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State v. Weaver

Court of Appeals of Arizona, Second Division

March 5, 2018

The State of Arizona, Appellee,
v.
Victor Leonard Weaver, Appellant.

         Appeal from the Superior Court in Pinal County No. S1100CR201502711 The Honorable Steven J. Fuller, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee

          The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE

         ¶1 Victor Weaver appeals from his convictions and sentences for possession of marijuana, possession of drug paraphernalia, and resisting arrest. He contends the trial court committed structural error by denying his motion to represent himself. We agree, and for the following reasons vacate the decision of the trial court, vacate the convictions and sentences, and remand for further proceedings.

         Factual and Procedural History

         ¶2 "We view the facts in the light most favorable to sustaining the trial court's ruling." State v. Colvin, 231 Ariz. 269, ¶ 2 (App. 2013). In August 2015, early in the morning, Casa Grande police officers responded to an apartment complex following reports that an individual had been "loud and disturbing." An officer approached Weaver and saw he was holding an aluminum can with burn marks and a depression in the middle, something the officer recognized as a crude marijuana pipe. In response to the officer's request, Weaver dropped the can but then took a "boxer's stance" and began jabbing at the air, asking the officer if he "wanted to go for it." Two other officers approached Weaver from behind, and he assumed the same stance toward one of them. The first officer warned Weaver to "calm down or he would be Tased." Weaver nevertheless maintained his stance, and the officer deployed a Taser and arrested him.

         ¶3 On the morning of trial, before calling the first panel of jurors, Weaver stated he wanted to represent himself. When the trial court asked if he was prepared to begin trial that morning, Weaver said he was not and requested a continuance. After a brief recess during which the court reviewed the case file and certain reports pertaining to Weaver's competency, the court denied the request finding it "untimely and that it would cause a disruption or delay to the trial." A few minutes later, Weaver, through counsel, asked whether he would be able to participate in his case, and the court told him he would be able to testify if he so chose.

         ¶4 After a recess, but before the first potential jurors entered the courtroom, Weaver indicated "he still want[ed] to represent himself and [was] ready to go" without continuing the trial. The court stated it had "already ruled on that motion" and the trial was "moving forward."

         ¶5 Following lunch recess, the prosecutor notified the court that the denial might be an "appellate issue." The court reiterated that Weaver's request was not timely because, although his case had been pending for a year, he only raised the issue "literally five minutes before we brought the jury up." In the alternative, the court determined granting the request "would disrupt or delay the proceedings" because it believed Weaver's earlier statements that he was not prepared to proceed to trial over his later assertion that he was ready. On the second and final day of trial, the court made an additional record based on its reading of Arizona case law that a motion for self-representation is not necessarily timely if made before jury selection begins, but depends on "all the other factors" of the case.

         ¶6 After trial, the jury found Weaver guilty of all three counts as described above. The court suspended imposition of his sentence and placed Weaver on supervised probation for two years. Weaver appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).

         Right to Represent Oneself

         ¶7 Weaver argues the trial court committed structural error by summarily denying his motion to represent himself. We review a decision denying a defendant's motion to proceed pro se for an abuse of discretion. State v. McLemore, 230 Ariz. 571, ¶ 15 (App. 2012). "[A]n erroneous failure to accord a defendant his properly asserted right to represent himself when he is competent to waive counsel in a criminal case is structural error requiring reversal without a showing of prejudice." Id. (collecting cases). Structural error is one that affects "the framework within which the trial proceeds, rather than ...


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