reversed his conviction for conspiracy to commit arson
of property having a value of more than $100. State v. Rasul, No. 2 CA-CR 90-0907, at 8
(memorandum decision filed Aug. 30, 1994). But, in light of our conclusion that the trial
court erroneously enhanced his sentences based on two prior convictions, we need not
address Rasul’s argument that the trial court improperly enhanced his sentences based on
a conviction that had been reversed. Similarly, we decline his request that we take judicial
notice of the record on appeal in his prior case.

                                              11
              No “all-encompassing test” exists to determine whether
              different crimes occur on the “same occasion.” Rather, a court
              must consider the spatial and temporal relationship between the
              two crimes, whether the crimes involved the same or different
              victims, whether the crimes were continuous and uninterrupted,
              and whether they were directed to the accomplishment of a
              single criminal objective.

Derello, 199 Ariz. 435, ¶ 9, 18 P.3d at 1236, quoting Henry, 152 Ariz. at 612, 734 P.2d

at 97. “When all of the offenses are aimed at furthering a single criminal objective, . . . the

offenses generally will constitute the ‘same occasion,’” Sheppard, 179 Ariz. at 85, 876 P.2d

at 581, even if not all factors are “strictly or individually satisfied.” Kelly, 190 Ariz. 532,

¶ 9, 950 P.2d at 1156.

¶23           Rasul’s prior convictions were for arson and conspiracy to commit arson,

based on a fire he and an accomplice had started outside a bank in 1989. The record before

us suggests Rasul committed the conspiracy and arson on the same day. But it appears that

the conspiracy was committed either at Rasul’s house or in his codefendant’s car while the

two were driving before committing the arson at a bank. Thus, the “spatial and temporal

relationship between the two crimes,” Derello, 199 Ariz. 435, ¶ 9, 18 P.3d at 1236,

although fairly close, may not independently support a finding that they occurred on the

same occasion. See Kelly, 190 Ariz. 532, ¶ 6, 950 P.2d at 1155 (“‘the time period involved

. . . [must be] very brief’”), quoting State v. Noble, 152 Ariz. 284, 286, 731 P.2d 1228,

1230 (1987); cf. State v. Perkins, 144 Ariz. 591, 595, 597, 699 P.2d 364, 368, 370 (1985),

overruled on other grounds by Noble, 152 Ariz. at 288, 731 P.2d at 1232 (crimes that


                                              12
occurred in different places within one-and-one-half hours of each other did not occur on

same occasion).

¶24           Nevertheless, the victims of the crimes—the bank and anyone inside it—were

the same. And, we must analyze these factors in conjunction with the “‘single criminal

objective’ test.” Kelly, 190 Ariz. 535, ¶ 9, 950 P.2d at 1156, quoting Sheppard, 179 Ariz.

at 84, 876 P.2d at 580. Because both crimes related to the same ultimate act, the offenses

were “aimed at furthering a single criminal objective.” Sheppard, 179 Ariz. at 85, 876 P.2d

at 581. Given that the crimes involved the same victims and furthered a single criminal

objective, an evaluation in light of all the factors supports the conclusion that the offenses

occurred on the same occasion for purposes of § 13-604(M).

¶25           The state relies on State v. Vild, 155 Ariz. 374, 746 P.2d 1304 (App. 1987),

to support its argument that the conspiracy and arson convictions were not committed on

the same occasion for purposes of § 13-604(M). In Vild, Division One of this court

concluded that conspiracy to sell cocaine and possession of cocaine for sale were not

committed on the same occasion for purposes of § 13-604(M), then § 13-604(H). 155 Ariz.

at 375-77, 746 P.2d at 1305-07. But the facts here differ from those in Vild. In Vild, the

conspiracy began months before Vild was arrested for possession, and “was a completed

offense at many points earlier than the final arrest.” Id. at 376-77, 746 P.2d at 1306-07.

Here, as noted above, the conspiracy and the arson appear to have occurred the same day.

And although it is not altogether clear from the factual recitation in Vild, the court suggested


                                              13
that the conspiracy in that case was open-ended, rather than an agreement to commit a

single, specific offense. See id. at 375-77, 746 P.2d at 1305-07. Here, in contrast, the

conspiracy had a specific target offense.

¶26           The court in Vild relied on Perkins, in which our supreme court distinguished

between cases involving “a specific target offense (or offenses)” and those involving “merely

an overly vague conspiracy.” 144 Ariz. at 597, 699 P.2d at 370. Here, the conspiracy was

not overly vague, but rather was one designed to commit a single, specific act. The

conspiracy and arson did not have the “features of separate criminal incidents,” id., but

instead were “aimed at furthering a single criminal objective.” Sheppard, 179 Ariz. at 85,

876 P.2d at 581.

¶27           Additionally, the fact that the offenses occurred at different times on the same

day does not preclude a finding that they occurred on the same occasion. In Sheppard, the

supreme court held that prior convictions for trafficking and theft based on events that

occurred at different times and locations on the same day and involving different victims

occurred on the same occasion. Id. at 83-85, 876 P.2d at 579-81. Here, the offenses

occurred on the same day, apparently in different locations, but involving the same victims.

Most important, they were both aimed at a single criminal objective: setting a fire outside the

bank. Applying the single criminal objective test in conjunction with the factors listed in

Noble, see Kelly, 190 Ariz. 532, ¶ 9, 950 P.2d at 1156, we conclude that the offenses




                                              14
occurred on the same occasion for purposes of § 13-604(M). We therefore vacate Rasul’s

sentences and remand for resentencing.5

                                      Conclusion

¶28          For the foregoing reasons, as well as those set out in our separate

memorandum decision, we affirm Rasul’s convictions. Because the trial court improperly

enhanced his sentences based on two prior convictions instead of one, however, we vacate

his sentences and remand for resentencing.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PHILIP G. ESPINOSA, Judge




      Because we vacate the sentences, we do not address Rasul’s Eighth Amendment
      5

argument.

                                             15
