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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ROBERTO MEDINA-MARTINEZ, Appellant.

                             No. 1 CA-CR 17-0461
                               FILED 11-15-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR 2015-100468-001
              The Honorable George H. Foster, Jr., Judge
                 The Honorable Joan M. Sinclair, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                     STATE v. MEDINA-MARTINEZ
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent C. Cattani joined.


C A M P B E L L, Judge:

¶1            Roberto Medina-Martinez appeals from the following
convictions: two counts of sexual conduct with a minor, two counts of
molestation of a child, attempt to commit sexual conduct with a minor, and
sexual abuse. Medina-Martinez argues that the superior court’s denial of
his repeated motions for new counsel violated his right to competent
counsel and due process under the U.S. and Arizona Constitutions. Because
the court acted within its discretion when denying the motions, we affirm.

                             BACKGROUND

¶2            Medina-Martinez was arrested and incarcerated in January
2015 on multiple counts related to sexual conduct with his 12-year-old step-
daughter. The court found him indigent and appointed attorney Tyrone
Mitchell to represent him. In the two and a half years between Medina-
Martinez’s arrest and trial, he made several written and oral motions for a
change of counsel, the denial of which gives rise to this appeal.

¶3           Medina-Martinez first moved for new counsel in March 2015,
requesting an attorney who spoke Spanish, his native language. The court
addressed the motion at a pretrial conference, explaining that while the
court understood Medina-Martinez might be more comfortable with a
Spanish-speaking defense attorney, the court could not guarantee he would
be provided one. Mitchell explained to the court that his assistant spoke
Spanish, and Medina-Martinez agreed to “table the motion” twice. The
court dismissed Medina-Martinez’s request for new counsel after he agreed
to permit Mitchell to continue representation based on Mitchell’s
assurances that they would meet frequently to discuss the case.

¶4             On at least six more occasions between September 2015 and
April 2017, Medina-Martinez moved for new counsel, alleging that his
defense attorney did not communicate with him. He claimed that Mitchell
failed to provide him discovery documents, did not answer his messages,
did not visit him in jail, and had effectively terminated representation. The



                                     2
                     STATE v. MEDINA-MARTINEZ
                         Decision of the Court

court routinely addressed these oral and written motions during scheduled
conferences and hearings, each time allowing both Medina-Martinez and
Mitchell to speak.

¶5             Mitchell disagreed with Medina-Martinez’s characterizations
and repeatedly avowed to the court that he reviewed discovery with his
client, regularly held video conferences, and sent Spanish-speaking staff to
meet with Medina-Martinez in person. According to Mitchell, at one point,
Medina-Martinez asked him to deliver a Spanish translation of the entire
case file for his review. Mitchell said he could not do so because he lacked
the resources to fulfill Medina-Martinez’s request. The court had already
explained to Medina-Martinez a month earlier that his attorney could not
send police reports—which contained information relating to the charges
of child molestation—to jail for safety reasons.

¶6            Beginning in December 2015, some of Medina-Martinez’s
motions for new counsel included other allegations. Medina-Martinez
asserted that his attorney had an “extreme conflict of interest,” had
committed ethical violations, and that “there is no client[-]attorney trust,”
but did not allege specific facts, other than lack of communication, to
support his claims. He also seemed to suggest that the police reports and
grand jury indictments were fabricated. When the court gave him the
opportunity to address his motions in court, Medina-Martinez did not
elaborate; he simply repeated his allegations—that there was a lack of
communication between him and his attorney and that he wanted access to
discovery. For example, the following interaction took place in August
2016, after Medina-Martinez moved for new counsel, alleging fabrication of
evidence and ethical violations by his attorney:

      THE COURT: Okay. I did receive your motion to change
      counsel, sir. That's why we set the hearing today. . . . The issue
      that I read in your motion is essentially your concern about
      not seeing the discovery in this case. Is that accurate?

      THE DEFENDANT: Accurate.

      THE COURT: Okay. Is there anything else that you want to
      add to your motion, sir?

      THE DEFENDANT: Well I asked for a full discovery.

      THE COURT: Right. And I understand that, but I'm asking is
      there . . . anything else that you want to add to that motion?



                                      3
                      STATE v. MEDINA-MARTINEZ
                          Decision of the Court

       THE DEFENDANT: No.

¶7            The court repeatedly denied Medina-Martinez’s motions after
giving both attorney and defendant time to address the allegations. At a
status conference, the court noted that it “[had] no doubt” Mitchell had
reviewed discovery with Medina-Martinez. Despite Medina-Martinez’s
repeated motions, Mitchell continued to represent him, handling plea offers
and negotiating trial dates. Although anxious for his trial to begin, Medina-
Martinez filed a final request for new counsel two weeks before trial. After
hearing from Medina-Martinez once more, the court denied his request,
citing Medina-Martinez’s desire to try the case promptly, which was in
direct conflict with the appointment of new counsel. Based on these
conflicting goals, the court denied Medina-Martinez’s request for new
counsel and confirmed the trial setting two weeks later.

¶8             At trial, Mitchell engaged in his duties as defense counsel by
participating in voir dire, giving an opening statement, questioning
witnesses (including Medina-Martinez himself), objecting to testimony,
moving for a judgment of acquittal, and giving a closing argument. The jury
found Medina-Martinez guilty of six counts related to sexual abuse of a
minor. After sentencing, he timely appealed. Although a different attorney
represents Medina-Martinez on appeal, Mitchell has continued to handle
aspects of his criminal defense as recently as April 2018.

                               DISCUSSION

¶9            Medina-Martinez argues that the superior court violated his
right to counsel and due process when denying his numerous requests for
a change of counsel, pointing to a breakdown in the attorney-client
relationship and irreconcilable differences with Mitchell. We review the
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).

¶10           Criminal defendants have a right under both the federal and
state constitutions to representation by competent counsel. U.S. Const.
amend. VI.; Ariz. Const. art. 2, §§ 4, 24; see also A.R.S. § 13-114(2); Ariz. R.
Crim. P. 6.1. Nevertheless, a defendant is not entitled to counsel of his
choice. Cromwell, 211 Ariz. at 186, ¶ 28. In evaluating a motion for change
of counsel, the superior court balances the defendant’s rights with judicial
economy and efficiency, considering factors from State v. LaGrand:
“whether an irreconcilable conflict exists between counsel and the accused,
and whether new counsel would be confronted with the same conflict; the
timing of the motion; inconvenience to witnesses; the time period already



                                       4
                       STATE v. MEDINA-MARTINEZ
                           Decision of the Court

elapsed between the alleged offense and trial; the proclivity of the
defendant to change counsel; and quality of counsel.” 152 Ariz. 483, 486-87
(1987); State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998).

¶11            An irreconcilable difference between a defendant and his
attorney typically requires appointment of new counsel. Cromwell, 211 Ariz.
at 186, ¶ 29. However, the defendant must allege facts sufficient to support
the belief that an irreconcilable difference exists, presenting “the clear
prospect of an unfair trial.” Id. at 186, ¶ 30. A defendant’s disagreement
about strategy, concern over lack of attention, or a general loss of trust in
defense counsel, without more, does not constitute an irreconcilable
difference. State v. Dann, 220 Ariz. 351, 360, ¶ 22 (2009); State v. Paris-Sheldon,
214 Ariz. 500, 505, ¶ 14 (App. 2007).

¶12            Here, Medina-Martinez argues that the LaGrand factors
required the superior court to appoint him new counsel. We disagree. The
bulk of Medina-Martinez’s appeal and repeated motions for new counsel
express frustration at what he perceived as an inattentive defense attorney.
But a defendant’s concern over lack of attention is not a sufficient ground
for appointment of new counsel. Contrary to Medina-Martinez’s
allegations of abandonment, Mitchell continued his representation,
engaging with the court at hearings and conferences, making requests on
behalf of his client, and using his Spanish-speaking investigator to
communicate with Medina-Martinez. Medina-Martinez may have
preferred for Mitchell to meet with him in person at the jail to review his
case, but Mitchell stated that he held several video conferences with his
client, interaction comparable to an in-person visit. Each time Medina-
Martinez raised this request in court with Mitchell present, his attorney
responded by setting forth the actions he had taken on his client’s behalf
and often assured the court he would continue to expend efforts to address
his client’s concerns. The court analyzed the circumstances using factors set
out in LaGrand and acted within its discretion by denying Medina-
Martinez’s motion for new counsel.

¶13            Medina-Martinez’s other key complaint when requesting
new counsel was his lack of access to discovery. Medina-Martinez also
asked Mitchell to have all documents translated into Spanish. As Mitchell
informed the court, his Spanish-speaking staff had communicated with
Medina-Martinez regarding the details of the case, and Mitchell stated that
he did not have the resources required to translate his entire file into
Spanish. The court did not err in denying these requests for new counsel on
this basis. See Calderon-Palomino v. Nichols, 201 Ariz. 419, 422-23, ¶¶ 6, 11
(App. 2001) (“The cost in time, money and administrative disruption of


                                        5
                      STATE v. MEDINA-MARTINEZ
                          Decision of the Court

providing foreign language services are legitimate government interests”
and “[t]he decision not to provide [a defendant] with a Spanish translation
of all disclosure documents and court documents is rationally related to
those interests.”) (citations omitted). Moreover, as the court explained to
Medina-Martinez early on, possession of documents related to his case in
jail would “put[] [Medina-Martinez’s] safety at risk.” Rather than giving
Medina-Martinez the case file, the court reviewed Mitchell’s efforts to
inform Medina-Martinez of the case against him; Mitchell regularly
promised to redouble his efforts. The court expressed that it found
Mitchell’s statements credible, acting within its discretion when it denied
Medina-Martinez’s motions.

¶14           The remainder of Medina-Martinez’s complaints to the court
were not specific enough to show the clear prospect of an unfair trial.
Medina-Martinez argues several points, including his lack of trust in his
attorney and that Mitchell failed to investigate his belief that police reports
and grand jury indictments were fabricated. But his motions and statements
to the court gave insufficient detail to allege a colorable claim of
irreconcilable differences. When the court gave Medina-Martinez the
opportunity to elaborate, he did not give any details related to these
allegations.

¶15           Even when we view Medina-Martinez’s individual
complaints as a whole, we cannot say that the court erred in denying him
new counsel. The superior court is in the best position to evaluate the
attorney-client relationship, and it did so when it weighed Medina-
Martinez’s complaints against Mitchell’s responses in court and his
performance as Medina-Martinez’s advocate. The court acted within the
bounds of reason when it denied Medina-Martinez’s requests for new
counsel.

¶16           In his reply brief, Medina-Martinez challenges the sufficiency
of the superior court’s inquiry into the alleged breakdown of
communication with his defense attorney. Because this argument was
raised for the first time in a reply brief, we need not address it. Dawson v.
Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007); see Ariz. R. Crim. P. 31.10(a),
(c). However, even if we were to review on this basis, we would not disturb
the superior court’s ruling. Between March 2015 and May 2017, the court
regularly addressed Medina-Martinez’s concerns. Each time the court ruled
on the motions for new counsel, Medina-Martinez either acquiesced or the
court made a credibility determination by weighing Medina-Martinez’s
claims against Mitchell’s assurances. On this record, the court acted within



                                       6
                   STATE v. MEDINA-MARTINEZ
                       Decision of the Court

its discretion by denying Medina-Martinez’s repeated motions for new
counsel.

                            CONCLUSION

¶17         For the foregoing reasons, we affirm.




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




                                      7
