THE STATE OF ARIZONA, Appellee, JOHN MICHAEL BOURQUE, Appellant. No. 2 CA-CR Filed November 19, 2014

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1 IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. JOHN MICHAEL BOURQUE, Appellant. No. 2 CA-CR Filed November 19, 2014 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P Appeal from the Superior Court in Pima County No. CR The Honorable Richard D. Nichols, Judge VACATED AND REMANDED COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee

2 Resnick Law Group, PLLC, Tucson By Mark R. Resnick Vingelli & Company, Law Offices, PLLC, Scottsdale By John N. Vingelli Co-counsel for Appellant MEMORANDUM DECISION Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. H O W A R D, Judge: 1 Following a jury trial, appellant John Bourque was convicted of aggravated driving under the influence of an intoxicant (DUI) while his driver license was suspended, and aggravated driving with an alcohol concentration (AC) of.08 or more while his license was suspended. On appeal, he argues the trial court erred by finding he forfeited his right to counsel and for failing to allow him to accept a plea offer by the state the day before trial. Because Bourque was improperly denied his right to representation by counsel, we vacate his convictions and sentences and remand for a new trial. Factual and Procedural Background 2 We view the facts in the light most favorable to upholding the convictions. State v. Robles, 213 Ariz. 268, 2, 141 P.3d 748, 750 (App. 2006). In September 2009, Tucson police officers Michael Proctor and Christopher Duenas stopped Bourque s car after observing it make a wide left-hand turn, accelerate well over the posted speed limit, and make an erratic lane change. After approaching Bourque, Duenas observed signs that he was under the influence of alcohol. Bourque failed the horizontal gaze nystagmus test, and two breathalyzer tests produced results of.157 and.158 AC. 2

3 3 Bourque was charged and convicted as noted above. He was sentenced to enhanced, presumptive, and concurrent prison terms of 4.5 years. We have jurisdiction over his appeal pursuant to A.R.S (A)(1) and (A)(1). Forfeiture of Right to Counsel 4 Bourque first argues the trial court erred by finding he forfeited his right to counsel in violation of the Sixth Amendment. He contends his conduct did not rise to the level of misconduct required to be denied his right to counsel and the court erred by failing to provide him any warnings that his conduct could result in such a consequence. We review a Sixth Amendment denial of right to counsel claim de novo. State v. Rasul, 216 Ariz. 491, 4, 167 P.3d 1286, 1288 (App. 2007). But we defer to the trial court s factual findings unless they are clearly erroneous. Id. 5 A defendant is guaranteed the right to representation by counsel by the Sixth Amendment, but he can effectively forgo that assistance through his actions. Id. 6, quoting State v. Hampton, 208 Ariz. 241, 7, 92 P.3d 871, 873 (2004). Specifically, a defendant may expressly waive, waive by conduct, or forfeit that right. Id. Here, as the state concedes, Bourque did not expressly waive his right to counsel, and, because the trial court had not previously warned him that his conduct could result in the waiver of his right to counsel, he did not waive that right by conduct. See id. 6 A defendant can forfeit his right to counsel without any previous warning from the trial court if he engages in severe misconduct or a course of disruption aimed at thwarting judicial proceedings. Hampton, 208 Ariz. 241, 8, 92 P.3d at 874. Forfeiture, however, is reserved for the most severe cases of misconduct and should result only when less restrictive measures are inappropriate. Id. For example, forfeiture may be appropriate where a defendant physically assaults his counsel. See, e.g., Gilchrist v. O Keefe, 260 F.3d 87, 90, (2d Cir. 2001); United States v. Leggett, 162 F.3d 237, 240, (3d Cir. 1998); United States v. Jennings, 855 F. Supp. 1427, , (M.D. Pa. 1994). Alternatively, forfeiture may be appropriate where a defendant forces numerous attorneys to withdraw for irreconcilable conflict, or 3

4 threatens the personal safety of his attorneys. See, e.g., United States v. Sutcliffe, 505 F.3d 944, 955 (9th Cir. 2007); United States v. Thomas, 357 F.3d 357, , 363 (3d Cir. 2004); United States v. McLeod, 53 F.3d 322, (11th Cir. 1995); Rasul, 216 Ariz. 491, 14-19, 167 P.3d at Put broadly, forfeiture is appropriate when a defendant engages in extremely dilatory conduct or extremely serious misconduct. United States v. Goldberg, 67 F.3d 1092, 1101, 1102 (3d Cir. 1995). 7 Given the severity of the consequences, a trial court first must ensure that any less restrictive measures to address the delay or misconduct would be inappropriate. Hampton, 208 Ariz. at 244, 92 P.3d at 874. For example, if a defendant physically assaults his attorney, a trial court might have the defendant restrained before removing the defendant s right to an attorney. Id. at n.4, 92 P.3d at 874 n.4. Or a court may appoint new counsel if existing counsel must withdraw until it appears that doing so would be futile and would only enable the defendant to continue exploiting his constitutional right to counsel in order to delay proceedings. See Rasul, 216 Ariz. 491, 18, 167 P.3d at Conversely, where the misconduct is isolated to a single incident, forfeiture without any remedial steps taken by the trial court will likely be inappropriate. See, e.g., Goldberg, 67 F.3d at 1102 (single death threat against attorney, discussed at ex parte hearing where defendant not present and his rights not represented, insufficient to warrant forfeiture); Daniel Y. v. Ariz. Dep t of Econ. Sec., 206 Ariz. 257, 25, 77 P.3d 55, 61 (App. 2003) ( irreconcilable differences between client and counsel, without more, is not sufficient to merit forfeiture of the right to counsel without advance warning ); State v. Boykin, 324 S.E.2d 689, , 692 (S.C. Ct. App. 1996) (single incident of verbally abusing and threatening counsel insufficient to warrant forfeiture); State v. Holmes, 302 S.W.3d 831, (Tenn. 2010) (forfeiture not justified where physical assault not intended to delay proceedings, attorney did not suffer bodily injury, assault limited to first attorney, and other means available to protect attorney s safety). 9 Only one Arizona case has found that a defendant has forfeited his right to counsel. In Rasul, the defendant had threatened 4

5 the personal safety of one previous attorney and filed complaints with the state bar against several others. 216 Ariz. 491, 15-16, 167 P.3d at The trial court allowed eighteen court-appointed counsel to withdraw, but then refused to appoint another and found that he had forfeited his right to the appointment of counsel. Id. 5. At trial, Rasul refused the assistance of the advisory attorney appointed by the court, and chose not to be present for the trial. Id. On appeal, this court determined that not only was Rasul s conduct egregious, but that the trial court took the least restrictive measures by continually appointing counsel until it became clear that continuing to do so would be futile and appointing advisory counsel after determining Rasul had forfeited his right to representation by counsel. Id Here, Bourque substituted his first attorney approximately nine months after that attorney entered his appearance, and before any trial date had been set. His second attorney then filed eight motions to continue, citing conflicts with other scheduled trials, which the trial court granted. Nearly two years after the second attorney entered his appearance, Bourque retained a third attorney in his place. The trial date was continued for a ninth time, but later vacated due to a potential plea agreement. 11 At the change-of-plea hearing in late November 2012, Bourque rejected the state s plea agreement and his attorney moved to withdraw as counsel. The attorney stated that Bourque no longer wanted that attorney to represent him and had lost confidence in [the attorney s] judgment. The trial court denied the motion, citing its concerns with the length of time the case has been on the court s calendar, and set the trial date for February 5, The court informed Bourque that he was welcome to find substitute counsel, so long as that new counsel was able to try the case by February 5 pursuant to Rule 6.3(c), Ariz. R. Crim. P. Approximately a week later, the attorney renewed the motion to withdraw, which the court denied. 12 In early January 2013, the attorney again moved to withdraw as counsel, citing an irreconcilable conflict and a breakdown in communication as evidenced by Bourque s filing of a pro per motion with the court. The attorney, relying on State v. Lee, 5

6 142 Ariz. 210, 689 P.2d 153 (1984), told the court he could not reveal the source of the conflict, but avowed to the court that he could not continue representing Bourque. The court held an in camera hearing on the matter, at which Bourque was not present, and denied the motion. 13 On February 4, the day before trial was set to begin, the parties held a status conference and the attorney informed the trial court that Bourque had recently sued his office, the county attorney assigned to the case, and the trial judge who had been, up until that point, assigned to the case. The court, which viewed the lawsuit as an evasion on Bourque s part, allowed the attorney to withdraw as counsel and affirmed the trial date. The next morning, Bourque arrived at trial with another attorney whom he reportedly had retained three hours earlier. The court denied that attorney s motion to continue and denied his appearance. The court went on to find that based on its review of the file and all of the previous court appearances and the number of attorneys that you ve had that you have forfeited your right to counsel rather than having waived it. 14 Based on the record before us, Bourque s conduct did not rise to the level of misconduct required to justify a finding that he had forfeited his right to counsel. See Rasul, 216 Ariz. 491, 8-18, 167 P.3d at The majority of scheduling delays were attributable to Bourque s second attorney, and not Bourque himself. Nothing in the second attorney s eight motions to continue indicate that he was intentionally delaying the proceedings at Bourque s direction. The delays following the third attorney s substitution were for the purposes of plea negotiations. And the third attorney was the first of Bourque s attorneys to move to withdraw based on an irreconcilable conflict. But the record does not support a finding that the irreconcilable conflict was a result of serious misconduct on Borque s part. 15 Borque s act of suing those involved was inappropriate behavior and the record reflects that he was difficult in court. But, compared to the cases in which Sixth Amendment rights have been forfeited, Bourque did not engage in severe misconduct or a course of disruption aimed at thwarting judicial proceedings. Hampton, 208 Ariz. 241, 8, 92 P.3d at 874. Finding that Bourque had forfeited 6

7 his right to counsel solely based on scheduling delays that could not be attributed to Bourque directly and an irreconcilable conflict with his third counsel was insufficient to warrant such a serious sanction as forfeiture of the right to counsel. See Daniel Y., 206 Ariz. 257, 25, 77 P.3d at The state cites several cases which it contends demonstrate courts have concluded that the right to counsel is forfeited by misconduct similar to Bourque s. In the cases where courts concluded forfeiture was appropriate, however, the misconduct was still more egregious than what the record in this case reveals. See, e.g., McLeod, 53 F.3d at (attorney testified defendant was abusive toward him, threatened to harm him, repeatedly threatened to sue him, and asked him to engage in unethical conduct); United States v. Fowler, 605 F.2d 181, 183 (5th Cir. 1979) (defendant failed to retain counsel for seven months until one week before trial, but counsel unprepared to begin on trial date set); Siniard v. State, 491 So. 2d 1062, (Ala. Crim. App. 1986) (defendant failed to retain representation for eight months, despite being aware of trial date and representations to court that counsel was forthcoming, and retained attorney only on day trial began); Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa. Super. Ct. 2005) (defendant forfeited right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense ); State v. Carruthers, 35 S.W.3d 516, 535, , (Tenn. 2000) (defendant threatened multiple court-appointed counsel, sent threatening letters and made threatening phone calls to one attorney s home and office, and described car attorney s daughter drove). 17 Additionally, in two of the cases cited by the state, the appellate court determined that a finding of forfeiture was not appropriate either because it was not justified by the defendant s conduct, McNair v. Commonwealth, 561 S.E.2d 26, 28, 32 (Va. Ct. App. 2002) (defendant had gone through five court-appointed attorneys, but the record demonstrate[d] no more than that the defendant was difficult and did not believe his attorney was providing him with an adequate defense ), or because the defendant was denied due process before the finding of forfeiture, King v. Superior Court, 132 7

8 Cal. Rptr. 2d 585, , 600 (Ct. App. 2003) (although defendant s misconduct both serious and ongoing, finding of forfeiture reversed because defendant denied meaningful representation at hearing on issue of forfeiture). Based on the record before us, these cases do not support the state s contention that Bourque s misconduct justified a forfeiture of counsel. 18 Moreover, the trial court failed to take any remedial steps to ensure that Bourque s right to counsel was not forfeited. See Rasul, 216 Ariz. 491, 18, 167 P.3d at The court could have continued the trial to allow Bourque s new attorney to prepare, or appointed counsel or advisory counsel after allowing the third attorney to withdraw. Reviewing the record, it does not appear that appointing counsel would have been, at that point, a futile measure. See id. Because Bourque did not forfeit his right to counsel, we vacate his convictions and sentences and remand for a new trial. Plea Agreement 19 Bourque also argues the trial court erred by failing to allow him to accept the plea agreement proffered by the state the day before trial began. He contends that he was not aware, prior to the February 4 status conference, that the state was offering a probation available plea, that had he known this he would have taken it, and that he did, in fact, attempt to accept the plea agreement on February 4. We review a court s decision to accept or reject a defendant s plea agreement for an abuse of discretion. See State v. Superior Court, 183 Ariz. 327, 330, 903 P.2d 635, 638 (App. 1995). 20 At the November 2012 change-of-plea hearing, the trial court conducted a Donald 1 colloquy and informed Bourque that the state s plea agreement provided he would be required to serve four months in Department of Corrections. However, you would be eligible for probation. Probation could be for a period of up to four years.... You could also be sentenced to prison under that plea 1State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). 8

9 agreement... from two and a half to 3.75 years. Bourque rejected that plea agreement on the record. 21 At the February 4 status conference, the prosecutor informed the trial court that the previously offered plea agreement required four months in prison and stated that it was still available to Bourque if he wanted to take it. In response to the prosecutor s remarks, Bourque attempted to provide the court with some documents from the change-of-plea hearing and stated this is what she s saying. It is opposite of what I would have signed. Bourque did not make any other statements in response to the prosecutor s offer to re-open the plea agreement. The court did not want to see the documents and adjourned the proceedings. 22 Although Bourque claims, in his opening brief, that at the February 4 status conference he sought to take [the plea agreement] then and there, the transcript shows he made no such remarks to the trial court. Rather, he attempted to continue his argument that his third attorney had misled him regarding the previous plea agreement. And, contrary to his assertions on appeal, Bourque was informed at the Donald hearing that probation was available under the plea agreement being offered by the state. 2 Consequently, because Bourque s assertions are unsupported by the record before us, we reject this argument and find the trial court did not abuse its discretion. See Superior Court, 183 Ariz. at 330, 903 P.2d at To the extent Bourque argues that his counsel s performance related to the plea agreement was deficient and thus deprived him of the right to voluntarily and intelligently reject the state s plea agreement at the Donald hearing, we note that an ineffective assistance of counsel claim may only be brought in the context of a Rule 32 post-conviction relief proceeding. See State v. Spreitz, 202 Ariz. 1, 9, 39 P.3d 525, 527 (2002). 3Because we are vacating Bourque s convictions and sentences and remanding for a new trial, we need not address the other issues he raises on appeal. 9

10 Disposition 23 For the foregoing reasons, Bourque s convictions and sentences are vacated and we remand the case for a new trial. 10

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