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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   AMAR ABDULA WRIGHT, Appellant.

                             No. 1 CA-CR 15-0419
                              FILED 10-18-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-123951-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                            STATE v. WRIGHT
                            Decision of the Court



                       MEMORANDUM DECISION

Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


G E M M I L L, Judge:

¶1            Amar Abdula Wright appeals his convictions and sentences
for one count of possession or use of dangerous drugs (methamphetamine)
and one count of possession of drug paraphernalia. Wright argues the trial
court erred in denying his motion to suppress, and he contends the court
abused its discretion by failing to adequately inquire into two propria
persona (“pro per”) pre-trial motions. For the following reasons, we affirm.

                              BACKGROUND

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

¶3             While on late-night patrol in an area known for criminal
activity, Officer Baynes observed Wright riding a bicycle that did not have
a front lamp as required by Arizona law. See Ariz. Rev. Stat. (“A.R.S.”) §
28-817(A). Baynes stopped Wright, advised him of the observed violation,
and asked where the head lamp was located. Holding up a black nylon
satchel, Wright responded, “[It’s] in my bag.” Baynes then asked Wright
for identification, and Wright handed Baynes the bag, saying his
identification and wallet were also inside. Baynes unzipped the bag’s main
compartment and “[a]lmost immediately . . . saw a . . . glass
methamphetamine pipe.” The pipe had “black singe marks” and a white
encrusted interior, indicating it had been used.

¶4           Baynes arrested Wright and advised him of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Wright admitted a drug test would
indicate the presence of methamphetamine in his system. Baynes


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


                                       2
                            STATE v. WRIGHT
                            Decision of the Court

proceeded to search Wright. He found, in Wright’s waistband, a plastic
baggie containing a white crystalline substance that was subsequently
determined to be 48.4 milligrams of methamphetamine.

¶5            The State charged Wright with one count each of possession
or use of dangerous drugs (methamphetamine), a class 4 felony, and
possession of drug paraphernalia, a class 6 felony. Wright moved to
suppress the evidence obtained from his bag, arguing Baynes’s warrantless
search violated the Fourth Amendment to the United States Constitution
and Article 2, Section 8, of the Arizona Constitution. The court conducted
an evidentiary hearing on the motion and denied it.

¶6           The jury found Wright guilty on both counts, and the court
imposed concurrent prison terms, the longest of which was 10 years for the
possession or use of dangerous drugs conviction. Wright timely appealed.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -
4033(A)(1).

                                  ANALYSIS

I.     Motion to Suppress

¶7             Wright argues the court erred in denying his motion to
suppress because he did not consent to a search of the bag he was carrying
at the time of the traffic stop.2 Based on his alleged lack of consent, Wright
contends the warrantless search violated his rights under the Fourth
Amendment.3 We disagree.

¶8             In reviewing the denial of a motion to suppress, we consider
only the evidence submitted at the suppression hearing and view the facts
in the light most favorable to upholding the trial court’s ruling. State v.
Blackmore, 186 Ariz. 630, 631 (1996); State v. Box, 205 Ariz. 492, 493, ¶ 2 (App.
2003). Although we defer to the trial court’s factual determinations, we
review de novo its ultimate legal conclusion. Box, 205 Ariz. at 495, ¶ 7. A
trial court’s ruling on a motion to suppress will not be reversed on appeal


2     In superior court, Defendant also challenged the legality of the traffic
stop. He does not reassert that challenge on appeal.

3       Defendant does not argue on appeal that the search violated his
privacy rights under the Arizona Constitution. We therefore rely on Fourth
Amendment jurisprudence in reviewing the trial court’s suppression
ruling.


                                       3
                            STATE v. WRIGHT
                            Decision of the Court

absent “clear and manifest error,” the equivalent of an abuse of discretion.
State v. Newell, 212 Ariz. 389, 396 & n.6, ¶ 22 (2006).

¶9            The Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. amend. IV (“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated”). Evidence obtained as a result of an
unreasonable search is generally inadmissible in a criminal trial. State v.
Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016). A warrantless search is per se
unreasonable unless a well-established exception applies to the warrant
requirement. Id. One such exception is a search conducted pursuant to
voluntary consent. Id. at ¶ 11.

¶10           “The voluntariness of a defendant’s consent to search is a
question of fact determined from the totality of circumstances.” State v.
Paredes, 167 Ariz. 609, 610 (App. 1991). It is the State’s burden to establish
by a preponderance of evidence that a defendant’s consent to search was
freely and intelligently given. Valenzuela, 239 Ariz. at ¶ 11; see also, Ariz. R.
Crim. P. 16.2(b).

¶11           The State satisfied its burden of proving Wright voluntarily
consented to the search of his bag. Baynes testified at the suppression
hearing that, after he asked for Wright’s identification, Wright responded
that it was in his bag. Baynes also testified that Wright then handed him
the bag without Baynes requesting he do so.

¶12            Wright contends that this statement regarding the location of
his identification was at best “ambiguous” because he did not expressly
assent to a search of his bag. But express consent is not always needed;
conduct alone can be sufficient to establish voluntariness in the Fourth
Amendment context. See State v. Tucker, 118 Ariz. 76, 79 (1978) (“[T]he
constitutional protection against unreasonable searches demands a waiver
by unequivocal words or conduct expressing consent.” (emphasis added)).
Wright’s words as well as his conduct are determinative. According to
Baynes, he asked for Wright’s identification and Wright said it was in his
bag. Baynes then asked to see the identification and Wright took the bag
and said “my ID and my wallet are in this bag” and handed the bag to
Baynes. This testimony supports the trial court’s conclusion that Wright
voluntarily consented to the officer searching the bag to find the requested
identification. The voluntariness of Wright’s consent is especially apparent
because Baynes did not ask Wright to give him the bag; Wright did so of
his own accord. Moreover, there is no evidence indicating Baynes induced
Wright’s consent through force, threats, promises, or by asserting his legal


                                       4
                           STATE v. WRIGHT
                           Decision of the Court

authority to conduct the search. See Schneckloth v. Bustamonte, 412 U.S. 218,
228 (1973) (“[T]he Fourth . . . Amendment[] require[s] that a consent not be
coerced, by explicit or implicit means, by implied threat or covert force.”).
And, Baynes testified that when he opened the bag, “the first thing [he] saw
was the meth pipe.” See State v. DeCamp, 197 Ariz. 36, 39, ¶ 14 (App. 1999)
(“[A]s long as the law-enforcement officers are authorized to be where they
are, they may seize any item in plain view if its evidentiary value is at once
apparent.”) On this record, therefore, the trial court did not err in
determining that Wright voluntarily consented to the search.

¶13           Wright argues he may have had an alternative motive for
handing over the bag—in other words, he could have given Baynes the bag
for a purpose other than to allow him to look for Wright’s identification.
But the record of the suppression hearing contains no evidence to support
Wright’s speculative argument; rather, the evidence supports the trial
court’s conclusion that Wright intended Baynes to look in the bag to obtain
his personal information.

¶14            Finally, Wright, without citation to authority, contends the
trial court impermissibly shifted the burden to him to prove his consent was
equivocal. Specifically, Wright points to a comment the court made when
ruling on the motion to suppress: “[B]y handing the bag over -- and I have
no testimony to indicate any other thing happened -- I do believe that that’s
sufficient consent.”4 But this comment does not support Wright’s
contention that the court improperly shifted the burden of proof. Instead,
the comment reflects that the court permissibly weighed the evidence at the
suppression hearing and determined it supported a finding that Wright
voluntarily consented to a search of his bag.

¶15           Because the State satisfied its burden of proving, by a
preponderance of evidence, that Wright’s consent was voluntary, the trial
court did not err by denying Wright’s motion to suppress.




4       Defendant also relies on other comments made by the court. Those
comments, however, were made when the court denied Wright’s challenge
to the basis for the traffic stop—a ruling he does not challenge on appeal—not
to explain the court’s determination that he voluntarily consented to the
search of his bag. We conclude, therefore, that the cited portions of the
record do not support Wright’s argument.


                                      5
                            STATE v. WRIGHT
                            Decision of the Court

II.    Pro Per Motions

¶16          Wright filed two pro per motions before trial. He argues the
court abused its discretion by inadequately “inquir[ing] into” the motions.

¶17            The first motion was a request for a rehearing on Wright’s
motion to suppress. As the basis for his motion, Wright asserted that his
“family and friends had located and contacted the witness that was at the
scene of the unlawful stop and illegal search, and the witness is willing and
able to testify. This new evidence would or could change the ruling of the
evidentiary hearing[.]” The court, without explanation, denied the motion
in a minute entry ruling. Wright was represented by counsel when he filed
his pro per motion for rehearing.

¶18             Wright contends the court’s failure to explain, on the record,
the rationale for its ruling impedes appellate review and therefore violates
his right to appeal under Article 2, Section 24, of the Arizona Constitution.
See Ariz. Const. art. 2, § 24 (“In criminal prosecutions, the accused shall have
the right to. . . appeal in all cases[.]”).

¶19           Wright’s argument fails because a trial court is not required
to hear or rule upon such motions, let alone provide a rationale for its
ruling. State v. Carlson, 237 Ariz. 381, 398, ¶ 63 (2015). Accordingly, the
court did not err by failing to explain why it denied Wright’s pro per motion
for rehearing. Id.

¶20            The second pro per motion, filed more than two months
before trial commenced, was a request to change counsel. In this motion,
Wright asserted he had provided his counsel with information regarding a
material witness, but his counsel failed to follow up. Wright also made the
following accusations:

       [C]ounsel fails to file motions in a timely manor, [sic] fails to
       strategize with me. Only had one face to face, whole time
       [counsel] has been appointed on my case. And she told me
       we gonna lose in trial. And gave me bad information on my
       civil case against police officer in my criminal case which she
       represents me on now.”

¶21            The record contains no explicit ruling on this motion. But
when Wright—on the first day of trial—requested a ruling, defense counsel
and the prosecutor agreed that Wright had withdrawn the motion at a
hearing before the matter was assigned to the trial judge. As a result, the
trial court determined Wright was renewing the motion to change counsel,


                                       6
                           STATE v. WRIGHT
                           Decision of the Court

and Wright addressed the court in support of the motion. The court denied
the renewed motion as untimely.

¶22             Wright argues the court improperly denied his motion and
should have addressed the merits of his request for new counsel. Wright
refers to his counsel’s failure to pursue a “material witness” and asserts he
“raised a colorable claim of conflict with his attorney which went beyond
mere tactical or strategic disagreements, or a general lack of
communication[.]”

¶23            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, he is entitled neither to counsel of his choice nor to
a meaningful relationship with his attorney. Id. at ¶ 28. Ordinarily, only
the presence of an “irreconcilable conflict or a completely fractured
relationship” between trial counsel and an accused will require the
appointment of new counsel. Id. at ¶ 29. Personality conflicts and
“disagreements over defense strategies do not constitute an irreconcilable
conflict.” Id. at 186–87, ¶¶ 29–30.

¶24           When Wright renewed his motion at trial, he explained:

       [I]t seemed like we didn’t strategize to this point, no face to
       face. I haven’t talked to her. I don’t know, I’m going in blind
       and I feel that my life is on the line, and I don’t know nothing
       up until now. So if I were to be sentenced right now, it would
       be probably unfair for me due to my counsel.

       I never talked to her, no face to face, a couple phone calls, a
       conversation, maybe listening to a recording, very harsh; and
       basically, she told me I was guilty before I got here today, so
       I was already deemed guilty. So I feel like if I’m deemed
       guilty before I even see a jury, it’s an issue.

¶25           Defense counsel responded:

       So, Judge, we had the evidentiary hearing in front of you, and
       not a lot changed since then, so I didn’t meet with my client
       in the jail since the evidentiary hearing. However, my
       investigator has, and my investigator has replayed the tape,
       the tape for him that he wanted to hear, and he’s met with
       him several times and I’ve conversed with him.



                                      7
                           STATE v. WRIGHT
                           Decision of the Court

       The evidence hasn’t changed, so there wasn’t, I didn’t feel, a
       need to go see him anymore.

       Let’s see. I did give him my advice as to the outcome. He’s
       facing ten years in prison. That’s a lot of time, and, you know,
       I’d hate to see him get that, so, you know, I did give him my
       true assessment of what I thought was going to happen.

¶26            Counsel’s comments that the evidence had not changed since
the suppression hearing indicate she and Wright disagreed as to the
significance of the witness located by Wright’s family and friends. This
disagreement does not rise to the level of an “irreconcilable conflict or a
completely fractured relationship” between Wright and counsel. See
Cromwell, 211 Ariz. at 186, ¶ 29. Rather, it indicates a disagreement over
trial strategy and did not require appointment of new counsel to ensure
Wright received a fair trial. At most, Defendant’s complaint raises a
potential ineffective assistance of counsel claim, which can only be pursued
in a petition for post-conviction relief under Ariz. R. Crim. P. 32. See State
v. Sprietz, 202 Ariz. 1, 2, ¶ 5 (2002).

¶27           Further, Wright’s own statements indicate he and counsel, or
counsel’s investigator, in fact discussed Wright’s case. The fact that counsel
advised Wright of her negative evaluation of his prospects at trial did not
require an appointment of new counsel. The substance of Wright’s written
motion, as well as his verbal renewal of that motion, was therefore
inadequate to merit the appointment of substitute counsel. As a result, we
need not address the propriety of the trial court’s denial of the renewed
motion on timeliness grounds. See State v. Perez, 141 Ariz. 459, 464 (1984)
(noting we will uphold a trial court’s ruling if it is legally correct for any
reason).

                              CONCLUSION

¶28           Wright’s convictions and sentences are affirmed.




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



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