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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOHN GARCIA PAYNE, JR., Appellant.

                             No. 1 CA-CR 18-0717
                               FILED 11-19-2019


         Appeal from the Superior Court in Maricopa County
                      No. CR2017-134819-001
      The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. PAYNE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


C R U Z, Judge:

¶1            John Garcia Payne, Jr. (“Payne”) appeals his convictions and
sentences for two counts of aggravated driving under the influence (DUI).
For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2           Payne was charged with two counts of aggravated DUI, class
4 felonies. At the time, Payne had five historical prior felony convictions
and two non-historical prior felony convictions.

¶3           Kyle Green was appointed to represent Payne. On October
13, 2017, Payne was arraigned and offered a Fast Track Plea offer of six
years, which he rejected. Later, the State offered a plea of six-and-a-half
years, which Payne also rejected. The trial date was continued twice at
Payne’s request. On the first day of trial, and with a jury venire of forty-
five persons waiting for jury selection to commence, Payne requested
another continuance, stating that he was “looking at getting another
attorney” who could better assist him in light of his background and prior
conviction history. Payne noted in particular his concern that his priors
were “being used against [him]” by the State in its plea offers.

¶4            Payne alleged that he had spoken with another attorney on
the phone, also named “Green,” who was willing to represent him. This
other attorney was currently in another trial and needed thirty days until
he would be available and prepared to represent Payne. Payne did not
know the attorney’s first name or his phone number. He had never met
with this attorney in person and did not have an engagement letter or any
other evidence indicating the attorney was in fact willing and able to
represent him.

¶5           The superior court denied Payne’s request to continue the
trial. The State re-extended its six-and-a-half-year plea deal, although
Payne rejected it again, opting to proceed to trial.



                                     2
                            STATE v. PAYNE
                           Decision of the Court

¶6            After a four-day jury trial, Payne was found guilty of both
counts of aggravated DUI and the priors were proven. The superior court
sentenced Payne to concurrent ten-year prison terms, and he timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                              DISCUSSION

¶7            Payne argues that the superior court violated his
constitutional right to counsel by denying his request for a continuance in
order to retain private counsel. We review claims of the denial of the right
to counsel of choice for structural error and Sixth Amendment claims
regarding a defendant’s right to counsel de novo. State v. Aragon, 221 Ariz.
88, 90-91, ¶¶ 9, 4 (App. 2009). Structural errors are those which “deprive
defendants of ‘basic protections’ without which ‘a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence.’” State v. Ring, 204 Ariz. 534, 552 ¶ 45 (2003) (quoting Neder v.
United States, 527 U.S. 1, 8-9 (1999) (citation omitted). We review the
superior court’s ruling on a request for continuance for an abuse of
discretion. State v. Hein, 138 Ariz. 360, 368 (1983). The superior court is
accorded substantial discretion because it is “in a position to judge the
inconvenience of a continuance to the litigants, counsel, witnesses, and the
court,” and is therefore “in a position to determine whether there are
‘extraordinary circumstances’ warranting a continuance and whether
‘delay is indispensable to the interests of justice.’” Id. at 368 (citation
omitted).

¶8             A criminal defendant has the right to counsel of his choice
under the Sixth Amendment of the United States Constitution and Article
2, Section 24 of the Arizona Constitution. Robinson v. Hotham, 211 Ariz. 165,
168-69, ¶¶ 12, 16 (App. 2005). However, the right to choose counsel is not
absolute, and is subject to the requirements of sound judicial
administration. Hein, 138 Ariz. at 369. Thus, “[a] trial court has ‘wide
latitude in balancing the right to counsel of choice against the needs of
fairness, and against the demands of its calendar.’” Aragon, 221 Ariz. at 90,
¶ 5 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)).

¶9           Whether a denial of a request for a continuance to obtain
private counsel violates defendant’s constitutional rights depends on the
circumstances of a particular case. Hein, 138 Ariz. at 369. Courts must
consider:




                                     3
                            STATE v. PAYNE
                           Decision of the Court

       [W]hether other continuances were granted; whether the
       defendant had other competent counsel prepared to try the
       case; the convenience or inconvenience to the litigants,
       counsel, witnesses, and the court; the length of the requested
       delay; the complexity of the case; and whether the requested
       delay was for legitimate reasons or was merely dilatory.

Id.

¶10            Applying and weighing these factors to this case, the superior
court did not abuse its discretion in denying Payne’s request for a
continuance. The court did not give great weight to any inconvenience on
its part, nor did the court believe that Payne’s request for a continuance was
dilatory. However, the court found there were compelling factors that
weighed against granting Payne’s request. Two continuances—both at
Payne’s request—had already been granted.1 The last request for a
continuance was raised by Payne just before jury selection on the first day
of trial, so the court properly considered the inconvenience to the
prospective jury members waiting outside the court room. The court also
considered the inconvenience for the State and its witnesses, who were
already scheduled and prepared to testify.

¶11          Most compelling to the court was that Payne already had
competent counsel who was prepared to try the case. “If the defendant has
other competent counsel prepared for trial, then the court, when
considering all the factors, need not tolerate as much inconvenience as in
the case where defendant has no other counsel prepared to go to trial.” See
Hein, 138 Ariz. at 369 (citation omitted). Payne failed to allege that his
appointed attorney was incompetent or that the two had irreconcilable
differences. And attorney Green confirmed with the court that he was
prepared for trial.

¶12           Furthermore, there was no certainty in Payne actually
retaining the substitute attorney he referenced. He had never met with the
attorney face-to-face, he did not have the attorney’s contact information,
and he did not know the attorney’s first name. Although Payne stated that
he had spoken once with this attorney on the phone, there was no evidence
to suggest Payne had taken any significant steps to hire this new attorney.



1     Although the superior court stated that only one continuance had
been granted during its analysis of the factors, the record indicates that two
continuances had been granted.


                                      4
                            STATE v. PAYNE
                           Decision of the Court

¶13           On this record, we cannot say that accepting counsel’s
representation to the court and requiring Payne to proceed to trial deprived
him of the basic constitutional and procedural protections necessary to
ensure due process. Thus, the superior court’s ruling denying Payne’s
request to seek different counsel did not result in structural error.

¶14           Nor can we say, having carefully reviewed the record, that the
denial of Payne’s request to continue trial involved “an ‘unreasoning and
arbitrary’ adherence to [the court’s] schedule without due regard for”
Payne’s request “to exercise his right to the counsel of his choice.” Aragon,
221 Ariz. at 91, ¶ 9 (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
Therefore, the court did not abuse its discretion in denying Payne’s request
for a continuance.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm Payne’s convictions and
sentences.




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




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