                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 KHARBREL RAY HAYWOOD, Appellant.

                             No. 1 CA-CR 13-0802
                                FILED 12-23-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-119920-002
                The Honorable Roland J. Steinle, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
                          STATE v. HAYWOOD
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1          Kharbrel Haywood appeals his conviction for misconduct
involving weapons. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           A grand jury indicted Haywood in April 2012 for
misconduct involving weapons, a class four felony under Arizona Revised
Statutes (“A.R.S.”) section 13-3102(A)(4). Haywood was assigned court-
appointed counsel.

¶3            In August 2012, Haywood filed a Motion for Change of
Counsel, which the superior court granted. The court set a firm trial date
of November 29, 2012; however, defense counsel requested and received
several continuances beyond that date.

¶4           Haywood filed another Motion for Change of Counsel in
February 2013. The court granted his second request and reset trial for
April 3. Haywood subsequently sought to waive his right to counsel and
asked to represent himself. Before granting that request, the court
conducted a colloquy, ordered current counsel to serve as advisory
counsel, appointed an investigator to assist Haywood, and had Haywood
sign a waiver of counsel form.

¶5              In March 2013, Haywood filed a request for disclosure and a
motion to continue. Although the court found the State was “in
compliance with discovery,” it nevertheless directed the State to provide
Haywood with “another copy” of a document and reset trial for May 13.
In April, Haywood filed several motions, including a request for an
“open-ended continuance.” At a May status conference, the court asked
Haywood for “a realistic trial date that will not be continued.” When
Haywood did not offer a date, advisory counsel suggested July 25, 2013,
based on the availability of counsel and witnesses. The court continued
the trial to that date.



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                          STATE v. HAYWOOD
                           Decision of the Court

¶6           On June 4, 2013, Haywood filed a motion to change his
advisory counsel, which the court denied. At a June 25 status conference,
the court found Haywood was “attempting to delay the proceedings,”
claiming he was not prepared for trial, yet refusing to meet with his
investigator or witnesses. On July 2, the court issued a minute entry
stating:

      On July 1, 2013, the Court was informed that for the third
      time the Defendant has refused transport to conduct
      interviews of the State’s witnesses. The Defendant is failing
      to cooperate with trial preparation and a continuance of the
      trial date will not be granted.

¶7            On July 22, 2013, the date jury selection was scheduled to
begin, Haywood requested another “open-ended” continuance and filed a
“notice of defenses,” a request for a suppression hearing, and a “motion to
dismiss for lack of probable cause for arrest.” Although the court found
Haywood had been warned repeatedly to be prepared for trial, it
nevertheless continued the trial to July 29. The court warned Haywood:
“[I]f you are not prepared to go to trial next Monday, the Court will
consider revoking your pro per status.”

¶8           Haywood refused to be transported to court for trial on July
29. The next day, he appeared, but stated he was “[o]nce again . . .
definitely not ready to go to jury trial today.” The court revoked
Haywood’s pro per status, reappointed advisory counsel to represent him,
and proceeded with trial. The jury found Haywood guilty as charged, and
he was sentenced to a six-year prison term.1 Haywood timely appealed.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -
4033(A)(1).




1      Although the sentencing minute entry states Haywood’s conviction
was for a non-dangerous, non-repetitive offense, the sentencing transcript
correctly states he was sentenced for a non-dangerous but repetitive
offense. When a discrepancy exits between the oral pronouncement and
the minute entry, the “[o]ral pronouncement in open court controls over
the minute entry.” State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649
(1989). Accordingly, we rely on the superior court’s oral pronouncement
at sentencing.



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                           STATE v. HAYWOOD
                            Decision of the Court

                               DISCUSSION

¶9            Haywood’s sole argument on appeal is that the superior
court erred by revoking his right to represent himself. We review the
revocation of a defendant’s self-representation status for an abuse of
discretion. State v. Gomez, 231 Ariz. 219, 222, ¶ 8, 293 P.3d 495, 498 (2012).

¶10            A court “may terminate self-representation by a defendant
who deliberately engages in serious and obstructionist misconduct.”
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). However, serious and
obstructionist behavior “is [not] the only type of behavior that may
warrant such a revocation.” State v. Whalen, 192 Ariz. 103, 107, 961 P.2d
1051, 1055 (App. 1997). “A defendant . . . has a constitutional right to
proceed without counsel . . . but only so long as the defendant is able and
willing to abide by the rules of procedure and courtroom protocol.” Id. at
106, 961 P.2d at 1054 (internal quotation marks omitted). “[A] trial court
may revoke pro per status for serious violations of court orders and rules
even if the conduct occurs outside a courtroom proceeding.” Gomez, 231
Ariz. at 223, ¶ 15, 293 P.3d at 499.

¶11           Haywood repeatedly demonstrated an unwillingness
and/or inability to abide by rules of procedure, court orders, and
courtroom protocol. Additionally, the record amply supports the superior
court’s finding he was “causing unnecessary and inappropriate delay.”
Haywood requested numerous continuances, often “open-ended” in
nature, refusing to state when he would be prepared for trial or
specifically what he required to be prepared. At one point, the court
stated the case could not “go on forever,” whereupon Haywood
responded: “I don’t want to go to trial.” When asked what he needed to
prepare, Haywood responded he was “reading case law,” “need[ed] to do
an investigation” and “look for . . . favorable witnesses,” and “just a
plethora of things.” The court responded:

       Here is the problem. You come in each time and you are
       very vague. I need things. I don’t have things. . . . And I try
       to get you to nail it down and tell me what you need . . . so
       that I can make sure it gets done and so time and time again,
       I think you have everything and time and time again [you]
       tell me no[].

¶12           At a later hearing, the court again asked Haywood to discuss
a “realistic trial date.” Haywood instead accused the court of being




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                         STATE v. HAYWOOD
                          Decision of the Court

“sympathetic with the State.” Advisory counsel suggested the end of July,
leading to the following exchange:

      [Court:] That will give Mr. Haywood two and a half more
      months to prepare for trial.

      ....

      [Haywood:] Thank god that the State has something to do
      with it and thank god they agreed on something. If they
      didn’t, I would have to fight for additional time because you
      wouldn’t be willing to grant it to me.

      [Court:] I am giving you two and a half more months.

      [Haywood:] I understand that.

      [Court:] And you have been your own lawyer since January
      and February, this is not a complex case. All the witness’s
      interviews will be done by May 15 and that is more than two
      months before trial. . . . [T]hat is almost a year for
      misconduct involving weapons.

¶13          In a minute entry dated June 25, 2013, the superior court
summarized the proceedings, noting that the case had been pending since
April 2012, that Haywood had repeatedly asked to change counsel, that
numerous continuances had been granted, and that Haywood had been
warned to prepare for trial, yet refused to meet with his investigator or
interview witnesses. The court concluded:

      The defendant is attempting to delay the proceedings
      claiming he is not adequately prepared. The Court finds his
      actions are causing unnecessary and inappropriate delay.
      Pursuant to the Court’s May 9, 2013 in court discussion with
      the defendant and the minute entry generated from that
      hearing, and State v. Lamar, 205 Ariz. 431, 72 P.3d 831 (2003),
      the defendant has had more than sufficient time to prepare
      for trial and a continuance of the trial is not justified.

¶14            The record amply supports the superior court’s findings.
Additionally, Haywood failed to comply with the Arizona Rules of
Criminal Procedure or basic courtroom protocols. On the day scheduled
for jury selection, he filed untimely motions and claimed he was unaware
of motion deadlines, interrupting the judge repeatedly in discussing the


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                         STATE v. HAYWOOD
                          Decision of the Court

matter. See Faretta, 422 U.S. at 834 n.46 (Self-representation “is not a
license to abuse the dignity of the courtroom” or “not . . . comply with
relevant rules of procedural and substantive law.”). The superior court
did not abuse its discretion by revoking Haywood’s pro per status. It
provided Haywood with more than sufficient time and resources to
prepare for trial and repeatedly warned him of the consequences of failure
to follow court rules and orders. Nevertheless, Haywood’s lack of
cooperation and compliance continued.

                            CONCLUSION

¶15          We affirm Haywood’s conviction and sentence.




                               :ama




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