SUPREME COURT OF ARIZONA
En Banc
) Arizona Supreme Court
) No. CR-03-0326-PR
STATE OF ARIZONA, )
) Court of Appeals
Appellee, ) Division One
) Nos. 1 CA-CR 02-0278
v. ) 1 CA-CR 02-0279
) (Consolidated)
VICTOR TORRES, )
) Maricopa County
Appellant. ) Superior Court
) Nos. CR 1992-010210
) CR 2001-005372
)
__________________________________) O P I N I O N
Appeal from Maricopa County Superior Court
Nos. CR 1992-010210, CR 2001-005372
The Honorable Stephen A. Gerst, Judge
The Honorable Jeffrey A. Hotham, Judge
REMANDED
Court of Appeals, Division One
206 Ariz. 52, 75 P.3d 142 (App. 2003)
VACATED IN PART
________________________________________________________________
TERRY GODDARD, Arizona Attorney General Phoenix
By: Randall M. Howe, Chief Counsel
Criminal Appeals Section
and Karla Hotis Delord, Assistant Attorney General
Attorneys for Appellee
SUSAN SHERWIN, Office of the Legal Advocate Phoenix
By: Tennie B. Martin, Deputy Legal Advocate
Attorneys for Appellant
________________________________________________________________
R Y A N, Justice
¶1 The question this case presents is whether a trial
court’s failure to conduct an inquiry into an indigent
defendant’s request to change appointed counsel mandates an
automatic reversal of the defendant’s conviction. We conclude
that it does not. Instead, we hold that the matter must be
remanded for a hearing on the defendant’s request.
I.
¶2 The State charged Victor Torres with several felonies.
Because Torres was indigent, the trial court appointed the
Maricopa County Public Defender’s Office to represent him. Two
months before Torres’ original trial date, he filed a written
motion in propria persona asking for a change in his appointed
counsel. Torres claimed that he could no longer speak with his
lawyer about the case, he did not trust him, he felt threatened
and intimidated by him, there was no confidentiality between
them, and his counsel was no longer behaving in a professional
manner. The trial judge denied the motion, stating that he did
not have the authority to appoint new counsel, but suggested
that Torres contact the Public Defender’s Office. Subsequently,
Torres went to trial with his appointed counsel and was
convicted. At sentencing before another judge, Torres renewed
his request for new counsel, which the judge granted.
¶3 On appeal, Torres argued that the trial court’s
failure to consider his motion to substitute counsel violated
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his constitutional right to adequate representation under the
Sixth Amendment. State v. Torres, 206 Ariz. 52, 53, ¶ 2, 75
P.3d 142, 143 (App. 2003). Because the trial judge had not
conducted an inquiry into Torres’ claims, the court of appeals
concluded it could not decide if an irreconcilable conflict
existed between Torres and his counsel. Id. at 56, ¶ 15, 75
P.3d at 146. Nevertheless, the court held that the trial
judge’s “summary denial” of Torres’ motion “violated his Sixth
Amendment right to counsel because it may have subjected him to
‘representation by a lawyer with whom he had a completely
fractured relationship.’” Id. at 57, ¶ 17, 75 P.3d at 147
(quoting State v. Moody, 192 Ariz. 505, 509, ¶ 23, 968 P.2d 578,
582 (1998)) (emphasis added). Concluding that the “[f]ailure to
hold a hearing on an allegation of a fundamental constitutional
violation is reversible error,” id., the court of appeals
reversed Torres’ convictions and ordered a new trial, id. at 58,
¶ 22, 75 P.3d at 148.
¶4 The State petitioned for review, arguing that a trial
court’s failure to inquire into a defendant’s request for
appointment of new counsel should not require automatic
reversal. We granted review because of the statewide importance
of the issue. We have jurisdiction under Article 6, Section
5(3), of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 13-4031 and -4032(3) (2001).
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II.
¶5 In analyzing the question presented by this case, we
must address two core issues. First, we must decide whether a
trial judge has a duty to inquire when a defendant requests
substitution of counsel. If so, we must define the scope of
that duty in light of the nature of a defendant’s request.
Second, if the trial judge does not conduct an inquiry, we must
determine the appropriate remedy.
A.
¶6 The Sixth Amendment guarantees criminal defendants the
right to representation by counsel. U.S. Const. amend. VI; see
also Ariz. Const. art. 2, § 24. The Supreme Court extended that
right to indigent defendants charged with felonies in state
courts. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
And, not only does an indigent criminal defendant have the right
to counsel, but he also has the right to competent counsel.
State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987)
(citing State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124
(1974)). Nevertheless, an indigent defendant is not “entitled
to counsel of choice, or to a meaningful relationship with his
or her attorney.” Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at
580 (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152,
1194 (1993)). But when there is a complete breakdown in
communication or an irreconcilable conflict between a defendant
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and his appointed counsel, that defendant’s Sixth Amendment
right to counsel has been violated. See id. Accordingly, this
court has held that if a defendant is forced to go to trial with
counsel with whom he has an irreconcilable conflict or a
complete breakdown in communication, a resulting conviction must
be reversed. See id. at 509, ¶ 23, 968 P.2d at 582 (holding
that a trial court’s erroneous denial of a request to change
counsel deprives a defendant of his Sixth Amendment right to
counsel, which “infect[s] the entire trial process,” requiring
automatic reversal (quoting Bland v. Cal. Dep’t of Corr., 20
F.3d 1469, 1478 (9th Cir. 1994), overruled on other grounds by
Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000))).
¶7 Therefore, as the court of appeals correctly concluded
in this matter, to protect a defendant’s Sixth Amendment right
to counsel, a trial judge has the duty to inquire as to the
basis of a defendant’s request for substitution of counsel.
Torres, 206 Ariz. at 57, ¶ 18, 75 P.3d at 147; e.g., Smith v.
Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (finding that
“[w]hen a defendant raises a seemingly substantial complaint
about counsel, the judge ‘has an obligation to inquire
thoroughly into the factual basis of defendant’s
dissatisfaction’” (quoting United States v. Hart, 557 F.2d 162,
163 (8th Cir. 1977) (per curiam))); United States v. Lott, 310
F.3d 1231, 1249 (10th Cir. 2002) (“If a defendant makes
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sufficiently specific, factually based allegations in support of
his request for new counsel, the . . . court must conduct a
hearing into his complaint.”). It is not sufficient to advise
the defendant to contact the Public Defender’s Office, as the
trial court did in this case. Instead, the court must make an
inquiry on the record. See, e.g., United States v. Morrison,
946 F.2d 484, 499 (7th Cir. 1991) (finding that the court must
make some inquiry into the reasons for the defendant’s
dissatisfaction with his lawyer).
¶8 The nature of the inquiry will depend upon the nature
of the defendant’s request. For example, generalized complaints
about differences in strategy may not require a formal hearing
or an evidentiary proceeding. See State v. Henry, 189 Ariz.
542, 547, 944 P.2d 57, 62 (1997) (finding that a disagreement
over tactical decisions that may raise concerns about an
attorney’s competence is more properly analyzed in a post-
conviction relief proceeding); State v. Tejeda, 677 N.W.2d 744,
751 (Iowa 2004) (stating that courts are not required to
“conduct a hearing every time a dissatisfied defendant lodges a
complaint about his attorney”). However, “[i]f a defendant
makes sufficiently specific, factually based allegations in
support of his request for new counsel, the . . . court must
conduct a hearing into his complaint.” Lott, 310 F.3d at 1249.
At such a hearing, the defendant bears the burden of
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demonstrating that he has a genuine irreconcilable conflict with
his counsel or that there has been a total breakdown in
communications. Id. (stating that “to prove a total breakdown
in communication, a defendant must put forth evidence . . . that
he had such minimal contact with the attorney that meaningful
communication was not possible”). If a defendant establishes a
total breakdown in communication, or an irreconcilable conflict
with his attorney, then the trial judge must grant the request
for new counsel. Henry, 189 Ariz. at 547, 944 P.2d at 62.
¶9 In this case, Torres presented specific factual
allegations that raised a colorable claim that he had an
irreconcilable conflict with his appointed counsel. In light of
Torres’ allegations, the trial judge abused his discretion by
not conducting an inquiry into Torres’ request for substitution
of counsel. See United States v. Morris, 714 F.2d 669, 673 (7th
Cir. 1983) (“In order to exercise its discretion properly the
court must elicit from the defendant the reasons for his
objection to counsel . . . .”). Accordingly, we must decide the
appropriate remedy when a trial judge does not conduct an
inquiry into a defendant’s colorable claim of an irreconcilable
conflict with his counsel.
B.
¶10 The court of appeals in this case held that the
failure to conduct an inquiry into a colorable claim for
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substitution of counsel requires automatic reversal. Torres,
206 Ariz. at 57, ¶ 17, 75 P.3d at 147. In effect, this holding
classifies a trial court’s failure to conduct such an inquiry as
structural error. Two factors lead us to a contrary conclusion.
First, very few errors have been found to be of such magnitude
that they constitute structural errors. Second, a trial court’s
error in not conducting an inquiry often can be remedied without
having to reverse the conviction in the first instance.
¶11 The United States Supreme Court has defined
“structural error” as error that affects “the framework within
which the trial proceeds, rather than simply an error in the
trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310
(1991). The Court has limited structural errors to the
following: the complete denial of counsel; a biased trial
judge; the unlawful exclusion of members of defendant’s race
from the jury; the denial of self-representation at trial; the
denial of a public trial; and a defective reasonable doubt
instruction. Neder v. United States, 527 U.S. 1, 8 (1999);
Fulminante, 499 U.S. at 309-10. Thus, the Court finds
structural errors in a “very limited class of cases.” Neder,
527 U.S. at 8 (quoting Johnson v. United States, 520 U.S. 461,
468 (1997)).
¶12 As mentioned previously, we have held that forcing a
defendant to go to trial with counsel with whom he has a
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completely fractured relationship constitutes a deprivation of
the right to counsel, which is structural error. Moody, 192
Ariz. at 509, ¶ 23, 968 P.2d at 582. But it does not
necessarily follow that a superior court’s failure to conduct an
inquiry into a request for change of counsel violates the
defendant’s Sixth Amendment right to counsel. The court of
appeals here implicitly conceded as much when it speculated that
the trial court’s error “may have subjected [Torres] to
‘representation by a lawyer with whom he had a completely
fractured relationship.’” Torres, 206 Ariz. at 57, ¶ 17, 75
P.3d at 147 (quoting Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at
582) (emphasis added). The mere possibility that the defendant
had a fractured relationship with counsel does not amount to
structural error. Rather, most courts apply a harmless error
analysis to a trial court’s erroneous summary denial of a
request to change counsel. See Lott, 310 F.3d at 1250-52;
Morrison, 946 F.2d at 499; McKee v. Harris, 649 F.2d 927, 933-
34 (2d Cir. 1981). We agree with those courts and hold that a
trial judge’s summary denial of a defendant’s motion to change
counsel is not structural error requiring automatic reversal.
¶13 Instead, we conclude that the appropriate remedy for a
trial court’s error in this situation is to remand for a hearing
on the defendant’s allegations. See, e.g., Lott, 310 F.3d at
1250 (remanding the case to the district court to conduct a
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hearing regarding the defendant’s allegation of total breakdown
in communication); People v. Olivencia, 251 Cal. Rptr. 880, 885-
86 (Ct. App. 1988) (holding that the appropriate remedy for a
trial court’s refusal to consider an indigent defendant’s
request for new counsel is to remand for a hearing); City of
Billings v. Smith, 932 P.2d 1058, 1063 (Mont. 1997) (same);
State v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998) (same).
If on remand the trial judge rules that the defendant was not
entitled to a change in counsel, that decision can then be
reviewed on appeal. See, e.g., People v. Maese, 214 Cal. Rptr.
365 (Ct. App. 1985) (reviewing case on appeal after remand for
hearing on defendant’s request for new counsel).
¶14 Having decided that the appropriate remedy for the
trial court’s failure to conduct an inquiry into Torres’ request
is to remand for a hearing, we now turn to the factors and
procedures that the trial court should apply on remand.
II.
¶15 A trial judge confronted with an indigent defendant’s
request to change counsel should consider the following factors:
[W]hether 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 elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.
Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580 (quoting LaGrand,
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152 Ariz. at 486-87, 733 P.2d at 1069-70). However, in most
cases, the “quality of counsel” factor will not be a
consideration when a defendant requests substitution of counsel.
In essence, this factor generally relates more to a claim of
ineffective assistance of counsel, which we have since concluded
must be raised in a Rule 32 proceeding. See State v. Spreitz,
202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (“[I]neffective
assistance of counsel claims are to be brought in Rule 32
proceedings.”).
¶16 In applying these factors to Torres’ motion on remand,
the trial judge should not consider itself limited to the facts
as they existed at the time it denied the motion. Indeed,
subsequent events may be relevant to prove or disprove whether
an irreconcilable conflict or a total breakdown in communication
occurred. For instance, Torres’ motion may have prompted his
attorney to address Torres’ complaints, thereby resolving the
alleged conflict. E.g., Bass v. United States, 580 A.2d 669,
671 (D.C. 1990) (“[We] agree with the government that it would
be unreasonable to ignore any relevant preparation that counsel
might have conducted in the three months between the date of
[defendant’s complaint about the ineffectiveness of his counsel]
and the beginning of the trial.”). The trial court, therefore,
may consider the motion to substitute counsel in light of the
facts and circumstances both when the motion was originally made
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and also after it was denied.
¶17 We emphasize, however, that the issue at the hearing
will not be whether Torres received effective assistance of
counsel under the standards set forth in Strickland v.
Washington, 466 U.S. 668 (1984), as some jurisdictions require.
See, e.g., United States v. Graham, 91 F.3d 213, 217, 221-22
(D.C. Cir. 1996) (holding that the defendant must demonstrate
not only that the district court abused its discretion in
denying a motion for substitution of counsel, but that the
defendant was prejudiced by that error under Strickland).
Ineffective assistance of counsel is a separate issue that can
be raised only in a proceeding for post-conviction relief.
Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527; see also Lott, 310
F.3d at 1252 (noting that ineffectiveness claims “must almost
always be brought on collateral attack”). Applying a Strickland
standard would, in effect, “eliminate a defendant’s ability to
bring a right to counsel claim on direct appeal.” Lott, 310
F.3d at 1252. Moreover, it is possible for a clearly guilty
defendant and his counsel to have an irreconcilable conflict.
The fact that the defendant would have been convicted absent the
conflict does not obviate the Sixth Amendment violation when the
trial court errs in denying a motion to substitute counsel. See
Henry, 189 Ariz. at 547, 944 P.2d at 62 (“Unlike other factors,
the presence of a genuine irreconcilable conflict requires the
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appointment of new counsel.”).
¶18 Accordingly, the trial court’s inquiry on remand is
limited to whether Torres can establish that he had a completely
fractured relationship with his appointed counsel either because
of an irreconcilable conflict or because of a total breakdown in
communications. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 582.
If Torres establishes that he had a fractured relationship with
his lawyer, the trial court must vacate the convictions and
order a new trial.
III.
¶19 For the foregoing reasons, we vacate that portion of
the court of appeals opinion that reversed Torres’ conviction.
We remand the case to the trial court for further proceedings
consistent with this opinion.
__________________________________
Michael D. Ryan, Justice
CONCURRING:
_________________________________________
Charles E. Jones, Chief Justice
_________________________________________
Ruth V. McGregor, Vice Chief Justice
_________________________________________
Rebecca White Berch, Justice
_________________________________________
Andrew D. Hurwitz, Justice
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