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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                DWAYNE THOMAS HORTON, Appellant.

                             No. 1 CA-CR 18-0042
                               FILED 12-13-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-006103-001
               The Honorable John Christian Rea, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee

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



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Dwayne Thomas Horton appeals his convictions of several
counts of armed robbery, kidnapping and aggravated assault and the
resulting sentences. Horton argues the superior court erred in denying his
request for new counsel without a hearing. For the following reasons, we
affirm Horton's convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2             After Horton was charged by indictment, the superior court
found him indigent and appointed him counsel. In February 2017, Horton's
counsel moved the court to designate the case as complex under Arizona
Rule of Criminal Procedure 8.2(a)(3), and the court granted the motion at
the initial pretrial conference.1

¶3             On May 31, Horton filed a written "Motion to Change
Counsel." In the motion, Horton asserted his counsel was providing
"ineffective assistance." Horton stated (1) his lawyer had moved to have the
case designated complex over his objection; (2) he had told his lawyer he
wanted to assert his right to a speedy trial and did not want any more
continuances; (3) by filing the motion, the lawyer had breached an ethical
duty to abide by a client's decisions concerning the objectives of the
representation; (4) his lawyer was not communicating with him; (5) his
lawyer was not talking to him about court proceedings; and (6) despite
numerous requests, his lawyer had not allowed him to review discovery.
Horton argued his counsel's actions violated Arizona Rule of the Supreme
Court 42, Arizona Rules of Professional Conduct ("ER") 1.2 (scope of
representation) and 1.4 (communication).

¶4         The superior court addressed Horton's motion at a case
management conference in late June, about six weeks before the scheduled


1      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                           Decision of the Court

trial date. The court noted it had reviewed the motion and then asked
Horton if he wanted to speak further on the matter. Horton responded:

      Yes. Well, I've requested a change of counsel because we just
      weren't communicating. In sum and part, that the times that
      we're communicating, you know, the conversations were
      kind of vague. So I just wanted a lawyer where I can talk
      about a good defense . . . on my behalf.

The court then allowed Horton's lawyer to respond. The lawyer stated that,
after Horton filed his motion, the lawyer had organized and sent copies of
the police reports to Horton and arranged for Horton to view surveillance
footage. Further, the lawyer stated that he and Horton "had a number of
meetings both in person and on the phone in discussing the case," and that
he had "given [Horton] what I believe are the best explanations I can, and
I've taken some time to explain what our strategy would be at trial." The
lawyer further stated that although Horton had asked him how the defense
was going to "attack each witness," he did not yet have a "final plan" for
doing so. The prosecutor added that Horton's lawyer was "trying to set up
a settlement conference so that we could at the very least have a meaningful
discussion about the possibility of resolution."

¶5           The superior court then denied Horton's motion. The court
stated that Horton's counsel had not performed "below the standards of
care" and that nothing else Horton had raised gave reason to appoint new
counsel.

¶6             Ultimately, after a seven-day trial in November 2017, the jury
found Horton guilty of six counts of armed robbery, each a Class 2 felony;
six counts of kidnapping, each a Class 2 felony; and six counts of aggravated
assault, each a Class 3 felony. The court sentenced him to consecutive and
concurrent terms of incarceration amounting to more than 60 years. Horton
timely appealed. We have jurisdiction over Horton's appeal pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018) and 13-4033(A)(1) (2018).

                              DISCUSSION

¶7             The only argument Horton makes on appeal is that the
superior court violated his Sixth Amendment right to counsel when it
denied his request for new counsel without conducting a hearing pursuant
to State v. Torres, 208 Ariz. 340 (2004). We review a superior court's ruling
denying a change of counsel for an abuse of discretion. State v. Hernandez,
232 Ariz. 313, 318, ¶ 11 (2013).


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                           Decision of the Court

¶8             "The Sixth Amendment guarantees criminal defendants the
right to representation by counsel." Torres, 208 Ariz. at 342, ¶ 6. Indigent
defendants are not entitled to "counsel of [their] choice, or to a meaningful
relationship with [their] attorney." Id. But "when there is a complete
breakdown in communication or an irreconcilable conflict between a
defendant and his appointed counsel, [the] defendant's Sixth Amendment
right to counsel has been violated." Id. When a defendant asks to change
appointed counsel, the court must "inquire as to the basis of a defendant's
request." Id. at 343, ¶ 7. "The nature of the inquiry will depend upon the
nature of defendant's request" for new counsel; "[f]or example, generalized
complaints about differences in strategy may not require a formal hearing
or an evidentiary proceeding." Id. at 343, ¶ 8. "However, '[i]f a defendant
makes sufficiently specific, factually based allegations in support of his
request for new counsel, the . . . court must conduct a hearing into his
complaint.'" Id. (quoting U.S. v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).
In any event, the defendant must prove "that he has a genuine irreconcilable
conflict with his counsel or that there has been a total breakdown in
communications." Torres, 208 Ariz. at 343, ¶ 8.

¶9             On appeal, Horton does not argue that his counsel was
ineffective, but contends the superior court was required to hold a hearing
on his contentions that his counsel was not communicating with him and
had not allowed him to review discovery in the case.

¶10            In addressing Horton's request, the court stated it had read
his motion and then invited him to elaborate, without limiting his
presentation in any way. After Horton stated in general fashion that he and
his lawyer "just weren't communicating," the court called on the lawyer,
who described his recent efforts to apprise Horton of the status of the case
and discovery matters. Because Horton had raised only generalized
assertions, the superior court's inquiry was sufficient. In the absence of any
factual assertions that would support a finding of an irreconcilable conflict
or a complete breakdown in communications, the court was not required to
conduct a hearing. Torres, 208 Ariz. at 343, ¶ 8.

¶11            Horton argues the superior court abused its discretion by not
explicitly considering the factors stated in State v. LaGrand, 152 Ariz. 483,
486-87 (1987). In that case the defendant moved for a change of counsel a
month before trial and complained that his lawyer "had visited him only
three or four times," his lawyer was unprepared because the defendant had
not told his lawyer everything he needed to know, his lawyer had not given
him copies of the motions that had been filed in the case, and his lawyer
had told him he was surely going to be convicted. Id. at 486. The superior


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                             STATE v. HORTON
                             Decision of the Court

court in that case denied the defendant's motion without further inquiry,
and the supreme court affirmed, stating that a request for change of counsel
"should be examined with the rights and interest of the defendant in mind
tempered by exigencies of judicial economy," including whether an
irreconcilable conflict exists, whether new counsel would be confronted by
the same conflict, the timing of the motion, inconvenience to witnesses, the
length of time since the offense, the proclivity of the defendant to change
lawyers and the quality of counsel. Id. at 486-87. Examining those factors,
the court noted that the trial already had been postponed numerous times,
the defendant already had changed lawyers once and "[n]o real conflict"
between the defendant and his lawyer was "discernible from the record."
Id. at 487.

¶12           Nothing in LaGrand compelled the superior court here to
inquire more deeply into Horton's issues with his counsel. In response to
Horton's generalized assertions, his counsel stated that he had shown
Horton the evidence Horton had asked to review and that he had done his
best to explain trial strategy to Horton and to relate to him what would
happen or what had happened during court proceedings. In light of these
statements, the court did not abuse its discretion by concluding that even
without addressing the other factors identified in LaGrand, Horton had not
made a colorable assertion of a complete breakdown in communication or
an irreconcilable conflict. See Torres, 208 Ariz. at 345, ¶ 16; see State v. Gomez,
231 Ariz. 219, 225, ¶ 27 (2012).

¶13          Finally, Horton argues that rather than apply the correct legal
standard under the caselaw, the superior court instead denied his motion
solely because it concluded his lawyer was not ineffective and had not




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                          STATE v. HORTON
                          Decision of the Court

violated ethical standards. Contrary to Horton's argument, however, the
court addressed the issues of ineffective assistance and ethical standards
only because Horton had raised those issues in his motion.

                             CONCLUSION

¶14          For the foregoing reasons, we affirm Horton's convictions and
sentences.




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




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