                               IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                  v.

                       DEREK JESUS RAMOS,
                           Appellant.

                     No. 2 CA-CR 2014-0396
                      Filed April 21, 2016


        Appeal from the Superior Court in Pinal County
                    No. S1100CR201301638
       The Honorable Bradley M. Soos, Judge Pro Tempore

                             AFFIRMED


                              COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Flores & Clark, LLC, Globe
By Daisy Flores
Counsel for Appellant


                              OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.
                         STATE v. RAMOS
                        Opinion of the Court


V Á S Q U E Z, Presiding Judge:

¶1           After a jury trial, Derek Ramos was convicted of
attempted possession of a dangerous drug by fraud, forgery, and
taking the identity of another. The trial court sentenced him to
concurrent prison terms of six years for each count. On appeal,
Ramos argues the court erred by precluding an alibi witness that he
failed to timely disclose. He also argues the court erred by denying
his request for a continuance “based on retention of new counsel.”
For the following reasons, we affirm.

                Factual and Procedural Background

¶2           We view the evidence in the light most favorable to
sustaining the convictions. State v. Wright, 214 Ariz. 540, ¶ 2, 155
P.3d 1064, 1065 (App. 2007). In September 2013, Ramos visited a
pharmacy in Apache Junction and presented a prescription for
alprazolam, commonly known as Xanax. The pharmacy technician
asked for his identification and made a copy for their records. The
technician thought Ramos acted “[o]verly friendly” during the
exchange, which she viewed as a “red flag[],” and informed the
pharmacist of her concern. The pharmacist believed the prescription
resembled another forged prescription recently presented at another
pharmacy: its format did not match the doctor’s “prescriptions in
the past,” the doctor’s address was not complete, and the signature
“didn’t look consistent” with that doctor’s usual signature. The
pharmacist informed Ramos that she would need to “contact the
doctor to verify the prescription, and [because] it was after hours, it
would have to be the next day.” Ramos “started to get anxious” and
asked if he could have the prescription back, but the pharmacist
declined, and Ramos left the pharmacy.

¶3          Less than thirty minutes later, Ramos called the
pharmacy and, speaking with an Indian accent, claimed to be the
prescribing doctor who was calling to verify the prescription. He
then returned to the pharmacy, was turned down again, and
escorted out. The next morning, the pharmacist confirmed with the
doctor listed on the prescription that it had been falsified and
contacted the police.

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                         STATE v. RAMOS
                        Opinion of the Court

¶4            In October 2013, Ramos was charged with attempted
possession of a dangerous drug, forgery, and taking the identity of
another person. The trial court set a jury trial date for August 5,
2014. On July 22, 2014, Ramos filed a notice of defenses and
witnesses, which, for the first time, identified Ramos’s father as a
potential witness, and provided the prosecutor with a telephone
number to contact his father. The father apparently would be called
to testify that he and Ramos had been coaching a softball team at the
time of the offense. During a hearing on July 28, the state objected to
this witness “based on the timeliness” and later filed a motion in
limine to preclude the witness on the same ground, which the court
granted.

¶5           Also during the July 28 hearing, Ramos submitted a
stipulation to substitute his public defender with private counsel,
Rachelle Ferraro, and requested a continuance because Ferraro
would not “be ready to proceed to trial on August 5th.” The trial
court denied the motion to continue, but stated Ferraro could “opt
in” as counsel if she could be ready by the trial date.

¶6          At trial, Ferraro participated as Knapp counsel. 1 The
jury found Ramos guilty as charged, and the trial court sentenced
him as described above. This appeal followed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                        Untimely Disclosure

¶7          Ramos argues the trial court erred by precluding the
testimony of his father because of his late disclosure. We review a
court’s sanction for an untimely disclosure for an abuse of
discretion. State v. Moody, 208 Ariz. 424, ¶ 114, 94 P.3d 1119, 1149
(2004).

¶8           Rule 15.2(b), Ariz. R. Crim. P., directs that a defendant
“shall provide a written notice to the prosecutor specifying all
defenses as to which the defendant intends to introduce evidence at

      1Knapp v. Hardy, 111 Ariz. 107, 111, 523 P.2d 1308, 1312 (1974)
(counsel privately retained by relative or friend may associate with
public defender in representing criminal defendant).


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                          STATE v. RAMOS
                         Opinion of the Court

trial, including . . . alibi.” And, “[s]imultaneously” with that notice,
the defendant must provide the state with “[t]he names and
addresses of all persons, other than that of the defendant, whom the
defendant intends to call as witnesses at trial, together with their
relevant written or recorded statements.” Ariz. R. Crim. P. 15.2(c)(1).
This disclosure must occur within the earlier of forty days after
arraignment or ten days after the state’s disclosure. Ariz. R. Crim. P.
15.2(d)(1).

¶9            When an untimely disclosure occurs, the opposing
party may move for sanctions, in which case the trial court “shall
impose any sanction it finds appropriate.” Ariz. R. Crim. P. 15.7(a).
In doing so, courts should consider “the vitality of the evidence to
the proponent’s case; the degree to which the evidence or the
sanctionable conduct has been prejudicial to the opposing party;
whether the sanctionable conduct was willful or motivated by bad
faith; and whether a less stringent sanction would suffice.” State v.
Meza, 203 Ariz. 50, ¶ 32, 50 P.3d 407, 414 (App. 2002); see Ariz. R.
Crim. P. 15.7(a). The sanction “should be proportionate to the harm
caused” and “cure that harm to the maximum practicable extent.”
State v. Krone, 182 Ariz. 319, 322, 897 P.2d 621, 624 (1995). Thus, if “a
party engages in ‘willful misconduct, such as an unexplained failure
to do what the rules require,’” preclusion may be an appropriate
remedy. State v. Naranjo, 234 Ariz. 233, ¶ 34, 321 P.3d 398, 407
(2014), quoting State v. Killean, 185 Ariz. 270, 271, 915 P.2d 1225, 1226
(1996); see also State v. Thompson, 190 Ariz. 555, 558, 950 P.2d 1176,
1179 (App. 1997) (precluding sole witness supporting defense theory
due to unexcused, untimely disclosure).

¶10          We find Killean instructive here. In that case, the
defendant was arrested at an airport with a suitcase containing
several pounds of marijuana. 185 Ariz. at 270, 915 P.2d at 1225. The
defendant disclosed his defense—that he had transported the
suitcase for a friend—“for the first time at trial” and testified
consistent with that defense. Id. However, the trial court denied the
admission of “corroborative documentary evidence as a sanction for
[the] defendant’s violation of discovery rules by failing to reveal the
existence of the evidence until trial.” Id.




                                   4
                         STATE v. RAMOS
                        Opinion of the Court

¶11          Our supreme court affirmed the defendant’s
convictions, noting the “unexplained failure to do what the rules
require” supported the sanction of preclusion, even if the trial court
had determined there was no bad faith on the part of defense
counsel. Id. at 271, 915 P.2d at 1226. Other remedies, such as
declaring a mistrial or continuing the trial, “would defeat the
important interest in efficient judicial administration.” Id. And,
preclusion was proportionate to the harm caused by the violation:
“The violation prevented the prosecution from locating . . . a rebuttal
witness. . . . The loss of rebuttal was balanced by the loss of
corroboration.” Id.

¶12          In this case, it is undisputed that the testimony of
Ramos’s father was significant to his defense. 2 And, there is no
evidence that defense counsel acted in bad faith: He filed the late
disclosure the same day Ramos informed him that his father could
testify in support of an alibi defense. However, Ramos’s failure to
assert a possible alibi defense from the time he was charged in
October 2013 until his disclosure in July 2014, despite his close
relation to the alibi witness, belies his argument that “[t]here is no
evidence in the record that the late disclosure . . . was willful.”
See Naranjo, 234 Ariz. 233, ¶ 35, 321 P.3d at 408 (willfulness implied
by “pervasive lack of diligence”).

¶13         Moreover, the record indicates the trial court considered
“the impact” of the late disclosure on the state and the sanction on
Ramos’s defense. The late disclosure not only surprised the state
with a new witness; it introduced an entirely new defense theory.
And, although the prosecutor managed to interview the father after
the disclosure, the state did not have an opportunity to search for
rebuttal witnesses—a task made difficult by the father’s inability to
provide the names of others alleged to be on the softball team.

      2 The state conceded in its motion in limine below that the
testimony would be “vital” to the defense. We discount the state’s
arguments on appeal to the extent they contradict this previous
position. Cf. State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304
(1996) (party may not “assert[] one position at trial and another on
appeal”).


                                  5
                          STATE v. RAMOS
                         Opinion of the Court

During a pretrial hearing, the prosecutor stated that his office had
“tried to find out whether or not there [was] a roster anywhere . . . if
there was a city league or whatnot,” but was unsuccessful. Thus, the
late disclosure caused a significant disadvantage to the state, and
preclusion was an appropriate remedy within the court’s discretion.
See Killean, 185 Ariz. at 271, 915 P.2d at 1226; Krone, 182 Ariz. at 322,
897 P.2d at 624.

¶14          Ramos nevertheless argues that his case is “analogous”
to State v. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984). There, our
supreme court reversed the trial court’s order excluding a
defendant’s second alibi witness on late-disclosure grounds. Id. at
358-59, 681 P.2d at 1377-78. But Smith is distinguishable. The late
disclosure in that case was not due to a lack of diligence and the
state was not prejudiced. Id. at 359, 681 P.2d at 1378. Smith had
timely disclosed his alibi defense, and the state had already
interviewed his first alibi witness and was aware of the existence of
the second one. Id. Ramos’s reliance on Smith is unavailing.
Accordingly, the trial court did not err by precluding the witness’s
testimony as a sanction for the disclosure violation. See Moody,
208 Ariz. 424, ¶ 114, 94 P.3d at 1149.

                         Motion to Continue

¶15          Ramos argues the trial court erred by denying his
request for a continuance “based on retention of new counsel.” He
maintains that this error “served to deny . . . his right to counsel of
choice.” Generally, “[w]e review a trial court’s denial of a motion to
continue for an abuse of discretion.” State v. Forde, 233 Ariz. 543,
¶ 18, 315 P.3d 1200, 1212 (2014). However, we review de novo Sixth
Amendment claims regarding a defendant’s right to counsel. State v.
Rasul, 216 Ariz. 491, ¶ 4, 167 P.3d 1286, 1288 (App. 2007).

¶16          “‘[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 . . . .’” State
v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App. 2009), quoting
Robinson v. Hotham, 211 Ariz. 165, ¶ 16, 118 P.3d 1129, 1133 (App.
2005) (alterations in Aragon). Nevertheless, this right “is not


                                   6
                          STATE v. RAMOS
                         Opinion of the Court

absolute, but is subject to the requirements of sound judicial
administration.” State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358, 1367
(1983). “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. 88, ¶ 5, 210 P.3d at
1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006).
In weighing these competing interests, courts must consider

             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.

Hein, 138 Ariz. at 369, 674 P.2d at 1367.

¶17           As an initial matter, Ramos relies on United States v.
Brown, 785 F.3d 1337, 1349 (9th Cir. 2015), for the proposition that
“any denial of the defendant’s motion because of ‘the demands of
[the court’s] calendar’ would not ‘suffice as an administration-of-
justice basis for denial of the constitutional right to discharge . . .
counsel.’”    This language, however, is taken out of context.
See Robinson, 211 Ariz. 165, ¶ 14, 118 P.3d at 1133 (“[A] defendant
may be denied counsel of his or her choice if that attorney[’s] . . .
appointment would cause an unreasonable delay in the proceedings
to allow adequate preparation.”); see also United States v. Rivera-
Corona, 618 F.3d 976, 979 (9th Cir. 2010) (same). The district court in
Brown “never said that concern for its calendar was its reason for
denying the motion” and, in fact, “repeatedly offered to continue the
case” in lieu of appointing new counsel. Brown, 785 F.3d at 1347-49.

¶18          Ramos also argues his circumstances were “[s]imilar[]”
to those in Aragon, in which this court reversed the trial court’s
denial of a motion to continue for newly retained private counsel to
prepare for trial. 221 Ariz. 88, ¶¶ 1-2, 6, 210 P.3d at 1260-62. We
disagree. In that case, we determined that the majority of the factors


                                   7
                         STATE v. RAMOS
                        Opinion of the Court

laid out in Hein, 138 Ariz. at 369, 674 P.2d at 1367, were absent: The
defendant had not “sought nor been granted any prior
continuances,” the state did not assert that a continuance would be
inconvenient for witnesses, there was no “victim anxious for a
resolution,” and “although appointed counsel was apparently
competent and prepared to try the case, th[at] alone could not justify
the court’s denial of [the defendant’s] request for a continuance.”
Aragon, 221 Ariz. 88, ¶ 6, 210 P.3d at 1261-62. Moreover, the state
did not dispute “that [the defendant] had legitimate reasons for his
request.” Id. ¶ 6. The defendant in Aragon had “identified ‘a
communication issue’ with appointed counsel and explained that,
although he had been in touch with [private counsel] since his
arrest, he had not asked for [counsel] to be substituted earlier
because he ‘didn’t have funds to hire him.’” Id. ¶ 3. Thus, we
concluded the “court’s denial of a continuance . . . constituted an
‘unreasoning and arbitrary’ adherence to its schedule without due
regard for Aragon’s legitimate request.” Id. ¶ 9, quoting Morris v.
Slappy, 461 U.S. 1, 11-12 (1983).

¶19        In contrast, the trial court here was focused principally
on the dilatory nature of Ramos’s “last-minute substitution of
counsel” and the impact the delay would have on the state’s case.
Ramos had stated he wanted “to look into retaining private
counsel” as early as November 2013, when he requested a
continuance of a pretrial matter. But Ferraro made an appearance
eight months later, and only eight days before trial. Ramos was not
in custody during this time and, unlike in Aragon, offered no
explanation for the delay. The court also noted it had “just denied
[another] motion to continue trial” earlier that month and
suggested Ramos’s new motion merely was an extension of the
first:

            I set these . . . hearings with a purpose. It’s
            not just to show up and entertain motions
            to continue.           [These] hearings are
            substantive motion hearings. There should
            be motions in limine filed already; there
            should be any pretrial motions that need to
            be filed. We’re here today to discuss what


                                  8
                          STATE v. RAMOS
                         Opinion of the Court

              [it is] going to take to get this thing ready
              for trial on Tuesday. It’s not the time for a
              last-minute substitution of counsel and
              motion to continue when I’ve already
              denied it.

Accordingly, although no prior continuance of the trial date had
been granted, the record supports the court’s implicit finding that
Ramos’s motion was for the purpose of delay. Moreover, the state
suggested during the hearing that it had already arranged for four of
its five witnesses to testify.3 And, although Ferraro suggested more
investigation and preparation was necessary to present Ramos’s
case, nothing in the record suggests his court-appointed defense
counsel was not prepared or that this case was particularly complex.

¶20           Most importantly, the trial court’s ruling did not
prohibit Ferraro from representing Ramos. We therefore reject
Ramos’s suggestion that the court’s ruling denied his right to
representation by retained counsel. Notwithstanding the court’s
denial of the motion to continue, Ferraro in fact did represent Ramos
prior to and at trial. Ferraro participated significantly during a
pretrial hearing; made objections and conducted cross-examination
during the trial; participated at the priors hearing; and argued on
Ramos’s behalf during sentencing. See State v. Burns, 237 Ariz. 1,
¶ 13, 344 P.3d 303, 314 (2015) (“Although denying counsel adequate
time to prepare a case for trial may deny the defendant a substantial
right, time constraints by themselves do not create prejudice.”)
(internal citation omitted). Accordingly, the court did not abuse its
discretion by denying the motion to continue, see Forde, 233 Ariz.
543, ¶ 18, 315 P.3d at 1212, and Ramos was not denied his Sixth
Amendment right to counsel of choice, see Rasul, 216 Ariz. 491, ¶ 4,
167 P.3d at 1288.




      3 Thefifth witness, the doctor, had been out of the country
until the start of trial and only appeared after the trial court
compelled him to do so.


                                   9
                      STATE v. RAMOS
                     Opinion of the Court

                         Disposition

¶21          For the foregoing    reasons,   we   affirm   Ramos’s
convictions and sentences.




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