NOT FOR PUBLICATION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, Steve Gorman was convicted of one count each of aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with a blood alcohol content (BAC) of .08 or more while his license was suspended, and one count each of aggravated DUI and aggravated driving with a BAC of .08 or more after having committed two or more prior DUI offenses within eighty-four months. See A.R.S. §§ 28-1381, 28-1383. The trial court suspended the imposition of sentence and placed Gorman on concurrent, three-year terms of probation, ordering him to serve four months in jail as a condition of probation. See A.R.S. § 28-1383. On appeal, Gorman argues the court violated his right to counsel when it denied his motion to continue the trial to allow his privately-retained attorney time to prepare. He also contends the evidence was insufficient to support the two convictions based on prior DUI offenses.

Factual and Procedural Background

¶1 On appeal, we view the facts in the light most favorable to upholding the convictions. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). In May 2011, a police officer stopped Gorman for a traffic infraction. When the officer spoke with him, he noticed a strong odor of intoxicants and several other signs of impairment. Gorman also exhibited signs of intoxication when asked to perform field sobriety tests. Gorman's blood was later drawn pursuant to a search warrant, and his blood sample ultimately revealed a BAC of .12.

¶2 Five days before trial was scheduled to begin, Gorman filed a motion requesting that the trial be continued. According to his motion, a private attorney he sought to substitute for his appointed counsel needed time to prepare Gorman's defense. That afternoon, the trial court issued an order instructing the private attorney to file "a `signed statement' that he `w[ould] be prepared for trial'" on the scheduled date, citing Ariz. R. Crim. P. 6.3(c), and setting a status conference for the following day. Neither Gorman nor the assigned prosecutor attended the status conference. The court denied the motion but also instructed the parties to return the following Monday, the day before trial was set to begin, to re-argue the issue with all parties present. At the conclusion of the second hearing, the court again invoked Rule 6.3(c), denying Gorman's motion on grounds that it was "bound by" the Rule. The case proceeded to trial with Gorman's appointed counsel, and he was convicted and sentenced as set forth above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Prior Convictions

¶3 We first address Gorman's argument that his convictions on counts three and four must be reversed because they are not supported by the evidence presented at trial. Count three alleged "aggravated DUI having committed or been convicted of two or more prior DUI violations" and count four alleged "aggravated driving with an alcohol concentration of 0.08 or more, having committed or been convicted of two or more prior DUI violations." In support of these charges, the state alleged Gorman had a prior Arizona DUI conviction, and another he had received in Nevada. See A.R.S. § 28-1383(A)(2) (aggravated driving charge may be supported by "acts in another jurisdiction that if committed in this state would be a violation of [Arizona DUI statutes]").

¶4 The evidence adduced at trial did not establish which subsection of Nevada's DUI statute Gorman had violated. The Nevada judgment of conviction cited only the general statute, N.R.S. § 484.379,1 which at that time read:

As the state concedes, "there are scenarios under which it would have been legally possible for [Gorman] to have been convicted of a violation of N.R.S. § 484.379 but not of A.R.S. § 28-1381," which defines DUI offenses in Arizona. Indeed, as we noted in State v. Moran, "there are at least two ways in which a conviction under [N.R.S. § 484.379(1)] does not achieve `strict conformity' with" Arizona statutes. 232 Ariz. 528, ¶ 17, 307 P.3d 95, 101 (App. 2013), quoting State v. Crawford, 214 Ariz. 129, ¶ 7, 149 P.3d 753, 755 (2007) ("strict conformity" between Arizona and foreign statute required for sentencing enhancement purposes).2

¶5 First, a DUI based on alcohol concentration in Nevada does not require proof of the relative time of consumption. Id. ¶ 18. Unlike in Arizona, where the state must prove a defendant's alcohol concentration results from alcohol consumed either "before or while driving or being in actual physical control of the vehicle," A.R.S. § 28-1381(A)(2), Nevada law requires only that a person be "`found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his blood or breath.'" Moran, 232 Ariz. 528, ¶ 19, 307 P.3d at 102, quoting N.R.S. § 484.379(1)(c).

¶6 The second distinction between the two statutes involves the meaning of the phrase, "actual physical control." Id. ¶ 20. While both states employ totality-of-the-evidence tests to determine this issue, Arizona additionally requires the fact-finder to determine that a DUI defendant "`actually posed a threat to the public'" before a finding of actual physical control can be made. Id. ¶ 20, quoting State v. Zaragoza, 221 Ariz. 49, ¶ 21, 209 P.3d 629, 634 (2009). The state recognizes these disparities and candidly acknowledges its failure of proof on the aggravated charges alleged in counts three and four. The state likewise concedes that a conviction for which an element of the offense was not proved cannot be sustained. See State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005). Accordingly, Gorman's convictions and sentences on these counts must be reversed.

Right To Counsel

¶7 Citing the Sixth and Fourteenth Amendments of the United States Constitution, Gorman also argues the trial court violated his right to counsel when it denied his motion to continue the trial so his new attorney3 could prepare. In response, the state emphasizes the discretion afforded to courts in this context, and contends that Rule 6.3(c) was an appropriate basis for the court's decision. On review, we examine the court's factual determinations relating to Gorman's motion for an abuse of discretion, but apply a de novo standard to its interpretation of his constitutional rights. State v. Parker, 231 Ariz. 391, ¶ 8, 296 P.3d 54, 61 (2013); see also Robinson v. Hotham, 211 Ariz. 165, ¶ 9, 118 P.3d 1129, 1132 (App. 2005).

¶8 "`[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel . . . .'" State v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App. 2009), quoting Robinson, 211 Ariz. 165, ¶ 16, 118 P.3d at 1133. Nevertheless, this right "is not absolute, but is subject to the requirements of sound judicial administration." State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358, 1367 (1983). "A trial court has `wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.'" Aragon, 221 Ariz. 88, ¶ 5, 210 P.3d at 1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). In weighing these competing interests, courts must consider

Hein, 138 Ariz. at 369, 674 P.2d at 1367.

¶9 The trial court did not address these factors in its initial ruling on Gorman's motion or at either of the two hearings where the motion was addressed, even though Gorman had invoked his right to an "attorney of his choice."4 Instead, it limited its analysis to the application of Rule 6.3(c), which provides that "[n]o attorney shall be permitted to withdraw after a case has been set for trial except upon motion accompanied by . . . a signed statement by the substituting attorney that he or she is advised of the trial date and will be prepared for trial." This analysis was flawed, however, because Rule 6.3(c) is not a bar to the exercise of a defendant's constitutional right to counsel of choice. See Aragon, 221 Ariz. 88, ¶ 8, 210 P.3d at 1262.

¶10 In Aragon, we found the trial court had violated the defendant's constitutional right to counsel by focusing solely on its own scheduling concerns before denying a motion to continue made six days before trial. Id. ¶ 2. Because it also appeared the court had relied on Rule 6.3(c),5 we addressed perceived tension between that rule and the right to counsel. We first noted that the rule "is primarily intended to protect" defendants' interests and then observed that the appointed attorney had attempted to withdraw at the defendant's behest. Id. ¶ 8. Ultimately, we declined to "`elevat[e a] technical requirement" above defendant's constitutional right to counsel of his choice, id., quoting State v. Coghill, 216 Ariz. 578, ¶ 44, 169 P.3d 942, 953 (App. 2007), and concluded the court's denial was "`unreasoning[,] . . . arbitrary' . . . [and] without due regard" for defendant's rights, id. ¶ 9, quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983).

¶11 Here, as in Aragon, appointed counsel did not seek to withdraw of his own volition but rather did so at the request of a defendant seeking to replace him with a private attorney. Under these circumstances, the requirements of Rule 6.3(c) give way to the analysis set forth in Hein, 138 Ariz. 360, 674 P.2d 1358, which properly accounts for the constitutional concerns associated with a defendant's right to counsel. Aragon, 221 Ariz. 88, ¶ 8, 210 P.3d at 1262. Had the trial court applied that analysis, it likely would have found a continuance warranted, as nearly all of the Hein factors appear to favor Gorman. See Hein, 138 Ariz. at 369, 674 P.2d at 1367. The state did not dispute that this was Gorman's first request for a continuance. Nor did it argue that the case was particularly complex or that a continuance would have substantially inconvenienced the witnesses. The reason cited for Gorman's request was legitimate, see Robinson, 211 Ariz. 165, ¶ 14, 118 P.3d at 1133, and the length of delay was unknown.6 Finally, the fact that a competent public defender was available to try the case on the appointed date cannot, standing alone, justify the denial of a request to continue aimed at facilitating the substitution of counsel. See Aragon, 221 Ariz. 88, ¶ 6, 210 P.3d at 1261-62.

¶12 As the only factor cited by the trial court here was Rule 6.3(c), we conclude it failed to properly balance the need for sound judicial administration against Gorman's constitutional right to counsel. See Hein, 138 Ariz. at 369, 674 P.2d at 1367. In addition, the court's decision was a product of its mistaken belief that Rule 6.3(c) precludes a continuance where a defendant seeks to replace his counsel. The resultant denial of Gorman's constitutional right to counsel of choice constitutes structural error. See Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262 ("`erroneous deprivation of the right to counsel of choice . . . unquestionably qualifies as structural error'"), quoting Gonzalez-Lopez, 548 U.S. at 150. Accordingly, Gorman's convictions and sentences on counts one and two must be vacated, and the matter remanded for a new trial.

Disposition

¶13 For the foregoing reasons, we reverse Gorman's convictions and sentences on counts three and four, vacate his convictions for counts one and two, and remand the case for a new trial on the latter counts.