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State v. Koepke

Court of Appeals of Arizona, Second Division

June 29, 2016

The State of Arizona, Appellee,
v.
Demirus Ananda Koepke, Appellant.

         Appeal from the Superior Court in Pima County No. CR20144294001 The Honorable Carmine Cornelio, Judge The Honorable Jane L. Eikleberry, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Adele G. Ponce, Assistant Attorney General, Tucson Counsel for Appellee

          Steven R. Sonenberg, Pima County Public Defender By Rebecca A. McLean, Assistant Public Defender, Tucson Counsel for Appellant

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

          OPINION

          MILLER, Judge

         ¶1 Demirus Koepke appeals her conviction for second- degree burglary, for which she was ordered to complete two years' supervised probation. She argues her attorney's assistance by a law student under Rule 38(d), Ariz. R. Sup. Ct. without her written consent amounted to a denial of her right to counsel. For the reasons that follow, we affirm.

         Factual and Procedural Background

         ¶2 The undisputed evidence showed that in October 2014, Koepke entered her neighbors' house without permission while they were away on vacation and took some jewelry. A licensed attorney from the public defender's office was appointed to represent Koepke one week after she was indicted. The attorney filed several motions in limine before trial. The court held a hearing on the motions in April 2015. Koepke, who was not in custody, did not attend the hearing and her presence was waived. Koepke's attorney was present, together with a law student who told the court he was appearing on Koepke's behalf as a certified limited practice student pursuant to Rule 38(d)(5). The law student and the attorney both substantially participated in arguing the motions, some of which the court granted and others it denied.

         ¶3 The case proceeded to a jury trial, at which Koepke's attorney and the law student were again present. The law student gave the opening statement, cross-examined several of the state's witnesses, and conducted the direct and redirect examination of Koepke. She was convicted and sentenced as outlined above, and we have jurisdiction over her appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

         Right to Counsel

         ¶4 The record reveals, and Koepke does not dispute, that a licensed attorney represented her and was present in all proceedings. However, the record contains no written consent to a law student's appearance on Koepke's behalf, nor any indication that such written consent (if it existed) was ever "brought to the attention of the judge, " a twofold violation of Rule 38(d)(5)(C)(i). Koepke argues that counsel's failure to strictly comply with Rule 38(d) meant that she lacked "licensed counsel" at the hearing on her motions in limine and at trial in violation of her right to counsel.

         ¶5 It is "axiomatic" that a criminal defendant threatened with a loss of liberty has the right to assistance of competent counsel at trial and on appeal. Zarabia v. Bradshaw, 185 Ariz. 1, 3, 912 P.2d 5, 7 (1996); see U.S. Const. amends. VI, XIV; Ariz. Const. art. II, §§ 4, 24; A.R.S. § 13-114(2); Ariz. R. Crim. P. 6.1. The right to counsel attaches at "every critical stage of criminal proceedings"; that is, every stage at which "'substantial rights of the accused may be affected.'" State v. Conner, 163 Ariz. 97, 104, 786 P.2d 948, 955 (1990), quoting Mempa v. Rhay, 389 U.S. 128, 134 (1967). For an indigent defendant, the right to counsel includes the right to appointed counsel, but includes neither a right to counsel of choice nor a guarantee of a "'meaningful relationship'" with counsel. State v. Hernandez, 232 Ariz. 313, 12, 305 P.3d 378, 383 (2013), quoting State v. Gomez, 231 Ariz. 219, 19, 293 P.3d 495, 500 (2012).

         ¶6 We review Sixth Amendment issues de novo. See State v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193, 1210 (2005). A complete denial of the right to counsel is structural error requiring reversal.[1] State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 233, 235-36 & n.2 (2009); State v. Moody, 192 Ariz. 505, ¶ 23, 968 P.2d 578, 582 (1998); see also United States v. Cronic, 466 U.S. 648, 658-59 (1984) (complete denial of counsel, or counsel's utter failure to subject state's case to meaningful adversarial testing, renders adversary process presumptively unreliable).

         ¶7 In State v. Terrazas, 237 Ariz. 170, ¶¶ 2-5, 347 P.3d 1151, 1151-52 (App. 2015), we faced a situation similar to the one before us. Terrazas was represented by an attorney who was supervising a law student properly certified to practice pursuant to Rule 38(d). Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. However, the student's Rule 38(d) certification expired before the representation was complete. Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. We rejected Terrazas's argument that he had been completely deprived of counsel as a result of the student's appearance after the expiration. See id. ¶¶ 4-5 ("we can discern no reason to adopt . . . a rule" regarding failure to strictly comply with Rule 38(d) as structural error). Notwithstanding the Rule 38(d) violation, we emphasized that Terrazas was at all times represented by a licensed attorney who was "'fully responsible for the manner in which [the proceedings] [we]re conducted.'" Terrazas, 237 Ariz. 170, ¶ 5, 347 P.3d at 1152, quoting Ariz. R. Sup. Ct. 38(d)(5)(C)(i)(c) (alterations in Terrazas); see also Ariz. R. Sup. Ct. 38(d)(5)(E)(iii) (supervising attorney "assume[s] personal professional responsibility for any work performed" by law student). We expressly adopted the reasoning of the Illinois Supreme Court, holding that "'[t]he presence of the licensed attorney, who ...


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