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State v. Merrick

Court of Appeals of Arizona, First Division, Department D

June 18, 2013


Maricopa County Superior Court No. CR2010-005367-001.


MAURICE PORTLEY, Presiding Judge.

The Arizona Supreme Court has directed this court to address whether Appellant Anthony Merrick timely requested to discharge his appellate lawyer and represent himself on appeal. Presiding Judge Maurice Portley, and Judges Patricia K. Norris and Lawrence F. Winthrop, have reviewed the record and conclude that Appellant waived his right to represent himself on appeal.

Procedural Background

The facts of the case are outlined in State v. Merrick, 1 CA-CR 11-0549, 2012 WL 4955425, at *1 (Ariz. App. Oct. 18, 2012) (mem. decision). After the jury found him guilty, Appellant waived counsel and acted as his own lawyer. He filed a number of unsuccessful motions, including one for new trial. He was subsequently sentenced and filed a notice of appeal on August 2, 2011.

This court appointed appellate counsel for Appellant ten days later. Counsel filed the opening brief on March 13, 2012. One week later, Appellant filed an unsuccessful pro se motion for permission to "file a supplemental brief raising additional issues or in the alternative to strike the brief filed and allow appellant to file another brief." He then moved for reconsideration on March 27, 2012, and argued that he did not authorize the opening brief to be filed and "ask[ed] this court to allow him his constitutional right to file his own appellate brief, pro per." The motion also stated that: Appellant did not want counsel; counsel does not speak for him; and counsel was supposed to have notified this court that he wanted to proceed pro per. The motion was denied.

Appellant then filed an unsuccessful motion to file a supplemental brief on April 10, 2012. After we resolved the merits of his appeal, Appellant filed a pro se petition for review. In addition to raising two challenges to the decision, he asserted that he was precluded from representing himself on appeal.[1] The supreme court denied review on his first two issues, but directed this court to address whether Appellant timely requested to represent himself on appeal.


Our supreme court has only once cited to Article 2, section 24 of the Arizona Constitution for the proposition that a defendant can represent himself on appeal. In State v. Stevens, after Stevens was sentenced and advised of his appellate rights, Stevens sought to represent himself by filing his notice of appeal and requesting that the transcripts and minutes be sent to him directly so he could "formulate his appeal." 107 Ariz. 565, 566, 490 P.2d 571, 572 (1971). The court gave him a number of extensions to file his brief and when he did not meet the deadline the appeal was ordered to be submitted for consideration on the record. Id.

Following Stevens, we assume without deciding that a defendant has a state constitutional right to represent himself on appeal, but note that Stevens did not address when or how a defendant can dismiss his appellate lawyer.[2] The Washington Supreme Court has held that although the state constitution allowed defendant to discharge counsel and represent himself on appeal, "the timing of the defendant's request [to represent himself] may be so tardy as to compromise the execution of an orderly and timely appeals process." State v. Rafay, 222 P.3d 86, 90, ¶ 16 (Wash. 2009). Although Rafay did not resolve the issue, the Supreme Court of Pennsylvania stated that a defendant cannot dismiss appellate counsel and prosecute his appeal pro se after the opening brief is filed. Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (citing Commonwealth v. Rogers, 645 A.2d 223, 224 (Pa. 1994) (Flaherty, J., dissenting); see also Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (rejecting the appellant's attempt to represent himself on appeal after the opening brief was filed).

The Grazier rule is a common sense approach to the issue and minimizes the disruption of the appellate process. If, for example, Appellant had timely requested to act as his own lawyer after appellate counsel was appointed, this court, to comport with the rules of criminal procedure, would have had to suspend the appeal, and revest the trial court with jurisdiction so that it could hold a hearing with Appellant present to determine whether his request to waive counsel was made knowingly, intelligently and voluntarily. See Ariz. R. Crim. P. 6.1(c); see, e.g., Smith v. State, 739 S.W.2d 92, 93 (Tex. Ct. App. 1987). If the court found that the request was informed and voluntary, we would have had to resume jurisdiction and issue a new briefing schedule after giving Appellant time to secure and review the record. To engage in such a process after the opening brief has been filed would "compromise the execution of an orderly and timely appeals process." Rafay, 222 P.3d at 90, ¶ 16.

Here, unlike Stevens, Appellant did not advise the trial court that he wanted to personally prosecute his appeal. He did not challenge the appointment of appellate counsel or substitute appellate counsel and request to represent himself. He did not specifically tell this court that he wanted to represent himself without the aid of counsel until after the opening brief was filed.[3] As a result, Appellant waived his opportunity to represent himself on appeal.

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