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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

MELISSA PAVEY, Appellant.

No. 1 CA-CR 21-0322 

Appeal from the Superior Court in Maricopa County

No. CR2018-001783-001

The Honorable Teresa A. Sanders, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Diane L. Hunt

Counsel for Appellee

Maricopa Public Defenders Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant

FILED 10-25-2022
STATE v. PAVEY

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Melissa Pavey appeals her convictions and argues the 

superior court denied her right to represent herself. For the following 

reasons, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

¶2 Pavey acquired a dental practice around 2016. Later, Pavey 

performed dental procedures without the required licensing and education.

Pavey also used the identities of dentists previously employed at the 

practice to obtain prescription medicine and bill for dental services. While 

performing and overseeing unlicensed procedures, Pavey caused many 

injuries, including the incorrect installment of a dental bridge that needed 

several repairs, an unfinished tooth alignment procedure, and an accidental 

tooth drilling. Pavey was arrested and charged with several crimes related 

to the dental practice. 

¶3 Because Pavey failed to pay attorney’s fees, her first private 

counsel withdrew. A court-appointed attorney took over representation.

Pavey then filed motions to dismiss her court-appointed counsel, appoint 

“stand-by” counsel, and represent herself. Counsel moved to withdraw

from the representation due to failed communication with Pavey and the 

judge granted counsel’s motion. The superior court judge told Pavey that 

she would be “better off with a lawyer than without one” because Pavey 

would be “expected to know the rules of evidence, the rules of procedure, 

the law, and be your own lawyer.” The judge then told Pavey she would 

appoint new counsel, and Pavey thanked the judge.

¶4 After spending some time working with her third attorney, 

Pavey again filed motions to dismiss counsel, appoint “stand-by” counsel, 

and represent herself. The judge said she would appoint Pavey new 

counsel, but it would be the last time. Pavey indicated that she understood. 

The judge said the new counsel could serve as advisory counsel to Pavey’s 

self-representation “depending [on] what the circumstances are,” but
STATE v. PAVEY

Decision of the Court

3

“highly recommended” assistance of counsel because of the complexity of 

Pavey’s charges. Pavey’s fourth counsel withdrew due to a conflict of 

interest. 

¶5 The court appointed fifth counsel. A jury then convicted 

Pavey of fraudulent schemes and artifices, aggravated assault, theft, three 

counts of assault, and taking the identity of another person. At the 

sentencing hearing Pavey stated that she no longer wanted the assistance 

of fifth counsel and expressed dissatisfaction with this counsel’s failure to 

file a motion to stop trial on day four. The court did not dismiss Pavey’s

counsel and moved forward with sentencing. Pavey received the minimum

sentence on each count. Pavey appealed, contending the superior court

denied her right to represent herself three times. We have jurisdiction 

pursuant to A.R.S. § 12-120.21(A)(1) and § 13-4031.

DISCUSSION

I. Right to Self-Representation

¶6 The United States Constitution and the Arizona Constitution 

guarantee criminal defendants the right to self-representation. Faretta v. 

California, 422 U.S. 806, 819 (1975); Ariz. Const. art. 2, § 24; State v. McLemore, 

230 Ariz. 571, 575, ¶ 14 (App. 2012). The right to counsel may be waived if 

the waiver is in writing and the trial court determines it is knowing, 

intelligent, and voluntary. Ariz. R. Crim. P. 6.1(c). A self-representation 

request is considered timely if it is made “before the jury is empaneled.” 

State v. Lamar, 205 Ariz. 431, 436, ¶ 22 (2003). The trial court has discretion 

when ruling on an untimely motion for self-representation. State v. De 

Nistor, 143 Ariz. 407, 412–13 (1985). When a defendant timely and 

unequivocally invokes the right to proceed pro per, the court must do its

protective duty “to ascertain whether the defendant has the capacity, and 

chooses, to make a knowing, intelligent, voluntary, and thus, constitutional 

waiver of the right to counsel.” McLemore, 230 Ariz. at 577, ¶ 21.

¶7 If a motion for self-representation is abandoned or 

withdrawn, the court need not do its “protective duty.” Id. at 579, ¶ 25. We

look at the totality of the circumstances to determine whether a defendant 

intended to abandon a motion for self-representation. Id. at 580, ¶ 29.

Relevant factors include: “a consideration of the defendant’s opportunities 

to remind the court of a pending motion, defense counsel’s awareness of 

the motion, any affirmative conduct by the defendant that would run 

counter to a desire for self-representation, whether the defendant waited 

until after a conviction to complain about the court’s failure to rule on his 
STATE v. PAVEY

Decision of the Court

4

or her motion . . ., and the defendant’s experience with the criminal justice 

system and waiving counsel.” Id. at 582, ¶ 35.

A. First Pro Per Attempt

¶8 Pavey alleges that she moved to represent herself three times.

The first time, Pavey moved to dismiss her second counsel and have “standby” counsel appointed so she could proceed pro per. This first motion was 

timely because it came before trial and triggered the superior court’s 

“protective duty.” Id. at 579, ¶ 25. Rather than conduct the inquiry, the 

superior court explained to Pavey why retaining counsel was the more 

prudent choice and appointed new counsel.

¶9 The court should have held a hearing to determine the 

authenticity of Pavey’s desire to self-represent. But Pavey abandoned the 

motion. One of the relevant factors in our totality of the circumstances 

analysis includes “affirmative conduct by the defendant that would run 

counter to a desire for self-representation.” Id. at 582, ¶ 35. When the judge

appointed new counsel, Pavey thanked the judge and began working with 

her third attorney. Pavey showed no conduct indicating a continuing intent 

to proceed pro per. The record shows that she intended to abandon her first 

attempt to proceed pro per. See id. at 579, ¶ 25.

B. Second Pro Per Attempt

¶10 Pavey then filed a motion to dismiss her third counsel, have 

“stand-by” counsel appointed, and proceed pro per. Her motion was timely 

and should have triggered the superior court’s “protective duty.” See id. at 

577, ¶ 21. The judge again advised having counsel and informed Pavey this 

would be the last counsel appointment, but this fourth counsel could serve 

in an advisory role.

¶11 After her fourth counsel withdrew due to a conflict of interest, 

Pavey worked with fifth counsel through the conclusion of trial. Pavey

again showed a lack of intent to proceed pro per—she did not demonstrate 

a desire for new counsel or that she intended any new counsel to serve only 

as advisory. See id. at 580, ¶ 29. Pavey thus abandoned her second motion 

to proceed pro per.

C. Third Pro Per Attempt

¶12 At the sentencing hearing, Pavey made her last attempt to 

proceed pro per. A defendant must make a request to proceed pro per

unequivocally. Lamar, 205 Ariz. at 436, ¶ 22. Pavey’s request to represent 
STATE v. PAVEY

Decision of the Court

5

herself at sentencing was for the purpose of challenging her convictions 

rather than litigating the sentencing phase of her case. At the hearing, Pavey 

only voiced her concerns about the trial process rather than sentencing 

issues. The court noted that she could file an action for post-conviction relief 

to address those concerns. Based on Pavey’s statements, she did not intend 

to proceed pro per for the purposes of the sentencing hearing and did not 

unequivocally assert the right to self-representation. She only sought to 

explain why she thought the trial process was unfair. And there is no 

indication that Pavey’s lack of ability to represent herself negatively 

contributed to her sentencing: she received the most favorable outcome 

available at the sentencing phase. The record does not establish that the 

court abused its discretion in denying her third request.

CONCLUSION

¶13 We affirm.