                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      TORRENCE E. DAVIS, Appellant.

                             No. 1 CA-CR 17-0529
                               FILED 1-22-2019


           Appeal from the Superior Court in Maricopa County
                      Nos. CR2012-152527-001 DT
                           CR2016-135082-001 DT
              The Honorable Christopher A. Coury, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
                              STATE v. DAVIS
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.


W I N T H R O P, Presiding Judge:

¶1             Torrence E. Davis appeals his conviction and sentence for
theft of means of transportation.1 He argues the trial court committed
reversible error by depriving him of his right to represent himself both (1)
at trial and (2) before sentencing. For the following reasons, we affirm his
conviction and sentence.

                FACTS AND PROCEDURAL HISTORY2

¶2            Davis was stopped by law enforcement while driving a stolen
vehicle. He was convicted of theft of means of transportation and sentenced
to 11.25 years’ imprisonment.

¶3            He timely appealed his conviction and sentence. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033(A)(1), (3), and (4).

                                  ANALYSIS

    I.    The court did not deprive Davis of the right to represent himself at trial.

¶4           Before trial, Davis told the court he had discovery motions he
wanted his attorney to file. Davis told the court that if his attorney did not




1      Davis also appeals his probation revocation, for which he received a
consecutive, minimum sentence of 1.5 years’ imprisonment, but he raises
no issue in that regard. We note that, pursuant to his plea agreement, he
knowingly waived his right to appeal that conviction and sentence, and we
find no error in the subsequent revocation and sentencing proceedings.

2      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citation omitted).


                                        2
                              STATE v. DAVIS
                             Decision of the Court

file those motions, he would be willing to represent himself. The court told
him the following:

              Well, you can go pro per if you want to, but at this
       point, your attorney is the one that decides strategy. Your
       attorney is the one that decides what motions get filed and
       what motions don’t get filed. He’s not going to file a motion
       that he doesn’t think there’s a legal basis for.

Davis responded:

              I do. So if that’s the case, I have to file, I have to go pro
       per, then that’s what I want to do.

The court never directly addressed this statement. Davis argues the failure
to address the statement amounted to the deprivation of his right to
represent himself. We review the denial of a defendant’s motion to
represent himself for an abuse of discretion. See State v. Boggs, 218 Ariz. 325,
338, ¶ 62 (2008). Regardless of the standard of review, the erroneous denial
of a pretrial or mid-trial motion for self-representation is structural error
requiring reversal without a showing of prejudice. See State v. McLemore,
230 Ariz. 571, 575-76, ¶ 15 (App. 2012).

¶5            A defendant has a right to represent himself at trial. See
Faretta v. California, 422 U.S. 806, 818-19 (1975). To invoke this right, a
competent defendant must knowingly and voluntarily invoke his right to
self-representation. See State v. Weaver, 244 Ariz. 101, 104, ¶ 8 (App. 2018)
(citations omitted). A demand to represent oneself must also be
unequivocal. Id. (citing McLemore, 230 Ariz. at 576, ¶ 17).

¶6             Here, Davis’ demand to represent himself was not
unequivocal. He conditioned his demand on his attorney’s unwillingness
to file requested motions. Davis’ demands were preceded by conditional
phrases, “if [the attorney] doesn’t want to [file the requested motions], then
I’m willing to put in the motions to go pro per myself,” and “if [he does not
think there is a legal basis for the requested motions], I have to file, I have
to go pro per.” These conditional statements leave open the possibility that
Davis did not want to represent himself if his attorney fulfilled his requests.
By placing conditions upon his desire to represent himself, Davis did not
make an unequivocal demand.

¶7          Even if his demand was unequivocal, however, he
subsequently abandoned his motion for self-representation. A defendant
may abandon his Faretta motion. See McLemore, 230 Ariz. at 582, ¶ 36. When


                                        3
                             STATE v. DAVIS
                            Decision of the Court

determining whether abandonment has occurred, we consider the totality
of the circumstances. Id. at 580, ¶ 29. We consider—among other factors—
“the defendant’s opportunities to remind the court of a pending motion
[and] defense counsel’s awareness of the motion.” Id. at 582, ¶ 35. In this
case, after his unanswered request, Davis attended eight pretrial
conferences with his attorney. He did not raise his allegedly pending
motion at any of these opportunities, suggesting he no longer desired to
represent himself. Further, as stated before, Davis’ Faretta motion was
conditional, depending upon whether his attorney fulfilled certain
requests. Davis argued the State had not disclosed discovery items it
possessed. At conclusion of the pretrial conference in which Davis made
his conditional demand to represent himself, the court ordered the State to
provide outstanding discovery. This, combined with Davis’ subsequent
failure to remind the court about or re-urge his motion, indicates his
requests had been fulfilled, and he had abandoned his Faretta motion. In
addition, his attorney was aware of his motion. The court, on two later
occasions, asked his attorney if there were any outstanding motions. On
both occasions, his attorney told the court—with Davis present in the
courtroom—that there were none. We find no abuse of discretion.

   II.    The court did not reversibly err by not allowing Davis to represent
          himself after his guilty verdict.

¶8            After Davis was convicted of theft of means of transportation,
he unequivocally requested to represent himself. The court began the
colloquy to ensure his request was knowing and voluntary. During the
colloquy, Davis told the court he was willing to receive the maximum
amount of time he could receive in prison. The court denied the motion for
self-representation. Davis argues this denial was reversible error. Again,
we review for an abuse of discretion. See Boggs, 218 Ariz. at 338, ¶ 62.

¶9             Although we view the erroneous denial of a pretrial or mid-
trial Faretta motion as structural error, the post-trial denial of a motion for
self-representation is subject to harmless-error review. Structural errors
“affect the entire conduct of the trial from beginning to end, and thus taint
the framework within which the trial proceeds.” State v. Henderson, 210
Ariz. 561, 565, ¶ 12 (2005) (citations and internal quotations omitted). In
contrast, a post-trial denial of a motion for self-representation does not
affect the framework of the trial. Our analysis is supported by decisions of
the Ninth Circuit. See United States v. Maness, 566 F.3d 894, 896-97 (9th Cir.
2009); see also United States v. Walters, 309 F.3d 589, 592-93 (9th Cir. 2002)
(reviewing an alleged sentencing error involving representation for
harmless error).


                                      4
                            STATE v. DAVIS
                           Decision of the Court

¶10             Even assuming without deciding the court erred, Davis
cannot demonstrate prejudice. If he had represented himself, Davis would
have received the same sentence. At a pre-sentencing hearing, the State
presented evidence, and the court found beyond a reasonable doubt, that
Davis was convicted of a class 2 felony for an offense committed on March
29, 2004. The current offense was committed on July 24, 2016. For a class 2
felony to be a historical prior felony, it must have been committed within
ten years of the current offense. See A.R.S. § 13-105(22)(b). Because the
calculation period excludes Davis’ five-year period of incarceration, the
class 2 felony is a historical prior felony. See A.R.S. § 13-105(22)(b). Davis
also testified at trial that he committed another felony within five years of
the commission of the charged offense, thereby admitting another historical
prior felony. See A.R.S. § 13-105(22)(b)-(c). With two historical prior
felonies, Davis was required to be sentenced as a Category 3 offender for a
class 3 felony offense. See A.R.S. § 13-703(C). Further, the jury found Davis
was on probation at the time of the offense, meaning he had to be sentenced
to at least the presumptive term. See A.R.S. § 13-708(C). The jury also found
the State had not proven any of the other alleged aggravating factors,
meaning Davis could not have received a maximum or aggravated
sentence. See A.R.S. §§ 13-701(C), -703(K). Therefore, Davis—regardless of
representation—could only have been sentenced to 11.25 years’
imprisonment. See A.R.S. § 13-703(J)-(K). Accordingly, Davis cannot
demonstrate prejudice.

                               CONCLUSION

¶11           Davis’ conviction and sentence are affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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