from the Superior Court in Pima County No. CR20144294001 The
Honorable Carmine Cornelio, Judge The Honorable Jane L.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Adele G. Ponce, Assistant Attorney
General, Tucson Counsel for Appellee
R. Sonenberg, Pima County Public Defender By Rebecca A.
McLean, Assistant Public Defender, Tucson Counsel for
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.
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,
and Procedural Background
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
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
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.
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).
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. 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).
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 ...