                                                                  FILED BY CLERK
                           IN THE COURT OF APPEALS                    MAY 26 2009
                               STATE OF ARIZONA                       COURT OF APPEALS
                                 DIVISION TWO                           DIVISION TWO




THE STATE OF ARIZONA,                        )
                                             )      2 CA-CR 2008-0149
                               Appellee,     )      DEPARTMENT B
                                             )
                   v.                        )      OPINION
                                             )
PHILLIP JAIME ARAGON,                        )
                                             )
                              Appellant.     )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20072564

                        Honorable John S. Leonardo, Judge
                        Honorable Nanette M. Warner, Judge

                          REVERSED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Kathryn A. Damstra                                  Tucson
                                                             Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Kristine Maish                                                           Tucson
                                                             Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            After a jury trial, Phillip Aragon was convicted of two counts of aggravated

driving under the influence of an intoxicant (DUI) while his driver’s license was suspended,

and one count of aggravated DUI with a minor present.1 The trial court sentenced him to

enhanced, substantially mitigated prison terms of six years for each of the first two counts,

and an enhanced, mitigated term of three years for the third count, all to be served

concurrently. On appeal, Aragon argues the court abused its discretion in denying his motion

for a continuance to substitute his privately retained counsel for appointed counsel. For the

reasons discussed below, we reverse Aragon’s convictions and sentences and remand for a

new trial.

                          Factual and Procedural Background

¶2            Because this case involves a purely legal question, we include only those facts

necessary for an understanding of the issue presented. A Pima County grand jury indicted

Aragon on the above charges and trial was set for March 11, 2008. On March 5, Aragon’s

appointed counsel moved for a continuance so that Mark Bockel, a private attorney Aragon

wished to retain, could “file a Notice of Appearance, and have enough time to prepare for

trial.” The same day, the court issued a ruling denying the motion “[b]ecause the trial

deadline in this case pursuant to Rule 8[, Ariz. R. Crim. P.,] expires March 17, and because

defendant has expressed his wish to hire different counsel less than a week before trial.”




       1
        Aragon was also charged with child abuse, but that charge was dismissed before trial
on the state’s motion.

                                             2
¶3            Bockel appeared at the status conference held two days later and asked the trial

court if it was “going to entertain [him] substituting in.” The court again declined to

continue the trial, citing both the short time before trial and the Rule 8 deadline. In an

apparent reference to Rule 6.3(c), Ariz. R. Crim. P., the court further asserted that “the

criminal rules state that if substitute counsel is to come in, they have to be prepared to go to

trial on the date set.” The court also engaged in a lengthy colloquy with Aragon and

appointed counsel, apparently aimed at establishing that appointed counsel was “a very

experienced criminal lawyer” who was “fully prepared to go to trial” and would thus provide

Aragon with adequate representation. Nonetheless, Aragon continued to express his wish

to substitute Bockel. Aragon identified “a communication issue” with appointed counsel and

explained that, although he had been in touch with Bockel since his arrest, he had not asked

for Bockel to be substituted earlier because he “didn’t have funds to hire him.” The trial

proceeded with appointed counsel, and Aragon was convicted and sentenced as noted above.

This appeal followed.

                                          Discussion

¶4            Aragon argues the trial court violated his right to counsel of choice by denying

his request for a continuance to substitute Bockel for appointed counsel. “[A]n indigent

criminal defendant possesses rights under the Sixth Amendment [of the United States

Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose

representation by non-publicly funded private counsel . . . .” Robinson v. Hotham, 211 Ariz.



                                               3
165, ¶ 16, 118 P.3d 1129, 1133 (App. 2005); see United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006). “We review the court’s interpretation of a constitutional right de novo as

an issue of law.” Hotham, 211 Ariz. 165, ¶ 9, 118 P.3d at 1132.

¶5            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.” Gonzalez-Lopez, 548

U.S. at 152 (citation omitted).      But an “unreasoning and arbitrary ‘insistence upon

expeditiousness in the face of a justifiable request for delay’” violates a defendant’s right to

counsel of choice. See Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting Ungar v.

Sarafite, 376 U.S. 575, 589 (1964). “Whether an accused’s constitutional rights are violated

by the denial of a request for a continuance [to substitute private counsel of the defendant’s

choice] depends on the circumstances present in the particular case.” State v. Hein, 138 Ariz.

360, 369, 674 P.2d 1358, 1367 (1983). On review, we consider such factors as

              whether 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. Thus, our supreme court has upheld decisions by trial courts to compel defendants to

proceed with appointed counsel where trial had already been postponed twice and a

continuance was requested only after the jury had been empaneled, State v. Miller, 111 Ariz.

321, 322, 529 P.2d 220, 221 (1974), and where a codefendant was “ready and ‘anxious’ to




                                               4
go to trial” and “a great burden” would have been placed on out-of-state witnesses by any

delay, Hein, 138 Ariz. at 369, 674 P.2d at 1367.2

¶6            Here, it is undisputed that Aragon had legitimate reasons for his request and

had neither sought nor been granted any prior continuances. The state does not argue the

case was particularly complex or dispute Aragon’s assertion that “all of the witnesses . . .

were law enforcement personnel . . . or law enforcement-related professionals, who routinely

juggle their calendars to accommodate court appearances.” Nor does this case involve a

victim anxious for a resolution.3 And, although appointed counsel was apparently competent

and prepared to try the case, this alone could not justify the court’s denial of Aragon’s

request for a continuance to allow him to be represented by Bockel. See Gonzalez-Lopez,

548 U.S. at 148. (“Deprivation of the right is ‘complete’ when the defendant is erroneously




       2
        We note that Hein differs from the present case to the extent the defendant there
sought to be represented by a particular attorney from the law firm he had retained. 138 Ariz.
at 370, 674 P.2d at 1368. As our supreme court noted, “[E]mployment of one member of a
law firm is employment of the firm, unless there is a special understanding to the contrary.”
Id.
       3
         Bockel did not specify the length of the delay necessary for him to prepare for trial,
and the court dismissed his request for a continuance without questioning him on this point.
But, to the extent the state argues this supports the court’s decision to deny a continuance,
we note persuasive authority suggests that, “[w]hen a motion for a continuance . . . implicates
a defendant’s Sixth Amendment right to counsel,” the onus is on the court to create a record
of its reasons for the denial. United States v. Garrett, 179 F.3d 1143, 1147 (9th Cir. 1999).

                                              5
prevented from being represented by the lawyer he wants, regardless of the quality of the

representation he received.”).4

¶7            The trial court erred in relying on Rule 8, a rule intended to guarantee

defendants a speedy trial, as a basis to deny Aragon a continuance so he could be represented

by his counsel of choice. See State v. Ferguson, 120 Ariz. 345, 347, 586 P.2d 190, 192

(1978) (“The purpose of Rule 8 is to insure that a criminal defendant is not forgotten while

the orderly administration of justice swirls around him on all sides but leaving him

untouched.”). Rule 8.4(a) expressly excludes “[d]elays occasioned by or on behalf of the

defendant” from “the computation of the time limits” under the rule. Thus, the court’s

concern that any such continuance would violate “the law[’s] require[ment] that [Aragon’s]

trial occur within so many days” was misplaced. Moreover, there is no authority to support

the court’s apparent belief that a first request for a continuance made five or six days before

trial is inherently unreasonable.

¶8            To the extent the court also based its decision on appointed counsel’s failure

to file a motion to withdraw pursuant to Rule 6.3(c), we note that this rule, like Rule 8, is

primarily intended to protect the rights of defendants. See Riley, Hoggatt & Suagee, P.C. v.


       4
         We acknowledge that in Gonzales-Lopez, the government conceded the defendant’s
right to counsel of choice had been erroneously denied; thus, the Court did not address that
issue. However, in the present case, a finding that there was no error based on the fact
Aragon had other competent counsel prepared to try the case would be inconsistent with
Gonzales-Lopez’s holding that “it is unnecessary to conduct an ineffectiveness or prejudice
inquiry to establish a Sixth Amendment violation” when the right has been wrongfully
denied. See Gonzalez-Lopez, 548 U.S. at 148.

                                              6
Riley, 165 Ariz. 138, 140, 796 P.2d 940, 942 (1990) (“[I]n the absence of any showing of

prejudice to the defendant or to the judicial process, a motion to withdraw [made prior to

trial] should be granted.”). Furthermore, the situation here did not involve counsel’s seeking

to withdraw of his own volition but, rather, the defendant himself seeking to substitute

retained counsel. See State v. Paris-Sheldon, 214 Ariz. 500, ¶ 16, 154 P.3d 1046, 1052 (App.

2007) (distinguishing the two circumstances). In any event, we will not “elevat[e a] technical

requirement above [Aragon’]s right to counsel of his choice.” See State v. Coghill, 216 Ariz.

578, ¶ 44, 169 P.3d 942, 953 (App. 2007).

¶9            We thus conclude the trial court’s denial of a continuance here constituted an

“unreasoning and arbitrary” adherence to its schedule without due regard for Aragon’s

legitimate request to exercise his right to the counsel of his choice. See Morris, 461 U.S. at

11-12. Aragon did not expressly invoke the Sixth Amendment in requesting a continuance

for the purpose of substituting counsel.5 But because “erroneous deprivation of the right to

counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as structural error’” and thus cannot be waived, we must reverse




       5
        Thus, the trial court was given no assistance either in identifying the substantial
nature of the right involved or in creating a record to support its denial of a continuance
pursuant to Hein, 138 Ariz. at 369, 674 P.2d at 1367. We do not suggest that the denial of
a defendant’s first motion for a continuance, requested to substitute counsel of choice, would
necessarily violate his Sixth Amendment right in every case. However, here, we cannot find
otherwise absent any record indicating how the delay would impinge on “‘the efficient and
effective administration of justice.’” See id. at 368, 674 P.2d at 1366, quoting United States
ex rel. Carey v. Rundle, 409 F.2d 1210, 1214 (3rd Cir. 1969).

                                              7
Aragon’s convictions and sentences. See Gonzalez-Lopez, 548 U.S. at 150, quoting Sullivan

v. Louisiana, 508 U.S. 275, 282 (1993).

                                      Disposition

¶10           For the reasons stated, we reverse Aragon’s convictions and sentences and

remand for a new trial.




                                            ____________________________________
                                            GARYE L. VÁSQUEZ, Judge

CONCURRING:




____________________________________
PETER J. ECKERSTROM, Presiding Judge




____________________________________
J. WILLIAM BRAMMER, JR., Judge




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