THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

HALL, Judge.

¶1 Defendant, Neftali Eduardo Mendoza Soto, appeals from his convictions on two counts of aggravated driving while under the influence of intoxicating liquor or drugs (DUI), each a Class 4 felony. The charges arise1 after a Phoenix police officer stopped defendant's vehicle because one of his front headlights was out during the evening of November 4, 2008. Defendant admitted to drinking a liter of tequila earlier that day and to knowing that his driver license was suspended. Defendant was so unsteady on his feet that officers did not administer any Field Sobriety Tests (FST) for defendant's own safety. However, defendant was given a Horizontal Gaze Nystagmus (HGN) test and exhibited all six cues for impairment. Defendant also consented to a blood test that revealed that his blood alcohol level (BAC) was 0.296 within two hours of driving.

¶2 A jury found defendant guilty of two counts of aggravated DUI as charged, and the trial court found that defendant had three2 historical prior felony convictions. Defendant was subsequently sentenced to two concurrent presumptive 10-year prison terms and ordered that the sentences be served consecutive to the sentences imposed in three other cases involving probation revocations: CR 2005-133167-001SE; CR 2006-122656-001DT; and CR 2006-154840-001DT.

¶3 Defendant's notice of appeal was accepted as timely filed by the trial court pursuant to Arizona Rule of Criminal Procedure 32.1(f). This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (1992), 13-4031 and -4033 (2010).

¶4 Defendant argues on appeal that the trial court erred: (1) by denying his initial request to represent himself as untimely because it was made after the jury was impaneled but before opening statements, and (2) by accepting his waiver of his right to trial counsel without advising him that he would also be waiving his right to an "effective assistance of counsel" claim, which establishes that his waiver was not "knowingly and intelligently" made. For reasons set forth below, we affirm.

DISCUSSION

Timeliness of Request to Represent Himself

¶5 After the jury was impaneled, but before opening statements were given, the trial court was advised that defendant desired to represent himself at trial. The court denied the motion, stating "[w]e don't make those changes in the middle of trial" and noting that defendant had numerous occasions to broach the subject prior to that moment but had steadfastly "maintained that he wanted his right to counsel."

¶6 The State then gave its opening statement and the defense reserved its opening. Both sides questioned the State's first witness, the officer who made the traffic stop, and the State completed its examination of its second witness before the lunch recess.

¶7 After the lunch recess, defense counsel renewed defendant's request to represent himself, and defendant submitted a written waiver of attorney. Counsel informed the court that defendant did not make his request before the jury was impaneled because he did not want to conduct voir dire. Counsel conceded that case law required the request to be made "before the jury is impaneled." Nonetheless, counsel argued that the request was timely because it had been made prior to opening statements when the jury "knew nothing of the case" and when "no meaningful trial proceedings had commenced."

¶8 The trial court disagreed and found that "making the request after the jury has been sworn and we are ready to begin with opening statements is untimely." However, after engaging in an extensive examination of defendant about the rights he would be relinquishing and the perils and consequences of self-representation, the trial court granted defendant's request, concluding, under the totality of the circumstances, that defendant was "knowingly, intelligently, and voluntarily" waiving his right to counsel. The court appointed defense counsel as defendant's advisory counsel for trial.

¶9 Defense counsel then voiced his concern "that this balancing test did not take place earlier" because defendant had now "lost out on an opportunity to cross-examine" the officer who made the traffic stop as well as the "opportunity to do an opening statement." The trial court addressed counsel's concerns and stated that: (1) defendant would have the opportunity to present an opening statement, and (2) the first witness could be recalled for cross-examination or defendant could call the officer in his case-in-chief to question him.

¶10 Defendant now argues that the trial court abused its discretion by finding that his request to represent himself was untimely because it was made after the jury was impaneled. He also argues that the court's delay in granting his request prejudiced him because the court's proposed remedies did not sufficiently cure the fact that he had "[l]ost forever his opportunity to present his view of what the evidence would show and his theory of the case before the jury heard any testimony" or the fact that he could not "un-ask the questions" he would not have asked of the State's first witness.

¶11 "The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself." State v. Lamar, 205 Ariz. 431, 435, ¶ 22, 72 P.3d 831, 835 (2003) (citing Faretta v. California, 422 U.S. 806, 836 (1975)). Generally, a request to proceed pro se is considered "timely" if it is made "before meaningful trial proceedings have commenced, which courts have interpreted to mean before the jury is empaneled." Id. at 436, ¶ 22, 72 P.3d at 836; see also State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985) (motion to proceed without counsel timely if made before jury impaneled; some courts indicate it must be made in advance of trial). Concomitantly, therefore, a defendant's motion to proceed pro se after jury selection has begun is viewed as untimely, and the decision whether to grant such a motion lies within the sound discretion of the trial court. State v. Cornell, 179 Ariz. 314, 326, 878 P.2d 1352, 1364 (1994); De Nistor, 143 Ariz. at 413, 694 P.2d at 243. In reaching its decision, a trial court should consider "the reasons for the defendant's request, the quality of counsel, the defendant's proclivity to substitute counsel, and the disruption and delay expected in the proceedings if the request were to be granted." De Nistor, 143 Ariz. at 413, 694 P.2d at 243 (citation omitted).

¶12 Here, the trial court initially denied defendant's request as untimely, noting that defendant had many opportunities prior to the empanelment of the jury to make such a request but had failed do so. "Denial of a defendant's untimely motion is not an abuse of discretion." Cornell, 179 Ariz. at 326, 878 P.2d 1364. Although defendant filed numerous motions to change his counsel prior to trial, he made no pretrial request to represent himself even though he had equal opportunity to do so. Furthermore, as defense counsel acknowledged, defendant intentionally delayed his request because he wanted defense counsel to conduct voir dire.

¶13 Defendant contends that his request to represent himself was not a "delay tactic" and that he did not seek a continuance. The record belies his argument. After the defense attorney informed the court that defendant was not seeking "any sort of continuance" but "just want[ed] to jump into the attorney shoes and start going with the trial," defendant asked if the court would "continue to give me time to help my behalf." The court denied his request, stating "[w]e just had a discussion about how timely your request is and we're in the middle of trial now."

¶14 By choosing to postpone his request until after jury selection, defendant rendered his request untimely. Therefore, the trial court did not abuse its discretion when it initially denied defendant's request to represent himself. Id.; see also De Nistor, 143 Ariz. at 413, 694 P.2d at 243. Having determined that the court did not err when it initially denied defendant's request, we need not consider his additional claim that he was prejudiced by the court's delay in granting his request.

Waiver of Ineffective Assistance Claims

¶15 After defendant signed and presented a written waiver of counsel form, the trial court held an extensive colloquy with defendant and granted the waiver. Defendant now claims that his waiver of counsel was not "knowing and intelligent" because the court did not specifically advise him that he was also waiving his "constitutional right to the effective assistance of counsel standard to protect him from his error" — a right he would have on appeal if his attorney, and not he, committed any trial errors. He maintains that, absent this specific admonition, his waiver was not knowingly and intelligently made and reversal is required as a matter of law.

¶16 We review a trial court's determination that a defendant made a voluntary, knowing and intelligent waiver of his right to counsel for an abuse of discretion. State v. Dann, 220 Ariz. 351, 360, ¶ 25, 207 P.3d 604, 613 (2009). We review purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004).

¶17 "A prospective pro se litigant must understand (1) the nature of the charges against him, (2) the dangers and disadvantages of self-representation, and (3) the possible punishment upon conviction." Dann, 220 Ariz at 360, ¶ 24, 207 P.3d at 613 (citation omitted). "Although a court should warn of the dangers and disadvantages generally inherent in self-representation, . . . it is not reversible error to fail to warn of every possible strategic consideration." Id. (citation omitted). Whether a waiver of counsel is knowingly and intelligently made will depend, "in each case, upon the particular facts and circumstances surrounding that case." Edwards v. Arizona, 451 U.S. 477, 482 (1981) (internal quotation omitted).

¶18 Defendant cites no authority for his contention that a waiver of counsel cannot be valid unless the defendant is also informed that he is waiving "the constitutional protection of effective counsel standard" to protect him from his own errors. The lack of authority is not surprising. When a defendant elects to proceed without duly trained legal counsel, it is self-evident that such a defendant will have only himself to blame for any "ineffectiveness" that occurs at trial.

¶19 Moreover, the trial court made it clear to defendant that he alone would be responsible for the conduct of his defense. Before accepting defendant's waiver, the trial court counseled defendant that "[a]n attorney can be of great value and assistance to you in a criminal case" and that there were "serious dangers and disadvantages" to his representing himself. Despite this admonition, defendant confirmed his decision to represent himself "rather than have a trained attorney represent [him]." The trial court reviewed the "seriousness" of the charges and sentences defendant faced and informed defendant that if he represented himself he would have "the sole responsibility for among other things, the legal defenses, . . . cross-examination . . . and direct examination of the witnesses, doing your own legal research and arguing any motions in limine that could occur" and he would also be "responsible for giving your opening statement and your final argument to the jury." The trial court also advised defendant that he would be "held to the same standard as an attorney regarding the presentation of your case," including "knowledge of courtroom procedure, applicable case law[,] rule of evidence . . . and [] rule of criminal procedure." Throughout the colloquy, defendant avowed to the trial court that he understood the consequences involved but desired, nonetheless, to represent himself.

¶20 The trial court's colloquy in this case was more than sufficient to ensure that defendant's waiver of his right to counsel was knowingly and intelligently made. See Edwards, 451 U.S. at 482. The trial court was not required specifically to advise defendant that he was also waiving the right to effective assistance of counsel and any claims pertaining thereto. See Dann, 220 Ariz at 360, ¶ 24, 207 P.3d at 613. The trial court informed defendant that he would be held to the same standard as an attorney and assumed to know the applicable law, whether or not he did know it, and defendant expressly acknowledged and accepted those conditions in choosing to represent himself. Defendant acknowledged that he was choosing to forego any advantages inherent in representation by a "trained attorney." Nothing in the court's colloquy in any way could be interpreted to have misled defendant into believing that he would have a right to relief from conviction if his own self-representation proved ineffective. We find no error.

CONCLUSION

¶21 For the foregoing reasons, we affirm defendant's convictions and sentences.

MARGARET H. DOWNIE, Presiding Judge, MAURICE PORTLEY, Judge, concurring.