NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ESPINOSA, Judge.

¶ 1 After a jury trial, Robert Ergonis was found guilty of kidnapping, aggravated assault, armed robbery, assault and aggravated robbery. The trial court imposed a combination of concurrent and consecutive terms totaling 22.5 years' imprisonment and entered a criminal restitution order. On appeal, Ergonis urges his convictions be vacated based on alleged violations of his right to counsel and related improprieties by the trial court. He also challenges his sentence as unconstitutionally exceeding the range discussed at his Donald1 hearing. For the following reasons, we affirm in part and vacate in part.

Factual and Procedural Background

¶ 2 We view the facts in a light most favorable to sustaining the verdicts. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). In December 2007, Ergonis and three other individuals abducted and robbed J.C. In March 2008, a grand jury indicted Ergonis and the others on charges of kidnapping, aggravated assault, armed robbery, and aggravated robbery. With the exception of Ergonis, all entered into agreements with the state and pled guilty to certain charges. Ergonis was convicted as charged on four of the five counts, was convicted of the lesser-included offense of assault on one count of aggravated assault, and was sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

Pre-Trial Representation

¶ 3 Ergonis first argues the trial court and state engaged in "unlawful ex parte communication that compromised his right to counsel," and his convictions should be vacated as a result. According to Ergonis, "[t]he ex parte communication at issue here stems from the repeated changes in counsel that occurred at the outset of this case."

¶ 4 Ergonis's first appointed trial counsel was Jordan Cohen of the Pima County Legal Defender's Office. Cohen withdrew citing a conflict of interest, and the court appointed Harold Higgins Jr. to represent Ergonis. Approximately two months later, Higgins moved to withdraw on grounds of a heavy caseload, a potential conflict of interest, and because of "very significant disagreements" with Ergonis which left the attorney-client relationship "irretrievably shattered." The court granted the motion and appointed Brick Storts. He too subsequently moved to withdraw citing "irreconcilable differences and conflicts" and asserting his belief that Ergonis "is, has and will continue to express displeasure [with] his representation." Ergonis's next counsel was Janet Altschuler, who was allowed to withdraw based on a potential conflict of interest, leading to the appointment of Leo Plowman. Approximately one month after that appointment, Ergonis filed a pro se request to have Plowman removed due to a conflict of interest. Plowman filed a motion to withdraw that same day, citing irreconcilable differences.

¶ 5 At a hearing on February 9, 2009, Plowman informed the court there was no way he could "effectively represent" Ergonis. The court permitted Plowman to withdraw, but stated:

After the court said it would appoint yet another lawyer, Ergonis reported that his "family [had] been contacting some of the OCAC2 appointed counsel . . . to find people that have the time to represent [him]." The court replied: "I'm contacting OCAC as well. I'm not going to have your family call my office and say we recommend you appoint so-and-so from the OCAC list." Ergonis responded: "This is entirely up to you. I'm letting you know one of the persons was Paul Gattone who said he has time to properly represent me if he was appointed by OCAC, that he would have time for the appointment."

¶ 6 Two days later at a status conference where Ergonis represented himself, the court informed him it had contacted OCAC and had been told that Ergonis's mother "called over there . . . on more than one occasion asking who the possible attorneys were to represent you." It noted two attorneys subsequently had received electronic mail ("e-mail") saying, "if the office of appointed counsel offers you an appointment to my case, please reject the appointment. Sincerely, Robert Ergonis," and another attorney had received a telephone call from Ergonis's mother and thereafter declined to represent him. Ergonis denied knowing his mother had called the OCAC. The court then appointed Natalie Prince, finding that Ergonis or his family had compromised the remaining people on the list.

¶ 7 In early March, the trial court issued an in-chambers notice stating:

Later that month, Prince moved to withdraw, stating Ergonis had "sent a letter to the Court making false accusations . . . and asking the court that counsel be removed," and she had "clearly articulated" to Ergonis "that if she is removed, [he] will be representing himself in pro per." The court granted Prince's motion to withdraw and set a hearing pursuant to State v. Rasul, to determine whether Ergonis had forfeited his right to counsel. 216 Ariz. 491, ¶ 17, 167 P.3d 1286, 1290 (App. 2007) (right to counsel may be forfeited by defendant's egregious conduct).

¶ 8 At the June 2009 Rasul hearing, Gattone made a limited appearance on behalf of Ergonis and inquired about the information provided to the court by the OCAC. The court responded that after the OCAC reported its attorneys had received e-mails from Ergonis, court staff contacted the attorneys regarding the e-mails. The court also noted the jail had contacted the court in connection with a tape-recorded telephone call made by Ergonis,3 which was transcribed and "disclosed . . . to . . . everybody."

¶ 9 About a month later, Gattone, on behalf of Ergonis, filed a "memorandum" requesting the Rasul proceedings be vacated and trial counsel be appointed to Ergonis or the trial judge recuse himself. In support, he noted he had been informed "[the prosecutor] and Judge Nichols had been discussing this matter and who could be appointed to represent [Ergonis] at the hearing," and he asserted the court had "taken an active role in the investigation" relating to the Rasul hearing. Gattone also stated he was "willing and available to accept" appointment as Ergonis's trial counsel.

¶ 10 At the September 2009 continued Rasul hearing, the court indicated that if Gattone were appointed as trial counsel, the issue of whether Ergonis had forfeited his right to counsel would be moot. Gattone noted that Ergonis and he "h[ad] spoken of [his representing Ergonis] []as a possible outcome." Ergonis stated he had no reservations "at this time" with Gattone representing him, and the court made a record of the appointment.

¶ 11 In October 2010, less than one week before trial, Ergonis filed a pro se "motion to dismiss unlawfully appointed counsel" citing "actual irreconcilable conflict of interest." Gattone also moved to withdraw from representation, stating: "It is clear that the relationship between Counsel and Defendant Ergonis is irretrievably broken and that it will not be possible for them to work together in this matter in the future." After a two-day hearing, the trial court denied both motions.4

Ex Parte Communication Allegation

¶ 12 Ergonis contends the trial court "communicated unlawfully" with the prosecutor when the court and the prosecutor discussed Ergonis's representation. As Ergonis observes, ex parte communications by a judge are generally prohibited. Ariz. Code of Jud. Conduct 2.9, Ariz. R. Sup. Ct. 81. However, "[a] new trial based on an ex parte communication is required only if 1) the communication creates the appearance of bias, impropriety, or favoritism, such that it `threaten[s] the integrity of the judicial process,' and 2) the person asserting error was prejudiced." Taylor-Bertling v. Foley, 233 Ariz. 394, ¶ 11, 313 P.3d 537, 541 (App. 2013), quoting McElhanon v. Hing, 151 Ariz. 403, 411-13, 728 P.2d 273, 281-83 (1986).

¶ 13 We see nothing in the record suggesting bias, impropriety, or favoritism by the trial court. Id. ¶ 12. Like Taylor-Bertling, this is not a case in which a judge became "`so personally involved'" that there was "`an appearance of hostile feeling, ill will, or favoritism toward one of the litigants.'" Id., quoting McElhanon, 151 Ariz. at 411, 728 P.2d at 281. As noted above, Ergonis had provided Gattone's name to the court in connection with representing him, and Gattone was the sole attorney suggested by Ergonis. Some time later, the court apparently asked the prosecutor at a hearing whether he would contact Gattone about representing Ergonis at his Rasul proceeding. Gattone and Ergonis subsequently agreed to the limited representation. And, as observed previously, the court ultimately set aside the question of whether Ergonis had forfeited his right to trial counsel under Rasul and appointed Gattone, who then represented Ergonis for over a year.5 We see no indication of hostility, ill will, or favoritism on the part of the trial judge.6 McElhanon, 151 Ariz. at 411, 728 P.2d at 281.

¶ 14 Nor does the record demonstrate Ergonis was prejudiced. The Arizona Code of Judicial Conduct permits ex parte communication "[w]hen circumstances require it . . . for scheduling, administrative, or emergency purposes, which does not address substantive matters" provided no party gains an advantage and all are provided an opportunity to respond. Ariz. Code of Jud. Conduct 2.9(A)(1), Ariz. R. Sup. Ct. 81. Here the communication was made in an attempt to provide Ergonis with his preferred counsel for his Rasul hearing, representation he accepted, and it did not involve the merits of the adjudication.

Improper Investigation Claim

¶ 15 Ergonis also contends the trial court inappropriately "took an active role into an investigation as to whether Mr. Ergonis had conducted himself in such a manner so as to waive his right to counsel" in violation of Code of Jud. Conduct 2.9(C), Ariz. R. Sup. Ct. 81 ("[e]xcept as otherwise provided by law, a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed"). He claims the court's investigation involved "obtaining a jail phone call from Mr. Ergonis to his mother, requesting that the Arizona Attorney General's Office transcribe that phone conversation, and questioning Mr. Ergonis regarding his and/or his family's conduct with respect to appointed counsel."

¶ 16 We see no evidence that the court investigated facts independently. The telephone call from Ergonis to his mother came to the judge's attention through a call from the jail, apparently after a corrections officer who had been in the courtroom informed his superior at the jail of Ergonis's statements in court.7 The court obtained the recording and had it transcribed and distributed to the parties, as provided by Arizona Code of Judicial Conduct 2.9(B) ("If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision to promptly notify the parties of the substance of the communication and provide the parties with an opportunity to respond."). And we see no reason to discredit the evidence that the jail initiated the contact with the court about the telephone call, nor any reason to doubt that the court simply provided the substance of the communication to the parties by having the recording transcribed. Further, the court's questioning of Ergonis during a hearing in which he represented himself cannot qualify as independent investigation by the court when it made its queries to a party in open court, on the record. See Ariz. Code of Jud. Conduct 2.9, Ariz. R. Sup. Ct. 81 (governing "ex parte communication"); Black's Law Dictionary 657 (9th ed. 2009) (defining "ex parte" as "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other").

Sixth Amendment Claim and Trial Counsel

¶ 17 Ergonis next asserts the "trial court violated his Sixth Amendment rights in compelling him to proceed to trial represented by an attorney with whom he had an irretrievably broken relationship." We review the court's decision on a motion to substitute counsel for an abuse of discretion. State v. Moody, 192 Ariz. 505, ¶ 11, 968 P.2d 578, 580 (1998).

¶ 18 The Sixth Amendment affords a criminal defendant the right to representation by competent counsel. U.S. Const. amend. VI; see also Ariz. Const. art. II, § 24; A.R.S. § 13-114(2). An indigent defendant, however, "`is not entitled to counsel of choice, or to a meaningful relationship with his or her attorney.'" 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). Thus, when considering a request for new counsel, the trial court must "balance the rights and interests of a defendant with judicial economy." Moody, 192 Ariz. 505, ¶ 11, 968 P.2d at 580. Proper analysis requires consideration of these factors:

Id., quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987).

¶ 19 The presence of a genuine irreconcilable conflict, unlike the other factors, requires the appointment of new counsel. State v. Henry, 189 Ariz. 542, 547, 944 P.2d 57, 62 (1997). To demonstrate irreconcilable conflict, "a defendant's allegations must go beyond personality conflicts or disagreements with counsel over trial strategy." State v. Cromwell, 211 Ariz. 181, ¶ 30, 119 P.3d 448, 454 (2005). The defendant bears the burden of presenting evidence of a "severe and pervasive conflict with his attorney." Hernandez, 232 Ariz. 313, ¶ 15, 305 P.3d at 383, quoting U.S. v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). Repeated claims of "irreconcilable conflict" and a proclivity to change counsel "lend[] strong support" to a court's decision to deny a motion to substitute counsel. Henry, 189 Ariz. at 547, 944 P.2d at 62. "Conflict that is less than irreconcilable. . . is only one factor for a court to consider in deciding whether to appoint substitute counsel." Cromwell, 211 Ariz. 181, ¶ 29, 119 P.3d at 453.

¶ 20 As noted above, less than one week before his trial was set to commence, Ergonis filed a pro se motion to dismiss Gattone, his seventh appointed attorney, for an alleged "irreconcilable conflict of interest," followed by a motion to withdraw from Gattone. The trial court held a two-day hearing, admitted documents under seal, and heard directly from Ergonis. In its ruling, the court expressly cited the seven Moody factors and then denied Ergonis's motion to dismiss and Gattone's motion to withdraw.

¶ 21 Ergonis asserts the trial court abused its discretion in applying three Moody factors. He first disputes the court's conclusion as to the initial factor, "irreconcilable conflict" between counsel and accused, arguing its finding that Gattone "had pursued many . . . arguments [advocated specifically by Ergonis]" was "unsupported by the record." However, as the state points out, Ergonis cites nothing to dispute the court's ruling. And, while he asserts "what the record indicates is that [Gattone] frequently ignored Mr. Ergonis, all the while informing [him] that he was adopting and filing the motions," he again fails to refer to the record. Further, the "specific pieces of inaction" that "led to the broken relationship," cited by Ergonis in his opening brief—arguments Ergonis wished Gattone to advance that Gattone apparently rejected—merely reflect differences in legal strategy,8 which is insufficient to establish an irreconcilable conflict. See Cromwell, 211 Ariz. 181, ¶ 30, 119 P.3d at 454; cf. Moody, 192 Ariz. 505, ¶ 16, 968 P.2d at 581 (irreconcilable conflict where defendant and attorney "`almost at blows'" and "`antagonistic towards each other'").

¶ 22 Ergonis next asserts he would not have had the same conflict had his counsel been other than Gattone, implicating the second Moody factor. He states "the conflict was Mr. Ergonis's desire for Mr. Gattone to pursue what he believed to be outrageous conduct by the State and that Mr. Gattone failed to do so." However, like Ergonis's previous argument and as noted by the state, "[t]his is just another disagreement over strategy and does not constitute an irreconcilable conflict."

¶ 23 Ergonis further faults the trial court for observing, in reference to the sixth Moody factor, "proclivity to change counsel," that six previous attorneys had represented him prior to Gattone. He argues:

The court, however, acknowledged that "others [of Ergonis's attorneys] have requested to be removed because of conflicts." The court could properly observe that "[s]ome of those [six] attorneys the defendant has requested to have removed; . . . that factor balances in favor of denying the motion." See Henry, 189 Ariz. at 547, 944 P.2d at 62.9

¶ 24 We discern no error in the trial court's balancing of relevant interests. There was no irreconcilable conflict between Gattone and Ergonis; rather the friction between them was a result of disagreements as to trial strategy. Further, Ergonis had significant disagreements with four prior attorneys leading to the attorneys' withdrawal. See Henry, 189 Ariz. at 547, 944 P.2d at 62. Accordingly, the court did not abuse its discretion in denying Ergonis new counsel.

Hybrid Representation Claim

¶ 25 Ergonis next argues the trial court "denied [him] the ability to represent himself along with counsel as the Arizona Constitution specifically provides." He points out that in February 2009, the court stated:

However, between February 2009 and December 2010, Ergonis acknowledges filing "numerous pro se motions." At least one, filed while he was represented by Gattone, was considered by the court, while another was excluded from consideration because it conflicted with Gattone's opinion on the matter.

¶ 26 The Arizona Constitution provides a criminal defendant the right "to appear and defend in person, and by counsel." Ariz. Const. art. II, § 24. We review constitutional claims de novo. State v. Nordstrom, 230 Ariz. 110, ¶ 38, 280 P.3d 1244, 1252 (2012). Ergonis contends he was entitled under the Arizona Constitution to "defend himself in person and by counsel." The representation he describes is termed "hybrid representation," and involves concurrent or alternate representation by both defendant and counsel. State v. Murray, 184 Ariz. 9, 27, 906 P.2d 542, 560 (1995). There is, however, no constitutional or other right to hybrid representation. Id. "Whether to allow such . . . representation remains within the sound discretion of the trial judge."10 State v. Cornell, 179 Ariz. 314, 325, 878 P.2d 1352, 1363 (1994). Thus, Ergonis had no right to hybrid representation and he has demonstrated no abuse of discretion in the court's February 2009 decision to deny it to him. And despite the court's statements, it apparently chose to consider some of his pro se motions as it deemed appropriate. We see no error to Ergonis's detriment in its doing so.

Donald Hearing and Sentencing

¶ 27 Ergonis lastly asserts his sentence is unconstitutional, "as it exceeded the possible sentence explained at the Donald hearing/settlement conference." He contends "[i]n total" that proceeding, a de facto Donald hearing, was "quite ambiguous with respect to [his] potential sentence." Ergonis identifies as "the clearest explanation of the possible sentence" the settlement court's statement that "if you go to trial and lose, you're talking about a three year difference [from] when you plead guilty." According to Ergonis:

He thus asserts the court gave him "erroneous information with respect to the potential consequences of proceeding to trial," which caused him to reject a favorable plea offer "because he was reasonably and wrongly of the belief that he would only face three additional years in prison were he to reject the plea, go to trial, and be convicted."

¶ 28 We note that when the trial court commented that Ergonis risked a possible three-year increase in his sentence if he lost at trial versus taking the plea offer, the court was assuming concurrent, presumptive sentences, and said so. Further, the state is correct that the sentences ultimately imposed by the court were lawful, and Ergonis does not maintain otherwise. As the state observes: "Ergonis does not contend that his consecutive sentences were imposed in error, nor does he contend [they] were improperly aggravated or enhanced."

¶ 29 To the extent Ergonis argues the settlement court misled him about the sentences he would face pursuant to the state's plea offer relative to going to trial, because he failed to object below to the court's characterization of these sentencing alternatives, we review the claim only for fundamental, prejudicial error. Cf. State v. Morales, 215 Ariz. 59, ¶ 11, 157 P.3d 479, 482 (2007) (court's failure to conduct required plea colloquy reviewed for fundamental error absent objection in trial court).

¶ 30 In Donald, this court recognized that a criminal defendant has no constitutional right to plea bargain, but concluded that, once the state engages in plea bargaining, "the defendant has a Sixth Amendment right to be adequately informed of the consequences before deciding whether to accept or reject the offer." 198 Ariz. 406, ¶ 14, 10 P.3d at 1200. Based on Donald's "sworn assertions and supporting documents," the court found he had "set forth a colorable claim"—in a post-conviction proceeding pursuant to Rule 32, Ariz. R. Crim. P.—"that his counsel provided deficient advice regarding the plea agreement and the consequences of conviction." Id. ¶ 19. The court explained Donald would be required, at a Rule 32 evidentiary hearing, "to establish prejudice in the rejection of a plea offer . . . [by] show[ing] `a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer' and declined to go forward to trial." Id. ¶ 20, quoting People v. Curry, 687 N.E.2d 877, 888 (Ill. 1997). Thus, our precedent recognizes that the loss of a favorable plea bargain may inflict a "constitutionally significant injury upon a defendant who has received a fair trial." Id. ¶ 1.

¶ 31 We are aware of no cases addressing the prejudice that must be shown when a defendant alleges that such an injury was caused by errors committed by a trial court, rather than by counsel.11 But in the analogous circumstance of a court's omissions during a colloquy with a pleading defendant, a showing of prejudice has been necessary, similar to that required in the Donald context. See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (pleading defendant who seeks reversal of his conviction on the ground of "plain error" violation of Rule 11, Fed. R. Crim. P., "must show a reasonable probability that, but for the error, he would not have entered the plea").

¶ 32 Here, even were he able to demonstrate that the settlement court erred, Ergonis cannot establish prejudice based on the record before us. "We . . . do not invite or consider evidence offered for the first time on appeal." State v. Carter, 216 Ariz. 286, ¶ 24, 165 P.3d 687, 692 (App. 2007). As a general rule, claims requiring evidence outside the record for their resolution must be raised in a Rule 32 proceeding. See State v. Allen, 223 Ariz. 125, ¶ 21, 220 P.3d 245, 249 (2009); State v. Cook, 170 Ariz. 40, 58-59, 821 P.2d 731, 749-50 (1991) ("It is . . . inappropriate for us to consider the fundamental error issue [raised] for the first time here; the trial court has not had the opportunity to conduct an evidentiary hearing on the question and to develop a record on the issue for us to examine on appeal.").12 We therefore do not further consider this claim.

Criminal Restitution Order

¶ 33 Finally, we address an issue that was neither raised below nor on appeal. Specifically, at the time of sentencing, the trial court entered an order that reduced "all fines, fees, assessments and/or restitution" to a criminal restitution order (CRO). The imposition of such an order prior to the expiration of Ergonis's sentence "`constitutes an illegal sentence, which is necessarily fundamental, reversible error.'"13 State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Accordingly, the CRO cannot stand.

Disposition

¶ 34 For the foregoing reasons, Ergonis's convictions and sentences are affirmed, except as to that portion of the trial court's order containing an unauthorized CRO, which is vacated.